1
CREDIT AGREEMENT
among
BLADE ACQUISITION CORP.,
HOWMET HOLDINGS CORPORATION
HOWMET CORPORATION
VARIOUS BANKS,
BANKERS TRUST COMPANY,
CITICORP USA, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as MANAGING AGENTS
BANKERS TRUST COMPANY,
as SYNDICATION AGENT,
CITICORP USA, INC.,
as DOCUMENTATION AGENT
and
THE FIRST NATIONAL BANK OF CHICAGO,
as ADMINISTRATIVE AGENT
Dated as of December 13, 1995
and
Amended and Restated as of December 5, 1996
2
TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit ................................. 1
1.01 The Commitments ............................................ 1
1.02 Minimum Amount of Each Borrowing ........................... 4
1.03 Notice of Borrowing ........................................ 4
1.04 Disbursement of Funds ...................................... 5
1.05 Notes ...................................................... 6
1.06 Conversions ................................................ 7
1.07 Pro Rata Borrowings ........................................ 8
1.08 Interest ................................................... 8
1.09 Interest Periods ........................................... 9
1.10 Increased Costs, Illegality, etc. .......................... 11
1.11 Compensation ............................................... 13
1.12 Change of Lending Office ................................... 13
1.13 Replacement of Banks ....................................... 14
SECTION 2. Letters of Credit .......................................... 15
2.01 Letters of Credit .......................................... 15
2.02 Letter of Credit Requests .................................. 17
2.03 Letter of Credit Participations ............................ 17
2.04 Agreement to Repay Letter of Credit Drawings ............... 19
2.05 Increased Costs ............................................ 20
SECTION 3. Commitment Commission; Fees; Reductions of Commitment ...... 21
3.01 Fees ....................................................... 21
3.02 Voluntary Termination of Unutilized Commitments ............ 22
3.03 Mandatory Reduction of Commitments ......................... 23
SECTION 4. Prepayments; Payments; Taxes ............................... 24
4.01 Voluntary Prepayments ...................................... 24
4.02 Mandatory Repayments and Commitment Reductions ............. 25
4.03 Method and Place of Payment ................................ 30
4.04 Net Payments; Taxes ........................................ 30
SECTION 5. Conditions Precedent to Loans on the Restatement Effective
Date ....................................................... 32
5.01 Execution of Agreement; Notes .............................. 33
(i)
3
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5.02 Fees, etc. ................................................. 33
5.03 Opinions of Counsel ........................................ 33
5.04 Corporate Documents; Proceedings; etc ...................... 33
5.05 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements;
Debt Agreements; Acquisition Documents; Tax Sharing
Agreements ................................................ 34
5.06 Subsidiaries Guaranty ...................................... 34
5.07 Pledge Agreement ........................................... 34
5.08 Security Agreement ......................................... 34
5.09 Mortgage Amendments; etc. .................................. 34
5.10 Consent Letter ............................................. 35
5.11 Adverse Change, etc. ....................................... 35
5.12 Litigation ................................................. 36
5.13 Solvency Certificate; Environmental Analyses; Insurance .... 36
5.14 Financial Statements; Projections .......................... 36
5.15 Senior Subordinated Indebtedness ........................... 37
5.16 Refinancing; Original Credit Agreement; etc. ............... 37
SECTION 6. Conditions Precedent to All Credit Events on and After the
Restatement Effective Date ................................. 38
6.01 No Default; Representations and Warranties ................. 38
6.02 Notice of Borrowing; Letter of Credit Request .............. 38
SECTION 7. Representations, Warranties and Agreements ................. 39
7.01 Corporate Status ........................................... 39
7.02 Corporate Power and Authority .............................. 39
7.03 No Violation ............................................... 39
7.04 Governmental Approvals ..................................... 40
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. ............................ 40
7.06 Litigation ................................................. 41
7.07 True and Complete Disclosure ............................... 42
7.08 Use of Proceeds; Margin Regulations ........................ 42
7.09 Tax Returns and Payments ................................... 42
7.10 Compliance with ERISA ...................................... 43
7.11 The Security Documents ..................................... 44
7.12 Representations and Warranties in Documents ................ 45
7.13 Properties ................................................. 45
(ii)
4
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7.14 Capitalization ............................................. 45
7.15 Subsidiaries ............................................... 46
7.16 Compliance with Statutes, etc. ............................. 46
7.17 Investment Company Act ..................................... 47
7.18 Public Utility Holding Company Act ......................... 47
7.19 Environmental Matters ...................................... 47
7.20 Labor Relations ............................................ 48
7.21 Patents, Licenses, Franchises and Formulas ................. 48
7.22 Indebtedness ............................................... 49
7.23 Special Purpose Corporations ............................... 49
SECTION 8. Affirmative Covenants ...................................... 49
8.01 Information Covenants ...................................... 49
8.02 Books, Records and Inspections ............................. 53
8.03 Maintenance of Property; Insurance ......................... 54
8.04 Corporate Franchises ....................................... 54
8.05 Compliance with Statutes, etc. ............................. 55
8.06 Compliance with Environmental Laws ......................... 55
8.07 ERISA ...................................................... 56
8.08 End of Fiscal Years; Fiscal Quarters ....................... 57
8.09 Performance of Obligations ................................. 57
8.10 Payment of Taxes ........................................... 57
8.11 Ownership of Subsidiaries .................................. 58
8.12 Additional Security; Further Assurances; Surveys ........... 58
8.13 Permitted Acquisitions and Certain Additional Capital
Expenditures .............................................. 60
8.14 Interest Payments on Parent PIK Subordinated Notes ............... 61
8.15 Maintenance of Corporate Separateness ...................... 61
8.16 Foreign Subsidiaries Security .............................. 62
8.17 Drawings on, and Replacements of, Acquisition Letters of
Credit .................................................... 62
SECTION 9. Negative Covenants ......................................... 63
9.01 Liens ...................................................... 63
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. .... 67
9.03 Restricted Payments ........................................ 70
9.04 Indebtedness ............................................... 72
9.05 Advances, Investments and Loans ............................ 75
(iii)
5
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9.06 Transactions with Affiliates ............................... 78
9.07 Capital Expenditures ....................................... 79
9.08 Consolidated Interest Coverage Ratio ....................... 79
9.09 Consolidated Fixed Charge Coverage Ratio ................... 80
9.10 Maximum Leverage Ratio ..................................... 80
9.11 Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc. .......................................... 80
9.12 Limitation on Certain Restrictions on Subsidiaries ......... 81
9.13 Limitation on Issuance of Capital Stock .................... 82
9.14 Limitation on Creation of Subsidiaries ..................... 82
9.15 Business ................................................... 83
SECTION 10. Events of Default .......................................... 83
10.01 Payments ................................................... 83
10.02 Representations, etc. ...................................... 83
10.03 Covenants .................................................. 83
10.04 Default Under Other Agreements ............................. 84
10.05 Bankruptcy, etc. ........................................... 84
10.06 ERISA ...................................................... 85
10.07 Security Documents ......................................... 85
10.08 Guaranty ................................................... 86
10.09 Judgments .................................................. 86
10.10 Change of Control .......................................... 86
10.11 Receivables Facility ....................................... 86
10.12 Installment Notes; Acquisition Letters of Credit ........... 86
SECTION 11. Definitions and Accounting Terms ........................... 87
11.01 Defined Terms .............................................. 87
SECTION 12. The Agents ................................................. 125
12.01 Appointment ................................................ 125
12.02 Nature of Duties ........................................... 125
12.03 Lack of Reliance on the Agents ............................. 125
12.04 Certain Rights of the Agents ............................... 126
12.05 Reliance ................................................... 126
12.06 Indemnification ............................................ 126
12.07 Each Agent in its Individual Capacity ...................... 127
12.08 Holders .................................................... 127
(iv)
6
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12.09 Resignation by the Agents .................................. 127
12.10 Removal of the Administrative Agent ........................ 128
SECTION 13. Miscellaneous .............................................. 128
13.01 Payment of Expenses, etc. .................................. 128
13.02 Right of Setoff ............................................ 129
13.03 Notices .................................................... 130
13.04 Benefit of Agreement ....................................... 130
13.05 No Waiver; Remedies Cumulative ............................. 132
13.06 Payments Pro Rata .......................................... 133
13.07 Calculations; Computations ................................. 133
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL ................................ 134
13.09 Counterparts ............................................... 135
13.10 Effectiveness .............................................. 136
13.11 Headings Descriptive ....................................... 136
13.12 Amendment or Waiver; etc. .................................. 136
13.13 Survival ................................................... 138
13.14 Domicile of Loans .......................................... 138
13.15 Limitation on Additional Amounts, etc. ..................... 138
13.16 Confidentiality ............................................ 139
13.17 Register ................................................... 139
13.18 Intercreditor Agreement .................................... 140
13.19 Obligation to Make Payments in Dollars ..................... 140
13.20 Addition of New Banks; Termination of Commitments of Non-
Continuing Banks; etc. ..................................... 140
13.21 Post Closing Actions ....................................... 142
14.01 The Parent Guaranty ........................................ 143
14.02 Bankruptcy ................................................. 144
14.03 Nature of Liability ........................................ 144
14.04 Independent Obligation ..................................... 144
14.05 Authorization .............................................. 144
14.06 Reliance ................................................... 146
14.07 Subordination .............................................. 146
14.08 Waiver ..................................................... 146
14.09 Maximum Liability .......................................... 147
(v)
7
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SCHEDULE I Commitments (Sections 3.02, 4.01, 11.01 ["Bank"; "New Bank";
"Revolving Loan Commitment"; "Term Loan Commitment"]; 13.04(b),
13.20(c))
SCHEDULE II Bank Addresses (Section 13.03)
SCHEDULE III Real Property (Sections 7.11(c), 7.13 ["Original Mortgaged
Property"])
SCHEDULE IV Liabilities (Section 7.05(c))
SCHEDULE V Projections (Sections 7.05(d), 7.22)
SCHEDULE VI Tax Matters (Section 7.09)
SCHEDULE VII ERISA (Section 7.10)
SCHEDULE VIII Subsidiaries (Sections 7.15, 11.01; ["Subsidiary Guarantor";
"Subsidiary Pledgor"])
SCHEDULE IX Holdings' Subsidiary Ownership Organizational Chart (Section
7.15)
SCHEDULE X Labor Relations (Section 7.20)
SCHEDULE XI Existing Indebtedness (Sections 7.22, 9.04(iii), 9.05(vii))
SCHEDULE XII Insurance (Section 8.03(a))
SCHEDULE XIII Existing Liens (Section 9.01(iii))
SCHEDULE XIV Management Fees (Section 9.06)
SCHEDULE XV Original Letters of Credit (["Original Letters of Credit"])
EXHIBIT A Notice of Borrowing (Section 1.03(a))
EXHIBIT B-1 Term Note(Section 1.05(a))
EXHIBIT B-2 Revolving Note (Section 1.05(a))
EXHIBIT B-3 Swingline Note (Section 1.05(a))
EXHIBIT C Letter of Credit Request (Section 2.02(a))
EXHIBIT D Section 4.04(b)(ii) Certificate (Section 4.04(b)(ii))
EXHIBIT E-1 Opinion of Special Counsel to the Borrower (Section 5.03)
EXHIBIT E-2 Opinion of General Counsel to the Borrower (Section 5.03)
EXHIBIT F Amended and Restated Subsidiaries Guaranty (Section 5.06)
EXHIBIT G Amended and Restated Pledge Agreement (Section 5.07)
EXHIBIT H Amended and Restated Security Agreement (Section 5.08)
EXHIBIT I Consent Letter (Section 5.10)
EXHIBIT J Solvency Certificate (Section 5.13)
EXHIBIT K Assignment and Assumption Agreement (Sections 1.13, 11.01
["Assignment and Assumption Agreement"])
EXHIBIT L Amended and Restated Intercreditor Agreement (Section 13.18)
(vi)
8
CREDIT AGREEMENT, dated as of December 13, 1995 and amended and restated
as of December 5, 1996, among BLADE ACQUISITION CORP., a Delaware corporation
("Holdings"), HOWMET HOLDINGS CORPORATION (f/k/a PECHINEY CORPORATION), a
Delaware corporation ("Parent"), HOWMET CORPORATION, a Delaware corporation (the
"Borrower"), the Banks party hereto from time to time, BANKERS TRUST COMPANY,
CITICORP USA, INC. and THE FIRST NATIONAL BANK OF CHICAGO, as Managing Agents
(in such capacity, collectively, the "Managing Agents," and each a "Managing
Agent"), BANKERS TRUST COMPANY, as Syndication Agent (in such capacity, the
"Syndication Agent"), CITICORP USA, INC., as Documentation Agent (in such
capacity, the "Documentation Agent") and THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent (in such capacity, the "Administrative Agent") (all
capitalized terms used herein and defined in Section 11 are used herein as
therein defined).
WITNESSETH:
WHEREAS, Holdings, Parent, the Borrower, the Original Banks, Bankers Trust
Company, Citicorp USA, Inc. and The First National Bank of Chicago, as Managing
Agents, Bankers Trust Company, as Syndication Agent, Citicorp USA, Inc., as
Documentation Agent and The First National Bank of Chicago, as Administrative
Agent are parties to a Credit Agreement, dated as of December 13, 1995 (as the
same has been amended, modified or supplemented to, but not including, the
Restatement Effective Date, the "Original Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Original Credit
Agreement in the form of this agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Original Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions set
forth herein, each Bank with a Term Loan Commitment severally agrees (A) in the
case of each Continuing Bank, to convert into Term Loans (as hereinafter
defined), on the Restatement Effective Date, Original Tranche A Term Loans made
by such Continuing Bank pursuant to the Original Credit Agreement and
outstanding on the Restatement
9
Effective Date in an aggregate principal amount equal to the lesser of (x) the
aggregate principal amount of such Original Tranche A Term Loans made by such
Continuing Bank and so outstanding or (y) such Continuing Bank's Term Loan
Commitment as in effect on the Restatement Effective Date (before giving effect
to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after
giving effect to any reductions thereto on or prior to such date pursuant to
Section 3.03(b)(ii)), and/or (B) to make, on the Restatement Effective Date, a
term loan (each, a "Term Loan" and, collectively, the "Term Loans") to the
Borrower, which Term Loans (i) shall, at the option of the Borrower, be Base
Rate Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall
at all times be of the same Type and (ii) shall be made by each Bank in that
initial aggregate principal amount (which, in the case of each Continuing Bank,
shall include the principal amount of Term Loans converted pursuant to clause
(A) above) as is equal to the Term Loan Commitment of such Bank on such date
(before giving effect to any reductions thereto on such date pursuant to Section
3.03(b)(i) but after giving effect to any reductions thereto on or prior to such
date pursuant to Section 3.03(b)(ii)). Once repaid, Term Loans incurred
hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each
Bank with a Revolving Loan Commitment severally agrees, at any time and from
time to time on and after the Restatement Effective Date and prior to the
Maturity Date, to make a revolving loan or revolving loans (each, a "Revolving
Loan" and, collectively, the "Revolving Loans") to the Borrower, which Revolving
Loans (i) shall, at the option of the Borrower, be Base Rate Loans or Eurodollar
Loans, provided that except as otherwise specifically provided in Section
1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be
of the same Type, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed for any Bank at any time outstanding
that aggregate principal amount which, when added to the product of (x) such
Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Bank at such time and (iv) shall not exceed for all Banks at
any time outstanding that aggregate principal amount which, when added to (x)
the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time and (y) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) then outstanding, equals the
Total Revolving Loan Commitment at such time.
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(c) Subject to and upon the terms and conditions herein set forth, the
Swingline Bank in its individual capacity agrees to make at any time and from
time to time on and after the Restatement Effective Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline
Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks
then outstanding and the Letter of Credit Outstandings at such time, an amount
equal to the Adjusted Total Revolving Loan Commitment at such time (after giving
effect to any reductions to the Adjusted Total Revolving Loan Commitment on such
date), (iv) shall not exceed at any time outstanding the Maximum Swingline
Amount and (v) shall not be extended if the Swingline Bank receives a written
notice from any Agent or the Required Banks that has not been rescinded that
there is a Default or an Event of Default in existence hereunder.
(d) On any Business Day, the Swingline Bank may, in its sole discretion,
give notice to the other Banks that its outstanding Swingline Loans shall be
funded with a Borrowing of Revolving Loans (provided that such notice shall be
deemed to have been automatically given upon the occurrence of a Default or an
Event of Default under Section 10.05 or upon the exercise of any of the remedies
provided in the last paragraph of Section 10), in which case a Borrowing of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Banks with a Revolving Loan Commitment (without giving effect to any reductions
thereto pursuant to the last paragraph of Section 10) pro rata based on each
Bank's Adjusted Percentage (determined before giving effect to any termination
of the Revolving Loan Commitments pursuant to the last paragraph of Section 10)
and the proceeds thereof shall be applied directly to the Swingline Bank to
repay the Swingline Bank for such outstanding Swingline Loans. Each such Bank
hereby irrevocably agrees to make Revolving Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply
with the minimum amount for Borrowings otherwise required hereunder, (ii)
whether any conditions specified in Section 6 are then satisfied, (iii) whether
a Default or an Event of Default then exists, (iv) the date of such Mandatory
Borrowing and (v) the amount of the Total Revolving Loan Commitment or the
Adjusted Total Revolving Loan Commitment at such time. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then each
such Bank hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to
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such purchase) from the Swingline Bank such participations in the outstanding
Swingline Loans as shall be necessary to cause such Banks to share in such
Swingline Loans ratably based upon their respective Adjusted Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Bank until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Bank shall be required to pay the Swingline Bank
interest on the principal amount of participation purchased for each day from
and including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first three days and at the rate otherwise
applicable to Revolving Loans maintained as Base Rate Loans hereunder for each
day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount of
each Borrowing of Term Loans shall not be less than $5,000,000. The aggregate
principal amount of each Borrowing of Revolving Loans shall be not less than (x)
in the case of a Borrowing of Eurodollar Loans, $2,000,000 and (y) in the case
of a Borrowing of Base Rate Loans, $1,000,000, provided that Mandatory
Borrowings shall be made in the amounts required by Section 1.01(d). The
aggregate principal amount of each Borrowing of Swingline Loans shall not be
less than $500,000 and, if greater, shall be in an integral multiple of
$100,000. More than one Borrowing may occur on the same date, but at no time
shall there be outstanding more than fifteen Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make a
Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory
Borrow- ings), it shall give the Administrative Agent at its Notice Office at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Base Rate Loan and at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing) of
each Eurodollar Loan to be made hereunder, provided that any such notice shall
be deemed to have been given on a certain day only if given before 11:00 A.M.
(Chicago time) in the case of a Borrowing of Eurodollar Loans and 12:00 Noon
(Chicago time) in the case of a Borrowing of Base Rate Loans on such day. Each
such written notice or written confirmation of telephonic notice (each, a
"Notice of Borrowing"), except as otherwise expressly provided in Section 1.10,
shall be irrevocable and shall be given by the Borrower in the form of Exhibit
A, appropriately completed to specify the aggregate principal amount of the
Loans to be made pursuant to such Borrowing, the date of such Borrowing (which
shall be a Business Day), whether the Loans being made pursuant to such
Borrowing shall constitute Term Loans or Revolving Loans and whether the Loans
being made pursuant to such Borrowing are to be initially maintained as Base
Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest
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Period to be applicable thereto. The Administrative Agent shall promptly give
each Bank which is required to make Loans of the Tranche specified in the
respective Notice of Borrowing, notice of such proposed Borrowing, of such
Bank's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to make a Borrowing of Swingline
Loans hereunder, it shall give the Swingline Bank not later than 12:00 Noon
(Chicago time) on the date that a Swingline Loan is to be made, written notice
or telephonic notice promptly confirmed in writing of each Swingline Loan to be
made hereunder. Each such notice shall be irrevocable and specify in each case
(A) the date of Borrowing (which shall be a Business Day) and (B) the aggregate
principal amount of the Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(d), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(d).
(c) Without in any way limiting the obligation of the Borrower to confirm
in writing any telephonic notice of any Borrowing of Loans, the Administrative
Agent or the Swingline Bank, as the case may be, may act without liability upon
the basis of telephonic notice of such Borrowing, believed by the Administrative
Agent or the Swingline Bank, as the case may be, in good faith to be from the
chairman of the board, the president, the treasurer, any assistant treasurer or
any controller of the Borrower (or any other officer of the Borrower designated
in writing to the Administrative Agent and the Swingline Bank by the Chairman of
the Board, the President or the Treasurer as being authorized to give such
notices under this Agreement) prior to receipt of written confirmation. In each
such case, the Borrower hereby waives the right to dispute the Administrative
Agent's and the Swingline Bank's record of the terms of such telephonic notice
of such Borrowing of Loans.
1.04 Disbursement of Funds. Except as otherwise specifically provided in
the immediately succeeding sentence, no later than 12:00 Noon (Chicago time) on
the date specified in each Notice of Borrowing (or (x) in the case of Swingline
Loans, not later than 2:00 P.M. (Chicago time) on the date specified pursuant to
Section 1 .03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (Chicago time) on the date specified in Section 1.01(d)), each Bank
with a Commitment of the respective Tranche will make available its pro rata
portion of each such Borrowing requested to be made on such date (or in the case
of Swingline Loans, the Swingline Bank shall make available the full amount
thereof). All such amounts shall be made available in Dollars and in immediately
available funds at the Payment Office of the Administrative Agent, and the
Administrative Agent will make available to the Borrower at the Payment Office
the aggregate of the
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amounts so made available by the Banks (for Loans other than Swingline Loans,
prior to 1:00 P.M. (Chicago time) on such day, to the extent of funds actually
received by the Administrative Agent prior to 12:00 Noon (Chicago time) on such
day). Unless the Administrative Agent shall have been notified by any Bank prior
to the date of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Bank, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Bank or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Bank, at the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result of
any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Bank shall be evidenced (i) if Term Loans,
by a promissory note duly executed and delivered by the Borrower substantially
in the form of Exhibit B-1 with blanks appropriately completed in conformity
herewith (each, a "Term Note" and, collectively, the "Term Notes"), (ii) if
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2, with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and, collectively,
the "Revolving Notes") and (iii) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-3,
with blanks appropriately completed in conformity herewith (the "Swingline
Note").
(b) The Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the Restatement
Effective Date, (iii) be in a stated principal amount equal to the Term Loan
made by such Bank on the Restatement Effective Date and be payable in the
principal amount of Term Loans evidenced thereby, (iv) mature on the Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans,
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as the case may be, evidenced thereby, (vi) be subject to mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) The Revolving Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the Restatement
Effective Date, (iii) be in a stated principal amount equal to the Revolving
Loan Commitment of such Bank and be payable in the principal amount of the
outstanding Revolving Loans evidenced thereby from time to time, (iv) mature on
the Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(d) The Swingline Note issued to the Swingline Bank shall (i) be executed
by the Borrower, (ii) be payable to the order of the Swingline Bank and be dated
the Restatement Effective Date, (iii) be in a stated principal amount equal to
the Maximum Swingline Amount and be payable in the principal amount of the
outstanding Swingline Loans evidenced thereby from time to time, (iv) mature on
the Swingline Expiry Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi)
be subject to mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
any of its Notes endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such notation or any
error in any such notation or endorsement shall not affect the Borrower's
obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert from time
to time, on any Business Day occurring after the Restatement Effective Date, all
or a portion equal to at least (x) in the case of a conversion of Term Loans,
$5,000,000 and (y) in the case of a conversion of Revolving Loans, $2,000,000
(or $1,000,000 if in the case of a conversion into Base Rate Loans), of the
outstanding principal amount of Loans made pursuant to one or more Borrowings
(so long as of the same Tranche) of one or more Types of Loans into a Borrowing
(of the same Tranche) of another Type of Loan, provided that (i) if for any
reason whatsoever any Eurodollar Loans are converted into Base Rate Loans on a
day which is not the last day of an Interest Period applicable to the Loans
being converted, the Borrower shall pay all amounts owing in connection
therewith as required by Section 1.11, (ii) no partial conversion of Eurodollar
Loans shall reduce the outstanding principal amount of such Eurodollar Loans
made pursuant to a single Borrowing to less
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than (x) in the case of Term Loans, $5,000,000 and (y) in the case of Revolving
Loans, $2,000,000, (iii) unless the Required Banks otherwise specifically agree
in writing, Base Rate Loans may only be converted into Eurodollar Loans if no
Default or Event of Default is in existence on the date of the conversion, (iv)
no conversion pursuant to this Section 1.06 shall result in a greater number of
Eurodollar Borrowings than is permitted under Section 1.02 and (v) Swingline
Loans may not be converted pursuant to this Section 1.06. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at its
Notice Office prior to 12:00 Noon (Chicago time) at least (x) in the case of a
conversion to Eurodollar Loans, three Business Days' prior notice and (y) in the
case of a conversion to Base Rate Loans, one Business Day's prior notice (each a
"Notice of Conversion") specifying the Loans to be so converted, the
Borrowing(s) pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and Revolving Loans
under this Agreement shall be incurred from the Banks pro rata on the basis of
their Term Loan Commitments or Revolving Loan Commitments, as the case may be,
provided that all Borrowings of Revolving Loans made pursuant to a Mandatory
Borrowing shall be incurred from the Banks pro rata on the basis of their
Adjusted Percentages. It is understood that no Bank shall be responsible for any
default by any other Bank of its obligation to make Loans hereunder and that
each Bank shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to make its Loans
hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06,
at a rate per annum which shall be equal to the sum of the Applicable Margin
plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Loan from the date the proceeds thereof are made
available to the Borrower until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06 or 1.09, as
applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each
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case, bear interest at a rate per annum equal to the greater of (x) 2% per annum
in excess of the rate otherwise applicable to Base Rate Loans from time to time
and (y) the rate which is 2% in excess of the rate then borne by such Loans, in
each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Loan, on any repayment
or prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent shall
determine the Eurodollar Rate for each Interest Period applicable to Eurodollar
Loans and shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three, six, nine, or twelve-month period,
or a period selected as provided in clause (ix) below, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the date of
any conversion thereto from a Loan of a different Type) and each Interest Period
occurring thereafter in respect of such Eurodollar Loan shall commence on the
day on which the next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month:
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(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, however, that if any Interest Period for a Eurodollar
Loan would otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) unless the Required Banks otherwise specifically agree in
writing, no Interest Period may be selected at any time when a Default or Event
of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the Maturity Date;
(vii) no Interest Period in respect of any Borrowing of Term Loans
shall be selected which extends beyond any date upon which a mandatory repayment
of such Term Loans will be required to be made under Section 4.02(b) if the
aggregate principal amount of Term Loans which have Interest Periods which will
expire after such date will be in excess of the aggregate principal amount of
Term Loans then outstanding less the aggregate amount of such required
prepayment;
(viii) no nine or twelve month Interest Period shall be available to
the Borrower unless (x) the Managing Agents consent thereto, such consent not to
be unreasonably withheld, and (y) such Interest Period is available to each Bank
(as determined by each Bank) making a Loan of the respective Tranche; and
(ix) with respect to Term Loans, the Borrower may select an Interest
Period which is shorter or longer (but not by more than 30 days) than one, two
or three months, but only if, and to the extent that, the Administrative Agent
determines that the selection of such Interest Period is necessary or desirable
to align the last day of the respective Interest Period (or of one or more
successive Interest Periods which will occur after such Interest Period) with a
Scheduled Repayment Date which will occur with respect to the Term Loans, which
Interest Periods as described in this clause (ix) shall only be made available
if (x) agreed by the Borrower and the Administrative Agent and (y) such Interest
Period is available to each Bank (as determined by each Bank) making a Term
Loan.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
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1.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental (including for this
purpose any regulatory body with jurisdiction over such Bank) rule,
regulation, order, guideline or request (whether or not having the force
of law) or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal of
or interest such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Bank, or any franchise tax based on the
net income or profits of such Bank, in either case pursuant to the laws of
the United States of America, the jurisdiction in which it is organized or
in which its principal office or applicable lending office is located or
any subdivision thereof or therein), but without duplication of any
amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances since
the date of this Agreement affecting such Bank or the interbank Eurodollar
market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the date
of this Agreement which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the
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other Banks). Thereafter (x) in the case of clause (i) above, Eurodollar Loans
shall no longer be available until such time as the Administrative Agent
notifies the Borrower and the Banks that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of Borrowing
or Notice of Conversion given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall, subject to the provisions of Section 13.15 (to the extent
applicable) pay to such Bank, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Bank in its reasonable discretion
shall determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Bank, showing in reasonable
detail the basis for and the calculation thereof, submitted to the Borrower by
such Bank in good faith shall, absent manifest error, be final and conclusive
and binding on all the parties hereto) and (z) in the case of clause (iii)
above, the Borrower shall take one of the actions specified in Section 1.10(b)
as promptly as possible and, in any event, within the time period required by
law. Each of the Administrative Agent and each Bank agrees that if it gives
notice to the Borrower of any of the events described in clause (i) or (iii)
above, it shall promptly notify the Borrower and, in the case of any such Bank,
the Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Bank, the obligations of
such Bank to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of
a Eurodollar Loan affected by the circumstances described in Section
1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then being
made initially or pursuant to a conversion, cancel the respective Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Bank or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least one Business Day's
written notice to the Administrative Agent, require the affected Bank to convert
such Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines
that the introduction of or any change in any applicable law or governmental
(including for this purpose any regulatory body with jurisdiction over such
Bank) rule, regulation, order, guideline, directive or request (whether or not
having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, in each case introduced or changed after the
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date hereof, will have the effect of increasing the amount of capital required
or expected to be maintained by such Bank or any corporation controlling such
Bank based on the existence of such Bank's Commitments hereunder or its
obligations hereunder, then the Borrower shall, subject to the provisions of
Section 13.15 (to the extent applicable), pay to such Bank, upon its written
demand therefor, such additional amounts as shall be required to compensate such
Bank or such other corporation for the increased cost to such Bank or such other
corporation or the reduction in the rate of return to such Bank or such other
corporation as a result of such increase of capital. In determining such
additional amounts, each Bank will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable, provided that such
Bank's reasonable good faith determination of compensation owing under this
Section 1.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. Each Bank, upon determining that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
prompt written notice thereof to the Borrower, which notice shall show in
reasonable detail the basis for and calculation of such additional amounts.
1.11 Compensation. The Borrower shall, subject to the provisions of
Section 13.15 (to the extent applicable), compensate each Bank, upon its written
request (which request shall set forth in reasonable detail the basis for
requesting and the calculation of such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Eurodollar Loans but excluding any
loss of anticipated profit) which such Bank may sustain: (i) if for any reason
(other than a default by such Bank or the Administrative Agent) a Borrowing of,
or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a)) or a
Loan is not continued as a Eurodollar Loan after an election of a new Interest
Period as provided in Section 1.09; (ii) if any repayment (including any
repayment made pursuant to Sections 4.01, 4.02 or 13.12(b), as a result of an
acceleration of the Loans pursuant to Section 10 or as a result of a replacement
of a Bank pursuant to Section 1.13) or conversion of any of its Eurodollar Loans
occurs on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on
any date specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or any Note held by such Bank or (y) any
election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that on the occurrence of
any event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 2.05 or Section 4.04 with respect to such Bank, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
or Letters of Credit affected by such event,
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provided that such designation is made on such terms that such Bank and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
such Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Sections 1.10,
2.05 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting Bank or
otherwise defaults in its obligations to make Loans or fund Unpaid Drawings, (y)
upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect
to any Bank which results in such Bank charging to the Borrower increased costs
in excess of those being generally charged by the other Banks, or (z) as
provided in Section 13.12(b) in the case of certain refusals by a Bank to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Banks, the
Borrower shall have the right, if no Default or Event of Default will exist
immediately after giving effect to the respective replacement, to either replace
such Bank (the "Replaced Bank") with one or more other Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Bank at the time of such
replacement (collectively, the "Replacement Bank") reasonably acceptable to the
Administrative Agent, provided that (i) at the time of any replacement pursuant
to this Section 1.13, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all
fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in Letters
of Credit by, the Replaced Bank and, in connection therewith, shall pay to (x)
the Replaced Bank in respect thereof an amount equal to the sum (without
duplication) of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Bank, (B) an amount equal to
all Unpaid Drawings that have been funded by (and not reimbursed to) such
Replaced Bank, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank pursuant to Section 3.01 and (y) the respective
Issuing Bank an amount equal to such Replaced Bank's Adjusted Percentage (for
this purpose, determined as if the adjustment described in clause (y) of the
immediately succeeding sentence had been made with respect to such Replaced
Bank) of any Unpaid Drawing (which at such time remains an Unpaid Drawing) to
the extent such amount was not theretofore funded by such Replaced Bank, and
(ii) all obligations of the Borrower owing to the Replaced Bank (other than
those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment and Assumption Agreements, the payment of
amounts referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Bank, delivery to the Replacement Bank of the appropriate Note or
Notes executed by the Borrower, (x) the Replacement Bank shall
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become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01
and 13.06), which shall survive as to such Replaced Bank and (y) in the case of
a replacement of a Defaulting Bank with a Non-Defaulting Bank, the Adjusted
Percentages of the Banks shall be automatically adjusted at such time to give
effect to such replacement (and to give effect to the replacement of a
Defaulting Bank with one or more Non-Defaulting Banks).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions
herein set forth, the Borrower may request that any Issuing Bank issue, at any
time and from time to time on and after the Restatement Effective Date and prior
to the Maturity Date, (x) for the account of the Borrower and for the benefit of
any holder (or any trustee, agent or other similar representative for any such
holders) of L/C Supportable Indebtedness of the Borrower or any of its
Subsidiaries, an irrevocable standby letter of credit, in a form customarily
used by such Issuing Bank or in such other form as has been approved by such
Issuing Bank (each such standby letter of credit, a "Standby Letter of Credit")
in support of such L/C Supportable Indebtedness and (y) for the account of the
Borrower and for the benefit of sellers of goods or materials to the Borrower or
any of its Subsidiaries, an irrevocable sight documentary letter of credit in a
form customarily used by such Issuing Bank or in such other form as has been
approved by such Issuing Bank (each such documentary letter of credit, a "Trade
Letter of Credit", and each such Trade Letter of Credit and each Standby Letter
of Credit, a "Letter of Credit") in support of commercial transactions of the
Borrower and its Subsidiaries. On the Restatement Effective Date, all Original
Letters of Credit shall be deemed to have been issued under this Agreement and
shall for all purposes constitute "Letters of Credit" hereunder.
(b) Subject to the terms and conditions contained herein, the
Administrative Agent hereby agrees that it will (and at the Borrower's request
each other Issuing Bank may, at its option, agree that it will), at any time and
from time to time on or after the Restatement Effective Date and prior to the
Maturity Date, following its receipt of the respective Letter of Credit Request,
issue for the account of the Borrower one or more Letters of Credit (x) in the
case of Standby Letters of Credit, in support of such L/C Supportable
Indebtedness of the Borrower or any of its Subsidiaries as is permitted to
remain outstanding without giving rise to a Default or Event of Default
hereunder and (y) in the case of Trade Letters of Credit, in support of sellers
of goods or materials as referenced in Section 2.01(a), provided that the
respective Issuing Bank shall be under no obligation to issue any Letter of
Credit of the types described above if at the time of such issuance:
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(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing Bank
with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Bank is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such
Issuing Bank as of the date hereof and which such Issuing Bank in good
xxxxx xxxxx material to it; or
(ii) such Issuing Bank shall have received notice from any Bank
prior to the issuance of such Letter of Credit of the type described in
the penultimate sentence of Section 2.02(b).
(c) Letters of Credit may be issued at the request of the Borrower
in Dollars or in any other currencies acceptable to the Issuing Bank.
(d) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $50,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans made by Non-Defaulting Banks and then outstanding
and Swingline Loans then outstanding, an amount equal to the Adjusted Total
Revolving Loan Commitment at such time and (ii) each Letter of Credit shall by
its terms terminate on or before the earlier of (x) the date which occurs 12
months after the date of the issuance thereof (although any such Standby Letter
of Credit may be extendable for successive periods of up to 12 months, but not
beyond the tenth Business Day prior to the Maturity Date, on terms acceptable to
the Issuing Bank thereof) or (y) the Maturity Date.
(e) Upon any amendment, modification or extension of any outstanding
Letter of Credit, the Borrower and/or the respective Issuing Bank shall give
notice to the Administrative Agent of such amendment, modification or extension
on the date of the effectiveness thereof (and, promptly after receiving such
notice, the Administrative Agent shall send a copy of such notice to the Banks)
and shall promptly send to the Administrative Agent a true and correct copy of
the documentation governing the respective amendment, modification or extension.
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2.02 Letter of Credit Requests. (a) Whenever the Borrower desires that a
Letter of Credit be issued for its account, the Borrower shall give the
Administrative Agent and the respective Issuing Bank at least five Business
Days' (or such shorter period as is acceptable to the respective Issuing Bank)
written notice thereof. Each notice shall be in the form of Exhibit C (each, a
"Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be a
representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.01(d). Unless the respective Issuing Bank has received notice from any Bank
before it issues a Letter of Credit that one or more of the conditions specified
in Section 5 or Section 6, as applicable, are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.01(d), then such
Issuing Bank shall issue the requested Letter of Credit for the account of the
Borrower in accordance with such Issuing Bank's usual and customary practices.
Upon the issuance of any Letter of Credit, (x) the Borrower and the respective
Issuing Bank shall notify the Administrative Agent, on the date of the issuance
thereof, of such issuance and shall, on such date, cause to be delivered to the
Administrative Agent (which delivery may be by telecopier) a copy of the Letter
of Credit so issued and (y) promptly after its receipt of the notice described
in preceding clause (x), the Administrative Agent shall notify each Bank of the
respective issuance.
2.03 Letter of Credit Participations. (a) Immediately upon the issuance by
any Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed to
have sold and transferred to each Bank with a Revolving Loan Commitment, other
than such Issuing Bank (each such Bank, in its capacity under this Section 2.03,
a "Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Adjusted Percentage, in such Letter of Credit, each drawing
made thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon
any change in the Revolving Loan Commitments or Adjusted Percentages of the
Banks pursuant to Sections 1.13, 13.04 or 13.12 or as a result of a Bank
Default, it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new Adjusted
Percentages of the assignor and assignee Bank or of all Banks with Revolving
Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, such Issuing
Bank shall have no obligation relative to the other Banks other than to confirm
that any documents required to be delivered under such Letter of Credit appear
to have been delivered and that they appear to substantially comply on their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by any Issuing Bank
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under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Issuing Bank any resulting liability to the Borrower or any Bank.
(c) In the event that any Issuing Bank makes any payment under any Letter
of Credit and the Borrower shall not have reimbursed such amount in full to such
Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly
notify the Administrative Agent, which shall promptly notify each Participant,
of such failure, and each Participant shall promptly and unconditionally pay to
such Issuing Bank the amount of such Participant's Adjusted Percentage of such
unreimbursed payment in Dollars (or, in the case of any unreimbursed payment
made in a currency other than Dollars, of the Dollar Equivalent of such
unreimbursed payment, as determined by the Issuing Bank on the date on which
such unreimbursed payment was made by the Issuing Bank) and in same day funds.
If the Administrative Agent so notifies, prior to 11:00 A.M. (Chicago time) on
any Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to such Issuing Bank in Dollars
(or, in the case of any unreimbursed payment made in a currency other than
Dollars, of the Dollar Equivalent thereof) such Participant's Adjusted
Percentage of the amount of such payment on such Business Day (or, if notice is
given after 11:00 A.M. (Chicago time) on any Business Day, on the next Business
Day) in same day funds. If and to the extent such Participant shall not have so
made its Adjusted Percentage of the amount of such payment available to such
Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on
demand such amount, together with interest thereon, for each day from such date
until the date such amount is paid to such Issuing Bank at the overnight Federal
Funds Rate. The failure of any Participant to make available to such Issuing
Bank its Adjusted Percentage of any payment under any Letter of Credit shall not
relieve any other Participant of its obligation hereunder to make available to
such Issuing Bank its Adjusted Percentage of any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to such Issuing Bank such
other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Bank shall forward such payment to
the Administrative Agent, which in turn shall distribute to each Participant
which has paid its Adjusted Percentage thereof, in Dollars (or, in the case of
any payment received in a currency other than Dollars, of the Dollar Equivalent
thereof) and in same day funds, an amount equal to such Participant's share
(based upon the aggregate amount funded by such Participant to the aggregate
amount funded by all Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective
participations.
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(e) Upon the request of any Participant, each Issuing Bank shall
furnish to such Participant copies of any Letter of Credit issued by it and such
other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable
and not subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, any Issuing Bank, any Participant, or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any 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;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective Issuing Bank, by making payment to the
Administrative Agent, in Dollars (or, in the case of any payment or disbursement
made by the Issuing Bank in any currency other than Dollars, of the Dollar
Equivalent of such payment or disbursement as determined by the Issuing Bank on
the date of such payment or disbursement) and in immediately available funds at
the Payment Office, for any payment or disbursement made by it under any Letter
of Credit (each such amount, so paid until reimbursed, an "Unpaid Drawing"), no
later than one Business Day after the Administrative Agent notifies the Borrower
of such payment or disbursement, with interest on the amount so paid or
disbursed by such Issuing Bank, to the extent not reimbursed prior to 12:00 Noon
(Chicago time) on the date of such payment or disbursement, from and
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including the date paid or disbursed to but excluding the date such Issuing Bank
was reimbursed by the Borrower therefor at a rate per annum which shall be the
Base Rate in effect from time to time plus the Applicable Margin for Base Rate
Loans, provided, however, that to the extent such amounts are not reimbursed
prior to 12:00 Noon (Chicago time) on the first Business Day following notice to
the Borrower by the Administrative Agent of such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by such
Issuing Bank (and until reimbursed by the Borrower) at a rate per annum which
shall be the Base Rate in effect from time to time plus the Applicable Margin
for Revolving Loans maintained as Base Rate Loans plus 2%, in each such case,
with interest to be payable on demand; provided further, that it is understood
and agreed, however, that the notice referred to above in this clause (a) and in
the immediately preceding proviso shall not be required to be given if a Default
or an Event of Default under Section 10.05 shall have occurred and be continuing
(in which case the Unpaid Drawings shall be due and payable immediately without
presentment, demand, protest or notice of any kind (all of which are hereby
waived by each Credit Party) and shall bear interest at the rate provided in the
foregoing proviso on and after the first Business Day following the respective
Drawing). The respective Issuing Bank shall give the Borrower prompt notice of
each Drawing under any Letter of Credit, provided that the failure to give any
such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to reimburse
the respective Issuing Bank with respect to drawings on Letters of Credit (each,
a "Drawing") (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may have or have had
against any Bank (including in its capacity as issuer of the Letter of Credit or
as Participant), or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing, the respective Issuing Bank's only obligation to
the Borrower being to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for such Issuing Bank any
resulting liability to the Borrower.
2.05 Increased Costs. If at any time after the date of this Agreement, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Bank or any Participant with any request
or directive by any such authority (whether or not having the force of law), or
any change in generally acceptable accounting principles, shall either (i)
impose, modify or make applicable any reserve. deposit, capital adequacy or
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similar requirement against letters of credit issued by any Issuing Bank or
participated in by any Participant, or (ii) impose on any Issuing Bank or any
Participant any other conditions relating, directly or indirectly, to this
Agreement or any Letter of Credit; and the result of any of the foregoing is to
increase the cost to any Issuing Bank or any Participant of issuing, maintaining
or participating in any Letter of Credit, or reduce the amount of any sum
received or receivable by any Issuing Bank or any Participant hereunder or
reduce the rate of return on its capital with respect to Letters of Credit
(except for changes in the rate of tax on, or determined by reference to, the
net income or profits of such Issuing Bank or such Participant, or any franchise
tax based on the net income or profits of such Bank or Participant, in either
case pursuant to the laws of the United States of America, the jurisdiction in
which it is organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein), but without
duplication of any amounts payable in respect of Taxes pursuant to Section
4.04(a), then, upon demand to the Borrower by such Issuing Bank or any
Participant (a copy of which demand shall be sent by such Issuing Bank or such
Participant to the Administrative Agent) and subject to the provisions of
Section 13.15 (to the extent applicable), the Borrower shall pay to such Issuing
Bank or such Participant such additional amount or amounts as will compensate
such Bank for such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. Any Issuing Bank or any
Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Bank or such Participant (a copy of which certificate shall be sent
by such Issuing Bank or such Participant to the Administrative Agent), setting
forth in reasonable detail the basis for and the calculation of such additional
amount or amounts necessary to compensate such Issuing Bank or such Participant.
The certificate required to be delivered pursuant to this Section 2.05 shall, if
delivered in good faith and absent manifest error, be final and conclusive and
binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay the Administrative Agent for
distribution to each Bank with a Revolving Loan Commitment a commitment
commission (the "Commitment Commission") for the period from the Restatement
Effective Date to and including the Maturity Date (or such earlier date as the
Total Revolving Loan Commitment shall have been terminated), computed at a rate
for each day equal to the Applicable Commitment Commission Percentage, as in
effect from time to time, on the daily average Unutilized Revolving Loan
Commitment of such Bank, provided, however, that no Bank shall be entitled to
Commitment Commission for any period during which such Bank is a Defaulting
Bank. Accrued Commitment Commission shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the Maturity Date or such earlier
date upon which the Total Revolving Loan Commitment is terminated.
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(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective Adjusted Percentages) a fee in respect of each Letter of
Credit issued hereunder (the "Letter of Credit Fee"), for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate per annum equal to the
Applicable Margin for Eurodollar Loans, as in effect from time to time, on the
daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
upon the first day on or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Bank, for its own
account, a facing fee in respect of each Letter of Credit issued for its account
hereunder (the "Facing Fee") for the period from and including the date of
issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
Stated Amount of such Letter of Credit; provided that in no event shall the
annual Facing Fee with respect to any Letter of Credit be less than $200, it
being agreed that, on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, $200 will
be paid toward the next year's Facing Fees for such Letter of Credit, which
amount shall be credited in direct order to the Facing Fees which would
otherwise be payable with respect to such Letter of Credit in the succeeding
annual period. Accrued Facing Fees shall be due and payable quarterly in arrears
on each Quarterly Payment Date and on the date upon which the Total Revolving
Loan Commitment has been terminated and such Letter of Credit has been
terminated in accordance with its terms.
(d) The Borrower shall pay, upon each drawing under, issuance of, or
amendment to, any Letter of Credit, such amount as shall at the time of such
event be the administrative charge which the respective Issuing Bank is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrower shall pay to each of the Managing Agents, whether in
their capacity as an Agent or a Managing Agent, for their own account, such
other fees as have been agreed to in writing by the Borrower and the Managing
Agents.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon at least
one Business Day's prior notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Banks), the Borrower shall have the right, at any time or from time to time,
without premium or penalty, to terminate the Total Unutilized Revolving Loan
Commitment, in whole or in part, in integral multiples of $1,000,000 in the case
of partial reductions to the Total Revolving Loan Commitment, provided that (i)
each such reduction shall apply proportionately to xxxxxx-
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ently reduce the Revolving Loan Commitment of each Bank with such a Commitment
and (ii) the reduction to the Total Unutilized Revolving Loan Commitment shall
in no case be in an amount which would cause the Revolving Loan Commitment of
any Bank to be reduced (as required by preceding clause (i)) by an amount which
exceeds the remainder of (x) the Unutilized Revolving Loan Commitment of such
Bank as in effect immediately before giving effect to such reduction minus (y)
such Bank's Adjusted Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
(b) In the event of certain refusals by a Bank as provided in Section
13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, subject to the requirements of said Section
13.12(b) and upon five Business Days' written notice to the Administrative Agent
at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), terminate all of the Revolving Loan Commitment
of such Bank so long as all Loans, together with accrued and unpaid interest,
fees and all other amounts, owing to such Bank are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, such Bank shall no
longer constitute a "Bank" for purposes of this Agreement, except with respect
to indemnification provisions under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which shall
survive as to such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and the
Term Loan Commitment and the Revolving Loan Commitment of each Bank) shall
terminate in its entirety on December 31, 1996 and the Original Credit Agreement
shall continue in effect unless the Restatement Effective Date shall have
occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total Term Loan Commitment (and the Term Loan Commitment
of each Bank) shall (i) terminate in its entirety on the Restatement Effective
Date (after giving effect to the making of the Term Loans on such date) and (ii)
prior to the termination of the Total Term Loan Commitment as provided in clause
(i) above, be reduced from time to time to the extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total Revolving Loan Commitment (and the Revolving Loan
Commitment of each Bank) shall terminate in its entirety on the Maturity Date.
(d) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, on each date after the Restatement Effective Date upon which
a mandatory prepayment of Term Loans pursuant to Section 4.02(d), (e) or (f) is
required (and ex-
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ceeds in amount the aggregate principal amount of Term Loans then outstanding)
or would be required if Term Loans were then outstanding, the Total Revolving
Loan Commitment shall be permanently reduced by the amount, if any, by which the
amount required to be applied pursuant to said Section (determined as if an
unlimited amount of Term Loans were actually outstanding) exceeds the aggregate
principal amount of Term Loans then outstanding.
(e) Each reduction to the Total Term Loan Commitment and the Total
Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to Section
4.02) shall be applied proportionately to reduce the Term Loan Commitment or the
Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right to prepay
the Loans, without premium or penalty, in whole or in part at any time and from
time to time on the following terms and conditions: (i) the Borrower shall give
the Administrative Agent prior to 1:00 P.M. (Chicago time) at its Notice Office
(x) at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Base Rate Loans (or same
day notice in the case of Swingline Loans provided such notice is given prior to
12:00 Noon (Chicago time)) and (y) at least five Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay Eurodollar Loans, whether Term Loans, Revolving Loans or Swingline Loans
shall be prepaid, the amount of such prepayment and the Types of Loans to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall
promptly transmit to each of the Banks; (ii) each prepayment shall be in an
aggregate principal amount of at least $1,000,000 (or $500,000 in the case of
Swingline Loans or Revolving Loans) or such lesser amount of a Borrowing which
is outstanding, provided that if any partial prepayment of Eurodollar Loans made
pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than (1) in the case of Term Loans,
$5,000,000 and (2) in the case of Revolving Loans, $2,000,000, then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by the Borrower shall
have no force or effect; (iii) at the time of any prepayment of Eurodollar Loans
pursuant to this Section 4.01 on any day other than the last day of an Interest
Period applicable thereto, the Borrower shall pay the amounts required pursuant
to Section 1.11; (iv) in the event of certain refusals by a Bank as provided in
Section 13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, upon S Business Days' written notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks) repay all Loans, together with
accrued and unpaid interest, Fees, and
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other amounts owing to such Bank in accordance with said Section 13.12(b) so
long as (A) the Revolving Loan Commitment, if any, of such Bank is terminated
concurrently with such repayment (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments) and (B) the consents
required by Section 13.12(b) in connection with the repayment pursuant to this
clause (iv) have been obtained; and (v) except as provided in preceding clause
(iv), each prepayment in respect of any Loans made pursuant to a Borrowing shall
be applied pro rata among the Loans comprising such Borrowing; provided that at
the Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01, such prepayment shall not be applied to any
Revolving Loan of a Defaulting Bank. Each prepayment of principal of Term Loans
pursuant to this Section 4.01 shall be applied (i) first, in direct order of
maturity to those Scheduled Repayments which will be due and payable within 12
months after the date the respective prepayment is made pursuant to this Section
4.01 and (ii) second, to the extent the amount to be applied exceeds the amount
to be applied pursuant to preceding clause (i), to reduce the then remaining
Scheduled Repayments of Term Loans pro rata based upon the then remaining
principal amounts of the Scheduled Repayments after giving effect to all prior
reductions thereto; provided that repayments of Term Loans pursuant to clause
(iv) of the first sentence of Section 4.01 shall only apply to reduce the then
remaining Scheduled Repayments to the extent the Term Loans so repaid are not
replaced pursuant to Section 13.12(b), with any such reductions to reduce the
then remaining Scheduled Repayments in inverse order of maturity unless
otherwise specifically agreed by the Required Banks.
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) On any day on
which the sum of the aggregate outstanding principal amount of the Revolving
Loans made by Non-Defaulting Banks, Swingline Loans and the Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then in
effect, the Borrower shall prepay principal of Swingline Loans and, after the
Swingline Loans have been repaid in full, Revolving Loans of Non-Defaulting
Banks in an amount equal to such excess. If, after giving effect to the
prepayment of all outstanding Swingline Loans and Revolving Loans of
Non-Defaulting Banks, the aggregate amount of the Letter of Credit Outstandings
exceeds the Adjusted Total Revolving Loan Commitment as then in effect, the
Borrower shall pay to the Administrative Agent at the Payment Office on such
date an amount of cash or Cash Equivalents equal to the amount of such excess
(up to a maximum amount equal to the Letter of Credit Outstandings at such
time), such cash or Cash Equivalents to be held as security for all obligations
of the Borrower to Non-Defaulting Banks hereunder in a cash collateral account
to be established by the Administrative Agent.
(ii) On any day on which the aggregate outstanding principal amount of the
Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall prepay principal of
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
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(b) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02, on (i) each Quarterly Payment Date commencing in
March 1997 through, and including, September 2001 and (ii) the Maturity Date,
the Borrower shall be required to repay Term Loans, to the extent then
outstanding, in a principal amount equal to $8,750,000 (each such repayment, as
the same may be reduced as provided in Sections 4.01 and 4.02(g), a "Scheduled
Repayment," and each such date, a "Scheduled Repayment Date").
(c) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02, on each date after the Restatement Effective Date
upon which Holdings or any of its Subsidiaries receives any proceeds from any
sale or issuance of its equity (other than (i) proceeds received from the
issuance of shares of Holdings Common Stock to the extent that the aggregate
proceeds excluded pursuant to this clause (i) do not exceed, in any period of
four consecutive fiscal quarters, $5,000,000 and (ii) proceeds received by
Parent or any of its Subsidiaries from the issuance of shares of common stock of
Parent or any of its Subsidiaries to Holdings or any of its Subsidiaries) an
amount equal to 100% of the cash proceeds of the respective sale or issuance
(net of underwriting discounts and commissions and other direct costs associated
therewith, including, without limitation, legal fees and expenses) shall be
applied as a mandatory repayment of principal of outstanding Term Loans (or, if
the Restatement Effective Date has not yet occurred, such amounts shall be
applied as a mandatory reduction to the Total Term Loan Commitment) in
accordance with the requirements of Section 4.02(g) and (h).
(d) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02, on each date after the Restatement Effective Date
upon which Holdings or any of its Subsidiaries receives any proceeds from any
incurrence by Holdings or any of its Subsidiaries of Indebtedness for borrowed
money (other than Indebtedness for borrowed money permitted to be incurred
pursuant to Section 9.04 as such Section is in effect on the Restatement
Effective Date), an amount equal to the cash proceeds (net of underwriting
discounts and commissions and other costs associated therewith including,
without limitation, legal fees and expenses) of the respective incurrence of
Indebtedness shall be applied as a mandatory repayment of principal of
outstanding Term Loans (or, if the Restatement Effective Date has not yet
occurred, such amounts shall be applied as a mandatory reduction to the Total
Term Loan Commitment) in accordance with the requirements of Sections 4.02(g)
and (h). In addition to the foregoing mandatory repayments or commitment
reductions, on each date after the Restatement Effective Date upon which the
Receivables Maximum Funding Amount is increased to an amount which, when added
to the amount of the Total Revolving Loan Commitment as then in effect, exceeds
$150,000,000 (or exceeds the highest amount to which the sum of (x) the
Receivables Maximum Funding Amount and (y) the amount of the Total Revolving
Loan Commitment, has theretofore been raised above such triggering amount and
before such increase) an amount equal to the amount of such increase shall be
required to be applied as a mandatory
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repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 4.02(g) and (h).
(e) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02, on each date after the Restatement Effective Date
upon which Holdings or any of its Subsidiaries receives proceeds from any sale
of assets (including capital stock and securities held thereby, but excluding
(i) sales or transfers of inventory in the ordinary course of business, (ii)
sales or transfers of assets in accordance with Sections 9.02(vi), (viii) and
(xi) as originally in effect, (iii) sales of assets between the Borrower and its
Wholly-Owned Subsidiaries and/or sales of assets between Wholly-Owned
Subsidiaries of the Borrower, in each case to the extent permitted by Section
9.02, (iv) the first $10,000,000 in Net Sale Proceeds from sales of other assets
occurring during any calendar year beginning after the Original Effective Date
and (v) Net Sale Proceeds from sales by the Borrower of assets or capital stock
of Howmet Refurbishment, Inc. to the extent used as described in the proviso to
Section 9.02(xvi) to repurchase, redeem or otherwise retire outstanding Parent
PIK Subordinated Notes)), an amount equal to 100% of the Net Sale Proceeds
therefrom shall be applied as a mandatory repayment of principal of outstanding
Term Loans (or, if the Restatement Effective Date has not yet occurred, such
amounts shall be applied as a mandatory reduction to the Total Term Loan
Commitment) in accordance with the requirements of Sections 4.02(g) and (h);
provided, that so long as no Default or Event of Default then exists, up to $50
million in the aggregate (but not more than $25 million in any calendar year) of
Net Sale Proceeds of asset sales effected in accordance with Section 9.02(xii)
shall not be required to be so applied on the date of the receipt thereof to the
extent that the Borrower has delivered a certificate to the Administrative Agent
on or prior to such date stating that such Net Sale Proceeds shall be used to
effect Permitted Acquisitions and/or additional Capital Expenditures, in each
case in accordance with the requirements of Section 8.13(c), within 180 days
following such date; provided further, that if all or any portion of such Net
Sale Proceeds not required to be applied pursuant to the preceding proviso are
not so utilized within 180 days after the date of the receipt of such Net Sale
Proceeds, then such remaining portion not so utilized shall be applied on the
date which is 180 days after the date of receipt of such Net Cash Proceeds in
accordance with the requirements of this Section 4.02(e) (without regard to
this, or the immediately preceding, proviso).
(f) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02, within 10 days following each date after the
Restatement Effective Date on which Holdings or any of its Subsidiaries receives
any proceeds from any Recovery Event, an amount equal to 100% of the proceeds of
such Recovery Event (net of reasonable costs including, without limitation,
legal costs and expenses, and taxes incurred in connection with such Recovery
Event) shall be applied as a mandatory repayment of principal of outstanding
Term Loans in accordance with the requirements of Sections 4.02(g) and (h),
provided that (x) so long as no Default or Event of Default then
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exists and such proceeds do not exceed $10,000,000, such proceeds shall not be
required to be so applied on such date to the extent that the Borrower has
delivered a certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used or shall be committed to be used to
replace or restore any properties or assets in respect of which such proceeds
were paid within one year following the date of such Recovery Event (which
certificate shall set forth the estimates of the proceeds to be so expended) and
(y) so long as no Default or Event of Default then exists and to the extent that
(a) the amount of such proceeds exceeds $10,000,000, (b) the amount of such
proceeds, together with other cash available to the Borrower and permitted to be
spent by it on Capital Expenditures during the relevant period pursuant to
Section 9.07 (without regard to Section 9.07(c)(ii) in the case of such other
cash), equals 100% of the cost of replacement or restoration of the properties
or assets in respect of which such proceeds were paid as determined by the
Borrower and as supported by such estimates or bids from contractors or
subcontractors or such other supporting information as the Administrative Agent
may reasonably request, (c) the Borrower has delivered to the Administrative
Agent a certificate on or prior to the date the application would otherwise be
required pursuant to this Section 4.02(f) in the form described in clause (x)
above and also certifying its determination as required by preceding clause (b),
and (d) the Borrower has delivered to the Administrative Agent such evidence as
the Administrative Agent may reasonably request in form and substance reasonably
satisfactory to the Administrative Agent establishing that the Borrower
reasonably expects to have sufficient resources available to it from time to
time, including without limitation cash, revenues and insurance proceeds, such
that the Borrower can reasonably be expected to satisfy all obligations and
expenses of the Borrower (including, without limitation, all debt service
requirements, including pursuant to this Agreement) without any delay or
extension thereof, for the period from the date of the respective casualty,
condemnation or other event giving rise to the Recovery Event and continuing
through the completion of the replacement or restoration of respective
properties or assets, then the entire amount of the proceeds of such Recovery
Event and not just the portion in excess of $10,000,000 shall be deposited with
the Administrative Agent pursuant to a cash collateral arrangement reasonably
satisfactory to the Administrative Agent and the Borrower whereby such proceeds
shall be disbursed to the Borrower or its order from time to time as needed to
pay actual costs incurred by it in connection with the replacement or
restoration of the respective properties or assets (pursuant to such reasonable
certification requirements as may be established by the Administrative Agent),
provided further, that at any time while an Event of Default has occurred and is
continuing (other than an Event of Default existing solely under Section 10.03
as a result of the violation of any or all of Sections 9.08 through 9.10,
inclusive, but in each case only if, and to the extent, that the violation of
said covenant has occurred as a result of the underlying event giving rise to
the Recovery Event), the Required Banks may direct the Administrative Agent (in
which case the Administrative Agent shall, and is hereby authorized by the
Borrower to, follow said directions) to apply any or all proceeds then on
deposit in such collateral account to the repayment of Obligations hereunder in
the same manner as proceeds would be applied
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pursuant to the Security Agreement, and provided further, that if all or any
portion of such proceeds not required to be applied to the repayment of Term
Loans pursuant to the second preceding proviso (whether pursuant to clause (x)
or (y) thereof) are either (A) not so used or committed to be so used within one
year after the date of the respective Recovery Event or (B) if committed to be
used within one year after the date of receipt of such Net Sale Proceeds and not
so used within two years after the date of the respective Recovery Event then,
in either such case, such remaining portion not used or committed to be used in
the case of preceding clause (A) and not used in the case of preceding clause
(B) shall be applied on the date which is the first anniversary of the date of
the respective Recovery Event in the case of clause (A) above or the date
occurring two years after the date of the respective Recovery Event in the case
of clause (B) above as a mandatory repayment of principal of outstanding Term
Loans in accordance with the requirements of Section 4.02(g) and (h).
(g) Each amount required to be applied to Term Loans (or to the Total Term
Loan Commitment) pursuant to Sections 4.02(c), (d), (e) and (f) shall be applied
to repay the outstanding principal amount of Term Loans then outstanding. The
amount of each principal repayment of Term Loans made as required by (A)
Sections 4.02(d), (e) and (f) shall be applied to reduce the then remaining
Scheduled Repayments pro rata based upon the then remaining principal amounts of
the Scheduled Repayments after giving effect to all prior reductions thereto and
(B) Section 4.02(c) shall be applied (i) first, in direct order of maturity to
those Scheduled Repayments which will be due and payable within 12 months after
the date the respective prepayment is made pursuant to this Section 4.02 and
(ii) second, to the extent the amount to be applied exceeds the amount to be
applied pursuant to preceding clause (i), to reduce the then remaining Scheduled
Repayments of Term Loans pro rata based upon the then remaining principal
amounts of the Scheduled Repayments after giving effect to all prior reductions
thereto.
(h) With respect to each repayment of Loans required by this Section 4.02,
the Borrower may designate the Types of Loans of the respective Tranche which
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which made, provided that: (i)
repayments of Eurodollar Loans pursuant to this Section 4.02 may only be made on
the last day of an Interest Period applicable thereto unless all Eurodollar
Loans of the respective Tranche with Interest Periods ending on such date of
required repayment and all Base Rate Loans of the respective Tranche have been
paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than (x) in the case of Term Loans, $5,000,000
and (y) in the case of Revolving Loans, $2,000,000, such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Loans comprising a Borrowing
shall be applied pro rata among such Loans. In the absence of a designation by
the Borrower as described in
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the preceding sentence, the Administrative Agent shall, subject to the above,
make such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under Section 1.11.
(i) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, (i) all then outstanding Swingline Loans shall be repaid in full on
the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the Maturity Date.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Bank or Banks entitled thereto
not later than 12:00 Noon (Chicago time) on the date when due and shall be made
in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
4.04 Net Payments: Taxes. (a) All payments made by any Credit Party
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Bank pursuant to
the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of such Bank is located
or any subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non- excluded taxes, levies, imports, duties,
fees, assessments or other charges (all such non- excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Bank, upon the written request of such Bank,
for taxes imposed on or measured by the net income or net profits of such Bank
pursuant to the laws of the jurisdiction in which such bank is organized or in
which the principal office or applicable lending office of such Bank is located
or under the laws of any political subdivision or taxing authority of any such
jurisdiction in which
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such bank is organized or in which the principal office or applicable lending
office of such Bank is located and for any withholding or income or similar
taxes as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Restatement Effective Date, or in the
case of a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 13.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
or before the date of such assignment or transfer to such Bank, (i) two accurate
and complete original signed copies of Internal Revenue Service Form 4224 or
1001 (or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Bank is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Bank agrees that from time to
time after the Restatement Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Administrative Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Bank to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate in
which case such Bank shall not be required to deliver any such Form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority
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thereof or therein) from interest, Fees or other amounts payable hereunder for
the account of any Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) to the extent that such Bank has not
provided to the Borrower on or prior to the date so required U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated pursuant to Section
4.04(a) to gross-up payments to be made to a Bank in respect of income or
similar taxes imposed by the United States if (I) such Bank has not provided to
the Borrower on or prior to the date so required the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section 4.04(b)
or (II) in the case of a payment, other than interest, to a Bank described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 4.04
and except as set forth in Section 13.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes after
the Restatement Effective Date (or, if later, the date such Bank became party to
this Agreement) in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
(c) Upon the reasonable request of the Borrower, any Bank that is a United
States person (as such term is defined in Section 7701 (a)(30) of the Code)
shall provide the Borrower with two accurate and complete original signed copies
of an Internal Revenue Service Form W-9, or any successor form that such Bank is
entitled to provide at such time in order to comply with United States backup
withholding tax requirements.
(d) If the Borrower pays any additional amount under this Section 4.04 to
a Bank and such Bank determines in its sole discretion that it has actually
received or realized in connection therewith any refund or any reduction of, or
credit against, its Tax liabilities in or with respect to the taxable year in
which the additional amount is paid, such Bank shall pay to the Borrower an
amount that the Bank shall, in its sole discretion, determine is equal to the
net benefit, after tax, which was obtained by the Bank in such year as a
consequence of such refund, reduction or credit. The decision as to whether a
Bank claims any refund or credit or files any amended tax return shall be in the
sole discretion of such Bank. Nothing in this Section 4.04(d) shall require a
Bank to disclose or detail the basis of its calculation of the amount of any tax
benefit or any other amount to the Borrower or to any other party (including,
without limitation, any tax return).
SECTION 5. Conditions Precedent to Loans on the Restatement Effective
Date. The obligation of each Bank to make Loans, and the obligation of each
Issuing Bank to issue Letters of Credit, on the Restatement Effective Date, is
subject at the time of the
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making of such Loans or the issuance of such Letters of Credit to the
satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Restatement
Effective Date (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each of the Banks the appropriate Term
Note and/or Revolving Note executed by the Borrower, and to the Swingline Bank
the Swingline Note executed by the Borrower, in each case in the amount,
maturity and as otherwise provided herein.
5.02 Fees, etc. (a) The Borrower shall have paid to the Administrative
Agent for the account of each Continuing Bank and each New Bank a financing fee
equal to 1/8 of 1% of the sum of such Bank's Commitments as in effect on the
Restatement Effective Date (before giving effect to any extensions of credit on
such date).
(b) In addition to any amounts payable by the Borrower pursuant to
paragraph (a) above, on the Restatement Effective Date, the Borrower shall have
paid to the Agents, the Managing Agents and the Banks all costs, fees and
expenses (including, without limitation, legal fees and expenses) payable to the
respective Agents, Managing Agents and the Banks to the extent then due.
5.03 Opinions of Counsel. On the Restatement Effective Date, the
Administrative Agent shall have received (i) from Xxxxxx & Xxxxxxx, special
counsel to Holdings and its Subsidiaries, an opinion addressed to each of the
Agents and each of the Banks and dated the Restatement Effective Date covering
the matters set forth in Exhibit E-1 and (ii) from Xxxxxx Xxxx, general counsel
to the Borrower an opinion addressed to each of the Agents and each of the Banks
and dated the Restatement Effective Date covering the matters set forth in
Exhibit E-2.
5.04 Corporate Documents; Proceedings; etc. (a) On the Restatement
Effective Date, the Administrative Agent shall have received certificates of all
Credit Parties (x) certifying that there were no changes, or providing the text
of any changes, to the certificate of incorporation and by-laws of such Credit
Parties as delivered pursuant to Section 5.04 of the Original Credit Agreement
and (y) to the effect that each such Credit Party is in good standing in its
respective state of incorporation and in those states where each such Credit
Party conducts business.
(b) All corporate and legal proceedings and all material instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form and substance
to the Managing Agents, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals,
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good standing certificates and bring-down telegrams or facsimiles, if any, which
the Managing Agents reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate or
governmental authorities.
5.05 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Collective Bargaining Agreements; Debt Agreements; Acquisition
Documents; Tax Sharing Agreements. On or prior to the Restatement Effective
Date, the Administrative Agent shall have received (i) a certification from the
chairman of the board, the president, any vice president or the treasurer of the
Borrower that all agreements and plans referenced in Section 5.05 of the
Original Credit Agreement, previously delivered (or made available) to the
Administrative Agent by each Credit Party, remain in full force and effect (or
specifying which of such agreements and plans do not remain in full force and
effect) and (ii) any amendments thereto or additional such agreements.
5.06 Subsidiaries Guaranty. On the Restatement Effective Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered an
Amended and Restated Subsidiaries Guaranty in the form of Exhibit F hereto (as
modified, supplemented or amended from time to time, the "Subsidiaries
Guaranty").
5.07 Pledge Agreement. On the Restatement Effective Date, each Credit
Party shall have duly authorized, executed and delivered an Amended and Restated
Pledge Agreement in the form of Exhibit G (as modified, supplemented or amended
from time to time, the "Pledge Agreement") and shall have delivered to the
Collateral Agent, as Pledgee, all the Pledged Securities, if any, referred to
therein then owned by such Credit Party, (x) endorsed in blank in the case of
promissory notes constituting Pledged Securities and (y) together with executed
and undated stock powers, in the case of capital stock constituting Pledged
Securities.
5.08 Security Agreement. On the Restatement Effective Date, each Credit
Party shall have duly authorized, executed and delivered an Amended and Restated
Security Agreement in the form of Exhibit H (as modified, supplemented or
amended from time to time, the "Security Agreement") covering all of such Credit
Party's present and future Security Agreement Collateral, in each case together
with evidence that all other actions necessary (including the filing of any new
financing statements or the amending of any existing financing statements) or,
in the reasonable opinion of the Collateral Agent, desirable to perfect and
protect (or maintain the perfection of) the security interests purported to be
created (or maintained) by the Security Agreement have been taken.
5.09 Mortgage Amendments: etc. On the Restatement Effective Date, the
Collateral Agent shall have received:
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(i) fully executed counterparts of amendments (the "Mortgage
Amendments"), in form and substance satisfactory to the Managing Agents to
each of the Original Mortgages, together with evidence that counterparts
of each of the Mortgage Amendments have been delivered to the title
insurance company insuring the Lien of the Original Mortgages for
recording in all places to the extent necessary or, in the reasonable
opinion of the Collateral Agent, desirable to effectively maintain a valid
and enforceable first priority (subject to Permitted Liens) mortgage lien
on each Original Mortgaged Property in favor of the Collateral Agent (or
such other trustee as may be required or desired under local law) for the
benefit of the Secured Creditors; and
(ii) endorsements of the authorized issuing agent for title insurers
reasonably satisfactory to the Collateral Agent to each Original Mortgage
Policy assuring the Collateral Agent that each Original Mortgage is a
valid and enforceable first priority mortgage lien on the respective
Original Mortgaged Properties, free and clear of all defects and
encumbrances except Permitted Liens.
5.10 Consent Letter. On the Restatement Effective Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially in
the form of Exhibit I, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 13.08.
5.11 Adverse Change, etc. (a) On the Restatement Effective Date,
nothing shall have occurred since September 30, 1996 (and the Banks shall have
become aware of no facts, conditions or other information not previously known),
which a Managing Agent or the Required Banks reasonably believe could have a
material adverse effect on the rights or remedies of any Managing Agent or the
Banks, or on the ability of Holdings, Parent or the Borrower to perform their
respective obligations to the Managing Agents and the Banks or which the
Managing Agents or the Required Banks reasonably believe would have a material
adverse effect on the business, property, assets, nature of assets, liabilities,
condition (financial or otherwise) or prospects of Holdings, Parent, the
Borrower or any such Person and its Subsidiaries taken as a whole.
(b) On or prior to the Restatement Effective Date, all necessary
governmental (domestic and foreign) and third party approvals in connection with
the Transaction, the transactions contemplated by the Credit Documents and
otherwise referred to herein or therein shall have been obtained and remain in
effect, and all applicable waiting periods shall have expired without any action
being taken by any competent authority which, in the judgment of a Managing
Agent or the Required Banks, restrains, prevents or imposes materially adverse
conditions upon the consummation of the Transaction. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or filed or
a
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hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the Transaction.
5.12 Litigation. On the Restatement Effective Date, no litigation by any
entity (private or governmental) shall be pending or threatened with respect to
the Transaction or any documentation executed in connection therewith, or which
any Managing Agent or the Required Banks shall determine is reasonably likely to
have a materially adverse effect on the Transaction or the business, property,
assets, liabilities, condition (financial or otherwise) or prospects of
Holdings, Parent, the Borrower, or any such Person and its Subsidiaries taken as
a whole.
5.13 Solvency Certificate; Environmental Analyses; Insurance. On or before
the Restatement Effective Date, the Borrower shall cause to be delivered to the
Administrative Agent (i) a solvency certificate from an officer of Holdings, in
the form of Exhibit J hereto, setting forth his conclusions that, after giving
effect to the Transaction and the incurrence of all the financings contemplated
herein, each of Holdings and its Subsidiaries taken as a whole, and the Borrower
and its Subsidiaries taken as a whole, is not insolvent and will not be rendered
insolvent by the indebtedness incurred in connection therewith, and will not be
left with unreasonably small capital with which to engage in their business and
will not have incurred debts beyond their ability to pay debts as they mature,
(ii) such environmental updates as may have been reasonably requested by the
Managing Agents and (iii) a summary of all insurance policies in form and
substance reasonably satisfactory to the Managing Agents and evidence of
insurance complying with the requirements of Section 8.03 for the business and
properties of Holdings and its Subsidiaries, in scope, form and substance
reasonably satisfactory to the Managing Agents and the Required Banks and naming
the Collateral Agent as an additional insured and/or loss payee, and stating
that such insurance shall not be cancelled or revised without 30 days prior
written notice by the insurer to the Collateral Agent.
5.14 Financial Statements; Projections. (a) On or prior to the Restatement
Effective Date, there shall have been delivered to the Administrative Agent
unaudited consolidating and consolidated financial statements for Holdings and
its Subsidiaries for the nine-month period ended September 30, 1996.
(b) On or prior to the Restatement Effective Date there shall have been
delivered to the Administrative Agent detailed projected consolidated financial
statements of the Borrower and its Subsidiaries certified by the chief financial
officer of the Borrower for the period from January 1, 1997 to December 31, 2001
(the "Projections"), which Projections (x) shall reflect the forecasted
consolidated financial condition and income and expenses of the Borrower and its
Subsidiaries after giving affect to the Transaction and the related financing
thereof and the other transactions contemplated hereby and (y) shall be
satisfactory in form and substance to the Managing Agents.
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5.15 Senior Subordinated Indebtedness. On or prior to the Restatement
Effective Date, the Borrower shall have delivered to the Administrative Agent an
officers' certificate (signed by an officer or officers satisfactory to the
Administrative Agent) (x) meeting the requirements of the Senior Subordinated
Notes Indenture (and the parenthetical contained in clause (e) of the definition
of Senior Indebtedness contained therein) to the effect that the issuance of the
Indebtedness pursuant to this Agreement does not violate the "Limitation on
Indebtedness" covenant of the Senior Subordinated Note Indenture and setting
forth in reasonable detail the reasons therefor, (y) certifying that this
Agreement and the related documents hereto constitute the "New Bank Credit
Facility" and "Designated Senior Indebtedness" under, and as defined in, the
Senior Subordinated Note Indenture and that all Obligations hereunder constitute
"Senior Indebtedness" under, and as defined in, the Senior Subordinated Note
Indenture and (z) certifying that the "Initial Amount" (as defined in the Senior
Subordinated Note Indenture) is, on and immediately after the occurrence of the
Restatement Effective Date, at least $250 million and further certifying that
all Term Loans incurred hereunder, together with extensions of credit (i.e.,
Revolving Loans, Swingline Loans and Letters of Credit) incurred from time to
time under this Agreement in the full amount of the Total Revolving Loan
Commitment, are permitted to be incurred and remain outstanding pursuant to
Section 4.12(b)(i)(A) of the Senior Subordinated Note Indenture.
5.16 Refinancing; Original Credit Agreement; etc. On the Restatement
Effective Date, (i) unless otherwise agreed by the Administrative Agent and the
Borrower, each Original Bank shall have surrendered to the Administrative Agent
for cancellation the promissory notes issued to it pursuant to the Original
Credit Agreement in respect of its Original Term Loans, Original Revolving Loans
and Original Swingline Loans, (ii) each Continuing Bank shall have converted its
Original Tranche A Term Loan as contemplated by Section 1.01(a), (iii) all
Original Tranche A Term Loans being converted as described in preceding clause
(ii) which were outstanding as Eurodollar Loans shall, at the time of such
conversion, be converted into Base Rate Loans or borrowed as Eurodollar Loans in
accordance with Section 1.01(a) and the Borrower shall pay breakage costs in
accordance with the provisions of Section 1.11 of the Original Credit Agreement
in connection therewith, (iv) all Original Tranche A Term Loans (except to the
extent converted pursuant to preceding clause (ii)), Original Tranche B Term
Loans, Original Tranche C Term Loans, Original Revolving Loans and Original
Swingline Loans shall be repaid in full on the Restatement Effective Date
(although Loans may be incurred hereunder on the Restatement Effective Date in
accordance with the provisions hereof) and, if any Original Loans (including,
without limitation, Original Tranche A Term Loans converted into Term Loans
hereunder) were at such time maintained as Eurodollar Loans, all breakage costs
owing in connection therewith shall have been paid as contemplated by Section
1.11 of the Original Credit Agreement, (v) each Original Bank shall have
received payment in full of all amounts then due and owing to it under the
Original Credit Agreement, (vi) the Borrowers shall have paid all accrued and
unpaid interest and fees owing under the Original Credit
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Agreement through the Restatement Effective Date, and (vii) the Administrative
Agent shall have received evidence in form, scope and substance satisfactory to
it that the matters set forth in this Section 5.16 have been satisfied on such
date.
SECTION 6. Conditions Precedent to All Credit Events on and After the
Restatement Effective Date. The obligation of each Bank to make Loans (including
Loans made on the Restatement Effective Date but excluding Mandatory Borrowings
made thereafter, which shall be made as provided in Section 1.01(d)), and the
obligation of an Issuing Bank to issue any Letter of Credit, is subject, at the
time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each such
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Loan (excluding Swingline Loans and Mandatory Borrowings, and
except as otherwise provided in Section 1.10), the Administrative Agent shall
have received the notice required by Section 1.03(a). Prior to the making of any
Swingline Loan, the Swingline Bank shall have received the notice required by
Section 1.03(b)(i)
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the respective Issuing Bank shall have received a Letter of Credit
Request meeting the requirements of Section 2.02.
The acceptance of the proceeds of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Managing Agents and
each of the Banks that all the conditions specified in Section 5 and in this
Section 6 and applicable to such Credit Event exist as of that time (except to
the extent that any of the conditions specified in Section 5 are required to be
satisfactory to or determined by any Bank, the Required Banks and/or the
Managing Agents, or were previously waived in writing by the Required Banks).
All of the Notes, certificates, legal opinions and other documents and papers
referred to in Section 5 and in this Section 6, unless otherwise specified,
shall be delivered to the Administrative Agent at the Notice Office for the
account of each of the Banks and, except for the Notes, in sufficient
counterparts for each of the Banks and shall be in form and substance reasonably
satisfactory to the Agents.
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SECTION 7. Representations, Warranties and Agreements. In order to induce
the Banks to enter into this Agreement and to make the Loans, and issue (or
participate in) the Letters of Credit as provided herein, each of Holdings,
Parent and the Borrower makes the following representations, warranties and
agreements, in each case after giving effect to the Transaction as consummated
on the Restatement Effective Date, all of which shall survive the execution and
delivery of this Agreement and the Notes and the making of the Loans and
issuance of the Letters of Credit, with the occurrence of each Credit Event on
or after the Restatement Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 7 are
true and correct in all material respects on and as of the Restatement Effective
Date and on the date of each such Credit Event (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date).
7.01 Corporate Status. Holdings, Parent, the Borrower and each of their
respective Subsidiaries (i) is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its incorporation, (ii)
has the corporate power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposes to engage
and (iii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower, the Borrower and its
Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as a whole.
7.02 Corporate Power and Authority. Each Credit Party has the corporate
power and authority to execute, deliver and perform the terms and provisions of
each of the Documents to which it is party and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of each of
such Documents. Each Credit Party has duly executed and delivered each of the
Documents to which it is party, and each of such Documents constitutes the
legal, valid and binding obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by any
Credit Party of the Documents to which it is a party, nor compliance by it with
the terms and provisions thereof, (i) will contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms,
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covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the material
properties or assets of Holdings, Parent, the Borrower or any of their
respective Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument, to which Holdings, Parent, the Borrower or any of their
respective Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject or (iii) will violate any
provision of the Certificate of Incorporation or By-Laws of Holdings, Parent,
the Borrower or any of their respective Subsidiaries, except (with respect to
any matter specified in clause (i), (ii) or (iii) above relating to a Document
other than a Credit Document) for any contraventions, conflicts, breaches,
defaults or violations which, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect (x) on the Transaction
or (y) on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower, the Borrower and its
Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as a whole.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except (x) as have been obtained or made and (y) if this representation is
being made at any time prior to the tenth day following the Restatement
Effective Date, filings or recordations of financing statements, Mortgages,
Mortgage Amendments and other documents pursuant to the terms of the Security
Documents (all of which filings and recordations shall be completed within 10
days after the Restatement Effective Date or, in the case of additional actions
required by Section 8.12, such date as is provided in said Section 8.12)), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of any Document or (ii) the legality,
validity, binding effect or enforceability of any such Document.
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc. (a) The unaudited consolidating and consolidated financial
statements of Holdings and its Subsidiaries for the nine-month period ended
September 30, 1996, and furnished to the Banks prior to the Restatement
Effective Date pursuant to Section 5.14(a), present fairly the financial
condition of Holdings and its Subsidiaries at the date of such statements. In
addition, the financial statements in the offering memorandum of the Borrower,
dated November 22, 1995 are true and correct in all material respects for the
periods presented therein. All such historical financial statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently applied, except for the omission of footnotes and
ordinary end of period adjustments (none of which individually, or in the
aggregate, would be material). Since September 30, 1996, there has been no
material adverse change in the performance, business, operations, property,
assets,
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nature of assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower, the Borrower and its Subsidiaries taken as a whole or Holdings
and its Subsidiaries taken as a whole.
(b) (i) On and as of the Restatement Effective Date, on a pro forma basis,
after giving effect to the Transaction and all other transactions contemplated
by the Documents and to all Indebtedness (including the Loans) being incurred or
assumed, and Liens created by each Credit Party in connection therewith, with
respect to Holdings, Parent and the Borrower, individually, and each such Person
and its Subsidiaries taken as a whole, (x) the sum of the assets, at a fair
valuation, of each such Person, individually, and each such Person and its
Subsidiaries taken as a whole, will exceed its or their debts; (y) it has not
incurred and does not intend to incur, nor believes that it will incur, debts
beyond its ability to pay such debts as such debts mature; and (z) it will have
sufficient capital with which to conduct its business. For purposes of this
Section 7.05(b), "debt" means any liability on a claim and "claim" means (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(c) Except as set forth on Schedule IV, there were as of the Restatement
Effective Date no liabilities or obligations with respect to Holdings or any of
its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent
or otherwise and whether or not due) which, either individually or in the
aggregate, would be materially adverse to the Borrower, the Borrower and its
Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as a whole.
As of the Restatement Effective Date, none of the Credit Parties knows of any
basis for the assertion against it of any liability or obligation of any nature
that is not fully disclosed in Schedule IV which, either individually or in the
aggregate, could be materially adverse to the Borrower, the Borrower and its
Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as a whole.
(d) The Projections set forth on Schedule V hereto were prepared in good
faith on a basis consistent with the financial statements referred to in Section
7.05(a), and, at the time of the preparation thereof, based on good faith
estimates and assumptions believed by management of Holdings to be reasonable.
7.06 Litigation. There are no actions, suits or proceedings pending or, to
the best knowledge of Holdings, Parent and the Borrower, threatened (i) with
respect to any Document or (ii) with respect to matters not covered by Section
7.19, that could reasonably be expected to materially and adversely affect the
business, operations, property, assets,
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liabilities, condition (financial or otherwise) or prospects of the Borrower,
the Borrower and its Subsidiaries taken as a whole or Holdings and its
Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of Holdings, Parent or the Borrower in writing
to any of the Agents or any Bank (including, without limitation, all information
contained in the Documents) for purposes of or in connection with this
Agreement, the other Credit Documents or any transaction contemplated herein or
therein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of Holdings, Parent or the Borrower in writing to any
of the Agents or any Bank will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the Loans
shall be used by the Borrower to (x) consummate the Transaction, (y) pay fees
and expenses related thereto and (z) provide for the Borrower's general
corporate and working capital purposes.
(b) No part of the proceeds of any Loan will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of Holdings, Parent, the Borrower,
Howmet Cercast (Canada) and each of their respective Subsidiaries (the
"Taxpayers") have timely filed or caused to be timely filed, on the due dates
thereof or within applicable grace periods, with the appropriate taxing
authority, all Federal, state and other material returns, statements, forms and
reports for taxes (the "Returns") required to be filed by or with respect to the
income, properties or operations of Holdings, Parent, the Borrower, Howmet
Cercast (Canada) and/or any of their respective Subsidiaries. The Returns
accurately reflect in all material respects all liability for taxes of the
Taxpayers for the periods covered thereby. Each of the Taxpayers have paid all
material taxes payable by them other than taxes which are not delinquent, and
other than those contested in good faith and for which adequate reserves have
been established in accordance with generally accepted accounting principles.
Except as set forth on Schedule VI, there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the best knowledge
of Holdings, Parent, the Borrower or Howmet Cercast (Canada), threatened by any
authority regarding any taxes relating to any of the Taxpayers. As of the
Restatement Effective Date, except as set forth in Schedule VI, none of the
Taxpayers has entered into an agreement or
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waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of any of
such Taxpayers, or is aware of any circumstances that would cause the taxable
years or other taxable periods of any of such Taxpayers not to be subject to the
normally applicable statute of limitations. None of the Taxpayers has provided,
with respect to themselves or property held by them, any consent under Section
341 of the Code. None of the Taxpayers has incurred, or will incur, any material
tax liability in connection with the Acquisition, the Mergers and the other
transactions contemplated hereby. Notwithstanding anything to the contrary in
this Section 7.09, each representation in this Section 7.09 shall not be deemed
to be incorrect if and to the extent any liability of Holdings and its
Subsidiaries resulting from a fact or circumstance that otherwise would cause
such representation to be untrue is covered by any Acquisition Letter of Credit.
7.10 Compliance with ERISA. (i) Except as set forth on Schedule VII, each
Plan (other than a Multiemployer Plan) is in substantial compliance with ERISA
and the Code; except as set forth on Schedule VII, no Reportable Event has
occurred with respect to a Plan that has or could reasonably be expected to
result in a material liability not reflected in the Borrower's financial
statements (other than a Multiemployer Plan); no Plan (other than a
Multiemployer Plan) is insolvent or in reorganization; no Plan (other than a
Multiemployer Plan) had during the last twelve months or has an Unfunded Current
Liability in excess of $10,000,000; no Plan (other than a Multiemployer Plan)
has an accumulated or waived funding deficiency, or has applied for an extension
of any amortization period within the meaning of Section 412 of the Code; all
contributions required to be made by Holdings, Parent, Borrower or any of their
Subsidiaries or any ERISA Affiliate with respect to a Plan and a Foreign Pension
Plan have been timely made; none of Holdings, Parent, the Borrower or any of
their respective Subsidiaries nor any ERISA Affiliate has incurred any material
liability to or on account of a Plan pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971, 4975 or 4980 of the Code or expects to incur any liability (including any
indirect, contingent or secondary liability) under any of the foregoing Sections
with respect to any Plan; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan (other than a Multiemployer Plan); no
condition exists which presents a material risk to Holdings, Parent, the
Borrower or any of their respective Subsidiaries or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings, Parent, the Borrower, their respective Subsidiaries and
their ERISA Affiliates to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $1,000,000; no lien imposed under the Code or ERISA on the assets of
Holdings, Parent, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate exists or is reasonably likely
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to arise on account of any Plan; and Holdings, Parent, the Borrower and their
respective Subsidiaries may cease contributions to or terminate any employee
benefit plan maintained by any of them without incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither
Holdings, Parent, the Borrower nor any of their Subsidiaries has incurred any
obligation in connection with the termination of or withdrawal from any Foreign
Pension Plan. The present value of the accrued benefit liabilities (whether or
not vested) under each Foreign Pension Plan, determined as of the end of the
Borrower's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities by
more than $2,000,000.
7.11 The Security Documents. (a) The provisions of the Security Agreement
are effective to create or maintain in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Security Agreement, upon the
filing of Form UCC-1 financing statements or the appropriate equivalent (which
filings have been made), create or maintain a fully perfected first lien on, and
security interest in, all right, title and interest in all of the Security
Agreement Collateral described therein, subject to no other Liens other than
Permitted Liens, to the extent a security interest in such collateral can be
perfected or maintained by the filing of a financing statement. The recordation
of the Assignment of Security Interest in U.S. Patents and Trademarks in the
form attached to the Security Agreements in the United States Patent and
Trademark Office together with filings on Form UCC-1 made pursuant to the
Security Agreement will be effective, under applicable law, to perfect the
security interest granted to the Collateral Agent in the trademarks and patents
covered by the Security Agreement and the recordation of the Assignment of
Security Interest in U.S. Copyrights in the form attached to the Security
Agreement with the United States Copyright Office together with filings on Form
UCC-1 made pursuant to the Security Agreement will be effective under federal
law to perfect the security interest granted to the Collateral Agent in the
copyrights covered by the Security Agreement. Each of the Credit Parties party
to the Security Agreement has good and valid title to all Security Agreement
Collateral described therein, free and clear of all Liens except those described
above in this clause (a).
(b) The security interests created in favor of the Collateral Agent, as
Pledgee, for the benefit of the Secured Creditors under the Pledge Agreement
constitute first priority perfected security interests in the Pledged Securities
described in the Pledge Agreement, subject to no security interests of any other
Person. No filings or recordings
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are required in order to perfect (or maintain the perfection or priority of) the
security interests created in the Pledged Securities under the Pledge
Agreements.
(c) The Mortgages (as amended by the Mortgage Amendments) create, as
security for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and mortgage lien on all of the
Mortgaged Properties in favor of the Collateral Agent (or such other trustee as
may be required or desired under local law) for the benefit of the Secured
Creditors, superior to and prior to the rights of all third persons (except that
the security interest and mortgage lien created in the Mortgaged Properties may
be subject to the Permitted Encumbrances related thereto) and subject to no
other Liens (other than Permitted Liens). Schedule III contains a true and
complete list of each parcel of Real Property owned or leased by the Borrower
and its Subsidiaries on the Restatement Effective Date, and the type of interest
therein held by the Borrower or such Subsidiary. The Borrower and each of its
Subsidiaries have good and indefeasible title to all fee-owned Mortgaged
Properties and valid leasehold title to all Leaseholds, in each case free and
clear of all Liens except those described in the first sentence of this
subsection (c).
7.12 Representations and Warranties in Documents. All representations and
warranties set forth in the other Documents were true and correct in all
material respects at the time as of which such representations and warranties
were made (or deemed made).
7.13 Properties. Holdings, Parent, the Borrower and each of their
respective Subsidiaries have good and valid title to all properties owned by
them, including all property reflected in the balance sheet of the Borrower
referred to in Section 7.05(a) and in the pro forma balance sheet referred to in
Section 5.14 (except as sold or otherwise disposed of since the date of such
balance sheet in the ordinary course of business), free and clear of all Liens,
other than (i) as referred to in the balance sheet or in the notes thereto or in
the pro forma balance sheet or (ii) Permitted Liens otherwise permitted by
Section 9.01. On the Restatement Effective Date, Schedule III sets forth a true
and complete description of all Real Property owned or leased by the Borrower
and/or its Subsidiaries and sets forth the direct owner or lessee thereof.
7.14 Capitalization. (a) On the Restatement Effective Date and after
giving effect to the Transaction, the authorized capital stock of Holdings shall
consist of 10,000 shares of common stock, all of which shall be issued and
outstanding, and 15,000 shares of preferred stock, 5,000 of which shall be
issued and outstanding (as shares of Holdings PIK Preferred Stock). All such
outstanding shares have been duly and validly issued, are fully paid and
non-assessable and have been issued free of preemptive rights. As of the
Restatement Effective Date, Holdings does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating
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to, its capital stock, except for the Thiokol Purchase Option and the Holdings
PIK Preferred Stock (which, being pay-in-kind, provides for the issuance of
additional shares of Holdings PIK Preferred Stock in payment of accrued
dividends thereon).
(b) On the Restatement Effective Date and after giving effect to the
Transaction, the authorized capital stock of Parent shall consist of 1,000
shares of common stock, 10 of which shall be issued and outstanding and
delivered for pledge under the Pledge Agreement. All such outstanding shares
have been duly and validly issued, are fully paid and non-assessable and have
been issued free of preemptive rights. As of the Restatement Effective Date,
Parent does not have outstanding any securities convertible into or exchangeable
for its capital stock or outstanding any rights to subscribe for or to purchase,
or any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
(c) On the Restatement Effective Date and after giving effect to the
Transaction, the authorized capital stock of the Borrower shall consist of 1,000
shares of common stock, 10 of which shall be issued and outstanding and
delivered for pledge pursuant to the Pledge Agreement. All such outstanding
shares of common stock have been duly and validly issued, are fully paid and
nonassessable and are free of preemptive rights. As of the Restatement Effective
Date, the Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock.
7.15 Subsidiaries. After giving effect to the Transaction (x) Holdings
will have no Subsidiaries other than Parent and its Subsidiaries and (y) Parent
shall have no Subsidiaries other than the Borrower and its Subsidiaries, and
Howmet Insurance. After giving effect to the Transaction, the Borrower will have
no Subsidiaries other than (i) those Subsidiaries listed on Schedule VIII and
(ii) new Subsidiaries created in compliance with Section 9.14. An accurate
organization chart, showing the ownership structure of Holdings and each of its
Subsidiaries, is set forth on Schedule IX.
7.16 Compliance with Statutes, etc. Each of Holdings, Parent, the Borrower
and their respective Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (other than applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls which are the subject of Section 7.19), except such noncompliances as
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities,
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condition (financial or otherwise) or prospects of the Borrower, the Borrower
and its Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as
a whole.
7.17 Investment Company Act. None of Holdings, Parent, the Borrower or any
of their respective Subsidiaries is an "investment company or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. None of Holdings, Parent, the
Borrower or any of their respective Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a " subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7.19 Environmental Matters. (a) Holdings, Parent, the Borrower and each of
their respective Subsidiaries have complied with, and on the date of each Credit
Event will be in compliance with, all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. There are no
pending or, to the best knowledge after inquiry of Holdings, Parent and the
Borrower, past or threatened Environmental Claims against Holdings, Parent, the
Borrower or any of their respective Subsidiaries or any Real Property owned or
operated by Holdings, Parent, the Borrower or any of their respective
Subsidiaries. There are no facts, circumstances, conditions or occurrences on
any Real Property owned or operated by Holdings, Parent, the Borrower or any of
their respective Subsidiaries or, to the best knowledge after inquiry of
Holdings, Parent or the Borrower, on any property adjoining or in the vicinity
of any such Real Property, that could reasonably be expected (i) to form the
basis of an Environmental Claim against Holdings, Parent, the Borrower or any of
their respective Subsidiaries or any such Real Property, or (ii) to cause any
such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property by Holdings, Parent, the
Borrower or any of their respective Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used, treated
or stored on, or transported to or from, any Real Property owned or operated by
Holdings, Parent, the Borrower or any of their respective Subsidiaries where
such generation, use, treatment, storage or transportation could give rise to an
Environmental Claim or has violated or could reasonably be expected to violate
any Environmental Law. Hazardous Materials have not at any time been Released on
or from any Real Property owned or operated by Holdings, Parent, the Borrower or
any of their respective Subsidiaries where such Release could give rise to an
Environmental Claim or has violated or could reasonably be expected to violate
any applicable Environmental Law.
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(c) Notwithstanding anything to the contrary in this Section 7.19, the
representations made in this Section 7.19 shall only be untrue if the aggregate
effect of all failures and noncompliances of the types described above could
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower, the Borrower and its Subsidiaries taken as a whole or
Holdings and its Subsidiaries taken as a whole after giving effect to (i) the $6
million net reserve on the balance sheet of the Borrower, as set forth on the
report on Form 10-Q (as filed with the SEC) of the Borrower for its fiscal
quarter ended September 30, 1996, for environmental liabilities, (ii) the
indemnity provisions of the Stock Purchase Agreement and (iii) letters of credit
covering Excluded Liabilities (as defined in the Stock Purchase Agreement).
7.20 Labor Relations. Except as set forth on Schedule X, none of Holdings,
Parent, the Borrower nor any of their respective Subsidiaries is engaged in any
unfair labor practice that could reasonably be expected to have a material
adverse effect on the Borrower, the Borrower and its Subsidiaries taken as a
whole or Holdings and its Subsidiaries taken as a whole and there is (i) no
unfair labor practice complaint pending against Holdings, Parent, the Borrower
or any of their respective Subsidiaries or, to the best knowledge of Holdings,
Parent or the Borrower, threatened against any of them, before the National
Labor Relations Board, and no material grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against Holdings, Parent the Borrower or any of their respective Subsidiaries
or, to the best knowledge of Holdings, Parent or the Borrower, threatened
against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending
against Holdings, Parent, the Borrower or any of their respective Subsidiaries
or, to the best knowledge of Holdings, Parent or the Borrower, threatened
against Holdings, the Borrower or any of their respective Subsidiaries and (iii)
to the best knowledge of Holdings, Parent and the Borrower, no union
representation proceeding is pending with respect to the employees of Holdings,
Parent or the Borrower or any of their respective Subsidiaries, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as could not reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower,
the Borrower and its Subsidiaries taken as a whole or Holdings and its
Subsidiaries taken as a whole.
7.21 Patents, Licenses, Franchises and Formulas. Each of Holdings, Parent,
the Borrower and their respective Subsidiaries owns all material patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, in each case
reasonably necessary for the present conduct of its business, without any known
conflict with the rights of others which, or the failure to own or obtain which,
as the case may be, would result in a material adverse effect on the business.
operations, property, assets, liabilities, condition (financial or
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otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken
as a whole or Holdings and its Subsidiaries taken as a whole.
7.22 Indebtedness. Schedule XI sets forth a true and complete list
of all Indebtedness of Holdings, Parent, the Borrower and their respective
Subsidiaries as of the Restatement Effective Date and which (x) constituted
"Existing Indebtedness" under, and as defined in, the Original Credit Agreement
and (y) is to remain outstanding after giving effect to the Transaction (the
"Existing Indebtedness"), in each case showing the aggregate principal amount
thereof and the name of the respective borrower and any other entity (to the
Borrower's knowledge, in the case of guarantees by Persons other than Holdings
and its Subsidiaries) which directly or indirectly guaranteed such debt.
7.23 Special Purpose Corporations. Holdings directly engages in no
business activities, except in connection with its ownership of the capital
stock of Parent and liabilities incident thereto. Parent engages in no direct
business activities, other than (i) its ownership of the capital stock of the
Borrower and Howmet Insurance and liabilities incident thereto, (ii) its
obligations with respect to the Installment Notes and its rights with respect to
the Installment Notes Trust and any Acquisition Letters of Credit, (iii) the
remediation of certain formerly owned environmental sites, as to which it has
received unconditional indemnification from one or more financially responsible
third parties and (iv) its obligations pursuant to the Parent PIK Subordinated
Notes.
SECTION 8. Affirmative Covenants. Holdings, Parent and the Borrower
hereby covenant and agree that on and after the Restatement Effective Date and
until the Total Commitments and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings, together with interest, Fees and all other
obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. Holdings, Parent and/or the Borrower
will furnish to the Administrative Agent (with sufficient copies for each of the
Banks) and the Administrative Agent will promptly thereafter furnish to each
Bank:
(a) Quarterly Financial Statements. Within 45 days after the close
of each of the first three quarterly accounting periods in each fiscal
year of the Borrower, (i) the report on Form 10-Q (as filed with the
Securities and Exchange Commission or any successor thereto (the "SEC"))
of the Borrower for such quarterly period, with the financial information
contained therein to be certified by the chief financial officer or
treasurer of the Borrower, subject to normal year-end audit adjustments,
provided that if for any reason the Borrower ceases to file such reports
on Form 10- Q with the SEC, it shall nonetheless continue to furnish such
information to the Administrative Agent pursuant to this clause (a), and
(ii) management's discussion and analysis of the important operational and
financial developments during the
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fiscal quarter and year-to-date periods (except to the extent already included
in the report delivered pursuant to preceding clause (i)).
(b) Annual Financial Statements. Within 90 days after the close of
each fiscal year of the Borrower, (i) the report on Form 10-K (as filed with the
SEC) of the Borrower for such fiscal year, provided that if for any reason the
Borrower ceases to file such reports on Form 10-K with the SEC, it shall
nonetheless continue to furnish such information to the Administrative Agent
pursuant to this clause (b), (ii) the consolidated and consolidating balance
sheets of Holdings and its Consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated and consolidating statements of income
and retained earnings and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified (x) in the case
of the consolidating financial statements described above, by an officer of
Holdings and (y) in the case of such consolidated financial statements, by Ernst
& Young or such other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent, together
with a report of such accounting firm stating that in the course of its regular
audit of the financial statements of Holdings and its Subsidiaries, which audit
was conducted in accordance with generally accepted aud- iting standards, such
accounting firm obtained no knowledge of any Default or Event of Default which
has occurred and is continuing or, if in the opinion of such accounting firm
such a Default or Event of Default has occurred and is continuing, a statement
as to the nature thereof, and (iii) management's discussions and analysis of the
important operational and financial developments during such fiscal year (except
to the extent already included in the report delivered pursuant to preceding
clause (i)).
(c) Management Letters. Promptly after the receipt thereof by
Holdings, Parent, the Borrower or any of their respective Subsidiaries, a copy
of any management letter" received by any such Person from its certified public
accountants and the management's responses thereto.
(d) Budgets. No later than 30 days following the first day of each
fiscal year of the Borrower, beginning with the fiscal year commencing January
1, 1998, a budget in form satisfactory to the Managing Agents (including
budgeted statements of income and sources and uses of cash and balance sheets)
prepared by the Borrower for each of the fiscal years through the Maturity Date,
in each case, of the Borrower and its Subsidiaries, accompanied by the statement
of the chief financial officer or treasurer of the Borrower to the effect that,
to the best of his knowledge, the budget is a reasonable estimate for the period
covered thereby.
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(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 8.01(a) and (b), a certificate of
the chairman of the board, the president, the chief financial officer or the
treasurer of the Borrower to the effect that, to the best of such officer's
knowledge, no Default or Event of Default has occurred and is continuing or, if
any Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof, which certificate shall, in the case of any such
financial statements delivered in respect of a period ending on the last day of
a fiscal quarter or year of Holdings, (x) set forth the calculations required to
establish whether the Borrower was in compliance with the provisions of Sections
4.02(e) and (f), 9.03, 9.04, 9.05 and 9.07 through 9.10, inclusive, at the end
of such fiscal quarter or year, as the case may be.
(f) Notice of Default or Litigation. Promptly, and in any event
within three Business Days in the case of item (i) below or five Business Days
in the case of item (ii) below, after an officer of Holdings, Parent or the
Borrower obtains knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or Event of Default and (ii) any litigation or
governmental investigation or proceeding pending (x) against Holdings, Parent,
the Borrower or any of their respective Subsidiaries which could reasonably be
expected to materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower, the Borrower and its Subsidiaries taken as a whole or Holdings and its
Subsidiaries taken as a whole, (y) with respect to any Indebtedness in excess of
$5,000,000 of Holdings, Parent, the Borrower or any of their respective
Subsidiaries taken as a whole or (z) with respect to any Document.
(g) Other Reports and Filings. Promptly, copies of all other
financial information, reports, proxy materials and other information which
Holdings, the Borrower or any of their respective Subsidiaries shall file with
the SEC or deliver to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or other
representative therefor).
(h) Environmental Matters. Promptly upon, and in any event within
ten Business Days after, an officer of Holdings, Parent, the Borrower or any of
their respective Subsidiaries obtains knowledge thereof, notice of one or more
of the following environmental matters, unless such officer reasonably concludes
that such environmental matters would not, individually or when aggregated with
all other such environmental matters, materially and adversely affect the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken
as a whole or Holdings and its Subsidiaries taken as a whole:
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(i) any pending or threatened Environmental Claim against Holdings,
Parent, the Borrower or any of their respective Subsidiaries or any Real
Property owned or operated by Holdings, Parent, the Borrower or any of
their respective Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by Holdings, Parent, the Borrower or any of
their respective Subsidiaries that (a) results in noncompliance by
Holdings, Parent, the Borrower or any of their respective Subsidiaries
with any applicable Environmental Law or (b) could reasonably be expected
to form the basis of an Environmental Claim against Holdings, Parent, the
Borrower or any of their respective Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Holdings, Parent, the Borrower or any of their respective
Subsidiaries that could reasonably be expected to cause such Real Property
to be subject to any restrictions on the ownership, occupancy, use or
transferability by Holdings, Parent, the Borrower or any of their
respective Subsidiaries of such Real Property under any Environmental Law;
and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned or operated by Holdings, Parent, the Borrower or any of their
respective Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency; provided that in any event
Holdings, Parent and/or the Borrower shall deliver to each Bank all
notices received by it or any of their respective Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and
Holdings', Parent's, the Borrower's or such Subsidiary's response thereto. In
addition, the Borrower will provide the Banks with copies of all material
communications with any government or governmental agency relating to
Environmental Laws, all communications with any Person (other than its
attorneys) relating to any Environmental Claim of which notice is required to be
given pursuant to this Section 8.01(h), and such detailed reports (not subject
to attorney-client or attorney work product privileges) of any such
Environmental Claim as may reasonably be requested by the Banks.
(i) Annual Meetings with Banks. At the request of Administrative Agent,
Holdings shall within 120 days after the close of each fiscal year of Holdings
hold
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a meeting at a time and place selected by Holdings and acceptable to the
Managing Agents with all of the Banks at which meeting shall be reviewed
the financial results of the previous fiscal year and the financial
condition of Holdings and its Subsidiaries and the budgets presented for
the current fiscal year of Holdings and its Subsidiaries.
(j) Installment Notes; Existing Installment Notes Letter of Credit;
Acquisition Letters of Credit. Holdings, Parent or the Borrower shall
promptly, and in any event within three Business Days, after it becomes
aware of (or in the case of clause (ix) below, after it receives) same,
provide the Administrative Agent with notice of (i) any dispute between
Parent and any holder of Installment Notes, (ii) any payment with respect
to the Installment Notes which is not paid directly from a drawing in a
like amount pursuant to the Existing Installment Notes Letter of Credit,
(iii) any failure to reinstate the Existing Installment Notes Letter of
Credit in accordance with its terms following a drawing thereunder to pay
interest, (iv) any drawing under the Existing Installment Notes Letter of
Credit, (v) any circumstance whatsoever which would permit a drawing under
any Acquisition Letter of Credit, (vi) any circumstance or occurrence
which would permit a drawing under any Acquisition Letter of Credit unless
such circumstance or occurrence is remedied or other actions taken
(including, but not limited to, a downgrade in the credit rating of the
respective issuer of the respective Acquisition Letter of Credit), (vii)
any replacement of any Acquisition Letter of Credit (whether or not in
accordance with the requirements of the Stock Purchase Agreement), (viii)
any claim for indemnification made by Holdings or any of its Subsidiaries
pursuant to the Stock Purchase Agreement and (ix) copies of all notices
received by it under the Installment Notes Trust or the Installment Notes
Trust Agreement. In connection with any notice of the type described
above, and following a request by any Agent, Holdings, Parent and the
Borrower shall promptly furnish the Banks with information describing the
actions, if any, it plans to take in connection with any of the items
described above.
(k) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings, Parent, the
Borrower or their respective Subsidiaries as any Agent (whether acting on
its own or at the request of any Bank) may reasonably request in writing.
8.02 Books, Records and Inspections. Holdings, Parent and the
Borrower will, and will cause each of their respective Subsidiaries to, keep
proper books of record and account in which full, true and correct entries in
conformity with generally accepted accounting principles and all requirements of
law shall be made of all dealings and transactions in relation to its business
and activities. Holdings, Parent and the Borrower will, and will cause each of
their respective Subsidiaries to, permit officers and designated
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representatives of any of the Agents or any Bank to visit and inspect, during
regular business hours and under guidance of officers of Holdings, Parent, the
Borrower or such Subsidiary, any of the properties of Holdings, Parent and the
Borrower or such Subsidiary, and to examine the books of account of Holdings,
Parent and the Borrower or such Subsidiary and discuss the affairs, finances and
accounts of Holdings, Parent, the Borrower or such Subsidiary with, and be
advised as to the same by, its and their officers and independent accountants,
all upon reasonable advance notice and at such reasonable times and intervals
and to such reasonable extent as such Agent or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule XII sets forth a
true and complete listing of all insurance maintained by Holdings, Parent, the
Borrower and their respective Subsidiaries as of the Restatement Effective Date.
Holdings, Parent and the Borrower will, and will cause each of their respective
Subsidiaries to, (i) keep all property necessary in its business in good working
order and condition (ordinary wear and tear excepted), (ii) maintain insurance
on all its property in at least such amounts and against at least such risks as
is consistent and in accordance with industry practice and (iii) furnish to each
Bank, upon written request, full information as to the insurance carried. In
addition to the requirements of the immediately preceding sentence, Holdings,
Parent and the Borrower will at all times cause insurance of the types described
in Schedule XII to be maintained (with the same scope of coverage as that
described in Schedule XII) at levels which are at least as great as the
respective amount described opposite the respective type of insurance on
Schedule XII under the column headed "Minimum Amount Required to be Maintained",
provided, however, that Holdings, Parent or the Borrower may discontinue or
reduce any insurance to the extent that it is no longer available at
commercially reasonable rates and so long as similarly situated companies are,
in general, reducing or eliminating such insurance in a manner consistent with
the changes being effected by the Credit Parties and their Subsidiaries.
(b) Holdings, Parent and the Borrower will, and will cause their
respective Domestic Subsidiaries to, at all times keep their respective property
insured in favor of the Collateral Agent, and all policies (including Mortgage
Policies) or certificates (or certified copies thereof) with respect to such
insurance (and any other insurance maintained by Holdings, Parent, the Borrower
or any of their respective Domestic Subsidiaries) (i) shall be endorsed to the
Collateral Agent's satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as loss payee or
as an additional insured), (ii) shall state that such insurance policies shall
not be cancelled without 30 days' prior written notice thereof by the respective
insurer to the Collateral Agent and (iii) shall provide that the respective
insurers irrevocably waive any and all rights of subrogation with respect to the
Collateral Agent and the Secured Creditors.
8.04 Corporate Franchises. Holdings, Parent and the Borrower will, and
will cause each of their respective Subsidiaries to, do or cause to be done, all
things
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necessary to preserve and keep in full force and effect its existence and its
material rights, franchises, licenses and patents used in its business;
provided, however, that nothing in this Section 8.04 shall prevent (i) sales of
assets, consolidations or mergers by or involving Holdings, Parent, the Borrower
or any of their respective Subsidiaries in accordance with Section 9.02 or (ii)
the withdrawal by Holdings, Parent, the Borrower or any of their respective
Subsidiaries of their qualification as a foreign corporation in any jurisdiction
where such withdrawal could not reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower, the Borrower
and its Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as
a whole.
8.05 Compliance with Statutes, etc. Holdings, Parent and the Borrower
will, and will cause each of their respective Subsidiaries to, comply with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower, the Borrower and its Subsidiaries taken as a whole or Holdings
and its Subsidiaries taken as a whole.
8.06 Compliance with Environmental Laws. (a) Holdings, Parent and the
Borrower will comply, and will cause each of their respective Subsidiaries to
comply, in all material respects with all Environmental Laws applicable to the
ownership or use of Real Property now or hereafter owned or operated by
Holdings, Parent, the Borrower or any of their respective Subsidiaries, will
within a reasonable time-period pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws. None of Holdings, Parent, the Borrower nor any of their
respective Subsidiaries will generate, use, treat, store, Release or dispose of,
or permit the generation, use, treatment, storage, Release or disposal of
Hazardous Materials on any Real Property now or hereafter owned or operated by
Holdings, Parent, the Borrower or any of their respective Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any
such Real Property except for Hazardous Materials used or stored at any such
Real Properties in material compliance with all applicable Environmental Laws
and reasonably required in connection with the operation, use and maintenance of
any such Real Property.
(b) At the written request of the Administrative Agent or the Required
Banks, which request shall specify in reasonable detail the basis therefor, at
any time and from time to time, the Borrower will provide, at the Borrower's
sole cost and expense, an environmental site assessment report concerning any
Real Property now or hereafter owned
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or operated by Holdings, Parent, the Borrower or any of their respective
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property; provided that such request may be
made only if (i) there has occurred and is continuing an Event of Default, (ii)
the Administrative Agent or the Required Banks reasonably believe that Holdings,
Parent, the Borrower or any such Real Property is not in material compliance
with Environmental Law, or (iii) circumstances exist that reasonably could be
expected to form the basis of a material Environmental Claim against Holdings,
Parent, the Borrower or any such Real Property. If the Borrower fails to provide
the same within 90 days after such request was made, the Administrative Agent
may order the same, and the Borrower shall grant and hereby grants to the
Administrative Agent and the Banks and their agents access to such Real Property
and specifically grants the Administrative Agent and the Banks an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the Borrower's expense.
8.07 ERISA. As soon as possible and, in any event, within 10 days after
Holdings, Parent, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate (collectively, the "Plan Parties") knows of the occurrence of
any of the following, Holdings or the Borrower will deliver to each of the Banks
a certificate of an officer of Holdings or the chief financial officer of the
Borrower setting forth details as to such occurrence and the action, if any,
that Holdings, Parent, the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by Holdings, Parent, the Borrower, such Subsidiary,
the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred other than with respect to
a Multiemployer Plan; that an accumulated funding deficiency has been incurred
or an application may reasonably be expected to be or has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan other
than with respect to a Multiemployer Plan; that a contribution required to be
made by Holdings, Parent, Borrower, any of their Subsidiaries and/or any ERISA
Affiliate, to a Plan or Foreign Pension Plan has not been timely made; that a
Plan other than a Multiemployer Plan has been or may reasonably be expected to
be terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan other than a Multiemployer Plan has an Unfunded Current
Liability giving rise to a lien under ERISA or the Code; that proceedings may
reasonably be expected to be or have been instituted to terminate or appoint a
trustee to administer a Plan other than a Multiemployer Plan; that a proceeding
has been instituted with respect to any Plan Party pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Multiemployer Plan; that
Holdings, Parent, the Borrower, any of their respective Subsidiaries or any
ERISA Affiliate will or may reasonably be expected to incur any liability
(including any
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indirect, contingent or secondary liability) to or on account of the termination
of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or
4980 of the Code or Section 409 or 502(i) or 502(1) of ERISA; or that Holdings,
Parent, the Borrower or any Subsidiary may incur any material liability solely
as a result of the adoption or amendment of any employee welfare benefit plan
(as defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or any employee pension benefit plan (as defined in Section 3(2) of
ERISA) in addition to the liability existing on the Restatement Effective Date
pursuant to any such welfare or pension plan. Upon request by any Bank, the
Borrower will deliver to such Bank a complete copy of the annual reports (Form
5500) of each Plan (other than a Multiemployer Plan) (including, to the extent
required, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information) required to be
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to the Banks pursuant to the first sentence hereof, copies of
any material notices received by Holdings, Parent, the Borrower or any of their
respective Subsidiaries or any ERISA Affiliate with respect to any Plan or
Foreign Pension Plan shall be delivered to the Banks no later than 15 days after
the date such notice has been received by Holdings, the Borrower, the Subsidiary
or the ERISA Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. Holdings shall cause (i) each
of its, and each of its Subsidiaries', fiscal years to end on December 31, and
(ii) each of its, and each of its Subsidiaries', (x) first three fiscal quarters
in each fiscal year to end on the last day of the thirteenth week of the
respective calendar quarter and (y) fourth fiscal quarter in each fiscal year to
end on December 31, provided, however, that, so long as no Default or Event of
Default then exists, Holdings may make one election to change its, and each of
its Subsidiaries', fiscal years to end on a date other than December 31.
8.09 Performance of Obligations. Each of Holdings, Parent and the Borrower
will, and will cause each of its Subsidiaries to, perform all of its obligations
under the terms of each mortgage, indenture, security agreement and other debt
instrument by which it is bound, except such non-performances as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower, the Borrower
and its Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as
a whole.
8.10 Payment of Taxes. Each of the Taxpayers will pay and discharge or
cause to be paid and discharged, and will cause each of their respective
Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any material properties belonging to it, in
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each case on a timely basis, and all lawful claims which, if unpaid, might
become a lien or charge upon any material properties of the Taxpayers or any of
their respective Subsidiaries; provided that none of the Taxpayers or any of
their respective Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.
8.11 Ownership of Subsidiaries. Holdings shall at all times own 100% of
the outstanding capital stock of Parent, which in turn shall at all times own
100% of the outstanding capital stock of the Borrower. Except as otherwise
expressly permitted pursuant to Section 9.14 in the case of the creation or
acquisition of new Subsidiaries after the Restatement Effective Date, the
Borrower shall directly or indirectly own 100% of the capital stock of each
Subsidiary of Holdings other than Parent, the Borrower and Howmet Insurance
(which shall be owned by the Parent). Without limiting the foregoing, the
Borrower shall at all times be required to directly own 100% of the capital
stock of each Receivables Subsidiary, which capital stock (and any promissory
notes received by the Borrower or any other Credit Party from any Receivables
Subsidiary) shall be pledged (and delivered for pledge) pursuant to the Pledge
Agreement.
8.12 Additional Security; Further Assurances; Surveys. (a) Holdings,
Parent and the Borrower will, and will cause each of their respective Domestic
Wholly-Owned Subsidiaries (other than Howmet Insurance and any Receivables
Subsidiary) to, grant to the Collateral Agent security interests and mortgages
(an "Additional Mortgage") in such Real Property having a Fair Market Value in
excess of $1,000,000 of any such Person as are not covered by the Original
Mortgages, to the extent acquired after the Restatement Effective Date and
requested from time to time by the Administrative Agent or the Required Banks
(each such Real Property, an "Additional Mortgaged Property"). All such
Additional Mortgages shall be granted pursuant to documentation substantially in
the form of the Mortgages delivered to the Administrative Agent on the Original
Effective Date or in such other form as is reasonably satisfactory to the
Administrative Agent and shall constitute valid and enforceable perfected Liens
superior to and prior to the rights of all third Persons and subject to no other
Liens except as are permitted by Section 9.01 at the time of perfection thereof.
The Additional Mortgages or instruments related thereto shall be duly recorded
or filed in such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Mortgages and all taxes, fees
and other charges payable in connection therewith shall be paid in full.
(b) Holdings, Parent and the Borrower will, and will cause each of their
respective Domestic Wholly-Owned Subsidiaries (other than Howmet Insurance and
any Receivables Subsidiary) to, at the expense of the applicable Credit Party,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent
from time to time such
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vouchers, invoices, schedules, confirmatory assignments, confirmatory
conveyances, financing statements, transfer endorsements, confirmatory powers of
attorney, certificates, real property surveys, reports and other assurances or
confirmatory instruments and take such further steps relating to the Collateral
covered by any of the Security Documents as the Collateral Agent may reasonably
require pursuant to this Section 8.12. Furthermore, Holdings, Parent and the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Collateral Agent to assure itself that this Section 8.12 has
been complied with.
(c) Holdings, Parent and the Borrower agree to cause each Domestic
Wholly-Owned Subsidiary (other than any Receivables Subsidiary) established or
created in accordance with Section 9.14 to execute and deliver a guaranty of all
Obligations and all obligations under Interest Rate Protection or Other Hedging
Agreements in substantially the form of the Subsidiaries Guaranty.
(d) The Borrower agrees to pledge and deliver all of the capital stock of
each new Subsidiary (excluding that portion of the voting stock of any Foreign
Subsidiary which would be in excess of 65% of the total outstanding voting stock
of such Foreign Subsidiary) established or created after the Restatement
Effective Date to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Pledge Agreement.
(e) Holdings, Parent and the Borrower will cause each Domestic Wholly-
Owned Subsidiary (other than the Receivables Subsidiary) established or created
in accordance with Section 9.14 to grant to the Collateral Agent a first
priority (subject to Permitted Liens) Lien on property (tangible and intangible)
other than any assets that may become Receivables Facility Assets of such
Subsidiary upon terms and with exceptions similar to those set forth in the
Security Documents as appropriate, and satisfactory in form and substance to the
Borrower, the Administrative Agent and Required Banks. Holdings, Parent and the
Borrower shall cause each such Domestic Wholly-Owned Subsidiary, at its own
expense, to execute, acknowledge and deliver, or cause the execution,
acknowledgement and delivery of, and thereafter register, file or record in any
appropriate governmental office, any document or instrument reasonably deemed by
the Collateral Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens. Holdings, Parent and the Borrower will cause
each of such Domestic Subsidiaries to take all actions reasonably requested by
the Administrative Agent (including, without limitation, the filing of UCC-1's)
in connection with the granting of such security interests.
(f) The security interests required to be granted pursuant to this Section
8.12 shall be granted pursuant to security documentation (which shall be
substantially similar to the Security Documents already executed and delivered
by the Borrower or its Subsidiaries, as applicable) or otherwise satisfactory in
form and substance to the Collateral
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Agent and the Borrower and shall constitute valid and enforceable perfected
security interests prior to the rights of all third Persons and subject to no
other Liens except such Liens as are permitted by Section 9.01. The Additional
Security Documents and other instruments related thereto shall be duly recorded
or filed in such manner and in such places and at such times as are required by
law to establish, perfect, preserve and protect the Liens, in favor of the
Collateral Agent for the benefit of the respective Secured Creditors, required
to be granted pursuant to the Additional Security Documents and all taxes, fees
and other charges payable in connection therewith shall be paid in full by the
Borrower. At the time of the execution and delivery of the Additional Security
Documents, the Borrower shall cause to be delivered to the Collateral Agent such
opinions of counsel, Mortgage Policies, title surveys, real estate appraisals
and other related documents as may be reasonably requested by the Managing
Agents or the Required Banks to assure themselves that this Section 8.12 has
been complied with.
(g) Each of Holdings and the Borrower agrees that each action required
above by Section 8.12 (a) or (b) shall be completed as soon as possible, but in
no event later than 60 days after such action is requested to be taken by the
Administrative Agent or the Required Banks. Each of Holdings and the Borrower
further agrees that each action required by Sections 8.12(c), (d), (e) and (f)
with respect to the creation or acquisition of a new Subsidiary shall be
completed contemporaneously with (or, in the case of any documents or
instruments to be registered, filed or recorded, within 10 days of) the creation
or acquisition of such new Subsidiary.
8.13 Permitted Acquisitions and Certain Additional Capital Expenditures.
(a) During any calendar year, the Borrower and its Subsidiaries may make
Permitted Acquisitions, so long as the aggregate consideration paid (including,
without limitation, the value of any noncompete, earn-out and other deferred
payout arrangements) in connection therewith does not exceed $10,000,000 during
such calendar year (it being understood that for calendar year 1996, such amount
shall be reduced by the amount of consideration paid in respect of Permitted
Acquisitions between January 1, 1996, and the Restatement Effective Date),
except to the extent such additional consideration is permitted pursuant to
following clauses (b) or (c).
(b) To the extent the aggregate amount of consideration paid (including,
without limitation, the value of any noncompete, earn-out and other deferred
payout arrangements) in respect of Permitted Acquisitions of the Borrower and
its Subsidiaries during any calendar year is less than $10,000,000 (after giving
effect to any decrease in such amount as provided above in clause (a) or
increase in any such amount as provided below in this clause (b)), the lesser of
(x) such unused amount and (y) $10,000,000, may be carried forward and utilized
by the Borrower and its Subsidiaries to make additional Permitted Acquisitions
in the immediately succeeding calendar year; provided that the
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maximum amount carried forward into any calendar year pursuant to this clause
(b) shall be $10,000,000.
(c) In addition to the Permitted Acquisitions permitted pursuant to
preceding clauses (a) and (b), additional Permitted Acquisitions and/or Capital
Expenditures by the Borrower and its Subsidiaries shall be permitted to be made
with proceeds of asset sales not otherwise required to be applied pursuant to
Section 4.02(e) by reason of the proviso to the first sentence thereof; provided
that the maximum aggregate amount of consideration paid (including, without
limitation, the value of any noncompete, earn-out and other deferred payout
arrangements) in connection with Permitted Acquisitions and Capital Expenditures
permitted pursuant to this clause (c) shall not exceed either (x) $25,000,000 in
any calendar year or (y) $50,000,000 in the aggregate for all periods after the
Original Effective Date.
(d) Notwithstanding anything to the contrary contained above, (x) the
aggregate principal amount of Permitted Acquired Debt assumed in connection with
any Permitted Acquisition (or which remains as an obligation of the respective
Subsidiary acquired after giving effect thereto) shall be counted as
consideration paid in connection therewith for purposes of determining
compliance with preceding clauses (a) through (c) of this Section 8.13 and (y)
in no event shall any Permitted Acquisition be made at any time when a Default
or Event of Default then exists, or would exist immediately after giving effect
thereto.
8.14 Interest Payments on Parent PIK Subordinated Notes. Parent shall, to
the maximum extent permitted pursuant to the terms of the Parent PIK
Subordinated Notes, make all payments of interest owing with respect thereto
through the issuance of additional Parent PIK Subordinated Notes, rather than by
making such interest payments in cash. Parent shall take all other actions as
may be necessary so that no cash payments are owing in respect of the Parent PIK
Subordinated Notes at any time prior to the date which occurs eight and one-half
years after the Original Effective Date.
8.15 Maintenance of Corporate Separateness. Holdings will, and will cause
each of its Subsidiaries to, satisfy customary corporate formalities, including
the holding of regular board of directors' and shareholders' meetings or action
by directors or shareholders without a meeting and the maintenance of corporate
offices and records. Neither the Borrower nor any of its Subsidiaries shall make
any payment to a creditor of Parent or Holdings in respect of any liability of
either such Person, and no bank account of Holdings or Parent shall be
commingled with any bank account of the Borrower or any of its Subsidiaries. Any
financial statements distributed to any creditors of Holdings or Parent shall
clearly establish or indicate the corporate separateness of such Person from the
Borrower and its Subsidiaries. Finally, neither Holdings nor any of its
Subsidiaries shall take any action, or conduct its affairs in a manner, which is
likely to result in the corporate existence of Holdings or Parent being ignored,
or in the assets and liabilities of Holdings
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or Parent being substantively consolidated with those of the Borrower or any of
its Subsidiaries in a bankruptcy, reorganization or other insolvency proceeding.
8.16 Foreign Subsidiaries Security. If following a change in the relevant
sections of the Code or the regulations, rules, rulings, notices or other
official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent and the Required
Banks does not within 30 days after a request from the Administrative Agent or
the Required Banks deliver evidence, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Banks, with respect to
any Foreign Subsidiary which has not already had all of its stock pledged
pursuant to the Pledge Agreement that a pledge of 66-2/3% or more of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote, would cause the undistributed earnings of such Foreign
Subsidiary as determined for Federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary's United States parent for Federal
income tax purposes, then that portion of such Foreign Subsidiary's outstanding
capital stock not theretofore pledged pursuant to the Pledge Agreement shall be
pledged to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Pledge Agreement (or another pledge agreement in substantially
similar form, if needed), to the extent that the entering into such Pledge
Agreement is permitted by the laws of the respective foreign jurisdiction and
with all documents delivered pursuant to this Section 8.16 to be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Banks.
8.17 Drawings on, and Replacements of, Acquisition Letters of Credit. (a)
If at any time Holdings or any of its Subsidiaries is permitted, in accordance
with the terms thereof, to make any drawing under any Acquisition Letter of
Credit, then Holdings, the Parent or the Borrower shall, or shall cause its
respective Subsidiary to, make such drawing or drawings as are then permitted to
be made under the respective Acquisition Letter of Credit as may be directed by
the Required Banks, with any such drawing to be made within five Business Days
(or (x) such longer period as is then required thereunder to effect such a
drawing or (y) subject to clause (x), such shorter period as will permit the
drawing to occur prior to the expiration date of any Acquisition Letter of
Credit) after Holdings or the Borrower has received written notice to make such
drawing from the Required Banks or by the Administrative Agent on their behalf.
The foregoing shall not prohibit Holdings, the Parent, the Borrower or their
respective Subsidiaries from making drawings under any Acquisition Letter of
Credit, in the absence of a direction by the Required Banks, at any time when it
is otherwise permitted to do so.
(b) If any Acquisition Letter of Credit is replaced by a substitute
Acquisition Letter of Credit (which substitution must be made in accordance with
the Stock Purchase Agreement), Holdings and its Subsidiaries shall take all
actions with respect thereto as it would have been required to take if such
replacement Acquisition Letter of
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Credit were originally issued on the Restatement Effective Date in accordance
with the requirements of Section 5.07 of the Original Credit Agreement.
(c) Except in connection with a replacement of an Acquisition Letter
of Credit with a substantially identical letter of credit in accordance with the
requirements of the Stock Purchase Agreement, neither Holdings nor any of its
Subsidiaries will surrender any Acquisition Letter of Credit for cancellation
(or agree thereto) prior to the stated expiration date thereof (as determined
without regard to any early expiration due to the surrender of the respective
Acquisition Letter of Credit), except in connection with a drawing of the full
stated amount of an Acquisition Letter of Credit where such drawing is the last
drawing which will be permitted thereunder and where the respective Acquisition
Letter of Credit must be surrendered in connection with such drawing.
(d) Neither Holdings nor any of its Subsidiaries will consent to any
investment of funds held pursuant to the Installment Notes Trust Agreement in
any investments which would not constitute Cash Equivalents.
SECTION 9. Negative Covenants. Holdings, Parent and the Borrower
covenant and agree that on and after the Restatement Effective Date and until
the Total Commitments and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
9.01 Liens. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to the Borrower or any of its
Subsidiaries), or assign any right to receive income or permit the filing of any
financing statement under the UCC or any other similar notice of Lien under any
similar recording or notice statute; provided that the provisions of this
Section 9.01 shall not prevent the creation, incurrence, assumption or existence
of the following (Liens described below are herein referred to as "Permitted
Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with generally accepted accounting principles in the United
States (or the equivalent thereof in any country in which a Foreign
Subsidiary is doing business, as applicable);
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(ii) Liens in respect of property or assets of the Borrower or any
of its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', ware- housemen's, materialmen's and mechanics' liens and
other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of the
property or assets of the Borrower, the Borrower and its Subsidiaries
taken as a whole, or Holdings and its Subsidiaries taken as a whole, or
materially impair the use thereof in the operation of the business of the
Borrower, the Borrower and its Subsidiaries taken as a whole or Holdings
and its Subsidiaries taken as a whole or (y) which are being contested in
good faith by appropriate proceedings, which proceedings (or orders
entered in connection with such proceedings) have the effect of preventing
the forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Restatement Effective Date which are
listed, and the property subject thereto described, in Schedule XIII, but
only to the respective date, if any, set forth in such Schedule XIII for
the removal and termination of any such Liens, plus renewals and
extensions of such Liens to the extent set forth on Schedule XIII,
provided that (x) the aggregate principal amount of the Indebtedness, if
any, secured by such Liens does not increase from that amount outstanding
at the time of any such renewal or extension and (y) any such renewal or
extension does not encumber any additional assets or properties of
Holdings or any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with the conduct of
the business of Holdings and its Subsidiaries taken as a whole or
materially diminishing the aggregate value of the Collateral;
(vii) Liens upon assets of the Borrower and its Subsidiaries subject
to Capitalized Lease Obligations to the extent permitted by Section 9.04,
provided that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and (y) the
Lien encumbering the asset giving rise to the Capitalized Lease Obligation
does not encumber any other asset (other than proceeds thereof) of the
Borrower or any Subsidiary of the Borrower;
(viii) Liens placed upon assets used in the ordinary course of
business of the Borrower or any of its Subsidiaries at the time of
acquisition thereof by the
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Borrower or any such Subsidiary or within 120 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof, provided that (x) the aggregate outstanding principal amount of
all Indebtedness secured by Liens permitted by this clause (viii) shall
not at any time exceed $5,000,000 and (y) in all events, the Lien
encumbering the assets so acquired does not encumber any other asset
(other than proceeds thereof) of the Borrower or such Subsidiary;
(ix) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness, not materially
interfering with the conduct of the business of the Borrower, the Borrower
and its Subsidiaries taken as a whole or Holdings and its Subsidiaries
taken as a whole and not materially diminishing the aggregate value of the
Collateral;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(xi) Liens arising out of the existence of judgments or awards not
constituting an Event of Default under Section 10.09, provided that no
cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, except as
permitted by following clause (xiii));
(xii) statutory and contractual landlords' liens under leases or
subleases to which the Borrower or any of its Subsidiaries is a party;
(xiii) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (y) to secure the performance of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (z)
arising by virtue of deposits made in the ordinary course of business to
secure liability for premiums to insurance carriers, provided that the
aggregate amount of deposits at any time pursuant to sub-clause (y) and
sub-clause (z) shall not exceed $1,000,000 in the aggregate;
(xiv) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
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(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods;
(xvi) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Borrower or any of its Subsidiaries in the ordinary course of business
in accordance with the past practices of the Borrower and its Subsidiaries
prior to the Restatement Effective Date;
(xvii) deposits made to secure statutory obligations in the form of
excise taxes;
(xviii) Liens shall be permitted to the extent same are deemed to
exist as a result of the establishment of the Installment Notes Trust, so
long as such Liens apply only to the New Installment Notes Letters of
Credit and any Secondary Letters of Credit issued in respect thereof, and
proceeds of drawings under such letters of credit made by the Installment
Notes Trustee;
(xix) Liens on Receivables Facility Assets transferred (A) to any
Receivables Subsidiary or (B) by any Receivables Subsidiary to the
Receivables Purchasers, and the filing of financing statements in
connection therewith, created by, and as set forth in, the Receivables
Documents;
(xx) Liens upon specific items of inventory or other goods and
proceeds thereof granted in favor of any Person (but not directly or
indirectly securing any Indebtedness) to facilitate the purchase, shipment
or storage of such inventory or other goods in the ordinary course of
business;
(xxi) Liens encumbering deposits securing Indebtedness under Other
Hedging Agreements, so long as the aggregate amount of deposits at any
time subject to Liens pursuant to this clause (xxi) does not exceed
$3,000,000 in the aggregate;
(xxii) Liens encumbering deposits made in the ordinary course of
business, not to exceed $5,000,000 in the aggregate at any time, to secure
nondelinquent obligations arising from statutory, regulatory, contractual
or warranty requirements of the Borrower or its Subsidiaries for which a
reserve or other appropriate provision, if any, as shall be required by
GAAP, shall have been made;
(xxiii) Liens on assets of Foreign Subsidiaries, provided that (x)
such Liens do not extend to, or encumber, assets which constitute
Collateral or the capital stock
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of the Borrower or any of its Subsidiaries and (y) such Liens extending to
the assets of any Foreign Subsidiary secure only Indebtedness incurred by
such Foreign Subsidiary pursuant to Section 9.04(xviii);
(xxiv) Liens on assets of any Subsidiary of the Borrower acquired as
a result of a Permitted Acquisition and securing only Permitted Acquired
Debt of such Subsidiary, so long as such Liens comply with the
requirements set forth in the definition of Permitted Acquired Debt; and
(xxv) Liens not otherwise permitted by the foregoing clauses (i)
through (xxiv) to the extent attaching to properties and assets with an
aggregate fair value not in excess of, and securing liabilities not in
excess of, $5,000,000 in the aggregate at any time outstanding.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
Holdings will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials,
equipment and intangible assets in the ordinary course of business) of any
Person, except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall
be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (x) in the
ordinary course of business, sell, lease or otherwise dispose of any
assets which, in the reasonable judgment of such Person, are obsolete,
worn out or otherwise no longer useful in the conduct of such Person's
business and (y) sell, lease or otherwise dispose of any other assets,
provided that the aggregate Net Sale Proceeds of all assets subject to
sales or other dispositions pursuant to this clause (y) shall not exceed
$10,000,000 in any calendar year;
(iii) investments may be made to the extent permitted by Section
9.05;
(iv) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
any such lease does not create a Capitalized Lease Obligation except to
the extent permitted by Section 9.04);
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(v) each of the Borrower and its Subsidiaries may make sales or
transfers of inventory in the ordinary course of business and consistent
with past practices (including without limitation sales or transfers of
inventory by the Borrower to its Subsidiaries);
(vi) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, overdue
accounts receivable arising in the ordinary course of business, but only
in connection with the compromise or collection thereof consistent with
customary industry practice (and not as part of any bulk sale or financing
of receivables not otherwise permitted under clause (xi) below);
(vii) transfers of condemned property to the respective governmental
authority or agency that has condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been
subject to a casualty to the respective insurer of such property as part
of an insurance settlement, shall be permitted;
(viii) licenses or sublicenses by the Borrower and its Subsidiaries
of software, trademarks and other intellectual property in the ordinary
course of business and which do not materially interfere with the business
of the Borrower, the Borrower and its Subsidiaries taken as a whole or
Holdings and its Subsidiaries taken as a whole shall be permitted;
(ix) the Installment Notes Trust shall be permitted to exist;
(x) the Borrower or any Domestic Wholly-Owned Subsidiary of the
Borrower may transfer assets or lease to or acquire or lease assets from
the Borrower or any other Domestic Wholly-Owned Subsidiary of the
Borrower, or any Domestic Wholly-Owned Subsidiary of the Borrower may be
merged into the Borrower (as long as the Borrower is the surviving
corporation of such merger as a Wholly-Owned Subsidiary of Parent) or any
other Domestic Wholly-Owned Subsidiary of the Borrower; provided that the
aggregate amount (taking the Fair Market Value) of such transfers of
assets (exclusive of assets transferred to the Intellectual Property
Subsidiary, or by the Intellectual Property Subsidiary to the Second Tier
IP Subsidiary, as contemplated by clauses (x) and (y) of the definition of
Intellectual Property Subsidiary) made to Domestic Wholly-Owned
Subsidiaries of the Borrower after the Original Effective Date shall not
exceed 15% of Consolidated Total Assets as of December 31, 1995;
(xi) sales, contributions and other transfers of Receivables
Facility Assets to the Receivables Subsidiary and sales and other
transfers of Receivables Facility
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Assets by the Receivable Subsidiary to the Receivables Purchasers, and purchases
and acquisitions of Receivables Facility Assets by the Receivables Subsidiary,
in each case pursuant to the Receivables Facility shall be permitted;
(xii) so long as no Default or Event of Default exists at the time
of the respective sale of assets or immediately after giving effect thereto,
sales of assets (which may include interests in Subsidiaries and in joint
ventures; provided that no part of the capital stock of any Subsidiary may be
sold pursuant to this clause (xii) unless all of the capital stock of the
respective Subsidiary owned by Holdings and its Subsidiaries is sold pursuant to
such a sale) of up to 5% of Consolidated Total Assets, as determined on the last
day of any calendar year, may be made in the immediately succeeding calendar
year; provided that (a) the sale price with respect to each such asset sold
shall not be less than the Fair Market Value of such asset and (b) at least 80%
of such sale price shall be payable only in cash or in Cash Equivalents;
(xiii) Holdings may liquidate any inactive Subsidiary so long as it
has reasonably determined that neither it, nor any Subsidiary of Holdings into
which such inactive Subsidiary is liquidated, will assume any material
contingent liabilities as a result thereof;
(xiv) Permitted Acquisitions shall be permitted to be made in
accordance with the requirements of Section 8.13;
(xv) any Foreign Subsidiary of the Borrower which is a Wholly-Owned
Subsidiary of the Borrower may merge with or into any other Foreign Subsidiary
of the Borrower which is also a Wholly-Owned Subsidiary of the Borrower;
(xvi) the Borrower may sell the assets or capital stock of Howmet
Refurbishment, Inc. so long as the Net Sale Proceeds thereof are applied to
repay Term Loans as provided in Section 4.02(e), provided that so long as no
Default or Event of Default then exists, the Borrower may make an intercompany
loan to Parent (I) in a principal amount not to exceed the lesser of (x) the
amount of such Net Sale Proceeds and (y) the maximum amount permitted to be so
loaned under the terms of the Senior Subordinated Note Indenture, and (II) only
to the extent the proceeds of such intercompany loan are promptly applied to
repurchase, redeem or otherwise retire outstanding Parent PIK Subordinated Notes
as provided in Section 9.11(ii) (it being understood and agreed that any portion
of such intercompany loan not so used to repurchase, redeem or otherwise retire
outstanding Parent PIK Subordinated Notes within 45 days of the making of such
intercompany loan shall be repaid to the Borrower and applied to repay Term
Loans as provided in Section 4.02(e)(without regard to clause (v) of the
parenthetical therein)), provided that one
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or more promissory notes evidencing such intercompany loans shall be
delivered by Parent to the Borrower and shall be pledged (and delivered)
by the Borrower as Collateral pursuant to the Pledge Agreement; and
(xvii) Howmet Insurance may release to Pechiney S.A. its $250,000
cash balance deposit (or any portion thereof), to the extent such deposit
is owned by Howmet Insurance, held by the Vermont Department of Banking
Insurance, Securities and Health Care Administration (the "Insurance
Department") so long as Pechiney S.A. concurrently substitutes a letter of
credit, in a stated amount equal to such released amount, issued for the
benefit of the Insurance Department.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 9.02, such Collateral (unless sold to Holdings or a Subsidiary of
Holdings) shall be sold free and clear of the Liens created by the Security
Documents, and the Administrative Agent and Collateral Agent shall be authorized
to take any actions deemed appropriate in order to effect the foregoing.
9.03 Restricted Payments. Holdings shall not, and shall not permit
any of its Subsidiaries to, authorize, declare or pay any Dividends with respect
to Holdings or any of its Subsidiaries or make any other Restricted Payment,
except that:
(i) any Subsidiary of the Borrower may pay Dividends to its
shareholders, in each case so long as the Borrower or any Subsidiary of
the Borrower which owns the respective equity interest in such Subsidiary
receives a percentage of any such Dividends which is at least equal to its
percentage equity interest in the respective Subsidiary paying the
Dividend;
(ii) Holdings may (x) repurchase Holdings Common Stock and/or
options to purchase Holdings Common Stock held by or (y) make payments
pursuant to equity appreciation rights agreements to, directors, executive
officers, members of management or employees of Holdings, the Borrower or
any of their Subsidiaries upon the death, disability, retirement or
termination of such director, executive officers, member of management or
employee, so long as (x) no Default or Event of Default then exists or
would exist after giving effect thereto and (y) the aggregate amount of
cash expended by Holdings pursuant to this clause (ii) shall not exceed
$2,000,000 in any calendar year or $5,000,000 in the aggregate;
(iii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof) the Borrower
may pay cash Dividends to Parent, which shall promptly Dividend to
Holdings the amount to be utilized by Holdings, so long as the proceeds
thereof are promptly used by Parent
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and/or Holdings to (x) pay operating expenses in the ordinary course of business
and other similar corporate overhead costs and expenses, provided that the
aggregate amount of cash Dividends paid pursuant to this clause (x) in any
calendar year shall in no event exceed $2,000,000 or (y) pay amounts required to
be paid by Holdings or Parent to participants in employee benefit plans of
Pechiney Corporation, as provided in documents related thereto, provided that
the aggregate amount of any such payments pursuant to this clause (y) in any
calendar year shall in no event exceed $400,000, or (z) pay required fees and
expenses in connection with the Transaction and the registration under
applicable laws and regulations of their debt or equity securities otherwise
permitted hereunder;
(iv) the Borrower and its Subsidiaries may make payments owing by
them in accordance with the provisions of the Tax Sharing Agreement, so long as
all payments required to be made by Holdings and Parent to the Borrower and its
Subsidiaries are made when required pursuant to the terms of such Tax Sharing
Agreement;
(v) so long as no Default or Event of Default then exists or would
exist immediately after giving effect thereto, the Borrower and/or Parent may
make Restricted Payments to Holdings (or to Parent, which shall pay such amount
to Holdings) for the purpose of enabling Holdings to (y) pay the Dividends
referred to in clause (ii) above and (z) make payments pursuant to the
Carlyle/Thiokol Management Agreements as provided pursuant to Section 9.06(vi)
hereof, so long as all proceeds thereof are promptly (and in any event within
one Business Day) used by Holdings to pay such Dividends or payments;
(vi) regularly accruing dividends may be paid with respect to the
Holdings PIK Preferred Stock through the issuance of additional shares of
Holdings PIK Preferred Stock in accordance with the terms thereof;
(vii) the Borrower may, at its option at any time when no Default or
Event of Default is in existence, cancel all or any portion of the Indebtedness
owing pursuant to the Parent Acquisition Loan in a transaction which may
constitute a Dividend to the Parent;
(viii) so long as no Default or Event of Default then exists or
would exist immediately after giving effect thereto, the Borrower may make a
loan to Parent as permitted by Section 9.05 (xviii);
(ix) so long as no Default or Event of Default then exists or would
exist immediately after giving effect thereto, the Borrower may make Restricted
Payments to Parent for the purpose of enabling Parent to repurchase, redeem or
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otherwise retire outstanding Parent PIK Subordinated Notes to the extent
provided in Section 9.11(ii), so long as all proceeds thereof are promptly
(and in any event within one Business Day) used by Parent for such
purpose; and
(x) so long as no Default or Event of Default then exists or would
exist immediately after giving effect thereto, the Borrower may make
Restricted Payments and/or loans (pursuant to a revolving note issued
under an insurance funding agreement on the date hereof) to Parent not to
exceed (for all such Restricted Payments and loans) $1,000,000 in the
aggregate (plus the amount of any capital contributions or repayments of
loans thereafter made in respect of any such payment as described in the
immediately succeeding proviso) for the purpose of enabling Parent to make
equity contributions or loans to Howmet Insurance, which contributions or
loans shall be used by Howmet Insurance to cover its liabilities pending
reimbursement for such liabilities from Pechiney S.A. or an affiliate
thereof; provided that to the extent such reimbursement is subsequently
received by Holdings or any of its Subsidiaries (including, without
limitation, Howmet Insurance), such amounts shall, within 5 Business Days
after the receipt thereof, be contributed to the capital of the Borrower
or used to repay any such loans made by the Borrower.
9.04 Indebtedness. Holdings will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents (and Indebtedness represented by letters of credit and
related reimbursement obligations outstanding on the Restatement Effective
Date to the extent such Indebtedness is supported by a Letter of Credit);
(ii) Indebtedness of the Borrower pursuant to the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$125,000,000 less the aggregate amount of all repayments of Senior
Subordinated Notes effected after the Original Effective Date;
(iii) Existing Indebtedness shall be permitted to the extent the
same is listed on Schedule XI, but no refinancings or renewals thereof;
(iv) Accrued expenses and current trade accounts payable incurred in
the ordinary course;
(v) Indebtedness under Interest Rate Protection Agreements entered
into with respect to floating rate Indebtedness otherwise permitted to be
outstanding by the provisions of this Section 9.04;
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(vi) Indebtedness evidenced by Capitalized Lease Obligations to the
extent permitted pursuant to Section 9.07, provided that in no event shall the
aggregate principal amount of Capitalized Lease Obligations permitted by this
clause (vi) exceed $10,000,000 at any time outstanding;
(vii) Indebtedness subject to Liens permitted under Section
9.01(viii), so long as the outstanding amount of such Indebtedness does not
exceed the amount provided in said Section 9.01(viii);
(viii) intercompany Indebtedness of the Borrower and its
Wholly-Owned Subsidiaries, to the extent permitted by Section 9.05(vii);
(ix) in addition to any Indebtedness permitted by preceding clause
(viii), Indebtedness of any Wholly-Owned Subsidiary to the Borrower or another
Wholly- Owned Subsidiary constituting the purchase price in respect of
intercompany transfers of goods made in the ordinary course of business to the
extent not constituting Indebtedness for borrowed money;
(x) Indebtedness evidenced by Other Hedging Agreements entered into
pursuant to Section 9.05(vi);
(xi) Indebtedness of Parent pursuant to the Parent PIK Subordinated
Notes in an aggregate principal amount not to exceed $25,000,000 plus the
aggregate principal amount of Parent PIK Subordinated Notes issued to pay
interest owing on theretofore outstanding Parent PIK Subordinated Notes in
accordance with the requirements of Section 8.14, less the aggregate amount of
all repayments of principal of Parent PIK Subordinated Notes effected after the
Original Effective Date;
(xii) Indebtedness of Parent evidenced by the Installment Notes, so
long as (x) none of Holdings or any of its other Subsidiaries provides any
direct or indirect guarantee, or is obligated with respect thereto and (y) the
maximum amount at any time owing pursuant to the Installment Notes is fully
covered by the New Installment Letters of Credit and the Secondary Letters of
Credit issued in respect thereof;
(xiii) Indebtedness which may be deemed to exist pursuant to the
Receivables Facility, so long as, if the Receivables Facility Attributed
Indebtedness ever exceeds, when added to the amount of the Total Revolving Loan
Commitment as then in effect, $150,000,000, any repayments and commitment
reductions required as a result thereof pursuant to Section 4.02(d) shall have
been made in accordance with the terms thereof;
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(xiv) Indebtedness under performance bonds, letter of credit
obligations to provide security for workers' compensation claims and bank
overdrafts, in each case incurred in the ordinary course of business, provided
that any obligations arising in connection with such bank overdraft Indebtedness
is extinguished within five Business Days;
(xv) Indebtedness incurred by the Borrower or any of its
Subsidiaries and arising from agreements providing for indemnification related
to sales of goods or adjustment of purchase price or similar obligations in any
case incurred in connection with the disposition of any business, assets or
Subsidiaries of the Borrower;
(xvi) accounts payable to vendors for goods and services obtained in
the normal course of business and under normal terms and conditions;
(xvii) Indebtedness arising from transactions with the Receivables
Subsidiary as contemplated in Sections 9.05(xi), (xiv) and (xvi), so long as
such Indebtedness does not exceed the respective amounts, if any, as provided in
such respective Sections;
(xviii) Indebtedness incurred by Foreign Subsidiaries for their own
working capital and general corporate purposes, (x) to the extent that the
principal amount thereof is covered by a Letter of Credit issued pursuant to
this Agreement or (y) to the extent the principal amount of any such
Indebtedness is not so covered by a Letter of Credit outstanding hereunder, the
aggregate principal amount of Indebtedness outstanding pursuant to this
subclause (y) at no time exceeds $30,000,000;
(xix) Permitted Acquired Debt of Subsidiaries of the Borrower
assumed as a result of Permitted Acquisitions effected in accordance with the
requirements of Section 8.13, so long as the aggregate principal amount of
Permitted Acquired Debt incurred or assumed (x) in any calendar year shall not
exceed $5,000,000 or (y) after the Original Effective Date, shall not exceed
$20,000,000 in the aggregate;
(xx) Indebtedness expressly permitted pursuant to Sections 9.05(x),
(xv) and (xviii);
(xxi) Additional Indebtedness of the Borrower and its Subsidiaries
(other than the Intellectual Property Subsidiary and the Second Tier IP
Subsidiary) not to exceed $5,000,000 in aggregate principal amount outstanding
at any time;
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(xxii) Contingent Obligations of the Borrower as a guarantor of the
Indebtedness incurred by Foreign Subsidiaries permitted pursuant to
Section 9.04(xviii); and
(xxvii) Contingent Obligations of the Borrower constituting
performance guarantees of research contracts entered into or assumed by
the Intellectual Property Subsidiary in the ordinary course of business.
9.05 Advances, Investments and Loans. Holdings will not, and will
not permit any of its Subsidiaries to, directly or indirectly, lend money or
credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (all of the foregoing, "Investments"), except that the
following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables arising in the ordinary course of business and owing to any of
them;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents;
(iii) the Borrower and its Subsidiaries may make loans and advances
in the ordinary course of business to their respective employees so long
as the aggregate principal amount thereof at any time outstanding
(determined without regard to any write-downs or write-offs of such loans
and advances) shall not exceed $3,500,000;
(iv) the Borrower may enter into Interest Rate Protection Agreements
to the extent permitted in Section 9.04(v);
(v) the Parent Acquisition Loan shall be permitted to remain
outstanding so long as such loan remains evidenced by a promissory note
delivered by the Borrower to the Collateral Agent as security pursuant to
the Pledge Agreement;
(vi) the Borrower may enter into and perform its obligations under
Other Hedging Agreements entered into in the ordinary course of business
and consistent with past practices so long as any such Other Hedging
Agreement is not speculative in nature and is (x) related to income
derived from foreign operations of the Borrower or any Subsidiary or
otherwise related to purchases permitted hereunder
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from foreign suppliers or (y) entered into to protect the Borrower and/or its
Subsidiaries against fluctuations in the prices of raw materials used in their
Businesses;
(vii) any Wholly-Owned Subsidiary of the Borrower (excluding each
Receivables Subsidiary) may make intercompany loans to the Borrower or any
Wholly-Owned Subsidiary of the Borrower (excluding each Receivables Subsidiary)
and the Borrower may make intercompany loans and advances to any Wholly- Owned
Subsidiary of the Borrower (excluding each Receivables Subsidiary), provided
that any promissory notes evidencing such intercompany loans owing to the
Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower shall be
pledged (and delivered) as Collateral pursuant to the Pledge Agreement, and,
provided further, that the sum of the aggregate amount of such intercompany
loans (excluding intercompany loans listed on Schedule XI) from the Borrower and
its Domestic Wholly-Owned Subsidiaries outstanding at any time (calculated
without regard to any write-downs or write-offs thereof) to Foreign Wholly-Owned
Subsidiaries and the aggregate amount of the Indebtedness of Foreign
Subsidiaries outstanding at such time pursuant to sub-clause (y) of Section
9.04(xviii), when added to the amount guaranteed at such time pursuant to
Section 9.04(xxii), shall not exceed the lesser of (i) $40,000,000 minus the
amount guaranteed at such time by the Borrower pursuant to Section 9.04(xxii),
and (ii) the amount permitted under the Senior Subordinated Note Indenture;
(viii) the Borrower and its Subsidiaries may sell or transfer assets
to the extent permitted by Section 9.02, and may acquire non-cash consideration
in respect thereof to the extent permitted by Section 9.02(xii);
(ix) the Borrower may establish Subsidiaries to the extent permitted
by Section 9.14, and may effect Permitted Acquisitions in accordance with the
requirements of Section 8.13;
(x) the Installment Notes Trust shall be permitted to exist;
(xi) as a result of sales, contributions and other transfers of
Receivable Facility Assets to any Receivables Subsidiary in accordance with
Section 9.02(xi), Investments may exist from time to time consisting of (x)
contributions to the capital of such Receivables Subsidiary and (y) intercompany
loans being made (or deemed made) as a result of the transfer of such
Receivables Facility Assets, in each case so long as all capital stock of each
Receivables Subsidiary is pledged pursuant to the Pledge Agreement and all such
intercompany loans are evidenced by one or more promissory notes which are
pledged pursuant to the Pledge Agreement;
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(xii) the Borrower or any Wholly-Owned Subsidiary may make loans to
or Investments in Komatsu Howmet Ltd. Japan and R-H Component Technologies L.C.
(so long as the Borrower retains at least a 50% equity interest in such entity)
in an amount not to exceed $20,000,000 (excluding any such loans or Investments
outstanding on the Original Effective Date) in the aggregate at any time
outstanding (calculated without regard to any write-downs or write-offs
thereof);
(xiii) the Borrower and its Subsidiaries may make additional
Investments in an aggregate amount at any time outstanding (calculated without
regard to any write-downs or write-offs thereof) not to exceed in the aggregate
(x) $5,000,000 (which may, but are not required to, be made in joint ventures
and/or Subsidiaries which are not Wholly-Owned Subsidiaries) plus (y) $5,000,000
to be made only in joint ventures and/or Subsidiaries which are not Wholly-Owned
Subsidiaries, provided, that (I) in no event shall the aggregate amount of
Investments made pursuant to this clause (xiii) exceed the amount permitted
under the Senior Subordinated Note Indenture and (II) to the extent any
Investment pursuant to this clause (xiii) is made as an equity contribution to
any Subsidiary of the Borrower or its Subsidiaries, the basket provided for by
this clause (xiii) shall be replenished by the amount of any Dividends from the
Subsidiary receiving such equity contribution to the Person making such equity
contribution;
(xiv) the Borrower may guarantee obligations of its Subsidiaries
(other than any Receivables Subsidiary) as sellers pursuant to the Receivables
Documents, so long as no such guaranty shall give rise to recourse liability
(other than in connection with Standard Securitization Undertakings) for the
payment of any Receivables Facility Assets or the principal of, or interest on,
any Purchased Interest or Investor Certificate;
(xv) the Borrower may make loans to Parent, which in turn may make
loans or capital contributions to Howmet Insurance to the extent expressly
permitted pursuant to Section 9.03(x);
(xvi) to the extent necessary to maintain the net worth of a
Receivables Subsidiary in accordance with the requirements of the Receivables
Facility, the Borrower may at any time contribute one or more promissory notes
to the capital of such Receivables Subsidiary; provided that (x) at no time
shall the aggregate principal amount of such outstanding promissory notes exceed
$5,000,000 in the aggregate, and (y) all such promissory notes shall be repaid
through subsequent sales of Receivables Facility Assets to the respective
Receivables Subsidiary and not through cash payments;
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(xvii) the Intellectual Property Subsidiary may make capital
contributions to the Second Tier IP Subsidiary, in an amount not to exceed
the amount received by the Intellectual Property Subsidiary as royalty
income for patents, trademarks and other intellectual property; and
(xviii) the Borrower may make a loan to Parent to the extent
expressly permitted pursuant to Section 9.02(xvi).
9.06 Transactions with Affiliates. Holdings will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Holdings or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Holdings or such Subsidiary as would reasonably be obtained by Holdings or such
Subsidiary at that time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that:
(i) Restricted Payments may be paid to the extent provided in
Section 9.03;
(ii) loans may be made and other transactions may be entered into
between the Borrower and its Subsidiaries to the extent expressly
permitted by Sections 9.02(v), (x), (xi) and (xiii), 9.04 and 9.05;
(iii) customary fees may be paid to non-officer directors of
Holdings;
(iv) Holdings and its Subsidiaries may enter into employment
arrangements with respect to the procurement of services of their
respective officers and employees in the ordinary course of business,
including executive compensation arrangements;
(v) Holdings may make capital contributions to Parent, which may
make capital contributions to the Borrower;
(vi) so long as no Default or Event of Default then exists, or would
exist immediately after giving effect thereto, payments may be made
pursuant to the Carlyle/Thiokol Management Agreements; provided that in no
event shall the aggregate amount paid under either such Carlyle/Thiokol
Management Agreement exceed (i) $1,000,000 per annum, such fees to be
payable quarterly in arrears and (ii) the reimbursement of reasonable
out-of-pocket expenses as provided therein, to the extent actually
incurred;
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(vii) the Borrower and its Subsidiaries may enter into the
transactions contemplated by the Receivables Documents; and
(viii) Holdings and its Subsidiaries may pay management or similar
fees (x) to the Borrower and (y)(I) as set forth on Schedule XIV and (II)
otherwise, in an aggregate amount not to exceed $100,000.
In addition to the applicable requirements provided above, any
transactions (other than as described in clauses (i) through (vii) above)
between and among Holdings and/or its Subsidiaries on the one hand and any of
their respective Affiliates (excluding transactions between or among the
Borrower and its Wholly-Owned Subsidiaries) on the other hand between and among
the aforementioned parties with a value in excess of (A) $2,000,000 shall only
be permitted if a majority of the disinterested directors of Holdings approve
the transaction and (B) $10,000,000 shall only be permitted if the parties
thereto provide a fairness opinion from a Person, and in form and substance,
satisfactory to the Administrative Agent.
9.07 Capital Expenditures. (a) Holdings will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
the Borrower and its Subsidiaries may make Capital Expenditures so long as the
aggregate amount of such Capital Expenditures made under this Section 9.07(a)
does not exceed $55,000,000 in the aggregate for any calendar year.
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the aggregate amount of Capital Expenditures made by
the Borrower and its Subsidiaries (excluding only those Capital Expenditures
made pursuant to following clause (c)) in any calendar year of the Borrower are
less than $55,000,000, the amount of such difference, but in no case more than
$10,000,000, may be carried forward and used to make Capital Expenditures in the
immediately succeeding calendar year.
(c) In addition to the Capital Expenditures permitted pursuant to
preceding clauses (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures as follows: (i) Capital Expenditures consisting
of the reinvestment of Net Sale Proceeds of asset sales not required to be
applied to prepay the Loans pursuant to Section 4.02(e) as a result of the first
proviso thereto, (ii) the reinvestment of proceeds of Recovery Events not
required to be applied to prepay the Loans pursuant to Section 4.02(f), and
(iii) Permitted Acquisitions may be effected in accordance with the requirements
of Section 8.13.
9.08 Consolidated Interest Coverage Ratio. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period, in each
case taken as one
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accounting period, ended on the last day of any fiscal quarter ended after the
Restatement Effective Date to be less than 2.50:1.00.
9.09 Consolidated Fixed Charge Coverage Ratio. The Borrower will not
permit the Consolidated Fixed Charge Coverage Ratio for any Test Period, in each
case taken as one accounting period, ended on the last day of any fiscal quarter
ended after the Restatement Effective Date to be less than 1.50:1.00.
9.10 Maximum Leverage Ratio. The Borrower will not permit the Leverage
Ratio at any time after the Restatement Effective Date to be greater than
3.50:1.00.
9.11 Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.
Holdings will not, and will not permit any of its Subsidiaries to, (i) amend or
modify, or permit the amendment or modification of, any provision of the
Existing Indebtedness or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement or security agreement) relating
thereto other than any amendments or modifications to the Existing Indebtedness
or of any agreement relating thereto which do not in any way adversely affect
the interests of the Banks or that are determined to be immaterial by the
Managing Agents and are otherwise permitted under Section 9.04(iii), (ii) make
(or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of,
any Installment Notes, Senior Subordinated Notes or Parent PIK Subordinated
Notes, or amend or modify, or permit the amendment or modification of, any
provision of any Installment Notes, Senior Subordinated Notes or Parent PIK
Subordinated Notes or any agreement (including, without limitation, any Senior
Subordinated Note Document) relating thereto, except for amendments or
modifications which are not in any way adverse to the interests of the Banks or
that are determined to be immaterial by the Managing Agents, provided, that so
long as there shall exist no Default or Event of Default, Parent may repurchase,
redeem or otherwise retire outstanding Parent PIK Subordinated Notes in an
amount which shall not exceed the amount permitted by the Senior Subordinated
Note Indenture, (iii) after the entering in to of any Receivables Facility in
accordance with the requirements of this Agreement, amend or modify, or permit
the amendment or modification of, any provision of the documentation with
respect thereto, except for amendments and modifications where the Receivables
Amendment Conditions are satisfied, (iv) amend or modify, or permit the
amendment or modification of, or surrender (except upon the termination thereof
in accordance with its terms) or release, any Acquisition Letter of Credit
(although the acceptance of replacement Acquisition Letters of Credit in the
form required to be accepted pursuant to the Stock Purchase Agreement shall be
permitted), provided, however, that Holdings may make such amendments or
modifications as are determined to be immaterial by the Managing Agents, (v)
amend or modify,
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or permit the amendment or modification of, the Stock Purchase Agreement or any
Installment Notes Trust Document, except for amendments or modifications which
are not in any way adverse to the interests of the Banks or that are determined
to be immaterial by the Managing Agents or (vi) amend, modify or change its
certificate of incorporation (including, without limitation, by the filing or
modification of any certificate of designation) or by-laws, or any agreement
entered into by it, with respect to its capital stock (including any
Shareholders' Agreement), or enter into any new agreement with respect to its
capital stock, other than any amendments, modifications or changes pursuant to
this clause (vi) or any such new agreements pursuant to this clause (vi) which
the Borrower reasonably concludes do not adversely affect the interests of the
Banks, provided that nothing in this clause (vi) shall prevent Holdings or any
of its Subsidiaries from amending its Certificate of Incorporation or By-Laws
with respect to any matters other than its creditors or its capital stock
(including to provide indemnification to any officer or director of Holdings or
any such Subsidiary to the maximum extent permitted by Delaware law) and,
provided further, that Holdings may issue such capital stock as is provided in
Section 9.13.
9.12 Limitation on Certain Restrictions on Subsidiaries. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Subsidiary to (a) pay dividends or
make any other distributions on its capital stock or any other interest or
participation in its profits owned by the Borrower or any Subsidiary of the
Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of the
Borrower, (b) make loans or advances to the Borrower or any of the Borrower's
Subsidiaries or (c) transfer any of its properties or assets to the Borrower or
any of the Borrower's Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the
other Credit Documents, (iii) the Senior Subordinated Note Documents, (iv)
restrictions on the Receivables Subsidiary, and with respect to Receivables
Facility Assets, set forth in the Receivables Documents, (v) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or a Subsidiary of the Borrower, (vi)
customary provisions restricting assignment of any licensing agreement entered
into by the Borrower or a Subsidiary of the Borrower in the ordinary course of
business, (vii) any holder of a Permitted Lien may restrict the transfer of the
asset or assets subject thereto, (viii) any Indebtedness incurred after the
Restatement Effective Date in accordance with the provisions of this Agreement
may contain restrictions which are not more restrictive than those contained in
this Agreement, (ix) to the extent any Foreign Subsidiary incurs Indebtedness
pursuant to Section 9.04(xviii), and so long as such Indebtedness remains
outstanding, the terms of the documentation with respect to such Indebtedness
may contain restrictions of the types described above, but only with respect to
such Foreign Subsidiary and any of its Subsidiaries and (x) to the extent any
Subsidiary acquired or created after the Restatement Effective Date is the
obligor with respect to Permitted Acquired Debt permitted to remain outstanding
pursuant to the terms of this Agreement, such Permitted Acquired Debt may
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contain restrictions of the type otherwise described above with respect to such
Subsidiary (so long as such restrictions were not created in contemplation of
such Person becoming a Subsidiary or made more restrictive after the date of the
respective acquisition).
9.13 Limitation on Issuance of Capital Stock. (a) Holdings shall not issue
(i) any preferred stock (except for the issuance of additional shares of
Holdings PIK Preferred Stock in payment of regularly accruing dividends on
theretofore outstanding shares of Holdings PIK Preferred Stock) or (ii) any
redeemable common stock; provided that Holdings shall be permitted to issue
Qualified Preferred Stock at any time so long as the Net Cash Proceeds therefrom
are applied in accordance with the requirements of Section 4.02(c).
(b) Parent shall not issue, or permit any of its Subsidiaries to issue,
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of Holdings or any of its Subsidiaries in any
class of the capital stock of Parent or such Subsidiary, (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors to the extent
required by applicable law, and (iv) Subsidiaries of the Borrower formed after
the Restatement Effective Date pursuant to Section 9.14 may issue capital stock
to the Borrower or the respective Subsidiary of the Borrower which is to own
such stock in accordance with the requirements of Section 8.11. All capital
stock issued in accordance with this Section 9.13(b) shall, to the extent
required by the Pledge Agreement, be delivered to the Collateral Agent for
pledge pursuant to the Pledge Agreement.
9.14 Limitation on Creation of Subsidiaries. Neither Holdings, Parent nor
the Borrower shall establish, create or acquire any additional Subsidiaries
without the prior written consent of the Required Banks; provided that the
Borrower may establish or create one or more Wholly-Owned Subsidiaries of the
Borrower without such consent so long as (i) 100% of the capital stock of any
new Domestic Subsidiary (or all capital stock of any new Foreign Subsidiary
which is owned by any Credit Party, except that not more than 65% of the voting
stock of any such Foreign Subsidiary shall be required to be so pledged) is upon
the creation or establishment of any such new Subsidiary pledged and delivered
to the Collateral Agent for the benefit of the Secured Creditors under the
Pledge Agreement and (ii) upon the creation or establishment of any such new
Domestic Wholly-Owned Subsidiary (other than any Receivables Subsidiary), such
Domestic Wholly-Owned Subsidiary executes the Additional Security Documents and
guaranty required to be executed by it in accordance with Section 8.12.
Notwithstanding anything to the contrary contained above, (i) R-H Component
Technologies L.C. and/or Komatsu Howmet Ltd. Japan may become Subsidiaries of
the Borrower after the Restatement Effective Date, even if such Subsidiaries are
not Wholly-Owned Subsidiaries and (ii) the Borrower may acquire
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or create one or more Subsidiaries which are not Wholly-Owned Subsidiaries, so
long as the aggregate amount of Investments made therein by the Borrower and its
other Subsidiaries is made in accordance with Section 9.05(xiii).
9.15 Business. (a) Holdings shall engage in no business activities and
shall have no assets or liabilities, other than its ownership of the capital
stock of the Parent and liabilities incident thereto, including its liabilities
pursuant to the Pledge Agreement and its guaranty pursuant to Section 14.01.
(b) Parent shall engage in no business activities and shall have no assets
or liabilities, other than (v) its obligations set forth in Section 9.03(iii),
(w) its ownership of the capital stock of the Borrower and liabilities incident
thereto, including its liabilities pursuant to the Pledge Agreement, the
Security Agreement and its guaranty pursuant to Section 14.01, (x) its ownership
of the capital stock of Howmet Insurance and liabilities incident thereto, (y)
its obligations with respect to the Installment Notes, Excluded Liabilities and
other matters set forth in the disclosure schedules to the Stock Purchase
Agreement and its rights with respect to the Installment Notes Trust and any
Acquisition Letters of Credit and (z) its obligations pursuant to the Parent PIK
Subordinated Notes.
(c) Howmet Insurance shall engage in no new business, and shall underwrite
no new insurance, after the Restatement Effective Date.
(d) The Borrower will not, and will not permit any of its Subsidiaries
(other than any Receivables Subsidiary) to, engage (directly or indirectly) in
any business other than the Business and reasonable extensions thereof.
SECTION 10. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due of
any principal of any Loan or any Note or (ii) default, and such default shall
continue un-remedied for three or more Business Days, in the payment when due of
any Unpaid Drawings or interest on any Loan or Note, or any Fees or any other
amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement made
by any Credit Party herein or in any other Credit Document or in any certificate
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
10.03 Covenants. Holdings, Parent or the Borrower shall (i) default in the
due performance or observance by it of any term, covenant or agreement contained
in
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Section 8.01(f)(i), the first sentence of Section 8.01(j), Section 8.08, the
first and third sentences of Section 8.11, or Section 8.13, 8.14, 8.17 or 9 or
(ii) default in the due performance or observance by it of any other term,
covenant or agreement contained in this Agreement and in the case of any default
specified in this clause (ii) such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by any Agent (whether
acting on its own or at the request of any of the Banks); or
10.04 Default Under Other Agreements. Holdings, Parent, the Borrower or
any of their respective Subsidiaries shall (i) default in any payment of any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Obligations) or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (iii) any
Indebtedness (other than the Obligations) of Holdings, Parent, the Borrower or
any of their respective Subsidiaries shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof, provided that (x) it shall not be a
Default or Event of Default under this Section 10.04 unless the aggregate
principal amount of all Indebtedness as described in preceding clauses (i)
through (iii), inclusive, less the Howmet Cercast (Canada) Defaulted Amount (if
any) at such time, is at least $5,000,000; or
10.05 Bankruptcy, etc. Holdings, Parent, the Borrower or any of their
respective Subsidiaries (excluding Insignificant Subsidiaries) shall commence a
voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy", as now or hereafter in effect, or any successor thereto
(the "Bankruptcy Code"); or an involuntary case is commenced against Holdings,
Parent, the Borrower or any of their respective Subsidiaries (excluding
Insignificant Subsidiaries) and the petition is not controverted within 15 days,
or is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of Holdings, Parent, the Borrower
or any of their respective Subsidiaries (excluding Insignificant Subsidiaries),
or Holdings, Parent, the Borrower or any of their respective Subsidiaries
(excluding Insignificant Subsidiaries) commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings, Parent, the Borrower or any of their
respective Subsidiaries (excluding Insignificant Subsidiaries), or there is
commenced against Holdings, Parent, the Borrower or any of their respective
Subsidiaries (excluding Insignificant Subsidiaries) any such proceeding which
remains undismissed for a period of 60 days, or
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Holdings, Parent, the Borrower or any of their respective Subsidiaries
(excluding Insignificant Subsidiaries) is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding is
entered; or Holdings, Parent, the Borrower or any of their respective
Subsidiaries (excluding Insignificant Subsidiaries) suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or Holdings, Parent,
the Borrower or any of their respective Subsidiaries (excluding Insignificant
Subsidiaries) makes a general assignment for the benefit of creditors; or any
corporate action is taken by Holdings, Parent, the Borrower or any of their
respective Subsidiaries (excluding Insignificant Subsidiaries) for the purpose
of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had or is likely to have a trustee appointed to
administer such Plan, any Plan is, shall have been or is likely to be terminated
or to be the subject of termination proceedings under ERISA, any Plan shall have
an Unfunded Current Liability, a contribution required to be made to a Plan or a
Foreign Pension Plan has not been timely made, Holdings, Parent, the Borrower or
any their respective Subsidiaries or any ERISA Affiliate has incurred or is
likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code, or Holdings, Parent, the
Borrower or any of their respective Subsidiaries has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) which provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA) or Foreign
Pension Plans; and (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) which lien, security interest or
liability, individually, and/or in the aggregate, in the opinion of the Required
Banks, will have a material adverse effect upon the business, operations,
condition (financial or otherwise) or prospects of Holdings, Parent, the
Borrower or of any such Person and its Subsidiaries taken as a whole; or
10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease in any material respect to give the Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all of the Collateral (excluding assets
valued at up to $1,000,000 in the aggregate; provided that if the Borrower is
notified by the Administrative Agent of a lack of perfection with respect to any
of the Collateral, the Borrower will take such steps as are necessary or
advisable to perfect the Collateral Agent's security interest in such
Collateral)), in favor of the Collateral Agent,
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superior to and prior to the rights of all third Persons (except as permitted by
Section 9.01), and subject to no other Liens (except as permitted by Section
9.01), or any Credit Party shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to any of the Security Documents and such default shall continue beyond any
grace period specifically applicable thereto pursuant to the terms of such
Security Document; or
10.08 Guaranty. Any Guaranty or any provision thereof shall cease to be in
full force or effect as to the relevant Guarantor (unless such Guarantor is no
longer a Subsidiary by virtue of a liquidation, sale, merger or consolidation
permitted by Section 9.02), or any Guarantor or Person acting by or on behalf of
such Guarantor shall deny or disaffirm such Guarantor's obligations under the
relevant Guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to its Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered against
Holdings, Parent, the Borrower or any of their respective Subsidiaries involving
in the aggregate for Holdings, Parent, the Borrower and their respective
Subsidiaries (excluding Insignificant Subsidiaries) a liability (not paid or
fully covered by a reputable and solvent insurance company) and such judgments
and decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 60 consecutive
days, and the aggregate amount of all such judgments and decrees, to the extent
not covered by insurance, exceeds $5,000,000; or
10.10 Change of Control. A Change of Control shall occur; or
10.11 Receivables Facility. (x) The Borrower and its Subsidiaries shall
have, during any fiscal quarter, an aggregate amount of Noncomplying Receivables
and Dilution Adjustments (as these terms are defined on the Original Effective
Date in the Receivables Documents or, with respect to any replacement or amended
Receivables Facility, as such similar terms and concepts may be defined therein)
in excess of 10% of the unpaid balance of receivables sold to Receivables
Subsidiaries during such quarter, (y) for any reason financing is not available
to the Borrower pursuant to the Receivables Facility prior to the stated
maturity date thereof for a period of five or more consecutive days or (z) any
early amortization event or any event permitting any Receivables Purchaser or
Receivables Purchasers to effect an early termination of the Receivables
Facility (or a portion thereof) shall have occurred and be continuing; or
10.12 Installment Notes; Acquisition Letters of Credit. At any time (i)
Holdings or any of its Subsidiaries other than Parent makes any payment
whatsoever with respect to the Installment Notes, (ii) Parent makes any payment
whatsoever with respect to the Installment Notes which is not reimbursed to it
(whether through drawings under the
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New Installment Notes Letters of Credit, the Secondary Letters of Credit with
respect thereto, from the Installment Notes Trust or from Pechiney S.A.,
Pechiney International and/or Howmet Cercast S.A. or otherwise (but not from
Holdings and its Subsidiaries)) within ten Business Days after the date the
respective payment is made, (iii) for any reason whatsoever, the aggregate
outstanding principal amount of the Installment Notes is not covered by a New
Installment Notes Letter of Credit and a Secondary Letter of Credit issued in
accordance with the requirements of this Agreement and the Stock Purchase
Agreement or (iv) any Acquisition Letter of Credit shall fail to be outstanding
or be renewed or extended, except as permitted hereunder;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of any Agent, any Bank or
the holder of any Note to enforce its claims against any Credit Party (provided
that, if an Event of Default specified in Section 10.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice
by the Administrative Agent to the Borrower as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitments terminated, whereupon all Commitments of each Bank
shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
the Notes and all Obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Credit Party; (iii) terminate any Letter of Credit, which may be terminated, in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay) to
the Collateral Agent at the Payment Office such additional amount of cash, to be
held as security by the Collateral Agent, as is equal to the aggregate Stated
Amount of all Letters of Credit issued for the account of the Borrower and then
outstanding; (v) enforce, as Collateral Agent, all of the Liens and security
interests created pursuant to the Security Documents; and (vi) apply any cash
collateral as provided in Section 4.02.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquisition" shall mean (i) the purchase by Howmet Holdings Acquisition
of 100% of the capital stock of Pechiney Corporation for $587,000,000 (less the
amount
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of Financing Obligations as described in Section 2.02 of the Stock Purchase
Agreement) in cash plus the delivery of the Parent PIK Subordinated Note to
Pechiney International in the aggregate principal amount of $25,000,000, (ii)
the purchase by Howmet Acquisition of (A) 100% of the capital stock of Howmet
Cercast (U.S.A) for $23,000,000, (B) the Noncompete Covenant for $75,000,000 and
(C) the purchase by Howmet of 100% of the capital stock of Financiere d'Ocquier,
S.A. for $21,000,000, pursuant to the Stock Purchase Agreement and (iii) the
purchase by Canada Acquisition Co. of 100% of the capital stock of Howmet
Cercast (Canada) for $19,000,000.
"Acquisition Documents" shall mean the Stock Purchase Agreement and all
other documentation entered into in connection with the Acquisition or the
Mergers.
"Acquisition Letters of Credit" shall mean the New Installment Notes
Letters of Credit, the Existing Installment Notes Letter of Credit, the
Insurance Letter of Credit, the Tax Letter of Credit, the Secondary Letters of
Credit and any other letters of credit issued pursuant to the Stock Purchase
Agreement (and any replacements or substitutions therefor).
"Additional Collateral" shall mean all property (whether real or personal)
in which security interests are granted (or have been purported to be granted)
(and continue to be in effect at the time of determination) pursuant to Section
8.12.
"Additional Mortgage" shall have the meaning provided in Section 8.12(a).
"Additional Mortgaged Property" shall have the meaning provided in Section
8.12(a).
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 8.12 with respect to Additional Collateral, as each such
document may be modified, supplemented or amended from time to time.
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank, such Bank's Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Loan Commitment at such time by the Adjusted Total
Revolving Loan Commitment at such time, it being understood that all references
herein to Revolving Loan Commitments and the Adjusted Total Revolving Loan
Commitment at a time when the Total Revolving Loan Commitment or Adjusted Total
Revolving Loan Commitment, as the case may be, has been terminated shall be
references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
provided
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that (A) no Bank's Adjusted Percentage shall change upon the occurrence of a
Bank Default from that in effect immediately prior to such Bank Default if after
giving effect to such Bank Default, and any repayment of Revolving Loans and
Swingline Loans at such time pursuant to Section 4.02(a) or otherwise, the sum
of (i) the aggregate outstanding principal amount of Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of
Swingline Loans plus (iii) the Letter of Credit Outstandings, exceed the
Adjusted Total Revolving Loan Commitment; (B) the changes to the Adjusted
Percentage that would have become effective upon the occurrence of a Bank
Default but that did not become effective as a result of the preceding clause
(A) shall become effective on the first date after the occurrence of the
relevant Bank Default on which the sum of (i) the aggregate outstanding
principal amount of the Revolving Loans of all Non-Defaulting Banks plus (ii)
the aggregate outstanding principal amount of Swingline Loans plus (iii) the
Letter of Credit Outstandings is equal to or less than the Adjusted Total
Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted
Percentage is changed pursuant to the preceding clause (B) and (ii) any
repayment of such Bank's Revolving Loans, or of Unpaid Drawings with respect to
Letters of Credit or of Swingline Loans, that were made during the period
commencing after the date of the relevant Bank Default and ending on the date of
such change to its Adjusted Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted Percentage if (x) such
repayments had not been made and (y) the maximum change to its Adjusted
Percentage would have resulted in the sum of the outstanding principal of
Revolving Loans made by such Bank plus such Bank's new Adjusted Percentage of
the outstanding principal amount of Swingline Loans and of Letter of Credit
Outstandings equalling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time the
Total Revolving Loan Commitment less the aggregate Revolving Loan Commitments of
all Defaulting Banks.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement, and any successor thereto.
"Affiliate" shall mean, with respect to any Person, any other Person
(including, for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 9.06, an Affiliate of Holdings shall include any
Person that directly or indirectly owns more than 5% of any class of the capital
stock of Holdings and any officer or director of Holdings or any of its
Subsidiaries. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the manage-
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ment and policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean each of the Administrative Agent, the Documentation
Agent, the Syndication Agent, each Managing Agent and the Collateral Agent.
"Agreement" shall mean this Credit Agreement, as modified, supplemented,
amended. restated, extended, renewed or replaced from time to time.
"Applicable Commitment Commission Percentage" and "Applicable Margin"
shall mean (i) for the period from the Restatement Effective Date to but not
including the first Start Date after the Restatement Effective Date, the
percentage per annum set forth below:
APPLICABLE APPLICABLE APPLICABLE
COMMITMENT MARGIN FOR MARGIN FOR
COMMISSION BASE RATE EURODOLLAR
PERCENTAGE LOANS LOANS
---------- ----- -----
0.250% 0.250% 1.250%
and (ii) during each Margin Adjustment Period beginning after the Restatement
Effective Date, the percentage per annum set forth below opposite the Leverage
Ratio indicated to have been achieved on the applicable Test Date for such
Margin Adjustment Period (as shown on the respective officer's certificate
delivered pursuant to Section 8.01(e)):
APPLICABLE APPLICABLE APPLICABLE
COMMITMENT MARGIN FOR MARGIN FOR
COMMISSION BASE RATE EURODOLLAR
LEVEL LEVERAGE RATIO PERCENTAGE LOANS LOANS
1 Less than or equal 0.150% 0% 0.50%
to 1.50:1.00
2 Greater than 0.200% 0% 0.75%
1.50:1.00 but less
than or equal to
2.00:1.00
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3 Greater than 0.250% 0% 1.00%
2.00:1.00 but less
than or equal to
2.50:1.00
4 Greater than 0.250% .25% 1.25%
2.50:1.00 but less
than or equal to
3.00:1.00
5 Greater than 0.375% .50% 1.50%
3.00:1.00
;provided, however, that (i) if by the tenth day after the last day of any
Margin Adjustment Period, the Borrower has failed to deliver the financial
statements required to be delivered pursuant to Section 8.01(a) and (b)
(accompanied by the officer's certificate required by Section 8.01(e)(i) showing
the applicable Leverage Ratio on the relevant Test Date) as at the end of the
fiscal quarter or year, as the case may be, ended immediately prior to such
date, the Applicable Commitment Commission Percentage and Applicable Margin for
the immediately succeeding Margin Adjustment Period shall be computed as if the
Leverage Ratio were at Level 5;
provided further, however, that so long as (x) no Default or Event of Default
exists, (y) the Test Date for December 1996 has occurred but the annual
financial statements for fiscal year 1996, required to be delivered pursuant to
Section 8.01(b), have not yet been delivered to the Administrative Agent and (z)
the Borrower delivers an officer's certificate (the "Estimated Leverage Ratio
Certificate") from its chief financial officer, in form and substance
satisfactory to the Administrative Agent, setting forth the Borrower's good
faith determination of the Leverage Ratio (the "Estimated Leverage Ratio") as of
such Test Date, then the applicable Margin Adjustment Period shall commence and
the Applicable Commitment Commission Percentage and the Applicable Margin
therefor shall be computed based on such Estimated Leverage Ratio, it being
understood that upon actual delivery by the Borrower of the annual financial
statements for such Test Date, the Borrower shall pay, within five days if
payment has already been made (otherwise, on the next Interest Payment Date), to
the Administrative Agent for the account of each Bank with affected Loans, any
additional amounts the Borrower would have paid hereunder had the Estimated
Leverage Ratio Certificate set forth the actual Leverage Ratio. Notwithstanding
anything to the contrary contained above in this definition, at any time that a
Default or Event of Default
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shall exist, the Applicable Commitment Commission Percentage and the Applicable
Margin shall be computed as if Leverage Ratio were at Level 5.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Bank" shall mean each financial institution listed on Schedule I, as well
as any Person which becomes a "Bank" hereunder pursuant to 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been retracted)
of a Bank to make available its portion of any Borrowing (including any
Mandatory Borrowing) or to fund its portion of any unreimbursed payment under
Section 2.03(c) or (ii) a Bank having notified (which notice has not been
rescinded) in writing the Borrower and the Administrative Agent that it does not
intend to comply with its obligations under Section 1.01(b) or Section 2, in the
case (except for purposes of Section 1.13) of either clause (i) or (ii) as a
result of any takeover of such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean, for any day, a rate of interest per annum equal to
the higher of (i) the Corporate Base Rate for such day and (ii) the sum of the
Federal Funds Rate for such day plus 1/2% per annum.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each Loan
designated or deemed designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.
"BNP" shall mean Banque Nationale de Paris.
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Banks (other than any Bank which has not funded its share
of such borrowing in accordance with this Agreement) having Commitments of the
respective Tranche (or from the Swingline Bank in the case of Swingline Loans)
on a given date (or resulting from a conversion or conversions on such date)
having in the case of Eurodollar Loans the same Interest Period, provided that
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
the related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
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"Business" shall mean all aspects of the casting business, the aerospace
component repair business, the aircraft part refurbishment business, and each
other business engaged in by the Borrower and its Subsidiaries as of the
Restatement Effective Date including, in each case, reasonable extensions
thereof.
"Business Day" shall mean (i) with respect to any borrowing, payment or
rate selection of Eurodollar Loans, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States Dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago and New York for the conduct of substantially all
of their commercial lending activities.
"Canada Acquisition Co." shall mean 3203816 Canada Ltd., a Canadian
federal corporation.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"Carlyle Entities" shall mean TC Group, L.L.C. (which operates under the
tradename "The Carlyle Group"), a Delaware Limited Liability Company, and any
Persons controlled by TC Group, L.L.C.
"Carlyle/Thiokol Management Agreements" shall mean collectively, the
Management Agreement, dated December 13, 1995, between TCG Holdings and Howmet
Corporation, the Management Agreement, dated December 13, 1995, between Thiokol
Holding Company and Howmet Corporation, the TCG Transaction Fee Agreement
between TCG Holdings L.L.C. and Howmet Holdings Acquisition Corp. and the
Thiokol Transaction Fee Agreement, dated December 13, 1995, between Thiokol
Corp. and Howmet Holdings Acquisition Corp.
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"Carlyle/Thiokol Shareholders Agreement" shall mean the Shareholders
Agreement, dated as of December 13, 1995, between Thiokol Holdings Company,
Carlyle- Blade Acquisition Partners L.P. and Holdings.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than one
year from the date of acquisition, (ii) time deposits and certificates of
deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital, surplus and undivided profits aggregating in excess of
$200,000,000, with maturities of not more than one year from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not more
than 90 days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(ii) above, (iv) commercial paper issued by any Person incorporated in the
United States rated at least A-1 or the equivalent thereof by Standard & Poor's
Ratings Group or at least P-1 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and in each case maturing not more than one year after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above and (vi) demand deposit accounts maintained in
the ordinary course of business.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) Holdings shall at any time cease to own
100% of the capital stock of Parent; (ii) Parent shall at any time cease to own
100% of the capital stock of the Borrower; (iii) at any time a "Change of
Control" under and as defined in the Senior Subordinated Note Indenture shall
have occurred; (iv) at any time and for any reason whatsoever, (x) the Permitted
Holders shall not have the right to elect, or shall for any reason not have
elected, a majority of the directors of Holdings, (y) the Permitted Holders
shall own less than a majority of the outstanding common stock of Holdings or
(z) any "Person" or "Group" (other than the Carlyle Entities) (as such terms are
used in Section 13(d) and 14(d) of the Exchange Act) is or shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of a greater percentage of the common or any other
class of Voting Stock of Holdings than is owned by the Permitted Holders at such
time.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
Section refer-
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ences to the Code are to the Code, as in effect at the date of this Agreement,
and to any subsequent provision of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties, all cash and Cash Equivalents delivered as collateral pursuant to
Section 4.02 or 10 hereof and all Additional Collateral, if any.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents,
and any successor thereto.
"Collective Bargaining Agreements" shall have the meaning provided in the
Original Credit Agreement.
"Commitment" shall mean any of the commitments of any Bank, i.e. whether
the Term Loan Commitment or the Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of the Borrower and its Consolidated Subsidiaries, plus interest expense
and provision for taxes based on income (in each case to the extent deducted in
determining Consolidated Net Income) and without giving effect to any
extraordinary gains or losses or gains or losses from sales of assets other than
inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation and all non-cash charges in respect of pension and retiree
benefits, in each case that were deducted in arriving at Consolidated EBIT for
such period. For purposes of Sections 9.10 only, to the extent Consolidated
EBITDA has been reduced by Receivables Facility Financing Costs incurred during
a particular period, the amount of such Receivables Facility Financing Costs
will be added back in determining Consolidated EBITDA.
"Consolidated Fixed Charge Coverage Ratio" for any period shall mean the
ratio of (x) Consolidated EBITDA plus the amount of all lease payments expensed
by the Borrower and its Subsidiaries during such period (other than payments
constituting Capitalized Lease Obligations) and which were deducted in
determining Consolidated EBITDA for such period to (y) Consolidated Fixed
Charges for such period.
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"Consolidated Fixed Charges" for any period shall mean the sum, without
duplication, of (i) Consolidated Net Interest Expense for such period, (ii) the
amount of all lease payments expensed by the Borrower and its Subsidiaries
during such period (other than payments constituting Capitalized Lease
Obligations) and (iii) the scheduled principal amount of all amortization
payments on all Indebtedness (including without limitation the principal
component of all Capitalized Lease Obligations, but excluding the Installment
Notes) of the Borrower and its Subsidiaries for such period (as determined on
the first day of the respective period).
"Consolidated Indebtedness" shall mean, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness (including the
Loans and any Capitalized Lease Obligations, but excluding the Installment
Notes) of the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP; provided that the aggregate amount of
Receivables Facility Attributed Indebtedness at any time shall be included as a
component of Consolidated Indebtedness, regardless of its treatment under GAAP.
"Consolidated Interest Coverage Ratio" for any period shall mean the ratio
of Consolidated EBITDA to Consolidated Net Interest Expense for such period.
"Consolidated Net Income" shall mean, for any period, the consolidated net
after tax income of the Borrower and its Consolidated Subsidiaries determined in
accordance with GAAP.
"Consolidated Net Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Consolidated Subsidiaries
for such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Consolidated Subsidiaries representing the
interest factor for such period, in each case net of the total consolidated cash
interest income of the Borrower and its Consolidated Subsidiaries for such
period, but excluding the amortization of any deferred financing costs incurred
in connection with this Agreement.
"Consolidated Subsidiaries" shall mean, as to any Person, all Subsidiaries
of such Person which are consolidated with such Person for financial reporting
purposes in accordance with GAAP.
"Consolidated Total Assets" shall mean the consolidated total assets of
the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
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"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include (x) endorsements of
instruments for deposit or collection in the ordinary course of business and (y)
any product warranties extended in the ordinary course of business. The amount
of any Contingent Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Continuing Bank" shall mean each Original Bank with a Commitment under
this Agreement (immediately upon giving effect to the Restatement Effective
Date).
"Corporate Base Rate" shall mean a rate per annum equal to the corporate
base rate of interest announced by The First National Bank of Chicago from time
to time, changing when and as such corporate base rate changes.
"Credit Documents" shall mean this Agreement, and, after the execution and
delivery thereof pursuant to the terms of this Agreement, each Note, each
Security Document and the Subsidiaries Guaranty and, after the execution and
delivery thereof, each additional guaranty or security document executed
pursuant to Section 8.12.
"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit.
"Credit Party" shall mean Holdings, Parent, the Borrower and each
Subsidiary Guarantor.
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105
"Debt Agreements" shall have the meaning provided in the Original Credit
Agreement.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank Default
is in effect.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
or authorized or made any other distribution, payment or delivery of property
(other than common stock of such Person) or cash to its stockholders as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
a consideration any shares of any class of its capital stock outstanding on or
after the Restatement Effective Date (or any options or warrants issued by such
Person with respect to its capital stock), or set aside any funds for any of the
foregoing purposes, or shall have permitted any of its Subsidiaries to purchase
or otherwise acquire for a consideration any shares of any class of the capital
stock of such Person outstanding on or after the Restatement Effective Date (or
any options or warrants issued by such Person with respect to its capital
stock). Without limiting the foregoing, "Dividends" with respect to any Person
shall also include all payments made or required to be made by such Person with
respect to any stock appreciation rights, plans, equity incentive or achievement
plans or any similar plans or setting aside of any funds for the foregoing
purposes.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Documents" shall mean the Credit Documents, the Acquisition Documents,
the Installment Notes Trust Documents, the Senior Subordinated Note Documents,
the Receivables Documents, the Holdings PIK Preferred Stock Documents and the
Parent PIK Subordinated Note Documents.
"Dollar Equivalent" shall mean, at any time for the determination thereof,
the amount of Dollars necessary to purchase such other currency involved in such
computation at the Exchange Rate.
"Dollars" and the sign "$" shall each mean lawful money of the United
States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any State or territory
thereof.
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"Domestic Wholly-Owned Subsidiary" shall mean each Domestic Subsidiary
which is a Wholly-Owned Subsidiary of the Borrower.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Eligible Transferee" shall mean and include a commercial bank, financial
institution, any fund or other Person which regularly purchases interests in
loans or extensions of credit of the types made pursuant to this Agreement, any
other Person which would constitute a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act as in effect on the Restatement
Effective Date and, with the Borrower's consent (which may not be unreasonably
withheld or delayed), any other "accredited investor" (as defined in Regulation
D of the Securities Act).
"Employee Benefit Plans" shall have the meaning provided in the Original
Credit Agreement.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief in connection with alleged injury or threat of
injury to health, safety or the environment due to the presence of Hazardous
Materials.
"Environmental Law" means any Federal, state, foreign or local statute,
law, rule, regulation, ordinance, code, binding and enforceable guideline,
binding and enforceable written policy, and rule of common law now or hereafter
in effect and in each case as amended, and any binding judicial or
administrative interpretation thereof (including any judicial or administrative
order, consent decree or judgment), applicable to Holdings, Parent, the Borrower
or any of their respective Subsidiaries, relating to the environment, employee
health and safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.;
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air
Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C.
Section 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et
seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq., the Hazardous Material Transportation Act, 49
U.S.C. Section 1801 et seq. and the Occupational Safety and Health Act, 29
U.S.C. Section 651 et seq. (to the extent it regulates occupational exposure to
Hazardous Materials); and any state and local or foreign counterparts or
equivalents, in each case as amended from
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SCHEDULE I
----------
COMMITMENTS
-----------
Term Revolving Loan
Bank Loan Commitment Commitment
---- --------------- ----------
The First National Bank of Chicago 14,000,000.00 6,000,000.02
Bankers Trust Company 14,000,000.00 6,000,000.00
Citicorp USA, Inc. 14,000,000.00 6,000,000.00
ABN/AMRO Bank N.V 12,250,000.00 5,250,000.00
Bank of Montreal 12,250,000.00 5,250,000.00
Credit Lyonnais New York Branch 12,250,000.00 5,250,000.00
Credit Suisse 12,250,000.00 5,250,000.00
Dresdner Bank AG, New York 12,250,000.00 5,250,000.00
Branch and Grand Cayman Island
Branch
Fleet National Bank 12,250,000.00 5,250,000.00
Bank of America Illinois 8,500,000.00 3,642,857.14
The Bank of New York 8,500,000.00 3,642,857.14
Bank of Nova Scotia 8,500,000.00 3,642,857.14
Banque Nationale de Paris 8,500,000.00 3,642,857.14
The Fuji Bank Limited, Los 8,500,000.00 3,642,857.14
Angeles Agency
Mellon Bank, N.A 8,500,000.00 3,642,857.14
Sakura Bank, Limited, Los Angeles 8,500,000.00 3,642,857.14
Agency
Totals $ 175,000,000.00 $ 75,000,000.00
108
SCHEDULE I
----------
COMMITMENTS
-----------
Term Revolving Loan
Bank Loan Commitment Commitment
---- --------------- ----------
The First National Bank of Chicago 14,000,000.00 6,000,000.02
Bankers Trust Company 14,000,000.00 6,000,000.00
Citicorp USA, Inc. 14,000,000.00 6,000,000.00
ABN/AMRO Bank N.V 12,250,000.00 5,250,000.00
Bank of Montreal 12,250,000.00 5,250,000.00
Credit Lyonnais New York Branch 12,250,000.00 5,250,000.00
Credit Suisse 12,250,000.00 5,250,000.00
Dresdner Bank AG, New York 12,250,000.00 5,250,000.00
Branch and Grand Cayman Island
Branch
Fleet National Bank 12,250,000.00 5,250,000.00
Bank of America Illinois 8,500,000.00 3,642,857.14
The Bank of New York 8,500,000.00 3,642,857.14
Bank of Nova Scotia 8,500,000.00 3,642,857.14
Banque Nationale de Paris 8,500,000.00 3,642,857.14
The Fuji Bank Limited, Los 8,500,000.00 3,642,857.14
Angeles Agency
Mellon Bank, N.A 8,500,000.00 3,642,857.14
Sakura Bank, Limited, Los Angeles 8,500,000.00 3,642,857.14
Agency
Totals $ 175,000,000.00 $ 75,000,000.00
109
SCHEDULE II
-----------
BANK ADDRESSES
--------------
Bankers Trust Company 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxx
Citicorp USA, Inc. 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
The First National Bank One First National Plaza, Suite 0362
of Chicago Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxx
Credit Lyonnais New York Branch 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention:
Fleet National Bank One Federal Street, MSN-MA-OF-0308
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx XxXxxxxxx
Bank of America Illinois 000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxxxxxxxx
110
SCHEDULE II
Page 0
Xxx Xxxx xx Xxxx Xxxxxx Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxxx
The Bank of New York Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxxxxx
The Fuji Bank Limited 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx Agency Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxxx
The Sakura Bank Limited 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx Agency Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxxx
Xxxxxx Bank, N.A. 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxx
111
SCHEDULE II
Page 4
Banque Nationale de Paris 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (415) 956-0707 ext. 206
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxx
Credit Suisse 000 Xxxx 0xx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
ABN AMRO Bank N.V. 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Bank of Montreal 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx
Dresdner Bank AG, 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Branch and Xxx Xxxx, Xxx Xxxx 00000
Grand Cayman Branch Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
Xx. Xxxxxxxx Xxxxxxxxxxxxxx
Xx. Xxxxx Xxxxx
112
time to time. For purposes of the representations and warranties contained in
Section 7.19, Environmental Law shall mean Environmental Law in effect as of the
date such representations and warranties are made or deemed to have been made.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA. amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with Holdings, Parent, the Borrower or any of their
Subsidiaries would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of Holdings,
Parent, the Borrower or any of their Subsidiaries being or having been a general
partner of such person.
"Estimated Leverage Ratio" shall have the meaning provided in the
definition of Applicable Commitment Commission Percentage.
"Estimated Leverage Ratio Certificate" shall have the meaning provided in
the definition of Applicable Commitment Commission Percentage.
"Eurodollar Loan" shall mean each Loan (excluding Swingline Loans)
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Eurodollar Rate" shall mean with respect to a Borrowing of Eurodollar
Loans for the relevant Interest Period the quotient of (a) the rate determined
by the Administrative Agent to be the rate at which deposits in U.S. dollars are
offered by The First National Bank of Chicago to first-class banks in the London
interbank market at approximately 11 a.m. (London time) two Business Days prior
to the first day of the Interest Period applicable to such Eurodollar Loan, in
the approximate amount of The First National Bank of Chicago's relevant
Eurodollar Loan and having a maturity approximately equal to the Interest Period
applicable to such Eurodollar Loan divided by (b) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D). The Eurodollar Rate shall be rounded to the next higher multiple
of 1/100 of 1% if the rate is not such a multiple.
"Event of Default" shall have the meaning provided in Section 10.
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113
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Rate" shall mean, when converting any amount denominated in a
currency other than Dollars into Dollars, the rate determined in good faith by
the Issuing Bank at the opening of business (or close of business in the case of
determinations of reimbursement obligations with respect to Drawings) in
Chicago, on the date as to which any determination thereof is to be made, as the
spot rate at which such currency is offered for sale to the Issuing Bank against
delivery of Dollars by the Issuing Bank. If for any reason the Exchange Rate for
any currency cannot be calculated as provided above, the Issuing Bank shall
calculate the Exchange Rate on such basis as it deems fair and equitable. In
determining the Stated Amount of any Letter of Credit (A) for purposes of
Sections 1.01(b), 1.01(c), 2.01(d) and 4.02(a), the Dollar Equivalent shall be
calculated (x) on the date of the issuance of such Letter of Credit, and (y) on
the first Business Day of each calendar month thereafter and (B) for purposes of
Section 3.01(b) or (c), the Dollar Equivalent shall be calculated on the first
day of each month in the quarterly period in which the respective payment is due
pursuant to said Sections. The Exchange Rate for all reimbursement obligations
with respect to Letters of Credit (including without limitation pursuant to
Sections 2.03 and 2.04) shall be determined by using the Dollar Equivalent as in
effect on the date the respective Unpaid Drawing was paid by the Issuing Bank.
"Existing Indebtedness" shall have the meaning provided in Section 7.22.
"Existing Installment Notes Letter of Credit" shall mean the Existing L/C
referred to in Exhibit 5.08(b) to the Stock Purchase Agreement, issued by BNP
for the benefit of the holders of the Installment Notes in support of the
payment thereof.
"Existing Tax Obligations" shall mean any state and Federal taxes owed by
the Borrower and/or Pechiney Corporation for periods prior to the Original
Effective Date.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Fair Market Value" shall mean, with respect to any asset, the price at
which a willing buyer, not an Affiliate of the seller, and a willing seller who
does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the Board of Directors or other governing body or,
pursuant to a specific delegation of authority by such Board or governing body,
a designated senior executive officer, of Borrower or the Subsidiary of Borrower
selling such asset.
"Federal Funds Rate" shall mean, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business
-101-
114
Day) by the Federal Reserve Bank of New York or, if such rate is not so
published for any day which is a Business Day, the average of the quotations at
approximately 10 A.M. (Chicago time) on such day on such transactions received
by the Administrative Agent from three Federal funds brokers of recognized
standing selected by the Administrative Agent in its sole discretion.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Financiere d'Ocquier, S.A." shall mean Financiere d'Ocquier S.A., a
French societe anonyme organized under the laws of the Republic of France.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings, Parent, the
Borrower or any one or more of their Subsidiaries primarily for the benefit of
employees of Holdings, Parent, the Borrower or such Subsidiaries residing
outside the United States of America, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower that is
incorporated under the laws of any jurisdiction other than the United States of
America, any State thereof or Puerto Rico.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Guaranteed Creditors" shall mean and include each of the Agents, the
Collateral Agent, the Banks and each party (other than any Credit Party) to an
Interest Rate Protection Agreement or Other Hedging Agreement to the extent such
party constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean all obligations of the Borrower (i) to
each Bank for the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of the principal and interest on each
Note issued by the Borrower to such Bank, and Loans made, under the Credit
Agreement and all reimbursement obligations and Unpaid Drawings with respect to
Letters of Credit, together with all the other obligations and liabilities
(including, without limitation, all indemnities, fees and interest thereon as
well as all interest accruing after the filing of a petition in a bankruptcy or
similar proceeding at the rate provided in the respective documentation,
regardless of whether or not such interest is an allowed claim in such a
bankruptcy proceeding) of the Borrower to such Bank now existing or hereafter
incurred under, arising out of or in con-
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nection with the Credit Agreement or any other Credit Document and the due
performance and compliance with all the terms, conditions and agreements
contained in the Credit Documents by the Borrower and (ii) to each Bank and each
Affiliate of a Bank which enters into an Interest Rate Protection or Other
Hedging Agreement with the Borrower, which by its express terms are entitled to
the benefit of the Guaranty pursuant to Section 14 with the written consent of
the Borrower, the full and prompt payment when due (whether by acceleration or
otherwise) of all obligations of the Borrower owing under any such Interest Rate
Protection or Other Hedging Agreement, whether now in existence or hereafter
arising, and the due performance and compliance with all terms, conditions and
agreements contained therein.
"Guarantor" shall mean Holdings, Parent and each Subsidiary Guarantor.
"Guaranty" shall mean the guaranty issued by Holdings and Parent pursuant
to Section 14 hereof and each Subsidiaries Guaranty.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, friable asbestos, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing levels
of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or
substances defined as or included in the definition of "hazardous substances,"
"hazardous waste, " "hazardous materials,""extremely hazardous substances,"
"restricted hazardous waste," "toxic substances," "toxic pollutants,"
"contaminants," or "pollutants," or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority under Environmental Laws.
"Holdings" shall have the meaning provided in the first paragraph of this
Agreement.
"Holdings Common Stock" shall mean the common stock of Holdings.
"Holdings PIK Preferred Stock" shall mean the 9% Series A Senior
Cumulative Preferred Stock of Holdings.
"Holdings PIK Preferred Stock Documents" shall mean the documents executed
and delivered with respect to the Holdings PIK Preferred Stock.
"Howmet Acquisition" shall have the meaning provided in the Original
Credit Agreement.
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"Xxxxxx Xxxxxxx (Xxxxxx)" shall mean Howmet Cercast (Canada), Inc., a
corporation organized under the laws of Canada.
"Howmet Cercast (Canada) Defaulted Amount" at any time shall mean the
aggregate principal amount of Indebtedness of Howmet Cercast (Canada) which at
such time is subject to the conditions described in one or more of clauses (i)
through (iii), inclusive, of Section 10.04, provided that at no time shall the
Howmet Cercast (Canada) Defaulted Amount exceed $5,000.001.
"Howmet Cercast S.A." shall mean Howmet Cercast S.A., a societe anonyme
organized under the laws of the Republic of France.
"Howmet Cercast (USA)" shall mean Howmet Cercast (USA), Inc., a Delaware
corporation.
"Howmet Holdings Acquisition" shall have the meaning provided in the
Original Credit Agreement.
"Howmet Insurance" shall mean Howmet Insurance Co., Inc., a Vermont
corporation.
"Howmet S.A." shall mean Howmet S.A., a societe anonyme organized under
the laws of the Republic of France.
"Howmet Transport" shall mean Howmet Transport Services, Inc., a Delaware
corporation.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services,
(ii) the maximum amount available to be drawn under all letters of credit issued
for the account of such Person and all unpaid drawings in respect of such
letters of credit, (iii) all Indebtedness of the types described in clause (i),
(ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any
property owned by such Person, whether or not such Indebtedness has been assumed
by such Person (to the extent of the value of the respective property), (iv) the
aggregate amount required to be capitalized under leases under which such Person
is the lessee, (v) all obligations of such person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vi) all Contingent Obligations of such
Person and (vii) all obligations under any Interest Rate Protection Agreement or
Other Hedging Agreement or under any similar type of agreement. In addition to
the foregoing, all Receivables Facility Attributed Indebtedness shall constitute
Indebtedness.
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"Insignificant Subsidiaries" shall mean any Subsidiary of the Borrower
which has assets of not greater than $5,000,000 in the aggregate and which, if
aggregated with all other Subsidiaries of the Borrower with respect to which an
event described under Section 10.05 has occurred and is continuing, would have
assets of not greater than $5,000,000.
"Installment Notes" shall mean the $716,386,477.12 aggregate principal
amount of outstanding (as of the Original Effective Date) promissory notes
payable by Pechiney Corporation pursuant to the purchase by Pechiney Corporation
of American National Can Company.
"Installment Notes Trust" shall mean the trust vehicle contemplated by
Section 5.08 of the Stock Purchase Agreement and created in accordance with said
Section 5.08 and Exhibit 5.08(a) to the Stock Purchase Agreement.
"Installment Notes Trust Agreement" shall mean the trust agreement entered
into with respect to the Installment Notes Trust, as in effect on the
Restatement Effective Date and as same may thereafter be amended in accordance
with the requirements of this Agreement.
"Installment Notes Trust Documents" shall mean the documentation creating
the Installment Notes Trust (including without limitation the Installment Notes
Trust Agreement), and all other documentation entered into in connection with
the Installment Notes Trust.
"Installment Notes Trustee" shall mean the trustee with respect to the
Installment Notes Trust.
"Insurance Letter of Credit" shall mean the Insurance Letter of Credit
referred to in Section 5.15 of the Stock Purchase Agreement (together with any
replacements thereof issued in accordance with the requirements of Section 5.16
of the Stock Purchase Agreement).
"Intellectual Property Subsidiary" shall mean a Domestic Wholly-Owned
Subsidiary of the Borrower which engages in no substantial business or
activities other than as related to the assets and business transferred to it as
described below, (x) to which the Borrower and its Subsidiaries (other than the
Intellectual Property Subsidiary) will from tune to time sell or otherwise
transfer patents, trademarks and other intellectual property, as well as the
Howmet Research Center located in Whitehall, Michigan, and (y) which will
transfer all or substantially all royalty income arising from such patents,
trademarks and other intellectual property to the Second Tier IP Subsidiary.
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"Intercreditor Agreement" shall mean the amended and restated
intercreditor credit agreement in the form of Exhibit L.
"Interest Determination Date" shall mean, with respect to any Eurodollar
Loan, the second Business Day prior to the commencement of any Interest Period
relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement, interest rate floor agreement or other similar agreement or
arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Investor Certificates" shall have the meaning provided in the Receivables
Pooling Agreement.
"Issuing Bank" shall mean the Administrative Agent and any Bank which at
the request of the Borrower and with the consent of the Administrative Agent
(which shall not be unreasonably withheld) agrees, in such Bank's sole
discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit pursuant to Section 2.
"L/C Supportable Indebtedness" shall mean (i) obligations of the Borrower
or its Subsidiaries incurred in the ordinary course of business with respect to
insurance obligations and workers' compensation, surety bonds and other similar
statutory obligations and (ii) such other obligations of the Borrower or any of
its Subsidiaries as are permitted to exist pursuant to the terms of this
Agreement.
"Leaseholds" of any Person means all the right, title and interest of such
Person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i)
the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
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"Leverage Ratio" shall mean, at any date of determination, the ratio of
(i) Consolidated Indebtedness on such date to (ii) Consolidated EBITDA for the
period of four consecutive quarters most recently ended on or prior to such
date, in each case taken as one accounting period.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).
"Loan" shall mean each Term Loan, each Revolving Loan and each Swingline
Loan.
"Management Agreements" shall have the meaning provided in the Original
Credit Agreement.
"Managing Agents" shall have the meaning provided in the first paragraph
of this Agreement.
"Mandatory Borrowing" shall have the meaning provided in Section 1.01(d).
"Margin Adjustment Period" shall mean each period which shall commence on
a date occurring after the Restatement Effective Date on which the financial
statements are delivered pursuant to Section 8.01(a) or (b) and which shall end
on the earlier of (i) the date of actual delivery of the next financial
statements pursuant to Section 8.01(a) or (b) and (ii) the latest date on which
the next financial statements are required to be delivered pursuant to Section
8.01(a) or (b).
"Margin Stock" shall have the meaning provided in Regulation U.
"Maturity Date" shall mean December 5, 2001.
"Maximum Swingline Amount" shall mean $10,000,000.
"Mergers" shall mean and include (i) the merger of Howmet Holdings
Acquisition with and into Pechiney Corporation, with Pechiney Corporation (now
the parent) surviving said merger as a direct Wholly-Owned Subsidiary of
Holdings, and (ii) the merger of Howmet Acquisition with and into Howmet, with
Howmet surviving said merger as a direct Wholly-Owned Subsidiary of Parent.
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"Mortgage" shall mean and include each Original Mortgage, as amended
pursuant to the respective Mortgage Amendment, and, after the execution and
delivery thereof, each Additional Mortgage, in each case as same may be amended,
modified or supplemented from time to time.
"Mortgage Amendments" shall have the meaning provided in Section 5.09.
"Mortgage Policies" shall mean and include each Original Mortgage Policy
and, after the execution and delivery thereof, each mortgage insurance policy
issued with respect to an Additional Mortgaged Property.
"Mortgaged Property" shall mean each Original Mortgaged Property and,
after the execution and delivery of any Additional Mortgage, shall include the
respective Additional Mortgaged Property.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and (ii) payments
of unassumed liabilities relating to the assets sold at the time of, or within
90 days after, the date of such sale, (iii) the amount of such gross cash
proceeds required to be used to repay any Indebtedness (other than Indebtedness
of the Banks pursuant to this Agreement) which is secured by the respective
assets which were sold, and (iv) the estimated marginal increase in income taxes
which will be payable by Holdings' consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale; and excluding any
portion of any such gross cash proceeds which Holdings determines in good faith
should be reserved for post-closing adjustments (to the extent Holdings delivers
to the Banks a certificate signed by an officer of Holdings as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined, (which shall not be later than
six months following the date of the respective asset sale), the amount (if any)
by which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Holdings or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by Holdings and/or any
of its Subsidiaries from such sale, lease, transfer or other disposition.
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"New Bank" shall mean each of the Persons listed on Schedule I that is not
a Continuing Bank.
"New Installment Notes Letters of Credit" shall mean the letters of credit
executed and delivered in connection with the establishment of the Installment
Notes Trust, as contemplated by Exhibit 5.08(b) to the Stock Purchase Agreement,
together with any replacements issued therefor in accordance with Section 5.16
of the Stock Purchase Agreement.
"Noncompete Covenant" shall mean the Covenant Not to Compete, dated
December 13, 1995, among Pechiney Corporation, Pechiney International and Howmet
Cercast S.A.
"Non-Continuing Bank" shall have the meaning provided in Section 13.20(b).
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Note" shall mean each Term Note, each Revolving Note and the Swingline
Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent located
at One First National Plaza, Agency/Compliance Division, Suite 0353 (1-15),
Xxxxxxx, XX 00000, Attention: Xx. Xxxxxx Both, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to any of the Managing Agents,
the Agents, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Original Banks" shall mean each Person which was a Bank under, and as
defined in, the Original Credit Agreement.
"Original Credit Agreement" shall have the meaning provided in the first
WHEREAS clause to this Agreement.
"Original Effective Date" shall mean the Effective Date, as defined in the
Original Credit Agreement.
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"Original Letters of Credit" shall mean the letters of credit listed on
Schedule XV and previously issued under the Original Credit Agreement.
"Original Loans" shall mean the Original Term Loans, the Original
Revolving Loans and the Original Swingline Loans.
"Original Mortgage Policies" shall mean each mortgage insurance policy
issued with respect to an Original Mortgage under the Original Credit Agreement.
"Original Mortgaged Properties" shall mean all Real Property of the
Borrowers and their respective Subsidiaries listed on Schedule III.
"Original Mortgages" shall mean all Mortgages granted by the Borrowers
pursuant to the Original Credit Agreement and which have not been released by
the lenders thereunder prior to the Restatement Effective Date.
"Original Revolving Loans" shall mean the "Revolving Loans" under. and as
defined in, the Original Credit Agreement.
"Original Swingline Loans" shall mean the "Swingline Loans" under, and as
defined in, the Original Credit Agreement.
"Original Term Loans" shall mean the "Term Loans" under, and as defined
in, the Original Credit Agreement.
"Original Tranche A Term Loans" shall mean the "Tranche A Term Loans"
under, and as defined in, the Original Credit Agreement.
"Original Tranche B Term Loans" shall mean the "Tranche B Term Loans"
under, and as defined in, the Original Credit Agreement.
"Original Tranche C Term Loans" shall mean the "Tranche C Term Loans"
under, and as defined in, the Original Credit Agreement.
"Other Hedging Agreement shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Parent" shall have the meaning provided in the first paragraph of this
Agreement.
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"Parent Acquisition Loan" shall mean the loan by the Borrower to Holdings
made on the Original Effective Date, the proceeds of which were used by Holdings
to acquire 100% of the capital stock of Pechiney Corporation.
"Parent Guarantors" shall mean and include each of Holdings and Parent.
"Parent Guaranty" shall mean the guaranty of the Parent Guarantors
pursuant to Section 14.
"Parent PIK Subordinated Note Documents" shall mean the Parent PIK
Subordinated Notes, and all other documents executed and delivered with respect
to the Parent PIK Subordinated Notes.
"Parent PIK Subordinated Notes" shall mean (i) the subordinated promissory
note issued by Parent in the aggregate principal amount of $25 million as
partial consideration in connection with the Acquisition, which promissory note
shall be consistent with the terms contained as Exhibit 2.02 of the Stock
Purchase Agreement and shall be in form and substance satisfactory to the
Managing Agents and the Required Banks and (ii) any additional subordinated
promissory notes which are identical to the promissory note referenced in
preceding clause (i) (except as to the principal amount thereof) issued to pay
(in-kind) accrued interest owing with respect to any theretofore outstanding
Parent PIK Subordinated Notes.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent located
at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Pechiney Corporation" shall have the meaning provided in the Original
Credit Agreement.
"Pechiney International" shall mean Pechiney International S.A., a societe
anonyme organized under the laws of the Republic of France.
"Pechiney S.A." shall mean Pechiney S.A., a societe anonyme organized
under the laws of the Republic of France.
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"Percentage" of any Bank at any time shall mean a fraction (expressed as a
percentage) the numerator of which is the Revolving Loan Commitment of such Bank
at such time and the denominator of which is the Total Revolving Loan Commitment
at such tune, provided that if the Percentage of any Bank is to be determined
after the Total Revolving Loan Commitment has been terminated, then the
Percentages of the Banks shall be determined immediately prior (and without
giving effect) to such termination.
"Permitted Acquired Debt" shall mean Indebtedness of any Subsidiary of the
Borrower acquired pursuant to a Permitted Acquisition, which Indebtedness
existed at the tune of the consummation of such Permitted Acquisition and was
not created in contemplation thereof (and the provisions of which were not
altered in contemplation thereof), so long as (x) Holdings, the Borrower and its
other Subsidiaries have no liability with respect to any such Indebtedness and
(y) any Liens securing such Indebtedness apply only to assets of the Subsidiary
so acquired (and so long as additional assets of such Subsidiary are not granted
as security following, or in contemplation of, the respective permitted
acquisition).
"Permitted Acquisition" shall mean the acquisition by the Borrower or a
Domestic Wholly-Owned Subsidiary thereof of assets constituting part of or an
entire business, division or product line of any Person not already a Subsidiary
of the Borrower or of 100% of the capital stock of any such Person, or any other
acquisition of assets (excluding equity interests in other Persons except as
provided above) related to the Business; provided that (A) the consideration
paid by the Borrower consists solely of cash and/or, in the case of the
acquisition of a Wholly-Owned Subsidiary, the assumption of Permitted Acquired
Debt in accordance with the requirements of this Agreement, (B) the assets
acquired, or the business of the Person whose stock is acquired, shall be in the
Business or related to the Business, (C) no Default or Event of Default shall
exist at the tune of the consummation of the respective Permitted Acquisition or
immediately after giving effect thereto and (D) the Borrower in good faith
determines that the Borrower and its Subsidiaries taken as a whole is not likely
to assume or become liable for material increased contingent liabilities as a
result of such acquisition.
"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be acceptable to the Agents in their reasonable discretion.
"Permitted Holders" shall mean the Thiokol Permitted Holders and the
Carlyle Entities.
"Permitted Liens" shall have the meaning provided in Section 9.01.
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"Person" shall mean any individual, partnership, joint venture, limited
liability corporation, firm, corporation, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan, as defined in
Section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute of), Holdings, Parent, the Borrower or a
Subsidiary of Holdings, Parent, the Borrower or an ERISA Affiliate, and each
such plan for the five year period immediately following the latest date on
which Holdings, Parent, the Borrower, a Subsidiary of Holdings, Parent, the
Borrower or an ERISA Affiliate maintained, contributed or had an obligation to
contribute to such plan.
"Plan Parties" shall have the meaning provided in Section 8.07.
"Pledge Agreement" shall have the meaning provided in Section 5.07.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in
each of the Pledge Agreements.
"Pledged Securities" shall mean "Pledged Securities" as defined in the
Pledge Agreement.
"Pledged Stock" shall mean "Pledged Stock" as defined in the Pledge
Agreement.
"Projections" shall have the meaning provided in Section 5.14(b).
"Purchased Interest" shall have the meaning provided in the Receivables
Pooling Agreement.
"Qualified Preferred Stock" shall mean any Holdings PIK Preferred Stock,
or any other preferred stock of Holdings, the express terms of which shall
provide that Dividends thereon shall not be required to be paid in cash at any
time that such cash payment would be prohibited by the terms of this Agreement
(and any refinancings, replacements or extensions hereof) and in either case
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(including an event which would constitute a Change of Control), cannot mature
(excluding any maturity as the result of an optional redemption by the issuer
thereof) and is not mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, and is not redeemable, or required to be repurchased,
at the sole option of the holder thereof (including, without limitation, upon
the occurrence of an event which would
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constitute a Change of Control), in whole or in part, on or prior to the first
anniversary of the Maturity Date.
"Quarterly Payment Date" shall mean the last Business Day of March, June,
September and December, occurring after the Restatement Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the same
may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title and interest
of such Person in and to land, improvements and fixtures, including Leaseholds.
"Receivables Amendment Conditions" means, with respect to any amendment or
modification of any Receivables Document, the requirement that the following
shall be true after giving effect to such amendment or modification:
(A) the Receivables Maximum Funding Amount shall not be less than
$45,000,000 except to the extent that such amount is less than $45,000,000
due to a shrinkage of receivables of the Borrower and its Subsidiaries after
the Original Effective Date;
(B) the scheduled maturities of the Investor Certificates and the
Purchased Interests shall not be earlier than the scheduled maturities of
Investor Certificates issued under the Receivables Bridge Facility;
(C) the weighted average of the per annum interest rates payable in
respect of Investor Certificates and Purchased Interests would not exceed the
per annum interest rates applicable to Revolving Loans outstanding hereunder;
(D) any Receivables Subsidiary would be required to apply all funds
available to it (after giving effect to the allocation of funds to reserves
required under the terms of the Receivables Documents and to the payment of
interest, principal and other amounts owed under the Receivables Documents)
to pay the purchase price for accounts receivables (including any deferred
portion of the purchase price);
(E) if any early amortization event that is not in the Receivables Bridge
Facility shall be added to the Receivables Documents or any early
amortization event that is in the Receivables Documents is made more
restrictive, such additional early amortization event or change in an
existing early amortization event shall not be adverse in any material
respect to the interests of the Borrower and its Subsidiaries, taken as a
whole (as determined in good faith by the Borrower); provided that the
inclusion of an early amortization event from the Receivables Bridge Facility
in the
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documentation for another series of Investor Certificates or Purchased
Interests shall not be construed as the addition of an early amortization
event for purposes hereof;
(F) the degree of recourse to the Borrower or its Subsidiaries (other than
the Receivables Subsidiary) under or in the respect of the Receivables
Documents shall not be increased in any material respect (as determined in
good faith by the Borrower) and in no event shall the Borrower or any of its
Subsidiaries (other than the Receivables Subsidiary) have recourse liability
(except pursuant to Standard Securitization Undertakings) for the payment of
any Receivables Facility Assets or any Investor Certificates or Purchased
Interests;
(G) if additional covenants are included in the Receivables Documents or
existing covenants in the Receivables Documents are made more restrictive,
such additional covenants or changes to existing covenants shall not be
adverse in any material respect to the interests of the Borrower and its
Subsidiaries taken as a whole (as determined in good faith by the Borrower);
and
(H) if additional representations and warranties are included in the
Receivables Documents or existing representations and warranties are made
more restrictive, such additional representations and warranties shall not be
adverse in any material respect to the interest of the Borrower and its
Subsidiaries taken as a whole (as determined in good faith by the Borrower);
provided that, notwithstanding anything to the contrary contained in the
definition, any changes to the Receivables Documents which relate to the
Borrower's or any Subsidiary's servicing or origination or Receivables Facility
Assets that are transferred to the Receivable Subsidiary pursuant to the
Receivable Documents shall be permitted.
"Receivables Bridge Facility" shall mean the transactions contemplated by
the Series 1995-1 Supplement to the Receivables Pooling Agreement, dated as of
December 13, 1995, among Blade Receivables Corporation, the Company and
Manufacturers and Traders Trust Company, as Trustee, and the Revolving
Certificate Purchase Agreement (Series 1995-1), dated as of December 13, 1995,
among Blade Receivables Corporation, the Company, the Purchasers described
therein and Bankers Trust Company and The First National Bank of Chicago, as
Agents.
"Receivables Documents" shall mean all documentation relating to any
Receivables Facility, including, without limitation, the Receivables Pooling
Agreement and the documentation delivered in connection therewith (including any
documentation relating to a series of certificates or purchased interests issued
and sold pursuant thereto).
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"Receivables Facility" shall mean the Receivables Bridge Facility,
pursuant to which (x) the Borrower and its Subsidiaries will from time to time
sell or otherwise transfer accounts receivable to one or more Receivables
Subsidiaries and (y) the respective Receivables Subsidiary or Receivables
Subsidiaries shall sell or otherwise transfer accounts receivable and related
assets (or interests therein) to the Receivables Purchasers, as more fully set
forth in the Receivables Documents; provided that the Receivables Facility may
be replaced or supplemented, or successively replaced or supplemented, after the
Original Effective Date so long as the Receivables Amendment Conditions are
satisfied (in which event such replacement facility shall be deemed to be the
Receivables Facility hereunder).
"Receivables Facility Assets" shall mean all accounts receivable (whether
now existing or arising in the future) of the Borrower or any of its
Subsidiaries which are transferred to one or more Receivables Subsidiaries
pursuant to the Receivables Facility, and any assets directly related thereto,
including, without limitation, (i) Transferred Assets (as defined in Section 2.1
of the Receivables Pooling Agreement as originally in effect), (ii) all
collateral given by the respective account debtor or on its behalf (but not by
Holdings or any of its Subsidiaries) securing such accounts receivable, (iii)
all contracts and all guarantees (but not by Holdings or any of its
Subsidiaries) or other obligations directly related to such accounts receivable,
(iv) other related assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable, and (v) proceeds of
all of the foregoing.
"Receivables Facility Attributed Indebtedness" at any time shall mean the
principal amount of Indebtedness which would be outstanding at such time under
the Receivables Facility if same were structured as a secured lending agreement
rather than a purchase agreement).
"Receivables Facility Financing Costs" shall mean all cash fees, service
charges and other costs, as well as all collections or other amounts retained by
the Receivables Purchasers which are in excess of amounts paid to the Borrower
and its Subsidiaries under the Receivables Facility for the purchase of
Receivables pursuant to the Receivables Facility.
"Receivables Maximum Funding Amount" shall mean the sum of (x) with
respect to outstanding Investors Certificates and Purchased Interests that have
fixed principal amounts, such principal amounts plus (y) with respect to
Investors Certificates or Purchased Interests that have variable principal
amounts, the Receivables Stated Amounts thereof.
"Receivables Pooling Agreement" shall mean the Blade Receivables Master
Trust Pooling and Servicing Agreement, dated as of December 13, 1995, among
Blade
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Receivables Corporation, the Company and Manufacturers and Traders Trust
Company, as Trustee, as amended or modified from time to time.
"Receivables Purchasers" shall mean and include (i) Manufacturers and
Traders Trust Company, as Trustee under the Receivables Pooling Agreement, and
its successors in that capacity, (ii) the purchaser or purchasers of any
interest in the Receivables Facility Assets under or in connection with any
Receivables Facility and (iii) the respective successors and assigns of the
foregoing Receivables Purchasers.
"Receivables Stated Amount" means, with respect to an Investor Certificate
or Purchased Interest, the maximum amount of the funding commitment with respect
thereto.
"Receivables Subsidiary" means a Wholly-Owned Subsidiary of the Borrower
which engages in no activities other than in connection with the financing of
accounts receivable and which is designated by the Board of Directors of the
Borrower (as provided below) as a Receivables Subsidiary (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by Holdings or any other Subsidiary of Holdings (excluding guarantees
of obligations (other than the principal of, and interest on, Indebtedness))
pursuant to Standard Securitization Undertakings, (ii) is recourse to or
obligates Holdings or any other Subsidiary of Holdings in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any property
or asset of Holdings or any other Subsidiary of Holdings, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with which neither
Holdings nor any of its Subsidiaries has any contract, agreement, arrangement or
understanding (other than pursuant to the Receivables Documents (including with
respect to fees payable in the ordinary course of business in connection with
the servicing of accounts receivable and related assets)) on terms less
favorable to Holdings or such Subsidiary than those that might be obtained at
the time from persons that are not Affiliates of Holdings, and (c) to which
neither Holdings nor any other Subsidiary of Holdings has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Any such designation by the Board
of Directors of the Borrower shall be evidenced to the Administrative Agent by
filing with the Administrative Agent a certified copy of the resolution of the
Board of Directors of the Borrower giving effect to such designation and an
officer's certificate certifying that, to the best of such officer's knowledge
and belief after consultation with counsel, such designation complied with the
foregoing conditions.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any cash insurance proceeds (other than insurance proceeds
relating to Excluded Liabilities (as defined in the Stock Purchase Agreement))
or condemnation award payable (i) by reason of theft, loss, physical destruction
or damage or any other similar event with
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respect to any property or assets of the Borrower or any of its Subsidiaries and
(ii) under any policy of insurance required to be maintained under Section 8.03.
"Refinancing" shall mean all repayments and refinancings of Indebtedness
under the Original Credit Agreement in connection with the Transaction.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC
Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
outstanding Term Loans (or, if prior to the Restatement Effective Date, Term
Loan
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Commitments) and Revolving Loan Commitments (or after the termination thereof,
outstanding Revolving Loans and Adjusted Percentage of Swingline Loans and
Letter of Credit Outstandings) represent an amount greater than 50% of the sum
of all outstanding Term Loans (or, if prior to the Restatement Effective Date,
Term Loan Commitments) of Non-Defaulting Banks and the Adjusted Total Revolving
Loan Commitment (or after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted
Percentages of all Non-Defaulting Banks of the total outstanding Swingline Loans
and Letter of Credit Outstandings at such time).
"Restatement Effective Date" shall have the meaning provided in Section
13.10.
"Restricted Payment" shall mean (i) the authorization, declaration or
payment of any Dividend with respect to Holdings or any of its Subsidiaries,
(ii) the payment by the Borrower or any of its Subsidiaries of any advance or
loan made by Holdings or Parent, (iii) the payment by Parent of any loan or
advance made to it by Holdings and (iv) the making of any other payment by the
Borrower or any of its Subsidiaries to Holdings or Parent.
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section 1.01(b).
"Revolving Loan Commitment" shall mean, for each Bank, the amount set
forth opposite such Bank's name in Schedule I hereto directly below the column
entitled "Revolving Loan Commitment", as same may be (x) reduced from time to
time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time
to time as a result of assignments to or from such Bank pursuant to Section 1.13
or 13.04(b).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Scheduled Repayment" shall have the meaning provided in Section 4.02(b).
"Scheduled Repayment Date" shall have the meaning provided in Section
4.02(b).
"SEC" shall have the meaning provided in Section 8.01(a).
"Secondary Letters of Credit" shall mean the Secondary Letters of Credit
referenced in Section 5.16 of the Stock Purchase Agreement, issued in compliance
with the requirements of said Section 5.16 (together with any replacements
thereof at any time issued in accordance with said Section 5.16 of the Stock
Purchase Agreement).
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"Second Tier IP Subsidiary" shall mean a Domestic Wholly-Owned Subsidiary
of the Intellectual Property Subsidiary which engages in no substantial business
or activities other than in connection with the assets and business transferred
to it by the Intellectual Property Subsidiary as contemplated by clause (y) of
the definition of Intellectual Property Subsidiary contained herein.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term in the
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall have the meaning provided in Section 5.08.
"Security Agreement Collateral" shall mean all "Collateral" as defined in
the Security Agreement.
"Security Document" shall mean the Pledge Agreement, the Security
Agreement, each Mortgage and, after the execution and delivery thereof, each
Additional Mortgage and each Additional Security Document.
"Senior Subordinated Note Documents" shall mean the Senior Subordinated
Notes, the Senior Subordinated Note Indenture and all other documents executed
and delivered with respect to the Senior Subordinated Notes or Senior
Subordinated Note Indenture.
"Senior Subordinated Note Indenture" shall mean the Indenture, dated as of
December 7, 1995, between the Borrower and the Senior Subordinated Note
Indenture Trustee, as in effect on the Original Effective Date and as thereafter
amended from time to time in accordance with the requirements thereof and of
this Agreement.
"Senior Subordinated Note Indenture Trustee" shall mean Marine Midland
Bank.
"Senior Subordinated Notes" shall mean the Borrower's 10% Senior
Subordinated Notes due 2003 issued pursuant to the Senior Subordinated Note
Indenture.
"Shareholders' Agreements" shall have the meaning provided in the Original
Credit Agreement.
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"Significant Subsidiary" shall mean each Subsidiary of the Borrower that
is a "significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X under
the Securities Act and the Exchange Act (as such regulation is in effect on the
Restatement Effective Date).
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary thereof
in connection with a Receivables Facility which are reasonably customary in an
accounts receivable transaction.
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall mean, with respect to any Margin Adjustment Period, the
first day of such Margin Adjustment Period.
"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met, provided that the
"Stated Amount" of each Letter of Credit denominated in a currency other than
Dollars shall be, on any date of calculation, the Dollar Equivalent of the
maximum amount available to be drawn in the respective currency thereunder
(determined without regard to whether any conditions to drawing could then be
met).
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement, dated
as of October 12, 1995, among Pechiney S.A., Pechiney International, Howmet
Cercast S.A. and Holdings.
"Subsidiaries Guaranty" shall have the meaning provided in Section 5.06.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Domestic Wholly-Owned Subsidiary
(other than a Receivables Subsidiary) of the Borrower on the Restatement
Effective Date and each Subsidiary which executes a guarantee after the
Restatement Effective Date pursuant to Section 8.12.
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"Subsidiary Pledgor" shall mean each Domestic Wholly-Owned Subsidiary
(other than a Receivables Subsidiary) of the Borrower on the Restatement
Effective Date and each Subsidiary which after the Restatement Effective Date
executes a pledge agreement pursuant to Section 8.12.
"Supermajority Banks" of any Tranche shall mean those Non-Defaulting Banks
which would constitute the Required Banks under, and as defined in, this
Agreement if (x) all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto are
terminated and (y) the percentage "50%" contained therein were changed to
"66-2/3%."
"Swingline Bank" shall mean The First National Bank of Chicago and its
successors and assigns.
"Swingline Expiry Date" shall mean the date which is two Business Days
prior to the Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(c).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first paragraph
of this Agreement.
"Tax Letter of Credit" shall mean the letter of credit issued in
accordance with the requirements of Section 7.09 of the Stock Purchase
Agreement, substantially on the terms set forth in Exhibit 7.09 to the Stock
Purchase Agreement, supporting the payment of the obligations under Article VII
of the Stock Purchase Agreement (together with any replacements thereof
delivered in accordance with Section 5.16 of the Stock Purchase Agreement).
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement entered into
between Holdings, Parent and the Borrower pursuant to Section 5.20 of the
Original Credit Agreement.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Taxpayers" shall have the meaning provided in Section 7.09.
"Term Loan" shall have the meaning provided in Section 1.01(a).
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"Term Loan Commitment" shall mean, for each Bank, the amount set forth
opposite such Bank's name in Schedule I hereto directly below the column
entitled "Term Loan Commitment", as same may be (x) reduced from time to time
pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a
result of assignments to or from such Bank pursuant to Section 1.13 or 13.04.
"Term Loan Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Term Loan Commitment
of such Bank at such time and the denominator of which is the Total Term Loan
Commitment at such time.
"Term Note" shall have the meaning provided in Section 1.05(a).
"Test Date" shall mean, with respect to any Margin Adjustment Period, the
last day of the most recent fiscal quarter or year, as the case may be, of the
Borrower ended immediately prior to the Start Date for such Margin Adjustment
Period.
"Test Period" shall mean each period of four consecutive fiscal quarters
ending on the last day of a fiscal quarter of the Borrower ended after the
Restatement Effective Date, in each case taken as one accounting period.
"Thiokol" shall mean Thiokol Corporation, a Delaware corporation.
"Thiokol Permitted Holders" shall mean Thiokol and one or more of its
Wholly-Owned Subsidiaries.
"Thiokol Purchase Option" shall mean the option of Thiokol Holdings
Company to purchase the equity interests of the Carlyle Entities pursuant to the
Carlyle/Thiokol Shareholders Agreement.
"Total Commitments" shall mean, at any time, the sum of the Commitments of
each of the Banks.
"Total Outstandings" shall mean, at any time, the sum of (x) the principal
amount of all Loans outstanding at such time and (y) the Letter of Credit
Outstandings at such time.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of the
Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum of the Term
Loan Commitments of each of the Banks.
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"Total Unutilized Revolving Loan Commitment" shall mean, at any tune, an
amount equal to the remainder of (x) the then Total Revolving Loan Commitment,
less (y) the sum of the aggregate principal amount of Revolving Loans and
Swingline Loans outstanding plus the then aggregate amount of Letter of Credit
Outstandings.
"Trade Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized in
making Loans hereunder, with their being three separate Tranches i.e., Term
Loans, Revolving Loans and Swingline Loans.
"Transaction" shall mean (i) the amendment and restatement of the Original
Credit Agreement in the form of this Agreement as provided herein, (ii) the
incurrence of the Loans hereunder on the Restatement Effective Date and (iii)
the consummation of the Refinancing.
"Type" shall mean the type of Loan determined with regard to the interest
option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the actuarial present value of the accumulated benefits under the Plan as
of the close of its most recent plan year exceeds the fair market value of the
assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No.87, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
"United States" and "U.S." shall each mean the United States of America.
"Unpaid Drawing" shall have the meaning provided for in Section 2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any Bank, at any
time, shall mean such Bank's Revolving Loan Commitment at such time less the sum
of (i) the aggregate outstanding principal amount of Revolving Loans made by
such Bank and (ii) such Bank's Adjusted Percentage of the Letter of Credit
Outstandings in respect of Letters of Credit issued under this Agreement.
"Voting Stock" means any class or classes of capital stock of Holdings
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of Directors of
Holdings.
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"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
SECTION 12. The Agents.
12.01 Appointment. The Banks hereby designate The First National Bank of
Chicago as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" shall include The First National Bank of Chicago (and/or
any of its affiliates) in its capacity as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. The Banks hereby designate Bankers Trust Company as Syndication Agent
and Citicorp USA, Inc. as Documentation Agent to act as specified herein and in
the other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Agents to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Agents by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. Each of the Agents may perform any of its
duties hereunder by or through its respective officers, directors, agents,
employees or affiliates.
12.02 Nature of Duties. No Agent shall have any duties or responsibilities
except those expressly set forth in this Agreement and the Security Documents.
Neither any Agent nor any of their respective officers, directors, agents,
employees or affiliates shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of each Agent shall be mechanical and administrative in nature; no
Agent shall have by reason of this Agreement or any other Credit Document a
fiduciary relationship in respect of any Bank or the holder of any Note; and
nothing in this Agreement or any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon any Agent any obligations
in respect of this Agreement or any other Credit Document except as expressly
set forth herein or therein.
12.03 Lack of Reliance on the Agents. Independently and without reliance
upon any Agent, each Bank and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of Holdings and its
Subsidiaries in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith
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and (ii) its own appraisal of the creditworthiness of Holdings and its
Subsidiaries and, except as expressly provided in this Agreement, no Agent shall
have any duty or responsibility, either initially or on a continuing basis, to
provide any Bank or the holder of any Note with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. No Agent shall be responsible to
any Bank or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of Holdings and its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of Holdings and its Subsidiaries or the existence or possible
existence of any Default or Event of Default.
12.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Banks; and such Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or the holder of any
Note shall have any right of action whatsoever against any Agent as a result of
such Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks.
12.05 Reliance. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
such Agent believed to be the proper Person, and, with respect to all legal
matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by such Agent.
12.06 Indemnification. (a) To the extent any Agent is not reimbursed and
indemnified by the Borrower the Banks will reimburse and indemnify such Agent,
in proportion to their respective "percentages" as used in determining the
Required Banks (but in any event calculated as if there were no Defaulting
Banks), for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by such Agent in performing its respective duties hereunder or under any other
Credit Document, in any way relating to or arising out of this Agreement or any
other Credit Document; provided that no Bank shall be liable for any portion of
such liabili-
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ties, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct.
(b) Any Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Credit Document (except actions expressly
required to be taken by it hereunder or under the Credit Documents) unless it
shall first be indemnified to its satisfaction by the Banks pro rata against any
and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
12.07 Each Agent in its Individual Capacity. With respect to its
obligation to make Loans under this Agreement, each Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Banks", "Required Banks", "holders of Notes" or any similar terms shall,
unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Each Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any Credit
Party or any Affiliate of any Credit Party as if they were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower or any other Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
12.08 Holders. The Administrative Agent shall deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Agents. (a) The Administrative Agent or the
Collateral Agent may resign from the performance of all its functions and duties
hereunder and/or under the other Credit Documents at any time by giving 15
Business Days' prior written notice to the Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent or Collateral Agent, as the case may be, pursuant to clauses (b) and (c)
below or, in the case of the Administrative Agent, as otherwise provided below.
Each other Agent may resign from the performance of all of its functions and
duties hereunder and/or under the other Credit Documents at any time after the
Restatement Effective Date, by giving notice to the Borrower, the Administrative
Agent and the Banks. Such resignation shall take effect upon delivery of such
notice.
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(b) Upon any such notice of resignation by the Administrative Agent or
Collateral Agent, as the case may be, the Required Banks shall appoint a
successor Administrative Agent or Collateral Agent, as the case may be,
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent or Collateral Agent, as the case
may be, shall not have been so appointed within such 15 Business Day period, the
Administrative Agent or Collateral Agent, as the case may be, with the consent
of the Borrower (which shall not be unreasonably withheld or delayed), shall
then appoint a commercial bank or trust company with capital and surplus of not
less than $500,000,000 as successor Administrative Agent or Collateral Agent, as
the case may be, who shall serve as Administrative Agent or Collateral Agent, as
the case may be, hereunder or thereunder until such time, if any, as the Banks
appoint a successor Administrative Agent or Collateral Agent, as the case may
be, as provided above.
(d) In the case of the Administrative Agent only, if no successor
Administrative Agent has been appointed pursuant to clause (b) or (c) above by
the 25th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent's resignation shall become
effective and the Managing Agents (if one or more so agrees), or if there are no
Managing Agents or no Managing Agent so agrees, then the Required Banks, shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Banks
appoint a successor Administrative Agent as provided above.
(e) Upon a resignation of any Agent pursuant to this Section 12.09, such
Agent shall remain indemnified to the extent provided in this Agreement and the
other Credit Documents and the provisions of this Section 12 shall continue in
effect for the benefit of such Agent for all of its actions and inactions while
serving as such Agent.
12.10 Removal of the Administrative Agent. The Administrative Agent may be
removed at any time upon obtaining the consent of the Borrower and those Banks
that would constitute the Required Banks under, and as defined in, this
Agreement if the percentage "50%" contained therein were changed to "66-2/3%".
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and disbursements of White & Case and local counsel) in
connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relat-
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ing hereto or thereto, of the Agents in connection with their syndication
efforts with respect to this Agreement and of the Agents in connection with the
enforcement of this Agreement and the other Credit Documents and the documents
and instruments referred to herein and therein (including, without limitation,
the reasonable fees and disbursements of counsel for the Agents); (ii) pay and
hold each of the Banks harmless from and against any and all present and future
stamp, excise and other similar taxes with respect to the foregoing matters and
save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify the Agents and
each Bank, and each of their respective officers, directors, trustees,
employees, representatives and agents from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) incurred by, imposed on or assessed against any of them
as a result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not the Agents
or any Bank is a party thereto) related to the entering into and/or performance
of this Agreement or any other Credit Document or the use of any Letter of
Credit or the proceeds of any Loans hereunder or the consummation of any
transactions contemplated herein (including, without limitation, the
Transaction), or in any other Credit Document or the exercise of any of their
rights or remedies provided herein or in the other Credit Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property at any time
owned or operated by Holdings or any of its Subsidiaries, the generation,
storage, transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by Holdings or any of its
Subsidiaries, the non-compliance of any Real Property with foreign, federal,
state and local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim asserted
against Holdings, any of its Subsidiaries or any Real Property at any time owned
or operated by Holdings or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent that the undertaking
to indemnify, pay or hold harmless the Agents or any Bank set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrower shall make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to Holdings or
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the Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any tune held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of Holdings, Parent, the Borrower
or any Subsidiary Guarantor (but in any event excluding assets held in trust for
any other Person) against and on account of the Obligations and liabilities of
Holdings, Parent, the Borrower or such Subsidiary Guarantor, as applicable, to
such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Bank pursuant to Section 13.06(b), all participations by any Bank in any
Swingline Loans or Letters of Credit as required pursuant to the provisions of
this Agreement and all other claims of any nature or description arising out of
or connected with this Agreement or any other Credit Document, irrespective of
whether or not such Bank shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. The Borrower agrees that any Bank purchasing participations in one or
more Letters of Credit or Swingline Loans as required by the provisions of this
Agreement, or purchasing participations as required by Section 13.06(b), may, to
the fullest extent permitted by law, exercise all rights (including without
limitation the right of setoff) with respect to such participations as fully as
if such Bank or a direct creditor of the Borrower with respect to such
participations in the amount thereof.
13.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telex or tele-copier communication) and mailed, telexed, telecopied or
delivered: if to Holdings, at Holdings' address specified opposite its signature
below; if to Parent, at Parent's address specified opposite its signature below;
if to the Borrower, at the Borrower's address specified opposite its signature
below; if to any Bank, at its address specified opposite its name on Schedule II
below; and if to the Administrative Agent, at its Notice Office; or, as to any
Credit Party or any of the Agents, at such other address as shall be designated
by such party in a written notice to the other parties hereto and, as to each
Bank, at such other address as shall be designated by such Bank in a written
notice to the Borrower and the Agents. All such notices and communications
shall, when mailed, telexed, telecopied or sent by overnight courier, be
effective when deposited in the mails or delivered to the overnight courier,
prepaid and properly addressed for delivery on such or the next Business Day, or
sent by telex or telecopier, except that notices and communications to the
Agents and the Borrower shall not be effective until received by the Agents or
the Borrower, as the case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that, no Credit Party may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the
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prior written consent of all of the Banks and, provided further, that, although
any Bank may grant participations in its rights hereunder, such Bank shall
remain a "Bank" for all purposes hereunder (and may not otherwise transfer or
assign all or any portion of its Commitments hereunder except as provided in
Section 13.04(b)) and the participant shall not constitute a "Bank" hereunder
and, provided further, that no Bank shall grant any participation under which
the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter
of Credit (unless such Letter of Credit is not extended beyond the Maturity
Date) in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement or (iii)
release all or substantially all of the Collateral under all of the Security
Documents (except as expressly provided in the Credit Documents) supporting the
Loans hereunder in which such participant is participating. In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together with one
or more other Banks) may (x) assign all or a portion of its Revolving Loan
Commitment (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans (or, if prior to the Restatement Effective Date, Term
Loan Commitment) to its parent company and/or any affiliate of such Bank which
is at least 50% owned by such Bank or its parent company or to one or more Banks
or (y) assign all, or if less than all, a portion equal to at least $5,000,000
(or, in connection with assignments by the Managing Agents within 30 days of the
Restatement Effective Date, such lesser amounts as they may determine) in the
aggregate for the assigning Bank or assigning Banks, of such Revolving Loan
Commitments and/or outstanding principal amount of Term Loans (or, if prior to
the Restatement Effective Date, Term Loan Commitment) hereunder to one or more
Eligible Transferees, each of which assignees shall become a party to this
Agreement as a Bank by execution of an Assignment and Assumption Agreement,
provided that, (i) at such time Schedule I shall be deemed modified to reflect
the Commitments (and/or outstanding Term Loans, as the case may be) of such new
Bank and of the existing Banks, (ii) new Notes will be issued,
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at the Borrower's expense, to such new Bank and to the assigning Bank upon the
request of such new Bank or assigning Bank, such new Notes to be in conformity
with the requirements of Section 1.05 (with appropriate modifications) to the
extent needed to reflect the revised Commitments (and/or outstanding Term Loans,
as the case may be), (iii) the consent of the Administrative Agent shall be
required in connection with any assignment of all or any portion of Revolving
Loan Commitments (which consent shall not be unreasonably withheld or delayed),
(iv) in the case of assignments pursuant to clause (y) above, the consent of the
Administrative Agent and, in the case of such assignments of Term Loan
Commitments or Revolving Loan Commitments, the prior written consent of the
Borrower shall be required (which consents shall not be unreasonably withheld or
delayed) and (v) the Administrative Agent shall receive at the time of each such
assignment pursuant to preceding clause (y), from the assigning or assignee
Bank, the payment of a non-refundable assignment fee of $3,500. To the extent of
any assignment pursuant to this Section 13.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned Commitments.
At the time of each assignment pursuant to this Section 13.04(b) to a Person
which is not already a Bank hereunder and which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for Federal income
tax purposes, the respective assignee Bank shall provide to the Borrower and the
Agent the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Bank's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
1.11 or 4.04 from those being charged by the respective assigning Bank prior to
such assignment, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of the
respective assignment). At the time of any assignment pursuant to this Section
13.04(b), the assigning Bank shall furnish notice thereof to the Administrative
Agent.
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Agent or any Bank or any holder of any Note in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between the Borrower or any other Credit Party and any Agent or any Bank
or the holder of any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
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which any Agent or any Bank or the holder of any Note would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of any Agent or any Bank or the holder of
any Note to any other or further action in any circumstances without notice or
demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Credit Party to
such Banks in such amount as shall result in a proportional participation by all
the Banks in such amount; provided that if all or any portion of such excess
amount is thereafter recovered from such Bank, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, but without
interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted accounting principles in the United States (or the
equivalent thereof in any country in which a Foreign Subsidiary is doing
business, as applicable) consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks); provided that, (i) except as otherwise
specifically provided herein, all computations determining compliance with
Sections 9.08 through 9.10, inclusive, shall utilize accounting principles and
policies in conformity with
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those used to prepare the historical financial statements delivered to the Banks
pursuant to Section 7.05(a), except that for all purposes described above in
this clause (i), sales of inventory shall be accounted for on a FIFO (first-in,
first-out) basis as opposed to a LIFO (last-in, first-out) basis (with the
foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called "GAAP") (ii) so long as none of Holdings nor any of its
Subsidiaries have made any payments with respect to the Installment Notes (other
than payments made by Parent to the extent theretofore reimbursed as described
in clause (ii) of Section 10.12), for purposes of the computations described in
preceding clause (i) the Installment Notes shall be treated as if same did not
exist and as if there were no interest expense applicable thereto (although any
payments received in respect thereof or in respect of any promissory notes held
by the Installment Notes Trust shall likewise not be included as income of
Holdings or any of its Subsidiaries) and (iii) so long as none of Holdings nor
any of its Subsidiaries have made any payments with respect to the Parent PIK
Subordinated Notes, for purposes of the computations described in preceding
clause (i) the Parent PIK Subordinated Notes shall be treated as if same did not
exist and as if there were no interest expense applicable thereto.
(b) All computations of interest, Commitment Commission and Fees hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest, Commitment Commission or Fees are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION: VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
HOLDINGS, PARENT AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF HOLDINGS, PARENT AND THE BORROWER HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE
DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
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NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO
ACT AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND
AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE AGENT UNDER THIS AGREEMENT. EACH OF HOLDINGS, PARENT AND THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT
PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY NOTE TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(b) EACH OF HOLDINGS, PARENT AND THE BORROWER HEREBY IRREVOCABLY WAIVES
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
13.09 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 and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
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13.10 Effectiveness. This Agreement shall become effective on the date
(the "Restatement Effective Date") on which (i) each of Holdings, Parent, the
Borrower, each Continuing Bank, each New Bank, the Required Banks (determined
immediately before the occurrence of the Restatement Effective Date) and each
Agent shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent or,
in the case of the Banks, shall have given to the Administrative Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it and (ii) the
conditions contained in Sections 5, 6 and 13.20(c) are met to the satisfaction
of the Administrative Agent and the Required Banks (determined immediately after
the occurrence of the Restatement Effective Date). Unless the Administrative
Agent has received actual notice from any Bank that the conditions contained in
Sections 5 and 6 have not been met to its satisfaction, upon the satisfaction of
the condition described in clause (i) of the immediately preceding sentence and
upon the Administrative Agent's good faith determination that the conditions
described in clause (ii) of the immediately preceding sentence have been met,
then the Restatement Effective Date shall have been deemed to have occurred,
regardless of any subsequent determination that one or more of the conditions
thereto had not been met (although the occurrence of the Restatement Effective
Date shall not release the Borrower from any liability for failure to satisfy
one or more of the applicable conditions contained in Section 5, 6 or 13.20(c).
The Administrative Agent will give the Borrower and each Bank prompt written
notice of the occurrence of the Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
maturity of any Letter of Credit beyond the Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon, or reduce the principal
amount thereof (except to the extent repaid in cash), (ii) release all or
substantially all of the Collateral (except as expressly provided in the Credit
Documents) under all the Security Documents, (iii) release a Subsidiary
Guarantor which is a Significant Subsidiary from the Subsidiaries Guaranty
(except as expressly provided in the Subsidiaries Guaranty), (iv) amend, modify
or waive any provision of this Section 13.12, (v) reduce the percentage
specified in the definition of Required Banks (it being understood that, with
the consent of the Required Banks,
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additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Banks on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Restatement Effective Date) or (vi) amend or modify the definition of
Supermajority Banks (it being understood that, with the consent of the Required
Banks, additional Obligations and Tranches may be included in the determination
of Supermajority Banks on substantially the same basis as the Obligations and
Tranches are included on the Restatement Effective Date) or (vii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver, discharge
or termination shall (t) increase the Commitments of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase in the Commitment of such Bank), (u) without the consent of the
Swingline Bank alter its rights or obligations with respect to Swingline Loans,
(v) without the consent of each Issuing Bank affected thereby, amend, modify or
waive any provision of Section 2 or alter its rights or obligations with respect
to Letters of Credit, (w) without the consent of each Agent affected thereby,
amend, modify or waive any provision of Section 12 as same applies to such Agent
or any other provision as same relates to the rights or obligations of such
Agent, (x) without the consent of the Collateral Agent, amend, modify or waive
any provision relating to the rights or obligations of the Collateral Agent, (y)
without the consent of the Supermajority Banks of the respective Tranche (i.e.,
Supermajority Banks holding Term Loans or Term Loan Commitments), amend, modify
or waive any Scheduled Repayment (except that, if additional Loans are made
pursuant to a given Tranche, the Scheduled Repayments of such Tranche may be
increased on a proportionate basis without the consent otherwise required by
this clause (y)) and (z) if the Scheduled Repayments of Term Loans are being
increased (except for proportionate increases as described in the parenthetical
contained in preceding clause (y)) or the date of any Scheduled Repayment is
being shortened or accelerated, the consent of the Supermajority Banks of each
other Tranche then outstanding shall be required in connection therewith.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (vii), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination or (B) terminate such non-consenting Bank's Revolving
Loan Commitment
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and/or repay in full its outstanding Loans, in accordance with Sections 3.02(b)
and/or 4.01(iv), provided that, unless the Commitments terminated, and Loans
repaid, pursuant to preceding clause (B) are immediately replaced in full at
such time through the addition of new Banks or the increase of the Commitments
and/or outstanding Loans of remaining Banks (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B) the Required Banks (determined both (x) before giving effect to the proposed
action and (y) as if the Loans and Commitments being terminated (and not
replaced) were not outstanding) shall specifically consent thereto, provided
further, that in any event the Borrower shall not have the right to replace a
Bank solely as a result of the exercise of such Bank's rights (and the
withholding of any required consent by such Bank) pursuant to the second proviso
to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06 shall, subject
to Section 13.15 (to the extent applicable), survive the execution, delivery and
termination of this Agreement and the Notes and the making and repayment of the
Loans.
13.14 Domicile of Loans. Each Bank may transfer and carry its Loans at, to
or for the account of any office, Subsidiary or Affiliate of such Bank.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from
those being charged by the respective Bank prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Limitation on Additional Amounts, etc. Notwithstanding anything to
the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of this Agreement,
unless a Bank gives notice to the Borrower that it is obligated to pay an amount
under any such Section within one year after the later of (x) the date the Bank
incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or
(y) the date such Bank has actual knowledge of its incurrence of the respective
increased costs, Taxes, loss, expense or liability, reductions in amounts
received or receivable or reduction in return on capital, then such Bank shall
only be entitled to be compensated for such amount by the Borrower pursuant to
said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the extent the
costs, Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs one year prior to such Bank giving notice to the
Borrower that it is obligated to pay the respective amounts pursuant to said
Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This Section 13.15 shall
have no applicability to any Section of this Agreement other than said Sections
1.10, 1.11, 2.05 and 4.04.
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13.16 Confidentiality. (a) Subject to the provisions of clause (b) of this
Section 13.16, each Bank agrees that it will use its best efforts not to
disclose without the prior consent of Holdings or the Borrower (other than to
its employees, auditors, advisors or counsel or to another Bank if the Bank or
such Bank's holding or parent company in its sole discretion determines that any
such party should have access to such information, provided such Persons shall
be subject to the provisions of this Section 13.16 to the same extent as such
Bank) any information with respect to Holdings or any of its Subsidiaries which
is now or in the future furnished pursuant to this Agreement or any other Credit
Document and which is designated by Holdings to the Banks in writing as
confidential, provided that any Bank may disclose any such information (a) as
has become generally available to the public other than by virtue of a breach of
this Section 13.16(a) by the respective Bank, (b) as may be required or
reasonably appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or reasonably
appropriate in respect to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to such Bank, (e) to the Agents or the Collateral Agent and (f) to
any prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or any
interest therein by such Bank, provided that such prospective transferee agrees
to be bound by the confidentiality provisions contained in this Section 13.16.
(b) Each of Holdings and the Borrower hereby acknowledges and agrees that
each Bank may share with any of its affiliates (which is not a direct competitor
of Holdings or any of its Subsidiaries) any information related to Holdings or
any of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of Holdings and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 13.16
to the same extent as such Bank).
13.17 Register. The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for purposes of this Section 13.17, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Banks, the Loans made by each of the Banks and
each repayment in respect of the principal amount of the Loans of each Bank.
Failure to make any such recordation, or any error in such recordation, shall
not affect the Borrower's obligations in respect of such Loans. With respect to
any Bank, the transfer of the Commitments of such Bank and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitments shall
not be effective until such transfer is recorded on the Register maintained by
the Administrative Agent with respect to ownership of such Commitments and Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer
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of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Bank shall
surrender the Note evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
13.17 except to the extent resulting from the gross negligence or willful
misconduct of the Administrative Agent.
13.18 Intercreditor Agreement. Each Bank hereby authorizes the Collateral
Agent to amend and restate the Intercreditor Agreement and agrees (for itself
and its successors and assigns) to be bound by the terms and provisions thereof.
13.19 Obligation to Make Payments in Dollars. The obligation of the
Borrower to make payment in Dollars of the principal of and interest on the
Notes and any other amounts due hereunder or under any other Credit Document to
the Payment Office of the Administrative Agent as provided in Section 4.03 shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any currency other than
Dollars, except to the extent such tender or recovery shall result in the actual
receipt by the Administrative Agent at its Payment Office on behalf of the Banks
or holders of the Notes of the full amount of Dollars expressed to be payable in
respect of the principal of and interest on the Notes and all other amounts due
hereunder or under any other Credit Document. The obligation of the Borrower to
make payments in Dollars as aforesaid shall be enforceable as an alternative or
additional cause of action for the purpose of recovery in Dollars of the amount,
if any, by which such actual receipt shall fall short of the full amount of
Dollars expressed to be payable in respect of the principal of and interest on
the Notes and any other amounts due under any other Credit Document, and shall
not be affected by judgment being obtained for any other sums due under this
Agreement or under any other Credit Document.
13.20 Addition of New Banks; Termination of Commitments of Non-Continuing
Banks; etc. (a) On and as of the occurrence of the Restatement Effective Date in
accordance with Section 13.10, each New Bank shall become a "Bank" under, and
for all purposes of, this Agreement and the other Credit Documents.
(b) The parties hereto acknowledge that no Original Bank is obligated to
be a Continuing Bank. By their execution and delivery hereof, the Borrower and
the Required
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Banks (determined immediately before the occurrence of the Restatement Effective
Date) consent to the voluntary repayment by the Borrower of all outstanding
Original Loans and other Obligations owing to each Original Bank which is not a
Continuing Bank (each such Bank, a "Non-Continuing Bank") and to the voluntary
termination by the Borrower of the Revolving Loan Commitment (under, and as
defined in, the Original Credit Agreement) of each Non-Continuing Bank, in each
case to be effective on, and contemporaneously with the occurrence of, the
Restatement Effective Date, in each case in accordance with the provisions of
Section 13.20(c).
(c) Notwithstanding anything to the contrary contained in the Original
Credit Agreement or any Credit Document, the Borrower and each of the Banks
hereby agrees that on the Restatement Effective Date, (i) each Bank with a
Revolving Loan Commitment as set forth on Schedule I (after giving effect to the
Restatement Effective Date) shall make that principal amount of Revolving Loans
to the Borrower as is required by Section 1.01, (ii) in the case of each
Continuing Bank, all of such Continuing Bank's Original Loans outstanding on the
Restatement Effective Date (except for Original Tranche A Terms Loans to the
extent converted into Term Loans on the Restatement Effective Date in accordance
with the provisions of Section 1.01(a)) shall be repaid in full, together with
interest on all Original Loans of such Continuing Bank (including without
limitation on Original Tranche A Term Loans then being converted into Term Loans
hereunder) and all accrued Fees (and any other amounts) owing to such Continuing
Bank, and its commitments under the Original Credit Agreement shall be
terminated and replaced by its Term Loan Commitment and/or Revolving Loan
Commitment hereunder, effective on the occurrence of the Restatement Effective
Date, and (iii) in the case of each Non-Continuing Bank, all of such
Non-Continuing Bank's Original Loans outstanding on the Restatement Effective
Date shall be repaid in full on such date, together with interest thereon and
all accrued Fees (and any other amounts) owing to such Non-Continuing Bank, and
the Term Loan Commitment and/or Revolving Loan Commitment (under, and as defined
in, the Original Credit Agreement) of such Non-Continuing Bank, if any, shall be
terminated, effective upon the occurrence of the Restatement Effective Date.
Notwithstanding anything to the contrary contained in the Original Credit
Agreement, this Agreement or any other Credit Document, the parties hereto
hereby consent to the repayments and reductions required above, and agree that
in the event that any Original Bank shall fail to execute a counterpart of this
Agreement prior to the occurrence of the Restatement Effective Date, such
Original Bank shall be deemed to be a Non-Continuing Bank and, concurrently with
the occurrence of the Restatement Effective Date, the Revolving Loan Commitment
(under, and as defined in, the Original Credit Agreement) of such Original Bank,
if any, shall be terminated, all Original Loans of such Original Bank
outstanding on the Restatement Effective Date shall be repaid in full, together
with interest thereon and all accrued Fees (and any other amounts) owing to such
Original Bank, and concurrently with the occurrence of the Restatement Effective
Date, such Original Bank shall no longer constitute a "Bank" under this
Agreement and the other Credit Documents, provided that all indemnities of the
Credit
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Parties under the Original Credit Agreement and the other Credit Documents (as
in effect prior to the Restatement Effective Date) for the benefit of each
Original Bank shall survive in accordance with the terms thereof.
13.21 Post Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) Foreign Corporation Stock. The Borrower shall, within 60 days after
the Restatement Effective Date (or such longer period as approved by the
Collateral Agent for the purpose of attaining relevant government approvals
under applicable foreign law), deliver to the Collateral Agent, as Pledgee, the
capital stock constituting Pledged Securities of Howmet S.A. (subject to the 65%
limitation contained in the Pledge Agreement), together with executed and
undated stock powers related thereto; and
(b) Good Standing. The Borrower shall cause Howmet Transport to take all
action so that within 30 days after the Restatement Effective Date (x) Howmet
Transport shall be in good standing in the State of Connecticut and (y) a good
standing certificate for Howmet Transport from the State of Connecticut shall be
delivered to the Administrative Agent.
(c) Financing Statements; Opinions. The Borrower shall, and shall cause
its Subsidiaries to, within ten (10) days after the Restatement Effective Date,
deliver (x) proper financing statements (Form UCC-1) fully executed for filing
under the UCC or other appropriate filing offices of each jurisdiction listed on
Annex B to the Security Agreement but which was not listed on Annex B to the
Security Agreement delivered in connection with the Original Credit Agreement,
(y) an opinion from Xxxxxx & Xxxxxxx, special counsel to Holdings and its
Subsidiaries, meeting the requirements of Section 5.03(i) and containing
provisions, satisfactory to the Managing Agents, with respect to the creation
and perfection of security interests as a result of the filing of financing
statements described in clause (x) above and (z) to the extent requested by the
Administrative Agent, opinions from local counsel in form and substance
reasonably satisfactory to the Managing Agents, with respect to the creation and
perfection of security interests as a result of the filing of financing
statements described in clause (x) above. Notwithstanding anything to the
contrary contained herein, the Banks hereby waive any Default or Event of
Default arising from the failure to previously disclose the inventory and
equipment locations described in clause (x) of the previous sentence and, until
the tenth day after the Restatement Effective Date, the failure to make the
filings described in clause (x) of the previous sentence.
All conditions precedent and representations contained in this Agreement
and the other Credit Documents shall be deemed modified to the extent necessary
to effect the foregoing (and to permit the taking of the actions described above
within the time periods
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required above, rather than as elsewhere provided in the Credit Documents);
provided, that (x) to the extent any representation and warranty would not be
true because the foregoing actions were not taken on the Restatement Effective
Date, the respective representation and warranty shall be required to be true
and correct in all material respects at the time the respective action is taken
(or was required to be taken in accordance with the foregoing provisions of
Section 13.21 and (y) all representations and warranties relating to the
Security Documents shall be required to be true immediately after the actions
required to be taken by Section 13.21 have been taken (or were required to be
taken). The acceptance of the benefits of each Credit Event shall constitute a
representation, warranty and covenant by the Borrower to each of the Banks that
the actions required pursuant to this Section 13.21 will be taken within the
relevant time periods referred to in this Section 13.21 and that, at such time,
all representations and warranties contained in this Agreement and the other
Credit Documents shall then be true and correct without any modification
pursuant to this Section 13.21.
SECTION 14. Parent Guaranty.
14.01 The Parent Guaranty. In order to induce the Agents and the Banks to
enter into this Agreement and to extend credit hereunder, to induce Banks or any
of their respective Affiliates to enter into the Interest Rate Protection
Agreements or Other Hedging Agreements, and in recognition of the direct
benefits to be received by each Parent Guarantor from the proceeds of the Loans,
the issuance of the Letters of Credit, and the entering into of Interest Rate
Protection Agreements or Other Hedging Agreements, each Parent Guarantor hereby
agrees with the Guaranteed Creditors as follows: each Parent Guarantor hereby,
jointly and severally, unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations of the Borrower to the Guaranteed Creditors. If any or all of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due
and payable hereunder, each Parent Guarantor, jointly and severally, irrevocably
and unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, together with any and all expenses which may be
incurred by the Guaranteed Creditors in collecting any of the Guaranteed
Obligations. This Parent Guaranty is a guaranty of payment and not of
collection. If claim is ever made upon any Guaranteed Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected in good faith by
such payee with any such claimant (including the Borrower), then and in such
event each Parent Guarantor agrees that any such judgment, decree, order,
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settlement or compromise shall be binding upon such Parent Guarantor,
notwithstanding any revocation of this Parent Guaranty or other instrument
evidencing any liability of the Borrower, and each Parent Guarantor shall be and
remain liable to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
14.02 Bankruptcy. Additionally, each Parent Guarantor, jointly and
severally, unconditionally and irrevocably guarantees the payment of any and all
of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors
whether or not due or payable by the Borrower upon the occurrence of an Event of
Default under Section 10.05, and unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand, in lawful money
of the United States.
14.03 Nature of Liability. The liability of each Parent Guarantor
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations of the Borrower whether executed by such Parent
Guarantor, any other guarantor or by any other party, and the liability of each
Parent Guarantor hereunder is not affected or impaired by (a) any direction as
to application of payment by the Borrower or by any other party, or (b) any
other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Guaranteed Obligations of the
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, or (e) any payment made to any Guaranteed Creditor
on the Guaranteed Obligations which any such Guaranteed Creditor repays to the
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and Parent waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding, or (f) the lack of validity or enforceability of any Credit Document
or any instrument relating thereto.
14.04 Independent Obligation. The obligations of each Parent Guarantor
hereunder are independent of the obligations of any other guarantor, any other
party or the Borrower, and a separate action or actions may be brought and
prosecuted against such Parent Guarantor whether or not action is brought
against any other guarantor, any other party or the Borrower and whether or not
any other guarantor, any other party or the Borrower be joined in any such
action or actions. Each Parent Guarantor waives, to the full extent permitted by
law, the benefit of any statute of limitations affecting its liability hereunder
or the enforcement thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower shall
operate to toll the statute of limitations as to such Parent Guarantor.
14.05 Authorization. Each Parent Guarantor authorizes the Guaranteed
Creditors without notice or demand (except as shall be required by applicable
statute and
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cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly
or indirectly in respect thereof, and the Parent Guaranty herein made shall
apply to the Guaranteed Obligations as so changed. extended, renewed or
altered;
(b) take and hold security for the payment of the Guaranteed Obligations
and sell, exchange, release, surrender, realize upon or otherwise deal with
in any manner and in any order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or
any liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the Borrower,
any other Credit Party or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether
due or not) of the Borrower to its creditors other than the Guaranteed
Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of each Parent Guarantor or the
Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements;
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of such
Parent Guarantor from its liabilities under this Parent Guaranty;
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(i) release any collateral security for the Guaranteed Obligations; and/or
(j) change its corporate structure.
14.06 Reliance. It is not necessary for any Guaranteed Creditor to inquire
into the capacity or powers of the Borrower or the officers, directors, partners
or agents acting or purporting to act on their behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of the Borrower now or
hereafter owing to each Parent Guarantor is hereby subordinated to the
Guaranteed Obligations of the Borrower owing to the Guaranteed Creditors; and if
the Administrative Agent so requests at a time when an Event of Default exists,
all such indebtedness of the Borrower to such Parent Guarantor shall be
collected, enforced and received by such Parent Guarantor for the benefit of the
Guaranteed Creditors and be paid over to the Administrative Agent on behalf of
the Guaranteed Creditors on account of the Guaranteed Obligations of the
Borrower to the Guaranteed Creditors, but without affecting or impairing in any
manner the liability of such Parent Guarantor under the other provisions of this
Parent Guaranty. Prior to the transfer by each Parent Guarantor of any note or
negotiable instrument evidencing any of the indebtedness of the Borrower to such
Parent Guarantor, such Parent Guarantor shall xxxx such note or negotiable
instrument with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, each Parent Guarantor hereby agrees
with the Guaranteed Creditors that it will not exercise any right of subrogation
which it may at any time otherwise have as a result of this Parent Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) Each Parent Guarantor waives any right (except as shall
be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against the Borrower, any other guarantor or
any other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in any Guaranteed Creditor's power whatsoever. Each Parent Guarantor
waives any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment in full of the Guaranteed Obligations. The Guaranteed Creditors
may, at their election, foreclose on any security held by any Agent, the
Collateral Agent or any other Guaranteed Creditor by one or more judicial or
non-judicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise
any other right or remedy
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the Guaranteed Creditors may have against the Borrower or any other party, or
any security, without affecting or impairing in any way the liability of either
Parent Guarantor hereunder except to the extent the Guaranteed Obligations have
been paid. Each Parent Guarantor waives any defense arising out of any such
election by the Guaranteed Creditors, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of such Parent Guarantor against the Borrower or any other party or any
security.
(b) Each Parent Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Parent Guaranty, and notices of the existence, creation or incurring of
new or additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which such Parent Guarantor assumes and incurs hereunder, and agrees that
neither the Agents nor any Bank shall have any duty to advise such Parent
Guarantor of information known to them regarding such circumstances or risks.
14.09 Maximum Liability. It is the desire and intent of each Parent
Guarantor and the Guaranteed Creditors that this Parent Guaranty shall be
enforced against each Parent Guarantor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. If, however, and to the extent that, the obligations of either Parent
Guarantor under this Parent Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of such Parent
Guarantor shall be deemed to be reduced and such Parent Guarantor shall pay the
maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.
* * *
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Howmet Corporation Amended and
Restated Credit Agreement
0000 Xxxxxxxxxxxx Xxxxxx, X.X. BLADE ACQUISITION CORP.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxx
Telephone: (000) 000-0000 By /s/ Xxxxx X. Xxxx
Telecopy: (000) 000-0000 --------------------------
Title:
with a copy to:
Xxxxx Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
161
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxxxxxx Xxxx HOWMET HOLDINGS CORPORATION
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000 By /s/ Xxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000 --------------------------
Title: Treasurer
with a copy to:
Xxxxx Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
and
Xxxxx X. Xxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
162
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxxxxxx Xxxx HOWMET CORPORATION
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000 By /s/ Xxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000 --------------------------
Title: Treasurer
with a copy to:
Xxxxx Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
and
Xxxxx X. Xxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
163
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
Xxx Xxxx, Xxx Xxxx 00000 Individually, as a Managing Agent
Telephone No.: (000) 000-0000 and as Syndication Agent
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxx
By /s/ XXXX XXXXX
--------------------------
Title: XXXX XXXXX
VICE PRESIDENT
164
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxx Xxxxxx, 0xx Xxxxx XXXXXXXX XXX, INC.,
Xxx Xxxx, Xxx Xxxx 00000 Individually, as a Managing Agent
Telephone No.: (000) 000-0000 and as Documentation Agent
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Title: Attorney-In-Fact
165
Howmet Corporation Amended and
Restated Credit Agreement
One First National Plaza, Suite 0362 THE FIRST NATIONAL BANK OF CHICAGO,
Xxxxxxx, Xxxxxxxx 00000 Individually as a Managing Agent
Telephone No.: (000) 000-0000 and as Administrative Agent
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxx
By /s/ Xxx X. Xxxxx
--------------------------
Title: Vice President
166
Howmet Corporation Amended and
Restated Credit Agreement
ABN AMRO Bank N.V.
San Francisco International Branch
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 By: ABN AMRO North America, Inc.
Xxx Xxxxxxxxx, XX 00000 as agent
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
--------------------------
Title: Xxxx X. Xxxxxxxxx
VP and Director
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Title: Xxxxxx X. Xxxxxxxx
GVP and Director
167
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxx Xxxxxx, 00xx Xxxxx XXXX XX XXXXXXXX
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx By /s/ Xxxxxx X. Xxxxxxx
--------------------------
Title: Director
168
Howmet Corporation Amended and
Restated Credit Agreement
One Wall Street, 22nd Floor XXX XXXX XX XXX XXXX
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxxxxx By /s/ Xxx Xxxxxxx
--------------------------
Title: Vice President
169
Howmet Corporation Amended and
Restated Credit Agreement
Xxx Xxxxxxx Xxxxx XXX XXXX XX XXXX XXXXXX
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
--------------------------
Title: Senior Relationship
Manager
170
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxxxxxxx Xxxxxx BANQUE XXXXXXXXX XX XXXXX
Xxx Xxxxxxxxx, XX 00000
Telephone: (415) 956-0707 ext. 206
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxx By /s/ D. Xxx Xxxx
--------------------------
Title: D. Xxx Xxxx
Vice President
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Title: Xxxxxxx X. Xxxxxx
Assistant Vice President
171
Howmet Corporation Amended and
Restated Credit Agreement
1301 Avenue of the Americas CREDIT LYONNAIS XXX XXXX XXXXXX
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxxxx Xxxxx
By /s/ Xxxxxxxxx Xxxxxx
--------------------------
Title: Xxxxxxxxx Xxxxxx
Senior Vice President
172
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxx 0xx Xxxxxx - 00xx Xxxxx CREDIT SUISSE
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
By /s/ Xxxx X. Xxxxxxx
--------------------------
Title: Xxxx X. Xxxxxxx
Associate
By /s/ Xxxxxxx X. Xxxx
--------------------------
Title: Xxxxxxx X. Xxxx
Associate
173
Howmet Corporation Amended and
Restated Credit Agreement
00 Xxxx Xxxxxx, 00xx Xxxxx DRESDNER BANK AG,
New York, New York 10005 NEW YORK BRANCH AND
Telephone: (000) 000-0000 GRAND CAYMAN BRANCH
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
By /s/ Xxxxxx Xxxxxx
--------------------------
Title: Vice President
By illegible
--------------------------
Title: AT
174
Howmet Corporation Amended and
Restated Credit Agreement
Xxx Xxxxxxx Xxxxxx, XXX-XX-XX-0000 FLEET NATIONAL BANK
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
By /s/ Xxxxxx Xxxxxx
--------------------------
Title: Vice President
175
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000 THE FUJI BANK LIMITED
Los Angeles, CA 90071 LOS ANGELES AGENCY
Telephone: (000) 000-0000
Telecopier No. (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxxx By illegible
--------------------------
Title: Joint General Manager
176
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 MELLON BANK, N.A.
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxx By /s/Xxxxxxxx Xxxx
--------------------------
Title: Vice President
177
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000 THE SAKURA BANK, LIMITED
Xxx Xxxxxxx, XX 00000 LOS ANGELES AGENCY
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxxx By /s/ Xxxxxxxx Xxxxx
--------------------------
Title: ???
By /s/ Xxxxx Xxxx
--------------------------
Title: Senior Vice President &
Assistant General Manager
178
Howmet Corporation Amended and
Restated Credit Agreement
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx XXXX XX XXXXXXX ILLINOIS
Department Number 5618
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000 By /s/ Xxxx X. Xxxxxxxxxxx
Attention: Xx. Xxxx X. Xxxxxxxxxxx --------------------------
Title: Managing Director
179
SCHEDULE III
REAL PROPERTY
OWNED PROPERTY
COMPANY LOCATION
CIRAL S.N.C. Xxxx xx xx Xxxxxxx, Xxxxx, Xxxxxx
Howmet Corporation* Winsted, 000 Xxxxx Xxxx, (Xxxx xx Xxxxxxxxxx,
Xxxxxxxxxxx)
Howmet Corporation* 000 Xxxxxxx Xxxx
0000 Xxxxx Xxxxxx Xxxxxx
One Misco Drive
Whitehall (Whitehall, Michigan)
Howmet Corporation* Wichita Falls (Casting) (0000 Xxxxxxx Xxxxxxx,
Xxxxxxx Xxxxx, Xxxxx)
Howmet Corporation 00-00, xxx xx Xxxxxx xx Xxxx, 00000 Xxxxxxxxxxxxx,
Xxxxxx
Howmet Corporation* Morristown, 0000 Xxxxxxxx Xxxxxxxxx, (Xxxx xx
Xxxxxxxxxx, Xxxxxxxxx)
Howmet Corporation* LaPorte, 0000 Xxxx Xxxxxxx Xxx, (XxXxxxx, Indiana)
Howmet Corporation* Hampton, Xxx Xxxxxx Xxxxx, (Xxxx xx Xxxxxxx,
Xxxxxxxx)
Howmet Corporation* Dover (Xxxx 00 & 00 - Xxxxxxxx
Xxxx, Xxxx 29, 30, 36, 38 & 00 - 00 Xxx
Xxxxxx, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx)
Howmet Corporation, Inc.* North Haven (30 Corporate Drive, Town of North
Haven, Connecticut)
Howmet Refurbishment, Inc. 0000 X.X. Xxxxxxxx Xxxx., Xxxxxxxxx, XX
----------
* Mortgaged Property
000
Xxxxxx Xxxxxxxxxxx, Xxx.* Xxxxxxx Xxxxx (Xxxxxx.) (0000 Xxxxxx Xxxx,
Xxxxxxx Xxxxx, Xxxxx)
Howmet S.A. 00 Xxx xx Xxxxxxx
Xx Xxxxxxx, Xxxxxx, 00000
Howmet S.A. X.A.C. des Grands Pres
00000 Xxxxx xxx Xxx, Xxxxxx
Howmet S.A. 00-00, xxx xx Xxxxxx xx Xxxx, 00000
Xxxxxxxxxxxxx, Xxxxxx
Howmet-Tempcraft, Inc. * (0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx)
Howmet Limited Xxxxxx XX00XX and 7LG (County of Devon,
U.K.) (2)
Howmet Cercast (Canada), Inc. 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxx,
Xxxxxx
Turbine Components Corporation* (Nos. 1, 2, 4, and 00-00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx)
LEASED PROPERTY (FROM THIRD PARTIES)
- Sales Offices:
00 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx - Lessor: H.B.
Associates II; Lessee; Howmet Sales, Inc.
0000 Xxxx Xxxxxxxx, Xxxxx, Xxxxxxx - Lessor: Tempe Executive
Partnership; Lessee: Howmet Sales, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx - Lessor: Xxxxxxx,
Ohio Management Inc.; Lessee: Howmet Sales, Inc.
- Advanced Refurbishment Center, North Haven Pilgrim's Harbour,
Wallingford, Connecticut - Lessor: Xxxxx Xxxxxx; Lessee: Howmet
Refurbishment, Inc.
- Dover, Apartment Leases:
Xxxxxx Xxxxx Xxxxxxxxxx, Xxx. 000, and Apt. G10 Rockaway Township,
Dover, New Jersey - Lessor: Rustic Ridge Associates; Lessee: Howmet
Corp.
- Exeter Lease Agreements:
------------
* Mortgaged Property
2
181
Suite A, Picton House, Hussar Court, Waterlooville, Hampshire - Lessor:
County Estates (Hampshire) Limited; Lessee: Howmet Management Services
Inc.; and Surety: Howmet Ltd.
Falcon Way, Sowton Industrial Estate, Exeter Devon - Lessor: The Canada
Life Assurance Company (U.K) Ltd; Lessee: Howmet Ltd.
3 & 0 Xxxxxxxx Xxxx, Xxxxxx, Xxxxx - Lessor: Vapron Properties Limited;
Lessee: Howmet Ltd.
- Denville, Warehouse Lease (66 Xxxx Xxxx, Xxxxx 00000, Xxx 0, Xxxxxxxx,
Xxx Xxxxxx) - Lessor; W.P. Realty Co.; Lessee: Howmet Turbine
Components Corporation.
- Tulsa, Apartment Lease (740-A Heritage Village, Claremore, Oklahoma)
Lessor: Xxx Xxxxx et al; Lessee: Howmet Corporation
- Dives sur Mer, Capital Lease; Lessor: Sofia Mur; Lessee: Howmet S.A.
- Pomona (Sigma Casting) (0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx)
- Lessor: CH Ranch Co.; Lessee: Sigma Casting Corporation
- Chatre Xx Xxxxx, Capital Lease - Lessor: le District du Pays x'Xxxxx;
Lessee: CIRAL S.N.C.
- Hampton (Sublease Agreement) (609 Howmet Drive, Hampton, Virginia) -
Lessor; Xxxxxxx Xxxxxx; Lessee: National Welders Supply Company;
Sublessee: Howmet Corporation
- Wichita Falls (Refurbishment), Lease Agreement (0000 Xxxxxxx Xxxxxx,
Xxx. 000, Xxxxxxx Xxxxx, Xxxxx) - Lessor: Brentwood - Timberlane;
Lessee: Howmet Corporation (Xxxxxx Xxxxxx)
- Cercast Inc., Lease Agreements:
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Lessor: 119620
Canada Inc.; Lessee: Cercast Inc.
- Howmet Cercast (Canada), Inc., Lease Agreements:
00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Lessor: Xxxxxxx Xxxxx;
Lessee: Howmet Cercast (Canada), Inc.
00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Lessor: Gestion Cerela
LTD; Lessee: Howmet Cercast (Canada), Inc.
3
182
9987 Paris Street, Montreal North, Quebec- Lessor: Franco Rabbim;
Lessee: Howmet Cercast (Canada), Inc.
00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Lessor: Gestion Cerela
LTD; Lessee: Howmet Cercast (Canada), Inc.
00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx - Lessor: Xxxx Xxxxx;
Lessee: Howmet Cercast (Canada), Inc.
9950 and 0000 Xxxxxx Xxxxxx and 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx
Xxxxx, Xxxxxx - Lessor: Xxxxxx Xxxxxxxxxx; Lessee; Howmet Cercast
(Canada), Inc.
00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Lessee: Les Xxxxxxxx
Xxxxxxxxx Inc.; Sublessee: Howmet Cercast (Canada), Inc.
0000-0000 Xxxxx Xxxxxx. Montreal North, Quebec - Lessee: 119620 Canada,
Inc.; Sublessee: Howmet Cercast (Canada), Inc.
00000 Xxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Lessee: Les Xxxxxxxx
Xxxxxxxxx Inc.; Sublessee: Howmet Cercast (Canada), Inc.
- Ceramet Lease Agreement (Avenue C, Lehigh Valley Industrial Park #1,
Bethlehem, Pennsylvania) - Lessor: Xxxxxxx Trust U.T.D.; Lessee:
Ceramet, Inc.
- Cercor, Lease Agreement (Halton Hills, Ontario) - Lessors: Xxxxx X.
Xxxx and Xxxxx X. Xxxxxx; Lessee: Howmet Cercast (Canada), Inc. (as
successor by amalgamation to Cercor, Inc.)
- Sigma, Lease Agreement (925 South Charlie Road, City of Industry,
California) - Lessor: Xxxxxxx Trust U.T.D.; Lessee: Sigma Casting
Corporation.
- Sigma, Lease Agreement (1001) South Charlie Road, City of Industry,
California) - Lessor: Xxxx Wasserbacher; Lessee: Sigma Casting
Corporation
- Cercon, Lease Agreement (000-000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx)
- Lessor: 119620 Canada, Ltd.; Lessee: Cercon Casting Corporation
- Georgetown, Halton Hills Ontario Lease - Lessor: Xxxxx X. Xxxx and
Xxxxx X. Xxxxxx; Lessee: Cercor Inc.
- Osaka and Terai Real Estate Documents
LEASED PROPERTIES (TO THIRD PARTIES)
- R-H Component Technologies Lease (Property in Xxxxxx County, Oklahoma)
- Lessor: Howmet Refurbishment, Inc.; Lessee: R-H Component
Technologies
4
183
- LaPorte, Austenal Farm Lease (State Road 2 and Xxxx Blvd. , LaPorte,
Indiana) - Lessor: Howmet Corporation; Lessee: Xxxxx Xxxxxxx
- 00000 Xxx-Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Sublessor: Howmet
Cercast (Canada), Inc.; Sublessee: Les Industries Xxxxxxxxx & Fils
Limitee
- 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx - Sublessor: Howmet Cercast
(Canada) Inc.; Sublessee: Superior Packaging Inc.
5
184
SCHEDULE IV
LIABILITIES
Howmet Corporation has been or may be named a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act and similar state statutes, at fourteen on-site and off-site locations
relating to the investigation and/or remediation of environmental contamination
at certain properties. In addition, Howmet Corporation is remediating similar
environmental contamination at five European facilities. Based on management's
best current estimates of potential liability, management believes that Howmet's
reserves (approximately $9.0 million at September 29, 1996) are adequate under
current laws and regulations. In addition, as part of the December 13, 1995
acquisition, Pechiney International, S.A. and Pechiney S.A. indemnified Blade
Acquisition Corp. , and Blade Acquisition Corp. assigned such indemnification
rights to Howmet Corporation, for any environmental liabilities originating
prior to December 13, 1995 (the acquisition closing date), which exceed the
Company's reserves of $6.0 million as of June 30, 1995.
Howmet Holdings Corporation could have contingent liability exposure
for environmental contamination and related costs associated with certain
discontinued mining operations owned and/or operated until the early 1960's.
These liabilities include approximately $24 million in remediation and natural
resource damage liabilities at the Blackbird Mine Site in Idaho and
approximately $4.0 million in investigation and remediation costs at the Holden
Mine Site in Washington. However, Pechiney International and Pechiney have
agreed to fully indemnify Howmet Holdings Corporation with respect to such
matters. Furthermore, the liability relating to the Blackbird Mine site is
secured by letters of credit in favor of the U.S. Environmental Protection
Agency. A Pechiney company is the reimbursement party for these letters of
credit.
A MAN GHH claim involving failure of first stage high pressure blades
on the land- based-THM-1304 engine due to quartz rod residue in cooling passages
could result in a liability of $300,000.
There are twelve separate but similar lawsuits and other proceedings
brought by former employees of Howmet's Wichita Falls facilities alleging that
their discharge or denial of benefits was due to discrimination in violation of
federal and state laws including age and sex discrimination and workers
compensation claim retaliation, and in one case, Xxxx v. Howmet, injury due to
negligence. Howmet believes it has meritorious defenses in all of these cases.
From time to time when Howmet Corporation develops patentable
technology in coordination with another company, an issue arises as to the
inventorship of the invention proposed to be patented. There is no instance in
which Howmet's management believes such issue will have a material effect on its
financial position or operations.
185
SCHEDULE II
BANK ADDRESSES
Bankers Trust Company 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxx
Citicorp USA, Inc. 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
The First National Bank One First National Plaza, Suite 0362
of Chicago Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxx
Credit Lyonnais New York Branch 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention:
Fleet National Bank One Federal Street, MSN-MA-OF-0308
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx XxXxxxxxx
Bank of America Illinois 000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxxxxxxxx
186
SCHEDULE II
Page 0
Xxx Xxxx xx Xxxx Xxxxxx Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxxx
The Bank of New York Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxxxxx
The Fuji Bank Limited 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx Agency Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.; (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxxx
The Sakura Bank Limited 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx Agency Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxxx
Xxxxxx Bank, N.A. 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxx
187
SCHEDULE II
Page 4
Banque Nationale de Paris 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (415) 956-0707 ext. 206
Telecopier No.: (000) 000-0000
Attention: Xx. Xxx Xxxx
Credit Suisse 000 Xxxx 0xx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
ABN AMRO Bank N.V. 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxxx
Bank of Montreal 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx
Dresdner Bank AG, 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Branch and Xxx Xxxx, Xxx Xxxx 00000
Grand Cayman Branch Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
Xx. Xxxxxxxx Xxxxxxxxxxxxxx
Xx. Xxxxx Xxxxx
188
SCHEDULE VI
TAX MATTERS
WAIVERS:
A. U.S. Federal Income Taxes
Special Consent to Extend the Time to Assess Tax (Form 872-A) for the
1990, 1991, 1992 and 1993 taxable years signed by Howmet Holdings
Corporation and Subsidiaries (10/8/96).
B. Connecticut
Consent to Extend the Statute of Limitations for the imposition of
Corporation Business Tax for the 1987 to 1992 taxable years to be
signed by Howmet Holdings Corporation shortly. Current waiver, signed
5/31/96, expires 12/31/96.
C. Michigan
Consent to the Suspension of the Running of the Statute of Limitations
for the imposition of sales and use tax for the period July 1, 1991 to
March 31, 1993 to March 31, 1997 signed by Howmet Corporation
(5/10/96).
D. Texas
Agreement to Extend Period of Limitation for the imposition of 1 992
Franchise Tax to December 31, 1996 signed by Howmet Corporation
(5/7/96).
AUDITS:
A. Michigan
Notice of Intent to Assess issued 10/15/96 for the imposition of Single
Business Tax for the 1991, 1992 and 1993 taxable years for Howmet
Corporation. Total assessment of $1,112,348 will be appealed.
189
Schedule VII
ERISA
In the event of a termination of the Howmet Corporation Salaried
Employees Pension Plan, the Borrower's unfunded liability is estimated to be in
the $15 million range. Howmet Corporation has no present intention of
terminating that plan nor ceasing to make contributions under it.
190
SCHEDULE VIII
SUBSIDIARIES
Howmet Limited
Howmet Management Services, Inc.1/2/
Howmet Foreign Sales Corp.
Howmet-Tempcraft, Inc.1/2/
Howmet Transport Services, Inc.1/2/
Howmet Sales, Inc.1/2/
Howmet Refurbishment, Inc.1/2/
Turbine Components Corporation1/2/
Howmet S.A.
Financiere d'Ocquier, X.X.
Xxxxx SNC
Ciral Italy SRL
Howmet Cercast (Canada), Inc. (f/k/a 3203816 Canada Ltd.)
Howmet Cercast (USA), Inc.1/2/
Howmet Thermatech Canada, Inc.1/2/
Blade Receivables Corporation
1/ Subsidiary Pledgor
2/ Subsidiary Guarantor
191
Exhibit IX
HOWMET STRUCTURE ORGANIZATIONAL CHART
192
SCHEDULE X
LABOR RELATIONS
Union Activity
- At Howmet Ltd. the following unions are represented: the Amalgamated
Engineering Union, the Transport and General Workers Union, the
Electrical, Electronic, Telecommuni- cations and Plumbing Union, the
GMB-APEX and the Manufacturing, Science and Finance Union.
- At Howmet S.A. the following unions are represented: the Confederation
Generale des Cadres ("CFE/CGC"), the Confederation Generale du Travail
("CGT"), the Confederation Francaise du Travail ("CFTD"), and the
Confederation Francaise des Travailleurs Chretiens ("CFTC").
- At CIRAL S.N.C., the CFDT is represented.
- At the Muskegon County Operations there is a collective bargaining
agreement with the following unions: Local No. 1243 United Automobile,
Aerospace and Agricultural Implement Workers of America and its
International Union.
- At the Le Creusot facility of Howmet, S.A. there have been two hour
work stoppages in sympathy to the call by the CGT for a national
strike.
Arbitration and Representation
- There have been arbitration proceedings at the Howmet Corporation and
Cercast U.S. facilities in Texas under the Occupational Injury benefit
Plan for Texas Employees of Howmet Corporation and Howmet Cercast
(USA), Inc., a voluntary program established in lieu of workers'
compensation.
- At the Dover, New Jersey alloy facility, the Teamsters Union attempted
to organize the employees. An election was held on January 19, 1996 in
which the union was rejected by a vote of 66 to 12.
- At the LaPorte, Indiana casting facility in June, 1996, the United Auto
Workers began handbilling the employees. Over several months they
attempted to organize the employees. This proved to be of no avail and
they ceased the activity.
- At the Hampton, Virginia casting facility, the International
Association of Machinists attempted to organize the employees. As a
result of an election concluding on November 2, 1996, the union was
rejected 513 to 202.
193
Schedule X
Labor Relations
Page 2 of 2
- At the Advanced Refurbishment facility in North Haven, Connecticut, the
International Association of Machinists submitted a petition for an
election on November 15,1996. It is expected that an election will be
Conducted at the end of December, 1996 or the beginning of January,
1997.
Labor and Union Contracts
- Agreement between Howmet Corporation Covering its Muskegon County
Operations and Local No.1243 United Automobile, Aerospace and
Agricultural Implement Workers of America and its International Union.
- Collective Bargaining Agreement between Howmet, Ltd. and the
Amalgamated Engineering Union, Transport and General Workers Union,
Electrical, Electronic, Telecommunications and Plumbing Union, GMB-APEX
and the Manufacturing, Science and Finance Union, January 1, 1996.
- Collective Bargaining Agreements between Howmet S.A. and the CFEICGC,
the CGT, the CFDT and the CFTC, dated December 30, 1993, January 18,
1994, December 22, 1994, January 24, 1995, as amended on March 30.1995
(with the CFDT and the CGT only), January 27, 1995 and May 31, 1995.
194
SCHEDULE XI
EXISTING INDEBTEDNESS
HOWMET GROUP FINANCING AGREEMENTS
Surviving Financial Obligations
- $250,000 First Chicago Irrevocable Standby Letter of Credit from Howmet
Corporation to the State of Connecticut*
Debt Value: Face Value of Letter of Credit
- Guaranty by Howmet Corporation of $2,000,000 or 50% of the Short-Term
Promissory Note from R-H Components Technologies, L.C. to Citibank,
N.A., March 23, 1994
Debt Value: $2,250,000
- Guaranty by Howmet Corporation of 50% of the indebtedness of
Komatsu-Howmet Ltd.
Debt Value: Y1,135,977,000**
- $100,000 American Express Financial Services credit line to support
Howmet Corporation's travel advance program, June 7, 1993
Debt Value: $32,826
- $5,000,000 Visa Procurement Card Credit Agreement with First Bank for
Howmet Corporation, November 29, 1993
Debt Value: $272,785
- $1,000,000 Visa Procurement Card Credit Agreement with First Bank for
Howmet Refurbishment, Inc., November 29, 1993
Debt Value: $25,672
- $3,400,000 Irrevocable Letter of Credit, by First Chicago for Travelers
Insurance Company, on behalf of Howmet Corporation*
Debt Value: Face Value of Letter of Credit
- $25,000 Irrevocable Letter of Credit, January 1995, for Morristown
Power & Light Co. (Tennessee) on behalf of Howmet Corporation*
Debt Value: Face Value of Letter of Credit
----------
* These Letters of Credit have been drawn pursuant to the Credit
Agreement
** The Borrower will be indemnified for 50% of any liabilities arising
from these guarantees.
195
- $50,000 First Chicago Irrevocable Letter of Credit for Turbine
Components Corporation*
Debt Value: Face Value of Letter of Credit
Cercast Group Financing Agreements
Surviving Financing Obligation
- Can$60,000 Letter of Credit issued by the Bank of Montreal to Currant
Canada Inc. on the order of Howmet Cercast (Canada), Inc. , for custom
requirements dated May 1995
Debt Value: Face Value of Letter of Credit
Surviving Financial Obligation Giving Rise to a Price Reduction
- Capital Lease Agreement between CIRAL, S.N.C. and Le District du Pays
x'Xxxxx, dated March 23, 1992
Debt Value: Fr1,194,000
- Fr37,400,000 (original amount) 12.4% capital lease agreement between
Howmet S.A. and C.C. Bail, Societe de Credit Bail Immoblier. dated
December 29, 1989, re: Dives sur Mer Factory1/
Debt Value: Fr8,898,000
- Can$750,000 Howmet Cercast (Canada), Inc. Financement from the Societe
Innovatech du Grand Montreal
Debt Value: Can$750,000
1/ Le Magnesium Industriel has been merged in Microfusion S.A., now Howmet
S.A. C.C. Bail has assigned the lease to Sofia Mur.
* These Letters of Credit will be replaced with Letters of Credit Drawn
pursuant to the Credit Agreement.
2
196
BLADE ACQUISTION CORPORATION/HOWMET CORPORATION INSURANCE PROGRAM AS OF 11-1-96 Schedule XII
-------------------------------------------------------------------------------
POLICY POLICY LIMITS
COVERAGE NUMBER PERIOD CARRIER BROKER (000)
-------- ------ ------ ------- ------ ------
AIRCRAFT PRODUCTS AW677595
LIABILITY: 7/l/96/ Bowring Aviation 500,000
6/30/97 ABC underwriters M&M
ALL RISK 01020025 6/l/96/ Arkwright 1,263,831
(Property & Bus. Interruption) 5/31/97 50,000
AUTOMOBILE LIAB. UC2J-CAP-185K838-0-TIL-96 7/l/96/ Travelers Xxxxxxxx 1,000
(TX) UC2EE-CAP-185K839-2-TRI-96 6/30/97
CARGO LIABILITY 000-00-00 7/l/96/ CHUBB/ Xxxxxxxx 200
6/30/97 Federal
CRIME 8091-82-70-D 9/l/96/ Federal Xxxxxxx & 10,000
8/31/97 Xxxxxxx
DIRECTORS & 8146-29-04 12/13/95/ CHUBB/ Xxxxxxx & 25,000
OFFICERS 12/12/96 Federal Xxxxxxx
FIDUCIARY 8146-29-04 12/13/95/ CHUBB Xxxxxxx & 15,000
12/12/96 Xxxxxxx
GENERAL LIABILITY UC2JSLS-185K841-1-TIL-96 7/1/96/ Travelers Xxxxxxxx 1,000
(non-aircraft prod) UC2JSLS-l85K8515-TIL-97 6/30/97 1,500(Products)
1412120 Guardian Ins Xxxxxxxx
MISC. CASUALTY 8077-94-27-C 3/30/95 Federal Xxxxxxx & 15,000
3/29/98 Xxxxxxx
EXCESS LIABILITY 7973-77-05 7/l/96/ Chubb Xxxxxxxx 25,000
07XN25148589SC 6/30/97 AETNA 25,000
35271685 Chubb DIC
WORKERS' (NJ) UC2J-UB-185K844796 Travelers
COMPENSATION (CA) UC2J-UB-185K845996 7/l/96/ Retro/deductable Xxxxxxxx Statutory
(ALL OTHERS) UC2J-UB-185K842396 6/30/97 in house accrual
EXCESS-WORKERS' (included in above cost)
COMPENSATION
TEXAS EXCESS INDEMN NTXO119557 11-1-96/ RELIANCE NATIONAL (INC 6,857TX TAX)
11-1-97 TOTAL PREMIUM
DEDUCTIBLE PREMIUM
---------- -------
None $542.500
Brokerage $90,000
1 0,000 to $615,922
CDN $41,914
500,000 in house re $175,000
traveler ex $17,750
brokerage $15,000
$207,750
2.500/ $8,060
7,500
100,000 $38,425
500,000 $165,000
transaction chg $50,000
0/20,000 $37,942
500,000 in house re $225,000
950,000 traveler ex $31,250
brokerage $15,000
$271,250
$3,395
None $33,200
3 YEAR POLICY
None $153,000
None $39,000
$5,000
500,000 in house re $2,750,000
traveler ex $546,238
brokerage $221,085
$3,517,323
300.000 $148,247
$5,967,928
197
SCHEDULE XIII
EXISTING LIENS
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Automat Services LaTouraine Coffee Co. 1509490 05/10/93 Sec. of State, NJ Specific
T/A Howmet Corp. 000 Xxxxxxxx Xxxx Equipment
0 Xxx Xxxxxx Xxxxxxxx, XX 00000
Xxxxx, XX 00000
Howmet Corp. CFE Equipment Corp. 910531616 05/29/91 Sec. of State, VA Specific
#0 Xxxxxx Xx. 000 Xxxxxxx Xx. Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
ASSOCIATES COMMERCIAL CORP.
ECC Financial Group
0000 Xxxx Xxxxx Xx.
Xxxxxxxxx, XX 00000
Howmet Corp. CFE Equipment Corporation 74436 06/03/91 Clerk of Xxxxxxx Xxxxx, Xxxxxxxx
#0 Xxxxxx Xx. 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
ASSOCIATES COMMERCIAL CORP.
ECC Financial Group
0000 X. Xxxxx Xx.
Xxxxxxxxx, XX 00000
Howmet Corp. ReFerb Co. C+L Leasing 91015126 01/28/91 Sec. of State, TX Specific
0000 Xxxxxxx Xxxx X. 1505 Xxxx Xx. Equipment
Xxxxxxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 910431307 04/26/91 Sec. of State, TX Specific
0 Xxxxxx Xx. 000 Xxxxxxx Xx. Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
198
SCHEDULE XIII
page 2
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation CFE Equipment Corporation 74295 04/30/91 Clerk of Circuit Court, Specific
1 Howmet Dr. 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
ECC Financial Group
Corporation
0000 Xxxx Xxxxx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 78200 01/31/94 Clerk of Xxxxxxx Xxxxx, Xxxxxxxx
0 Xxxxxx Xxxxx 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 78201 01/31/94 Clerk of Xxxxxxx Xxxxx, Xxxxxxxx
0 Xxxxxx Xxxxx 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 77866 11/01/93 Clerk of Xxxxxxx Xxxxx, Xxxxxxxx
0 Xxxxxx Xxxxx 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
199
SCHEDULE XIII
page 3
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation CFE Equipment Corporation 80406 09/21/95 Clerk of Xxxxxxx Xxxxx, Xxxxxxxx
0 Xxxxxx Xxxxx 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 9509137145 09/13/95 Sec. of State, VA Specific
0 Xxxxxx Xxxxx 000 Xxxxxxx Xx. Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Howmet Corporation CFE Equipment Corporation 77798 10/21/93 Clerk of Xxxxxxx Xxxxx, Xxxxxxxx
0 Xxxxxx Xxxxx 000 Xxxxxxx Xx. Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation Digital Equipment Corporation 1772213 3/31/92 Sec. of State, IN Specific
0000 X. Xxxxxxx Xxx 00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
200
SCHEDULE XIII
page 4
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Acclaim Leasing, Inc. 1047401 02/28/94 Sec. of State, CT Specific
000 Xxxxx Xxxx 0000 X. Xxxxxxxxx Hts. Rd. 203 Equipment
Xxxxxxx, XX 00000 Arlington Hts., IL 60004
ASSIGNEE
Colonial Pacific Leasing
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Howmet Corporation Citizens Bank C594215 5/6/92 Sec. of State, MI Specific
0000 X. Xxxxxx Xxxxxx POB 230049 Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Leasing Technologies 1018 02/15/94 Town Clerk, Specific
0000 Xxxxxxxxx Xxxx International, Inc. Winsted, CT Equipment
Xxxxxxxxx, XX 00000 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Howmet Corporation AT&T Credit Corporation 921934 05/09/91 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx 0 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Xxxxxxxx & Co. Xxxxxx 52859B 2/23/95 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx 400 Renaissance Center Equipment
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing Corporation 024477 05/09/94 County Clerk, Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxxxxx, 0 X Xxxxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation AT&T Credit Corporation 94224365 11/21/94 Sec. of State, TX Specific
000 Xxxxxxxxx Xxxx 0 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation AT&T Credit Corporation 93035973 02/25/93 Sec. of State, TX Specific
000 Xxxxxxxxx Xxxx 0 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
201
SCHEDULE XIII
page 5
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation CIT Group Equipment Financing 34133B 8/10/93 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx Inc. Assignment Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxxxx Xx.
Xxxx Xxxxx, XX 00000
Howmet Corporation Meridian Leasing Corp. C782539 11/29/93 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Howmet Corporation Meridian Leasing Corp. C661075 11/30/92 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx 000 Xxxx Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx. 000
Xxxxxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 78545 05/04/94 Clerk of Circuit Court, Specific
000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx, 0 X Xxxxxxx Xxxx, XX Equipment
Xxxxxx, XX 00000
Howmet Corporation CIT Group Equipment Financing 40208B 2/23/94 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx Inc. Assignment Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxxxx Xx.
Xxxx Xxxxx, XX 00000
Howmet Corporation NationsBanc Leasing Corporation 1910012 4/25/94 Sec. of State, IN Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxxxxx, 0 X Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing Corporation AK95850 5/2/94 Sec. of State, OH Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxxxxx, 0 X Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation CIT Group Equipment 34136B 8/10/93 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx Financing Inc. Assignment Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxxxx Xx.
Xxxx Xxxxx, XX 00000
Howmet Corporation NationsBanc Leasing Corporation 9405027501 05/02/94 Sec. of State, VA Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxxxxx, 0 X Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
202
SCHEDULE XIII
page 6
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation NationsBanc Leasing 94084109 04/29/94 AT&T Credit Specific
000 Xxxxxxxxx Xxxx Corporation Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx
Xxxxxxx, 0 X
Xxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 010404 05/02/94 Sec. of State, OH Specific
000 Xxxxxxxxx Xxxx Corporation 050294 Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx, 0 X 00000
Xxxxxx, XX 00000 AK95851
Howmet Corporation Leasing Technologies 1046060 02/14/94 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx International, Inc. Equipment
Xxxxxxxxx, XX 00000 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, Inc. 75866 06/15/92 Clerk of Circuit Court, Specific
000 Xxxxxxxxx Xxxx X X Xxx 0000 Xxxxxxx Xxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, Inc. 920620372 06/12/92 Sec. of State, VA Specific
000 Xxxxxxxxx Xxxx X X Xxx 0000 Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Oak Brook Master Trust C782541 11/29/93 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx c/o Network Securities Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Yale Financial Services, Inc. 969719 06/15/92 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx X X Xxx 0000 Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Leasing Technologies 1046062 02/14/94 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx International, Inc. Equipment
Xxxxxxxxx, XX 00000 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 307445 05/04/94 Sec. of State, TN Specific
000 Xxxxxxxxx Xxxx Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx,
0 Xxxxx
Xxxxxx, XX 00000
203
SCHEDULE XIII
page 7
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Meridian Leasing Corp. C630067 8/24/92 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx 000 Xxxx Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx. 000
Xxxxxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 1055627 04/29/94 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx, 0 X
Xxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 1004506 04/05/93 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx,
0 Xxxxx Xxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 1568782 05/04/94 Sec. of State, NJ Specific
000 Xxxxxxxxx Xxxx Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx, 0 X
Xxxxxx, XX 00000
Howmet Corporation Nationsbanc Leasing 9506660513 3/1/95 Sec. of State, CA Specific
000 Xxxxxxxxx Xxxx Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Howmet Corporation NationsBanc Leasing 1055628 4/29/94 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx Corporation Equipment
Xxxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxxxxx, 0 X
Xxxxxx, XX 00000
Howmet Corporation Leasing Technologies 1021 02/15/94 Town Clerk, Specific
000 Xxxxxxxxx Xxxx International, Inc. Winsted, CT Equipment
Xxxxxxxxx, XX 00000 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
ASSIGNEE
CoreStates Bank, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
204
SCHEDULE XIII
page 8
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation NationsBanc Leasing Corp. C837324 5/3/94 Sec. of State, MI Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxx Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation AT&T Credit Corporation 22365 03/23/90 County Clerk, Specific
000 Xxxxxxxxx Xxxx 0 Xxxxxxxx Xxxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation AT&T Credit Corporation 028161 02/18/92 Sec. of State, TX Specific
000 Xxxxxxxxx Xxxx 0 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation AT&T CREDIT CORPORATION 1505131 04/13/93 Sec. of State, NJ Specific
000 Xxxxxxxxx Xxxx 0 XXXXXXXX XXXXX Xxxxxxxxx
Xxxxxxxxx, XX 00000 XXXXXXXXX, XX 00000
Howmet Corporation Xerox Corporation 92241770 12/14/92 Sec. of State, TX Specific
0000 Xxxxxxx Xxxxxxx 000 X. Xxx Xxxxxxx Xxxx. Xxxxxxxxx
Xxxxxxx Xxxxx, XX Xxxxxx, Xxxxx 00000
76305
Howmet Corporation Digital Equipment 92153573 08/03/92 Sec. of State, TX Specific
0000 Xxxxxxx Xxxxxxx Corporation Equipment
Xxxxxxx Xxxxx, XX 00000 Alliance Road
U76307-1616 Xxxxxxxxxx, XX 00000
ASSIGNEE
Leasetec Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
205
SCHEDULE XIII
page 9
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation BellSouth Communication 9305117216 05/10/93 Sec. of State, VA Specific
Castings Division Systems, Inc. Equipment
One Howmet Drive 0000 Xxxx Xxxxx Xxxxx, XX Original
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Filing
ASSIGNEE 890711205
Bellsouth Financial Services
Corporation
0000 Xxxxxxx Xxxxxxxxx, X.X.,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Howmet Corporation CFE Equipment Corporation 930310165 03/01/93 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx
Xxxxxxxxx, XX 00000
206
SCHEDULE XIII
page 10
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation CFE Equipment Corporation 921211384 12/07/92 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 921211382 12/07/92 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 921211383 12/07/92 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 921211382 12/07/92 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx
Xxxxxxxxx, XX 00000
207
SCHEDULE XIII
page 11
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation CFE Equipment Corporation 76845 03/02/93 Clerk of Circuit Court, Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 9310297188 10/29/93 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation Xxxxxxxxx-Xxxx Company DBA 80017 06/06/95 Clerk of Circuit Court, Specific
One Howmet Drive Xxxxxxxxx-Xxxx Air Center Hampton City, VA Equipment
Xxxxxxx, XX 00000 000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
ASSIGNEE
Associates Leasing, Inc.
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
Howmet Corporation CFE Equipment Corporation 76532 12/08/92 Clerk of Circuit Court, Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
208
SCHEDULE XIII
page 12
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation CFE Equipment Corporation 77657 09/27/93 Clerk of Circuit Court, Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 940126715 01/26/94 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 930920729 09/20/93 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 76533 12/08/92 Clerk of Circuit Court, Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
209
SCHEDULE XIII
page 13
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Xxxxxxxxx-Xxxx Company DBA 9508187051 08/18/95 Sec. of State, VA Specific
One Howmet Drive Xxxxxxxxx-Xxxx Air Center Equipment
Xxxxxxx, XX 00000 000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
ASSIGNEE
Associates Leasing, Inc.
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
Howmet Corporation CFE Equipment Corporation 9401267151 01/26/94 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 76534 12/08/92 Clerk of Circuit Court, Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxx Xxxx, XX Equipment
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
Howmet Corporation CFE Equipment Corporation 9310207295 10/20/93 Sec. of State, VA Specific
One Howmet Drive 000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
ASSIGNEE
Associates Leasing Inc.
0000 X. 0xx Xx.
Xxxxxxxxx, XX 00000
210
SCHEDULE XIII
page 14
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation State Bank Lacrosse C81364 3/1/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xx Xxxxxx, XX 00000
Howmet Corporation State Bank Lacrosse C741152 7/26/93 Sec. of State, MI Specific
One Misco Drive Equipment
Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 042992 3/8/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation State Bank Lacrosse C813363 3/194 Sec. of State, MI Specific
One Misco Drive 000 Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xx Xxxxxx, XX 00000
Howmet Corporation U.S. Leasing 051764 3/22/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation State Bank Lacrosse C813361 3/1/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xx Xxxxxx, XX 00000
Howmet Corporation U.S. Leasing 9306257739 6/25/93 Sec. of State, VA Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing AMENDM 2/15/94 Sec. of State, TX Specific
One Misco Drive International, Inc. ENT Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx 00000000
Xxx Xxxxxxxxx, XX 00000
AMENDMENT Original
USL Capital Corporation Filing
229860
211
SCHEDULE XIII
page 15
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation State Bank of Xxxxxx C587770 4/20/92 Sec. of State, MI Specific
One Misco Drive 308 Grove St. Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation U.S. Leasing 93036027 2/26/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 93209216 11/2/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. A-000475 5/17/92 County Clerk, Specific
One Misco Drive 000 Xxxxx Xx., XX Xxxxxxxx Xxxxxx, Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original OK
Filing
ASSIGNEE 022013
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 93228094 12/2/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 1862451 12/6/93 Sec. of State, IN Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 197067 10/13/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Old Kent Bank & Trust Co. C538762 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
212
SCHEDULE XIII
page 16
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation U.S. Leasing 77364 6/28/93 Clerk of Circuit Specific
One Misco Drive International, Inc. Court Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx Xxxxxxx Xxxx, XX
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 120533 6/23/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1411395 2/21/92 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
ASSIGNEE
Delta Capital IV, Inc.
000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, XX 00000
Howmet Corporation Xxx Xxxx Xxxx & Xxxxx Xx. X000000 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. C430046 12/19/90 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. C202472 4/5/89 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation United.States Leasing Corp. 36665B 11/3/93 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 901230199 12/21/90 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
213
SCHEDULE XIII
page 17
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 940852 10/3/91 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 934621
Commerica Bank
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Howmet Corporation Alpha Financial Group, Inc. 920321374 3/17/92 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 901230199
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 923188 5/3/91 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Xxx Xxxx Xxxx & Xxxxx Xx. X000000 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. Same as 3/25/92 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX above - Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 1386808
ASSIGNEE
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
214
SCHEDULE XIII
page 18
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 1411395 8/8/91 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation U.S. Leasing 37928B 12/14/93 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Old Kent Bank & Trust Co. C538767 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Xxx Xxxx Xxxx & Xxxxx Xx. X000000 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation NCC Leasing Inc. C7795B 12/10/90 Sec. of State, MI Specific
One Misco Drive 0000 Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1397940 5/6/91 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 48069B 10/19/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Old Kent Bank & Trust Co. C538766 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
215
SCHEDULE XIII
page 19
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Old Kent Bank & Trust Co. C538763 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Xxx Xxxx Xxxx & Xxxxx Xx. X000000 11/15/91 Sec. of State, MI Specific
Xxx Xxxxx Xxxxx 0 Xxxxxxxxxx Xxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 402098 2/23/95 Sec. of State, TN Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 93229860 12/6/93 Sec. of State, TX Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 1584289 7/27/94 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 1599597 10/20/94 Sec. Of State, NJ Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 59248B 8/9/95 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 52831B 2/23/95 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 39913B 2/11/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
216
SCHEDULE XIII
page 20
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation USL Capital Corp. 80291 8/22/91 Clerk of Circuit Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000 Hampton City, VA
Howmet Corporation USL Capital Corp. 4894923 2/11/94 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx Equipment
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 40712B 3/11/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1377467 12/28/90 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 59249B 8/9/95 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. A-000474 3/17/92 County Clerk, Specific
One Misco Drive 000 Xxxxx Xx., XX Olklahoma Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original County, OK
Filing
ASSIGNEE 007514
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1386808 2/28/91 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
ASSIGNED ON LATER DATE - SEE
BELOW
217
SCHEDULE XIII
page 21
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 007514 02/15/91 County Clerk, Specific
One Misco Drive 000 Xxxxx Xx., XX Olklahoma Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 County, OK
Howmet Corporation USL Capital Corp. 1945005 10/19/94 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 49019B 11/15/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 45173B 7/25/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 9104903 5/28/91 Sec. of State, NV Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 79170 10/20/94 Clerk of Circuit Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000 Hampton City, VA
Howmet Corporation USL Capital Corp. 39139B 1/19/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 39214B 1/24/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 29974B 4/12/93 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
218
SCHEDULE XIII
page 22
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation U.S. Leasing 34386B 8/19/93 Sec. of State, MI Specific
One Misco Drive International, Inc Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 29098B 3/23/93 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 28714B 3/9/93 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 32561B 6/23/94 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation United States Leasing Corp. 37639B 12/3/93 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 28456B 2/26/93 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 910510359 5/3/91 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation U.S. Leasing 93039233 3/1/93 Sec. of State, CA Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Howmet Corporation U.S. Leasing 28458B 2/26/93 Sec. of State, MI Specific
One Misco Drive International, Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
219
SCHEDULE XIII
page 23
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation USL Capital Corp. 42230B 4/28/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 244131 12/22/94 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 9410257819 10/24/94 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 078250 4/25/94 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 94218543 11/14/94 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 44059B 6/20/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 011133 1/21/94 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation USL Capital Corp. 42123B 4/26/94 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation United States Leasing 36031B 10/14/93 Sec. of State, MI Specific
One Misco Drive Int Inc. Equipment
Xxxxxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
220
SCHEDULE XIII
page 24
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation USL Capital Corp. 950808 8/8/95 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xxxxxx 7704 Equipment
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 022013 5/3/91 County Clerk, Specific
One Misco Drive 000 Xxxxx Xx., XX Xxxxxxxx Xxxxxx, Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 OK
Howmet Corporation Xxxx Commercial Credit Corp. C460742 3/25/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. 103733 9/16/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Comerica Bank C809013 2/16/94 Sec. of State, MI Specific
One Misco Drive Continuatio Equipment
Xxxxxxxxx, XX 00000 n
Howmet Corporation Xxxx Commercial Credit Corp. C966181 5/3/95 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C901622 11/194 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. 101586 4/15/91 Muskegon Specific
Xxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
221
SCHEDULE XIII
page 25
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Xxxx Commercial Credit Corp. J03125 7/27/92 Muskegon Specific
Xxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. J03422 8/31/92 Muskegon Specific
Xxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C621583 7/28/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. 102479 6/14/91 Muskegon Specific
Xxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. 101588 4/15/91 Muskegon Specific
Xxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C468115 4/15/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. 103257 8/12/91 Muskegon Specific
Xxx Xxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C514592 9/3/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C519147 9/17/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
222
SCHEDULE XIII
page 26
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Xxxx Commercial Credit Corp. C490189 6/14/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C631837 8/28/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C508472 8/13/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Comerica Bank Detroit C439150 1/18/91 Sec. of State, MI Specific
One Misco Drive 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Howmet Corporation Alpha Financial Group, Inc. 640709 3/26/92 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 91028357
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 91155984 8/9/91 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1688629 12/16/90 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 91028357 2/15/91 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
223
SCHEDULE XIII
page 27
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 1699234 2/14/91 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1731573 8/8/91 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1770142 3/19/92 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xx., XX Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Bankers Leasing Assn Inc. C561504 1/31/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxx Xxxx Xx. Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 50165854 10/21/91 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 91155984
Delta Capital IV, Inc.
000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 1714189 5/2/91 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 91092039 5/13/91 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
224
SCHEDULE XIII
page 28
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 640711 03/16/92 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 91092039
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 911010665 10/03/91 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 91011560
Delta Capital IV, Inc.
000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, XX 00000
Howmet Corporation Clarklift of Detroit Inc. D018544 10/4/95 Sec. of State, MI Specific
One Misco Drive 2045 Austin Equipment
Xxxxxxxxx, XX 00000 Xxxx, XX 00000
Howmet Corporation Comerica Bank C523292 03/16/92 Sec. of State, MI Specific
One Misco Drive 211/311 Fort St. Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 640547 03/16/92 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 90259316
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
225
SCHEDULE XIII
page 29
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 1741292 10/4/91 Sec. of State, IN Specific
One Misco Drive 000 Xxxxx Xx., XX Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 90259316 12/14/90 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. C445497 2/6/91 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. 103689 9/3/91 Muskegon County, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Leasetec Corp. C590293 4/27/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group Inc. C472142 4/25/91 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx. XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Leasetec Corp. C611877 6/29/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Howmet Corporation Leasetec Corp. C572588 3/5/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
226
SCHEDULE XIII
page 30
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 1397940 03/25/92 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
ASSIGNEE
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. C621584 7/28/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Xxxxxxx Business Systems, Inc. C740087 7/23/93 Sec. of State, MI Specific
One Misco Drive 0000 00xx Xx. XX Equipment
Whitehall, MI 49461 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp. J03124 7/27/92 Muskegon County, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation IMC Associates, Inc. 103598 8/22/91 Muskegon County, MI Specific
One Misco Drive 0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx 000
Xxxxxxxx, XX 00000
Howmet Corporation Xxxxxxx Business Systems, Inc. C596422 5/13/92 Sec. of State, MI Specific
One Misco Drive 0000 00xx Xx. XX Equipment
Whitehall, MI 49461 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 910811560 08/08/91 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xx. XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
227
SCHEDULE XIII
page 31
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Midamerica Bank C903510 11/7/94 Sec. of State, MI Specific
One Misco Drive 000 X Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 POB 120
Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 913513 02/15/91 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Data Sales Co., Inc. C703999 4/9/93 Sec. of State, MI Specific
One Misco Drive 0000 X. Xxxxxxxxxx Xxxx. Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. C503687 7/30/91 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx. XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 910221248 02/15/91 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xx. XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 959536 03/19/92 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx. XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 934621
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
228
SCHEDULE XIII
page 32
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Alpha Financial Group, Inc. 959239 03/16/92 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 905620
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Data Sales Co., Inc. 1397940 04/29/92 Specific
One Misco Drive 00000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
ASSIGNEE
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Leastec Corp. C570974 3/2/92 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Howmet Corporation Data Sales Co. C569579 2/26/92 Sec. of State, MI Specific
One Misco Drive 12117 Riverwood Dr. Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 905620 12/14/90 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
229
SCHEDULE XIII
page 33
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Homet Corporation Alpha Financial Group, Inc. 959534 03/19/92 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx. XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 923188
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Homet Corporation Alpha Financial Group, Inc. Assignment 03/16/92 Sec. of State, NV Specific
One Misco Drive 000 Xxxxx Xx., XX to 91-04903 Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Homet Corporation Alpha Financial Group, Inc. 934621 08/12/91 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Homet Corporation Data Sales Co., Inc. C703997 04/9/93 Sec. of State, MI Specific
One Misco Drive 0000 X. Xxxxxxxxxx Xxxx. Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Homet Corporation Data Sales Co., Inc. 962641 04/16/92 Sec. of State, CT Specific
One Misco Drive 00000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 934621
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Homet Corporation Delta Capital II, Inc. C439149 01/18/91 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx., XX Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
230
SCHEDULE XIII
page 34
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Data Sales Co., Inc. 658290 04/21/92 Sec. of State, TX Specific
One Misco Drive 00000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 91028357
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. Original 03/16/92 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xx., XX Filing Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 90187289
ASSIGNEE
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Data Sales Co. C569578 02/26/92 Sec. of State, MI Specific
One Misco Drive 12117 Riverwood Dr. Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Data Sales Co. C568733 02/24/92 Sec. of State, MI Specific
One Misco Drive 12117 Riverwood Dr. Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Xxxx Commercial Credit Corp C468114 04/15/91 Sec. of State, MI Specific
One Misco Drive 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
231
SCHEDULE XIII
page 35
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Delta Capital IV, Inc. 911010666 10/03/91 Sec. of State, VA Specific
One Misco Drive 000 Xxxxx Xxxxxx XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 910811560
Comerica Bank
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Howmet Corporation Data Sales Co., Inc. C703998 04/09/93 Sec. of State, MI Specific
One Misco Drive 0000 X. Xxxxxxxxxx Xxxx. Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Howmet Corporation Delta Capital IV, Inc. C523291 10/04/91 Sec. of State, MI Specific
One Misco Drive 000 Xxxxx Xx., XX Assignment Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Delta Capital IV, Inc. 1411395 02/21/92 Sec. of State, NJ Specific
One Misco Drive 000 Xxxxx Xxxxxx XX Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
ASSIGNEE
Comerica Bank
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Howmet Corporation Delta Capital IV, Inc. 50165855 10/21/91 Sec. of State, TX Specific
One Misco Drive 000 Xxxxx Xxxxxx XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 91155984
Comerica Bank
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
232
SCHEDULE XIII
page 36
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Data Sales Co., Inc. 000679 04/17/92 County Clerk, Specific
Xxx Xxxxx Xxxxx 00000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 007514
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Data Sales Co., Inc. 658289 03/21/92 Sec. of State, TX Specific
One Misco Drive 00000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 91092039
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Data Sales Co., Inc. Same as 04/29/92 Sec. of State, NJ Specific
One Misco Drive 00000 Xxxxxxxxx Xxxxx xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 1386808
ASSIGNEE
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 959535 03/19/92 Sec. of State, CT Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 913513
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
233
SCHEDULE XIII
page 37
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Data Sales Co., Inc. 000678 04/17/92 County Clerk, Specific
Xxx Xxxxx Xxxxx 00000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 022013
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 9104903 05/28/91 Sec. of State, NV Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Howmet Corporation Alpha Financial Group, Inc. 4064 03/16/92 Sec. of State, NV Specific
One Misco Drive 000 Xxxxx Xx., XX Equipment
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Original
Filing
ASSIGNEE 9104903
Data Sales Co., Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Howmet Corporation Data Sales Co., Inc. Original 04/16/92 Sec. of State, NV Specific
One Misco Drive 00000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 9104903
ASSIGNEE
State Bank of Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Howmet Corporation Yale Financial Services, 1626947 03/30/95 Sec. of State, NJ Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
234
SCHEDULE XIII
page 38
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Yale Financial Services, 1600179 10/27/94 Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, 1612562 03/31/95 Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, 1584221 10/28/94 Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, 1612562 03/31/95 Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, 1621748 03/02/95 Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Howmet Corporation Yale Financial Services, 1611585 03/02/95 Specific
Xxx Street Inc. Equipment
Xxxxx, XX 00000 00 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Howmet Sales Xxxx Leasing Co. AM16616 09/22/95 Specific
0000 Xxxx Xxxxxx Xx. 0000 Xxxxxxxx Xx. Xxxxxxxxx
#000 Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
Howmet Sales Xxxx Leasing Co. 131184 09/22/95 Specific
0000 Xxxx Xxxxxx Xx. 0000 Xxxxxxxx Xx. Xxxxxxxxx
#000 Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
HOWMET CORP XEROX CORPORATION 1567147 04/27/94 Specific
0 XXX XXXXXX 000 Xxxx Xxxxxx Equipment
DOVER, N.J. 07801 X.X. Xxx 0000, XX 0-0
Xxxxxxxx, XX. 00000
235
SCHEDULE XIII
page 39
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
HOWMET CORP XEROX CORPORATION 1567145 04/27/94 Sec. of State, NJ Specific
0 Xxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxx, XX 00000 X.X. Xxx 0000, XX 0-0
Xxxxxxxx, XX. 00000
HOWMET CORP. Pitney Xxxxx Credit 1470183 08/20/92 Sec. of State, NJ Specific
Xxx St. Corporation Equipment
Xxxxx, XX 00000 000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
HOWMET CORPORATION CORESTATE BANK, N.A. 1018 10/11/94 Town Clerk, Specific
0000 Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx (Xxxxxxxxxx) Xxxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
ASSIGNEE
LEASING TECHNOLOGIES
INTERNATIONAL, INC.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
HOWMET CORPORATION American Business Credit 94220388 11/10/94 Sec. of State, TX Specific
0000 Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 000 Xxxxxxxxxx Xx
00000 XX Xxx 0000
Xxxxxxxxxx, XX 00000
HOWMET CORPORATION GTE Leasing Corporation 1016759 06/14/93 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx 00000 X Xxxxxxxx Xx., Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxx. 000
Xxxxxx, XX 00000
HOWMET CORPORATION GTE Leasing Corporation 1016758 06/14/93 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx 00000 X xxxxxxxx Xx., Xxxxxxxxx
Xxxxxxxxx, XX 00000 Ste. 510
carmel, IN 46032-4548
236
SCHEDULE XIII
page 40
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation Corestates Bank, N.A. 1021 10/11/94 Town Clerk, Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx (Xxxxxxxxxx) Xxxxxxx, XX Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
ASSIGNEE
Leasing Technologies
International, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Howmet Corporation Caterpillar Financial 1606697 02/24/95 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx Services Corporation Equipment
Xxxxxxxxx, XX 00000 000 Xxxxxxxxxxx Xxxx #000
Xxxxx, XX 00000
Howmet Corporation Corestates Bank, N.A. 0000000 10/07/94 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 1046060
Leasing Technologies
International, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Howmet Corporation Corestates Bank, N.A. 0000000 01/31/95 Sec. of State, CT Specific
000 Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000 Original
Filing
ASSIGNEE 1046062
Leasing Technologies
International, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
237
SCHEDULE XIII
page 41
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation NCC Leasing, Inc. 925401 10/18/91 Sec. of State, TN Specific
5650 Commerce 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxx, Xxxx 00000
Xxxxxxxxxx, XX 00000
Howmet Corporation Shieldalloy Metalurigical Corp. 1628441 04/06/95 County Clerk Specific
Alloy Division 00 Xxxx Xxxxxxxxx Xxxxxx Xxxxxx, XX Equipment
X.X. Xxx 000 Xxxxxxxx, XX 00000 (alloys)
Xxxxx, XX 00000
Howmet Corporation Shieldalloy Metalurigical Corp. 022934 04/05/95 County Clerk Specific
Alloy Division 00 Xxxx Xxxxxxxxx Xxxxxx Xxxxxx, XX Equipment
X.X. Xxx 000 Xxxxxxxx, XX 00000 (alloys)
Xxxxx, XX 00000
Howmet Corporation Bellsouth Financial 940701 07/01/94 Sec. of State, VA Specific
Castings Division Services Corporation 7171 Equipment
One howmet Drive 0000 Xxxxxxx Xxxx., X.X.,
Xxxxxxx, XX 00000 Suite 1400 Original
Xxxxxxx, XX 00000 Filing
890711205
CONTINUATION
Howmet Corporation Bellsouth Financial 78804 06/08/94 Clerk of Circuit Court, Specific
Castings Division Services Corporation Hampton City, VA Equipment
One howmet Drive 0000 Xxxxxxx Xxxx.,
Xxxxxxx, XX 00000 N.E., Xxxxx 0000
Xxxxxxx, XX 00000 Original
Filing
CONTINUATION 71689
Howmet Corporation NCC Leasing, Inc. 911220348 12/12/91 Sec. of State, VA Specific
Hampton Casting 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxx, Xxxx 00000
Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
238
SCHEDULE XIII
page 42
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Howmet Corporation NCC Leasing, Inc. 75335 02/03/91 Clerk of Circuit Court, Specific
Howmet Casting 0000 X. Xxxx Xxxxxx Xxxxxxx Xxxx, XX Equipment
Division Xxxxxx, XX 00000
Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Howmet Corporation Bellsouth Communication 890711205 07/07/89 Sec. of State, VA Specific
One Howmet Drive Systems, Inc.
Xxxxxxx, XX 00000 0000 Xxxx Xxxxx Xx., X.X. Xxxxxxxxx
Xxxxxxx, XX 00000
Howmet Corporation ABCC 1039812 12/21/93 Sec. of State, CT Specific
Price Road 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xx. Xxxxxxxxxx, XX 00000
Howmet Corporation NCC Leasing, Inc. 1431962 12/16/91 Sec. of State, NJ Specific
Xxx Street 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxx, XX 00000 Xxxxxx, XX 00000
Howmet Corporation Bellsouth Communication 71689 07/05/89 Clerk of Circuit Court, Specific
Castings Division Systems, Inc. Hampton City, VA Equipment
One Howmet Drive 0000 Xxxx Xxxxx Xxxxx, XX
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Howmet Refurbishment, Charter Leasing Corporation 1577262 9/26/94 Sec. of State, CT Specific
Inc. 000 X. Xxxxxxxxx Xxxxxxx Equipment
00 Xxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxx Xxxxx, XX
00000-0000
Howmet Sales, Inc. Xxxx Leasing Co. 131184 9/22/95 Xxxxxxxx County, OH Specific
Equipment
Howmet Turbine Xxxx Equipment Co. 030470 02/18/92 Sec. of State, TX Specific
Components EquipmentK
Corporation
239
SCHEDULE XIII
page 43
DEBTOR SECURED PARTY/COMMENTS FILE # FILING DATE JURISDICTION COLLATERAL
Turbine Components Compressor Engineering 1603225 02/06/95 Sec. of State, CT Specific
Corporation Company, Inc. Equipment
0 Xxxxxxxxxx Xx. Xxxx Xxx. & Xxxxx Xx.
Xxxxxxxx, XX 00000 X.X. Xxx 000
Xxxxxxx, XX 00000
ASSIGNEE
Associates Commercial
Corporation
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
Turbine Components The Bank of New Haven 1068006 08/05/94 Sec. of State, CT Specific
Corporation 000 Xxxxxx Xxxxxx Equipment
0 Xxxxxxxxxx Xx. Xxx Xxxxx, XX 00000
Xxxxxxxx, XX 00000
Turbine Components SNET Systems, Inc. 908372 01/09/91 Sec. of State, CT Specific
XX Xxx 000 0 Xxxxxx Xx. Equipment
Xxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Turbine Components SNET Credit, Inc. 1020881 07/16/93 Sec. of State, CT Specific
Corporation 0 Xxxxxx XX Equipment
0 Xxxxxxxxxx Xx. Xxxxx Xxxxx, XX 00000
Xxxxxxxx, XX 00000
240
Schedule XIV
MANAGEMENT FEES
- Management Agreement between Alexander Insurance Managers and Howmet
Insurance Company, Inc. dated November 11, 1996-- $20,000 per year
- Foreign Sales Corporation Services Agreement dated December, 1984 among
Howmet Foreign Sales Corporation, Howmet Turbine Components Corporation
and Chase Trade, Inc. -- $15,500 per year.
- Service Agreement dated December 5, 1996 between Nevada Corporate
Management, Inc. and Blade Receivables Corporation --$16,000 per year.
241
EXHIBIT A
NOTICE OF BORROWING
_______, 19__
The First National Bank of Chicago, as
Administrative Agent for the Banks
party to the Credit Agreement
referred to below
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Both
Ladies and Gentlemen:
The undersigned, Howmet Corporation (the "Borrower"), refers to the
Credit Agreement, dated as of December 13, 1995 and amended and restated as of
December 5, 1996 (as amended from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined), among Blade
Acquisition Corp., Howmet Holdings Corporation, the Borrower, various Banks from
time to time panty thereto, Bankers Trust Company, Citicorp USA, Inc. and The
First National Bank of Chicago, as Managing Agents, Bankers Trust Company, as
Syndication Agent, Citicorp USA, Inc., as Documentation Agent and you, as
Administrative Agent for such Banks, and hereby gives you notice, irrevocably,
pursuant to Section 1.03(a) of the Credit Agreement, that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________________. 1/
(ii) The aggregate principal amount of the Proposed Borrowing
is $__________________
(iii) The Proposed Borrowing is to consist of [Term Loans]
[Revolving Loans] [Swingline Loans].
----------
1/ Shall be a Business Day at least one Business Day in the case of Base Rate
Loans and three Business Days in the case of Eurodollar Loans, in each case,
after the date hereof.
242
EXHIBIT A
Page 2
(iv) The Loans to be made pursuant to the Proposed Borrowing
shall be initially maintained as [Base Rate Loans] [Eurodollar Loans].
(v) The initial Interest Period for the Proposed Borrowing is
_________ month(s).2/
The undersigned hereby certifies that the following statements
are true and correct on the date hereof, and will be true and correct on the
date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Documents are and will be true and correct in all material respects,
both before and after giving effect to the Proposed Borrowing and to
the application of the proceeds thereof, as though made on such date
(it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified
date); and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof.
Very truly yours,
HOWMET CORPORATION
By__________________________
Name:
Title:
----------
2/ To be included for a Proposed Borrowing of Eurodollar Loans.
243
EXHIBIT B-1
TERM NOTE
$_____________ New York, New York
December 5, 1996
FOR VALUE RECEIVED, HOWMET CORPORATION, a Delaware corporation (the
"Borrower"), hereby promises to pay to ________________________ or its
registered assigns (the "Bank"), in lawful money of the United States of America
in immediately available funds, at the office of The First National Bank of
Chicago (the "Administrative Agent") located at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, XX 00000 on the Maturity Date (as defined in the Agreement referred to
below) the principal sum of ________________________________ DOLLARS ($ ) or, if
less, the then unpaid principal amount of all Term Loans (as defined in the
Agreement) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement,
dated as of December 13, 1995 and amended and restated as of December 5, 1996,
among Blade Acquisition Corp., Howmet Holdings Corporation, the Borrower, the
lenders from time to time party thereto (including the Bank), Bankers Trust
Company, Citicorp USA, Inc. and The First National Bank of Chicago, as Managing
Agents, Bankers Trust Company, as Syndication Agent, Citicorp USA, Inc., as
Documentation Agent and The First National Bank of Chicago, as Administrative
Agent (as from time to time in effect, the "Agreement"), and is entitled to the
benefits thereof and of the other Credit Documents (as defined in the
Agreement). This Note is secured by the Security Documents (as defined in the
Agreement) and is entitled to the benefits of the Guaranties (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the Maturity Date, in whole or in
part.
In case an Event of Default (as defined in the Agreement) shall occur
and be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
244
EXHIBIT B-1
Page 2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
HOWMET CORPORATION
By__________________________________
Title:
245
EXHIBIT B-2
REVOLVING NOTE
$_____________ New York, New York
December 5, 1996
FOR VALUE RECEIVED, HOWMET CORPORATION, a Delaware corporation (the
"Borrower"), hereby promises to pay to _______________________ or its registered
assigns (the "Bank"), in lawful money of the United States of America in
immediately available funds, at the office of The First National Bank of Chicago
(the "Administrative Agent") located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, XX
00000 on the Maturity Date (as defined in the Agreement referred to below) the
principal sum of ______________________________________ DOLLARS ($ ) or, if
less, the then unpaid principal amount of all Revolving Loans (as defined in the
Agreement) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of December 13, 1995 and amended and restated as of December
5, 1996, among Blade Acquisition Corp., Howmet Holdings Corporation, the
Borrower, the lenders from time to time party thereto (including the Bank),
Bankers Trust Company, Citicorp USA, Inc. and The First National Bank of
Chicago, as Managing Agents, Bankers Trust Company, as Syndication Agent,
Citicorp USA, Inc., as Documentation Agent and The First National Bank of
Chicago, as Administrative Agent (as from time to time in effect, the
"Agreement"), and is entitled to the benefits thereof and of the other Credit
Documents (as defined in the Agreement). This Note is secured by the Security
Documents (as defined in the Agreement) and is entitled to the benefits of the
Guaranties (as defined in the Agreement). As provided in the Agreement, this
Note is subject to voluntary prepayment and mandatory repayment prior to the
Maturity Date, in whole or in part.
In case an Event of Default (as defined in the Agreement) shall occur
and be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
246
EXHIBIT B-2
Page 2
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
HOWMET CORPORATION
By__________________________________
Title:
247
EXHIBIT B-3
SWINGLINE NOTE
$10,000,000 New York, New York
December 5, 1996
FOR VALUE RECEIVED, HOWMET CORPORATION, a Delaware corporation (the
"Borrower"), hereby promises to pay to THE FIRST NATIONAL BANK OF CHICAGO or its
registered assigns (the "Bank"), in lawful money of the United States of America
in immediately available funds, at the office of The First National Bank of
Chicago (the "Administrative Agent") located at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, XX 00000 on the Swingline Expiry Date (as defined in the Agreement
referred to below) the principal sum of TEN MILLION DOLLARS ($10,000,000) or, if
less, the then unpaid principal amount of all Swingline Loans (as defined in the
Agreement) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is the Swingline Note referred to in the Credit Agreement,
dated as of December 13, 1995 and amended and restated as of December 5, 1996,
among Blade Acquisition Corp., Howmet Holdings Corporation, the Borrower, the
lenders from time to time party thereto (including the Bank), Bankers Trust
Company, Citicorp USA, Inc. and The First National Bank of Chicago, as Managing
Agents, Bankers Trust Company, as Syndication Agent, Citicorp USA, Inc., as
Documentation Agent and The First National Bank of Chicago, as Administrative
Agent (as from time to time in effect, the "Agreement"), and is entitled to the
benefits thereof and the other Credit Documents (as defined in the Agreement).
This Note is secured by the Security Documents (as defined in the Agreement) and
is entitled to the benefits of the Guaranties (as defined in the Agreement). As
provided in the Agreement, this Note is subject to voluntary prepayment and
mandatory repayment prior to the Swingline Expiry Date, in whole or in part.
In case an Event of Default (as defined in the Agreement) shall occur
and be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
248
EXHIBIT B-3
Page 2
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
HOWMET CORPORATION
By______________________________
Title:
249
EXHIBIT C
LETTER OF CREDIT REQUEST
No. (1) Dated (2)
The First National Bank of Chicago, as Administrative Agent under the Credit
Agreement (as amended, modified or supplemented from time to time, the "Credit
Agreement"), dated as of December 13, 1995 and amended and restated as of
December 5, 1996, among Blade Acquisition Corp., Howmet Holdings Corporation,
Howmet Corporation, the Banks from time to time party thereto, Bankers Trust
Company, Citicorp USA, Inc. and The First National Bank of Chicago, as Managing
Agents, Bankers Trust Company, as Syndication Agent, Citicorp USA, Inc., as
Documentation Agent, and The First National Bank of Chicago, as Administrative
Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: _________________________
[Name and Address of applicable Issuing Bank]
Attention: ___________________________
Dear Sirs:
We hereby request that [name of proposed Issuing Bank], in its
individual capacity, issue a [Standby] [Trade] Letter of Credit for the account
of the undersigned on
----------
(1) Letter of Credit Request Number.
(2) Date of Letter of Credit Request.
250
EXHIBIT C
Page 2
(3) (the "Date of Issuance") in the aggregate stated amount of (4). The
requested Letter of Credit shall be denominated in (5).
For purposes of this Letter of Credit Request, unless otherwise defined
herein, all capitalized terms used herein which are defined in the Credit
Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be (6), and such
Letter of Credit will be in support of (7) and will have a stated expiration
date of (8).
We hereby certify that:
(1) the representations and warranties contained in the Credit
Documents will be true and correct in all material respects on the Date
of Issuance, both before and after giving effect to the issuance of the
Letter of Credit requested hereby (it being understood and agreed that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date); and
(3) Date of Issuance which shall be at least five Business Days after the
date of this Letter of Credit Request (or such shorter period as is
acceptable to the respective Issuing Bank).
(4) Aggregate initial stated amount of Letter of Credit.
(5) Specify Dollars or such other currency which is acceptable to the
Issuing Bank.
(6) Insert name and address of beneficiary.
(7) Insert description of LIC Supportable Indebtedness and describe
obligation to which it relates in the case of Standby Letters of Credit
and a description of the commercial transaction which is being
supported in the case of Trade Letters of Credit.
(8) Insert last date upon which drafts may be presented which may not be
later than (i) in the case of Trade Letters of Credit, the earlier of
(x) the date which occurs 12 months after the Date of Issuance or (y)
the Maturity Date or (ii) in the case of Standby Letters of Credit, the
earlier of (x) the date which occurs 12 months after the Date of
Issuance, or, if any such Standby Letter of Credit is extended for
successive periods of up to 12 months, a date not beyond the tenth
Business Day prior to the Maturity Date or (y) the Maturity Date.
251
EXHIBIT C
Page 3
(2) no Default or Event of Default has occurred and is continuing nor,
after giving effect to the issuance of the Letter of Credit requested hereby,
would such a Default or an Event of Default occur.
Copies of all relevant documentation with respect to the supported
transaction are attached hereto.
HOWMET CORPORATION
By____________________________
Title:
252
EXHIBIT D
Section 4.04(b)(ii) Certificate
Reference is hereby made to the Credit Agreement, dated as of December
13, 1995 and amended and restated as of December 5, 1996, among Blade
Acquisition Corp., Howmet Holdings Corporation, Howmet Corporation, the Banks
party thereto from time to time, Bankers Trust Company, Citicorp USA, Inc. and
The First National Bank of Chicago, as Managing Agents, Bankers Trust Company,
as Syndication Agent, Citicorp USA, Inc., as Documentation Agent, and The First
National Bank of Chicago, as Administrative Agent (the "Credit Agreement").
Pursuant to the provisions of Section 4.04(b)(ii) of the Credit Agreement, the
undersigned hereby certifies that it is not a "bank" as such term is used in
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF BANK]
By____________________________
Title:
253
EXHIBIT E-1
[LETTERHEAD] XXXXXX & XXXXXXX
December 5, 1996
TO THE FINANCIAL INSTITUTIONS LISTED ON ATTACHMENT A HERETO
Re: Credit Agreement dated as of December 13, 1995 and amended and
restated as of December 5, 1996 among Blade Acquisition Corp.,
Howmet Holdings Corporation, Howmet Corporation, the various
Banks party thereto from time to time, Bankers Trust Company,
Citicorp USA, Inc. and The First National Bank of Chicago, as
Managing Agents, Bankers TrustCompany, as Syndication Agent,
Citicorp USA, Inc., as Documentation Agent and The First
National Bank of Chicago, as Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to Blade Acquisition Corp., a
Delaware corporation ("Holdings"), Howmet Holdings Corporation (f/k/a Pechiney
Corporation), a Delaware corporation ("Parent"), Howmet Corporation, a Delaware
corporation (the "Borrower"), and the Howmet Subsidiaries (as defined herein)
(collectively with Holdings, Parent and the Borrower, the "Howmet Entities") in
connection with that certain Credit Agreement dated as of December 13, 1995 and
amended and restated as of December 5, 1996 (the "Credit Agreement") among
Holdings, Parent, the Borrower, the various banks from time to time party
thereto (the "Banks"), Bankers Trust Company, Citicorp USA, Inc. and The First
National Bank of Chicago, as Managing Agents, Bankers Trust Company, as
Syndication Agent. Citicorp USA, Inc., as Documentation Agent and The First
National Bank of Chicago, as Administrative Agent.
This opinion is rendered to you pursuant to Section 5.03(i) of
the Credit Agreement. Capitalized terms defined in the Credit Agreement, used
herein and not otherwise defined herein, shall have the meanings given them in
the Credit Agreement. In addition, the term "Howmet Subsidiaries" shall mean
those Subsidiaries of the Borrower which are listed on Schedule 1 to this
opinion. As used in this opinion, the "NYUCC" shall mean the Uniform Commercial
Code as now in effect in the State
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TO THE FINANCIAL INSTITUTIONS
LISTED ON ATTACHMENT A HERETO
December 5, 1996
Page 2
of New York and the "California UCC" shall mean the Uniform Commercial Code as
now in effect in the State of California.
As such counsel, we have examined such matters of fact and
questions of law as we have considered appropriate for purposes of rendering the
opinions expressed below, except where a statement is qualified as to knowledge
or awareness, in which case we have made no or limited inquiry as specified
below. We have examined, among other things, the following:
(a) the Credit Agreement;
(b) the Term Notes;
(c) the Revolving Notes;
(d) the Swingline Note;
(e) the Subsidiaries Guaranty;
(f) the Pledge Agreement;
(g) the Security Agreement;
(h) a photocopy of the UCC-1 financing statements naming
each Credit Party listed on Schedule 2 to this
opinion ("Schedule 2") as debtor and the Collateral
Agent as secured party, together with all schedules
and exhibits to such financing statements, to be
filed in the offices listed on Schedule 2
(collectively, the "Financing Statements");
(i) the amended Mortgages;
(j) the Senior Subordinated Note Documents;
(k) the certificate of incorporation and by-laws of each
of the Howmet Entities (collectively, the "Governing
Documents");
(l) the Receivables Documents;
(m) resolutions of each of the Howmet Entities regarding
the transactions contemplated by the Operative
Documents (as defined below); and
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TO THE FINANCIAL INSTITUTIONS
LISTED ON ATTACHMENT A HERETO
December 5, 1996
Page 3
(n) such other originalsor copies of such records,
documents or other instruments as in our judgment
are necessary or appropriate to enable us to
render the opinions expressed below.
The documents described in subsections (a)-(g) above are referred to
herein collectively as the "Operative Documents." The documents described in
subsections (a)-(i) are referred to herein collectively as the "Loan Documents."
We have been furnished with, and with your consent have relied upon
certificates of officers of the Borrower with respect to certain factual
matters. In addition, we have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
We aree opining herein as to the effect on the subject transactions
only of the federal laws of the United States, t he internal laws of the States
of New York and the General Corporation Law of the State of Delaware, and with
respect to our opinionss in paragraphs 9 and 10, the laws of the State of
California, and we express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction or, in the case of
Delaware, any other laws, or as to any matters of municipal law or laws of any
locl agencies within any state.
Our opinions set forth in paragraph 4 below are based upon our
consideration of only those statutes, rules andd regulations that, in our
experience, are normally applicable to borrowers and guarantors in secured loan
transactions. Whenever a statement herein is qualified by "to the best of our
knowledge" or a similar phrase, it is intended to indicate that those attorneys
in this firm who have rendered legal services in connection with the Loan
Documents do not have current actual knowledge of the inaccuracy of such
statement. However, except as otherwise expressly indicated, we have not
undertaken any independent investigation to determine the accuracy of any such
statement, and no inference that we have any knowledge of any matteers
pertaining to such statement should be drawn from our representation of any of
the Howmet Entities.
Subject to the foregoing and other matters set forth herein, and in
reliance thereon, it is our opinion that, as of the date hereof:
1. Holdings has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware with corporate xxxx and
authority to enter into the Loan Documents to which it is a party and perform
its obligations thereunder.
2. The execution, delivery and performance of the Loan Documents have
been duly authorized by all necessary corporate action of Holdings and the Loan
Documents have been duly executed and delivered by Holdings.
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TO THE FINANCIAL INSTITUTIONS
LISTED ON ATTACHMENT A HERETO
December 5, 1996
Page 4
3. Each of the Operative Documents to which any of the Howmet
Entities is a party constitutes a legally valid and binding obligation of such
party, enforceable against such party in accordance with its terms.
4. The execution and delivery of the Loan Documents by each of
the Howmet Entities and the borrowing of the loans and the granting of liens
pursuant to the Loan Documents by each of the Howmet Entities do not: (a)
violate any federal or New York statute, rule or regulation applicable to any of
the Howmet Entities, (including, without limitation, Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System), (b) result in the breach
of or default under the Receivables Documents or the Senior Subordinated Note
Documents, and (c) to the best of our knowledge, require any consents,
approvals, authorizations, registrations, declarations or filings by any of the
Howmet Entities under any federal or New York statute, rule or regulation
applicable to any such party except the filing or recordation of the Financing
Statements and other documents necessary to perfect the security interest of the
Collateral Agent in the Collateral. The execution and delivery of the Loan
Documents by Holdings and the borrowings of the loans and the granting of liens
pursuant to the Loan Documents by Holdings will not violate the provisions of
the Governing Documents. No opinion is expressed in clauses (a) and (c) of this
paragraph 4 as to the application of Section 548 of the federal Bankruptcy Code
and comparable provisions of state law or of any antifraud laws.
5. None of the Howmet Entities is an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
6. None of the Howmet Entities is a "holding company" or a
"subsidiary company" or an "affiliate" of a "holding company" or of a
"Subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
7. Assuming that all Indebtedness incurred by the Borrower
under the Credit Agreement is incurred as described in Section 5.15 of the
Credit Agreement, such Indebtedness shall constitute "Senior Indebtedness" for
purposes of the Senior Subordinated Note Indenture.
8. The provisions of the Security Agreement in effect prior to
the Restatement Effective Date created a valid security interest in favor of the
Collateral Agent for the benefit of the Secured Creditors (as defined in the
Security Agreement) in that portion of the collateral described in the Security
Agreement that is subject to Article 9 of the NYUCC (the "Collateral") as
security for the payment, to the extent set forth therein, of all obligations of
the Company to the Banks under the Operative Documents and the amendment and
restatement of each of the Credit Agreement and the Security Agreement will not
impair the validity of such security interests.
9. The Financing Statements are in appropriate form for filing
in the offices listed on Schedule 2 to this opinion. Upon the proper filing of
the Financing Statements in such offices, the security interest in favor of the
Collateral Agent for the benefit of the Secured Creditors (as defined in the
Security Agreement) in the Collateral described in the Financing Statements will
be perfected to the
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TO THE FINANCIAL INSTITUTIONS
LISTED ON ATTACHMENT A HERETO
December 5, 1996
Page 5
extent a security interest in such Collateral can be perfected by filing a
financing statement under the provisions of the NYUCC and the California UCC.
10. Assuming that the security interests in the Collateral
were duly and validly perfected immediately prior to the Restatement Effective
Date, no additional filings in the state of California are required to perfect
such security interests under the California UCC as a result of the amendment
and restatement of each of the Credit Agreement and the Security Agreement.
The opinions expressed in paragraph 3 do not include any
opinions with respect to the perfection or priority of any security interest or
lien. The opinions expressed in paragraph 3 and our opinions expressed in
paragraphs 8, 9 and 10 as to the creation, validity and perfection of the
security interests and liens referred to therein are further subject to the
following limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors;
(b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(c) the unenforceability under certain circumstances
under law or court decisions of provisions providing for the indemnification of
or contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy; and
(d) the unenforceability of any provision requiring the
payment of attorney's fees, except to the extent that a court determines such
fees to be reasonable.
Our opinions in paragraphs 8, 9 and 10 are also subject to the
following assumptions, exceptions, limitations and qualifications:
(i) we express no opinion as to the priority of any security
interest or lien;
(ii) we express no opinion as to the creation, validity or
perfection of any security interest that is not governed by, or that is excluded
from coverage by, Article 9 of the NYUCC or the California UCC;
(iii) we have assumed that the applicable Howmet Entity has
"rights" in the Collateral and that "value" has been given as contemplated by
Section 9-203 of the NYUCC or Section 9203 of the California UCC;
000
XXXXXX & XXXXXXX
TO THE FINANCIAL INSTITUTIONS
LISTED ON ATTACHMENT A HERETO
December 5, 1996
Page 6
(iv) we have assumed that none of the Collateral consists of
consumer goods, crops growing or to be grown, timber to be cut, minerals or the
like (including oil and gas) or accounts resulting from the sale of minerals or
the like at the wellhead or the minehead, beneficial interests in a decedent's
estate, items which are subject to a statute or treaty of the United States
which provides for a national or international registration or a national or
international certificate of title or which specifies a place of filing
different from that specified in the NYUCC or the California UCC for filing of
the security interest, or any other items excluded from the coverage of Section
9-104 of the NYUCC or Section 9104 of the California UCC;
(v) we call your attention to the fact that the perfection of
a security interest in "proceeds" (as defined in the NYUCC and California UCC)
of collateral is governed and restricted by Section 9-306 of the NYUCC and
Section 9306 of the California UCC;
(vi) we note that the law is not well developed with respect
to the specificity of description necessary to create a valid security interest
in personal property. To ensure that a sufficient description has been provided,
the personal property intended to be subject to the security interest should be
identified by serial, account or other identification numbers or by some other
method of specific identification. However, the more general description of the
personal property used in the Security Agreement and in the Financing Statements
to be filed in connection therewith is consistent with that commonly used by
major lenders in New York and, although the matter is not free from doubt, in
our opinion should be held by courts in New York to be sufficient to create a
security interest in the personal property described therein; however, we
express no opinion as to whether the phrase "all personal property" or similarly
general phrases would be held to describe any particular item or items of
collateral;
(vii) we call to your attention the fact that under the NYUCC
and the California UCC, with certain limited exceptions, the effectiveness of
the Financing Statements will lapse five (5) years after the date of filing
thereof and your security interest will become unperfected, unless a
continuation statement is filed within six (6) months prior to the end of such
five-year period. We also call to your attention the fact that perfection of
security interests under the NYUCC or the California UCC in any of the
Collateral will be terminated as to any Collateral acquired by the applicable
Howmet Entity more than four (4) months after the applicable Howmet Entity
changes its name, identity, address or corporate structure to such an extent as
to make the Financing Statements seriously misleading, unless a new appropriate
financing statement or an appropriate amendment to each of the Financing
Statements indicating the new name, identity or corporate structure of the
applicable Howmet Entity, is properly filed before the expiration of four (4)
months after such change; and
(viii) we call to your attention the fact that the security
interests in the Collateral owned by Howmet Refurbishment, Inc., a Delaware
corporation ("Howmet Refurbishment") were not duly perfected prior to the
Restatement Effective Date and therefore, our opinion in paragraph 10 does not
apply to any security interests in the Collateral owned by Howmet Refurbishment.
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TO THE FINANCIAL INSTITUTIONS
LISTED ON ATTACHMENT A HERETO
December 5, 1996
Page 7
To the extent that the obligations of any of the Howmet
Entities may be dependent upon such matters, we have also assumed for purposes
of this opinion: all parties to the Loan Documents other than Holdings are duly
incorporated, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation; all parties to the Loan Documents
other than Holdings have the requisite corporate power and authority to execute
and deliver the Loan Documents and to perform their respective obligations under
the Loan Documents to which they are a party; the Loan Documents to which such
parties other than Holdings are a party have been duly authorized, executed and
delivered by such parties; and the Loan Documents constitute the legally valid
and binding obligations of all parties to the Loan Documents other than the
Howmet Entities, enforceable against each such party in accordance with their
terms. We express no opinion as to compliance by any parties to the Loan
Documents with any state or federal laws or regulations applicable to the
subject transactions because of the nature of their business.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may not
be relied upon by you for any other purpose, or furnished to, quoted to or
relied upon by any other person or entity for any purpose, without our prior
written consent. At your request, we hereby consent to reliance hereon by any
future participants or assigns of all or any part of your interests in the
Credit Agreement that are Eligible Transferees as expressly permitted by Section
13.04 of the Credit Agreement; provided that this opinion speaks only as of the
date hereof and to its addressees and that we have no responsibility or
obligation to update this opinion, to consider its applicability or correctness
to other than its addressees, or to take into account changes in law. facts or
any other development of which we may later become aware.
Very truly yours,
/s/ XXXXXX & WAKINS
260
XXXXXX & XXXXXXX
Attachment A
------------
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Citicorp USA, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fleet National Bank
One Federal Street, MSN-MA-OF-0308
Xxxxxx, XX 00000
Bank of America, Illinois
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Fuji Bank Limited, Los Angeles Agency
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
The Sakura Bank, Limited, Los Angeles Agency
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Mellon Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
000
XXXXXX & XXXXXXX
Banque Nationale de Paris
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Credit Suisse
000 Xxxx 0xx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
ABN Amro Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Bank of Montreal
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dresdner Bank AG, New York Branch
and Grand Cayman Branch
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000
XXXXXX & XXXXXXX
Schedule 1
----------
HOWMET SUBSIDIARIES
Howmet Management Services, Inc.
Howmet-Tempcraft, Inc.
Howmet Transport Services, Inc.
Howmet Sales, Inc.
Howmet Refurbishment Inc.
Turbine Components Corporation
Howmet Cercast (USA), Inc.
Howmet Thermatech Canada, Inc.
263
XXXXXX & XXXXXXX
Schedule 2
----------
Debtor State Office
------ ----- ------
Howmet Corporation NY Secretary of State
Howmet Corporation NY Nassau County
Howmet Refurbishment, Inc. NY Secretary of State
Howmet Refurbishment, Inc. NY Rockland County
Howmet Refurbishment, Inc. CA Secretary of State
264
EXHIBIT E-2
-----------
[LOGO] HOWMET CORPORATION
--------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Tel. 203/000-0000
XXXXXX X. XXXX
Vice President and
General Counsel
December 5, 1996
TO THE FINANCIAL INSTITUTIONS LISTED ON ATTACHMENT A HERETO
Re: Amended and Restated Credit Agreement dated as of
December 5, 1996 among Blade Acquisition Corp.,
Howmet Holdings Corporation, Howmet Corporation,
the Banks party thereto from time to time, Bankers
Trust Company, Citicorp USA, Inc. and The First
National Bank of Chicago, as Managing Agents,
Bankers Trust Company, as Syndication Agent,
Citicorp USA, Inc., as Documentation Agent and The
First National Bank of Chicago, as Administrative
Agent
Ladies and Gentlemen:
I am furnishing this opinion to you in my capacity as General Counsel for Howmet
Holdings Corporation ("Parent"), Howmet Corporation (the "Company") and the
Howmet Subsidiaries (as defined herein) (collectively with the Parent and the
Company, the "Howmet Entities") in connection with that certain Amended and
Restated Credit Agreement dated as of December 5, 1996 (the "Amended Credit
Agreement") among Blade Acquisition
1
265
Corp., Howmet Holdings Corporation, and Howmet Corporation, various banks from
time to time party thereto (the "Banks"), Bankers Trust Company, Citicorp USA,
Inc. and The First National Bank of Chicago, as Managing Agents, Bankers Trust
Company, as Syndication Agent, Citicorp USA, Inc., as Documentation Agent and
The First National Bank of Chicago, as Administrative Agent (the "Administrative
Agent").
This opinion is rendered to you pursuant to Section 5.03 of the Credit
Agreement. Capitalized terms defined in the Credit Agreement, used herein and
not otherwise defined herein, shall have the meanings given them in the Credit
Agreement. In addition, the term "Howmet Subsidiaries" shall mean those
Subsidiaries of the Company which are listed on Schedule 1 to this opinion.
As such counsel, I have examined such matters of fact and questions of
law as I have considered appropriate for purposes of rendering the opinions
expressed below, except where a statement is qualified as to knowledge or
awareness, in which case I have made no or limited inquiry as specified below. I
have examined, among other things, the following:
(a) the Amended Credit Agreement;
(b) the Term Note;
(c) the Revolving Note;
(d) the Swingline Note;
(e) the Subsidiary Guaranty;
(f) the Pledge Agreement;
(g) the Security Agreement;
(h) the Mortgage Amendments
(i) the Certificate of Incorporation and Bylaws of each of the
Howmet Entities (the "Governing Documents");
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266
To the Financial Institutions
Listed on Attachment A Hereto
December 5, 1996
(j) resolutions regarding the above-referenced transactions of
each of the Howmet Entities; and
(k) such other originals or copies of such records, documents
or other instruments as in my judgment are necessary or appropriate to
enable me to render the opinions expressed below.
The documents described in subsections (a)-(k) above are referred to
herein collectively as the "Loan Documents."
I have obtained and relied upon such certificates and assurances from
public officials and corporate officers as I have deemed necessary.
I am opining herein as to the effect on the subject transactions only
of the federal laws of the United States, the internal laws of the States of New
York and Connecticut, and the General Corporation Law of the State of Delaware,
and I express no opinion with respect to the applicability thereto, or the
effect thereon, of the laws of any other jurisdiction or, in the case of
Delaware, any other laws, or as to any matters of municipal law or laws of any
other local agencies within any state.
My opinions set forth in paragraph 3 below are based upon my
consideration of only those statutes, rules and regulations which, in my
experience, are normally applicable to borrowers and guarantors in secured loan
transactions. Whenever a statement herein is qualified by "to the best of my
knowledge" or a similar phrase, it is intended to indicate that I have no
current actual knowledge of the inaccuracy of such statement. However, except as
otherwise expressly indicated, I have not undertaken any independent
investigation to determine the accuracy of any such statement, and no inference
that I have any
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267
To the Financial Institutions
Listed on Attachment A Hereto
December 5, 1996
knowledge of any matters pertaining to such statement should be drawn from my
representation of the Howmet Entities.
Subject to the foregoing and other matters set forth herein, and in
reliance thereon, it is my opinion that, as of the date hereof:
1. Each of the Parent, the Company and the Howmet Subsidiaries has been
duly incorporated and is validly existing and in good standing under the laws of
its state of incorporation with corporate power and authority to enter into the
Loan Documents to which it is a party and perform its obligations thereunder.
Based solely on certificates from public officials, I confirm that the Parent,
the Company and the Howmet Subsidiaries are qualified to do business in the
states identified on Schedule 2 to this opinion.
2. The execution, delivery and performance of the Loan Documents have
been duly authorized by all necessary corporate action of each of the Parent,
the Company and the Howmet Subsidiaries, and the Loan Documents have been duly
executed and delivered by each of the Parent, the Company and the Howmet
Subsidiaries.
3. The execution and delivery of the Loan Documents by each of the
Parent, the Company and the Howmet Subsidiaries, the borrowing of the loans and
the granting of liens pursuant to the Loan Documents by the Parent, the Company
and the Howmet Subsidiaries do not: (a) violate the provisions of any of the
Governing Documents or (b) result in the breach of or a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the material
properties or assets or any of the Howmet Entities pursuant to the terms of, any
of the indentures, notes, loan agreements or other agreements relating to the
incurrence of Indebtedness for borrowed money by
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268
To the Financial Institutions
Listed on Attachment A Hereto
December 5, 1996
the Howmet Entities, or any other material agreements or instruments to which
one or more of the Howmet Entities are parties (the "Material Agreements"); or
(d) to my knowledge, conflict with or result in any breach of any applicable
writ, injunction or decree of any court or governmental body.
4. On the date hereof and after giving effect to the Transaction, the
authorized common stock of the Parent shall consist of 1,000 shares, of which 10
shares are issued and outstanding and have been delivered to the Collateral
Agent pursuant to the Pledge Agreement. All such outstanding shares have been
duly and validly issued, are fully paid and nonassessable and have been issued
free of preemptive rights. To the best of my knowledge, the Parent does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
5. On the date hereof and after giving effect to the Transaction, the
authorized common stock of the Company shall consist of 1,000 shares, of which
10 shares are issued and outstanding and have been delivered to the Collateral
Agent pursuant to the Pledge Agreement. All such outstanding shares have been
duly and validly issued, are fully paid and nonassessable and have been issued
free of preemptive rights. To the best of my knowledge, the Company does not
have outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
5
269
To the Financial Institutions
Listed on Attachment A Hereto
December 5, 1996
6. Annex A to the Pledge Agreement sets forth the number of shares of
each Howmet Subsidiary that are issued and held by the respective shareholders
indicated on that annex. Such shares have been duly and validly issued, are
fully paid and nonassessable and, to the best of my knowledge, have been issued
free of preemptive rights. Such shares, to the extent required by the Credit
Agreement, have been delivered to the Collateral Agent pursuant to the Pledge
Agreement, except that 1,623,947 shares of the stock of Howmet, S.A. are in the
process of being delivered to the Collateral Agent.
7. To my knowledge, there are no actions, suits or proceedings pending
against any of the Howmet Entities which could reasonably be expected to have a
material adverse effect on the business, operations (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole.
Without limiting the generality of the foregoing, the opinions
expressed above are subject to the following limitations, exceptions and
assumptions:
In rendering the opinions expressed in paragraph 3 insofar as they
require interpretation of the Material Agreements (i) I have assumed with your
permission that all courts of competent jurisdiction would enforce such
agreements as written but would apply the internal laws of the State of New York
without giving effect to any choice of law provisions contained therein or any
choice of law principles which would result in application of the internal laws
of any other state, and (ii) to the extent that any questions of legality or
legal construction have arisen in connection with my review, I have applied the
laws of the State of New York in resolving such questions and (iii) I express no
opinion with respect to the effect of any action or inaction by any of the
Parent, the Company or the Howmet Subsidiaries under the Loan Documents or the
Material Agreements which may result in a breach or default under any Material
6
270
To the Financial Institutions
Listed on Attachment A Hereto
December 5, 1996
Agreement. I advise you that certain of the Material Agreements may be governed
by other laws, that such laws may vary substantially from the law assumed to
govern for purposes of this opinion, and that this opinion may not be relied
upon as to whether or not a breach or default would occur under the law actually
governing such Material Agreements.
To the extent that the obligations of the Parent, the Company and the
Howmet Subsidiaries, as applicable, may be dependent upon such matters, I assume
for purposes of this opinion that: all parties to the Loan Documents other than
the Howmet Entities are duly incorporated, validly existing and in good standing
under the laws of their respective jurisdictions of incorporation; all parties
to the Loan Documents other than the Parent, the Company and the Howmet Entities
have the requisite corporate power and authority to execute and deliver the Loan
Documents and to perform their respective obligations under the Loan Documents
to which they are a party; and the Loan Documents to which such parties other
than the Howmet Entities are a party have been duly authorized, executed and
delivered by such parties and constitute their legally valid and binding
obligations, enforceable against them in accordance with their terms. I express
no opinion as to compliance by any parties to the Loan Documents with any state
or federal laws or regulations applicable to the subject transactions because of
the nature of their business.
7
271
To the Financial Institutions
Listed on Attachment A Hereto
December 5, 1996
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without my prior written
consent.
Very truly yours,
/s/ Xxxxxx Xxxx
8
272
Schedule 1
----------
Howmet Subsidiaries
Name Jurisdiction of Incorporation
---- -----------------------------
Howmet Management Services Inc. Delaware
Howmet-Tempcraft Inc. Ohio
Howmet Transport Services Inc. Delaware
Howmet Sales, Inc. Delaware
Howmet Refurbishment Inc. Delaware
Turbine Components Corporation Connecticut
Howmet Cercast (USA), Inc. Delaware
Howmet Thermatech Canada, Inc. Delaware
9
273
Schedule 2
----------
STATE QUALIFICATIONS
--------------------
Company State
------- -----
Howmet Holdings Corporation Delaware
Connecticut
Texas
Oklahoma
Howmet Cercast (U.S.A.), Inc. Delaware
California
Pennsylvania
Texas
Howmet Corporation Delaware
Connecticut
Indiana
Michigan
Nevada
New Jersey
Oklahoma
Tennessee
Texas
Virginia
Howmet Insurance Company, Inc. Vermont
Howmet Management Services, Inc. Delaware
Howmet Refurbishment, Inc. Delaware
Oklahoma
Texas
Michigan
Connecticut
Howmet Sales, Inc. Delaware
Connecticut
Florida
Ohio
Howmet-Tempcraft, Inc. Ohio
Howmet Thermatech (Canada), Inc. Delaware
Howmet Transport Services, Inc. Delaware
Connecticut
Indiana
New Jersey
Turbine Components Corporation Connecticut
274
Attachment A
------------
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Citicorp USA, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fleet National Bank
One Federal Street, MSN-MA-OF-0308
Xxxxxx, XX 00000
Bank of America, Illinois
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Fuji Bank Limited, Los Angeles Agency
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
The Sakura Bank, Limited, Los Angeles Agency
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Mellon Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
275
Banque Nationale de Paris
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Credit Suisse
000 Xxxx 0xx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
ABN Amro Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Bank of Montreal
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dresdner Bank AG, New York Branch
and Grand Cayman Branch
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
276
EXHIBIT F
---------
AMENDED AND RESTATED SUBSIDIARIES GUARANTY
GUARANTY, dated as of December 13, 1995 as amended and restated as of
December 5, 1996 (as amended, modified or supplemented from time to time, this
"Guaranty"), made by each of the undersigned (each, a "Guarantor" and, together
with any other entity that becomes a party hereto pursuant to Section 24 hereof,
the "Guarantors"), to THE FIRST NATIONAL BANK OF CHICAGO, as Collateral Agent,
for the benefit of the Creditors (as defined below). Except as otherwise defined
herein, terms used herein and defined in the Credit Agreement (as defined below)
shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Blade Acquisition Corp. ("Holdings"), Howmet Holdings
Corporation (f/k/a Pechiney Corporation) ("Parent"), Howmet Corporation (the
"Borrower"), various lenders party thereto from time to time (the "Banks"),
Bankers Trust Company, Citicorp USA, Inc. and The First National Bank of
Chicago, as Managing Agents, Bankers Trust Company, as Syndication Agent,
Citicorp USA, Inc., as Documentation Agent and The First National Bank of
Chicago, as Administrative Agent (together with any successor administrative
agent, the "Administrative Agent"), have entered into a Credit Agreement, dated
as of December 13, 1995 and amended and restated as of the date hereof (as
amended, modified or supplemented from time to time, the "Credit Agreement"),
providing for the making of Loans to the Borrower and the issuance of, and
participation in, Letters of Credit for the account of the Borrower, all as
contemplated therein (the Banks, the Managing Agents, the Syndication Agent, the
Documentation Agent and the Administrative Agent are herein called the "Bank
Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements or Other Hedging Agreements with
one or more Banks or any affiliate thereof (each such Bank or affiliate, even if
the respective Bank subsequently ceases to be a Bank under the Credit Agreement
for any reason, together with such Bank's or affiliate's successors and assigns,
if any, collectively, the "Other Creditors," and together with the Bank
Creditors, the "Creditors");
WHEREAS, each Guarantor is a Subsidiary of the Borrower;
277
EXHIBIT F
Page 2
WHEREAS, the Guarantors have heretofore entered into a Subsidiaries
Guaranty, dated as of December 13, 1995 (as amended, modified or supplemented
prior to the date hereof, the "Original Guaranty");
WHEREAS, it is a condition to the making of Loans and issuing of
Letters of Credit under the Credit Agreement that each Guarantor shall have
executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans by the Borrower and the issuance of Letters of Credit pursuant to the
Credit Agreement and the entering into of Interest Rate Protection Agreements or
Other Hedging Agreements and, accordingly, desires to execute this Guaranty in
order to (i) satisfy the conditions described in the preceding paragraph, (ii)
induce (x) the Banks to make Loans and issue Letters of Credit to the Borrower
and (y) the Other Creditors to enter into Interest Rate Protection Agreements or
Other Hedging Agreements with the Borrower and (iii) amend and restate the
Original Guaranty;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Creditors and hereby covenants and agrees with each Creditor
as follows:
1. Each Guarantor, jointly and severally, irrevocably and
unconditionally guarantees: (i) to the Bank Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the Notes issued by, and the Loans made
to, the Borrower under the Credit Agreement and all reimbursement obligations
and Unpaid Drawings with respect to Letters of Credit and (y) all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities owing
by the Borrower to the Bank Creditors under the Credit Agreement (including,
without limitation, indemnities, Fees and interest thereon) and the other Credit
Documents to which the Borrower is a party, whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement or any
such other Credit Document and the due performance and compliance with the terms
of the Credit Documents by the Borrower (all such principal, interest,
liabilities and obligations under this clause (i), except to the extent
consisting of obligations or liabilities with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, being herein collectively
called the "Credit Document Obligations"); and (ii) to each Other Creditor the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities owing by the Borrower to one or more Other Creditors under
any Interest
278
EXHIBIT F
Page 3
Rate Protection Agreements or Other Hedging Agreements, whether now in existence
or hereafter arising, and the due performance and compliance by the Borrower
with all terms, conditions and agreements contained therein (all such
obligations and liabilities being herein collectively called the "Other
Obligations", and together with the Credit Document Obligations are herein
collectively called the "Guaranteed Obligations"), provided that the maximum
amount payable by each Guarantor hereunder shall at no time exceed the Maximum
Amount (as hereinafter defined) of such Guarantor. As used herein, "Maximum
Amount" of any Guarantor means an amount equal to 95% of the amount by which (i)
the present fair saleable value of such Guarantor's assets exceeds (ii) the
total liabilities of such Guarantor (including the maximum amount reasonably
expected to come due in respect of contingent liabilities, other than contingent
liabilities of such Guarantor hereunder). Subject to the proviso in the second
preceding sentence, each Guarantor understands, agrees and confirms that this
Guaranty is a guarantee of payment and not of collection, and that the Creditors
may enforce this Guaranty up to the full amount of the Guaranteed Obligations
against such Guarantor without proceeding against any other Guarantor, the
Borrower, against any security for the Guaranteed Obligations, or under any
other guaranty covering all or a portion of the Guaranteed Obligations.
2. Additionally, but subject to the proviso to the first sentence of
Section 1 hereof, each Guarantor, jointly and severally, unconditionally and
irrevocably, guarantees the payment of any and all Guaranteed Obligations of the
Borrower to the Creditors whether or not due or payable by the Borrower upon the
occurrence in respect of the Borrower of any of the events specified in Section
10.05 of the Credit Agreement, and unconditionally and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Creditors, or
order, on demand, in lawful money of the United States.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
of the Borrower whether executed by such Guarantor, any other Guarantor, any
other guarantor or by any other party, and the liability of each Guarantor
hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, (1))any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations of the Borrower, (c) any
payment on or in reduction of any such other guaranty or undertaking, (d) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower, (e) any payment made to any Creditor on the Guaranteed Obligations
which any Creditor repays the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (f) any action or
inaction by the Creditors as contemplated in Section 6 hereof, or (g) any
invalidity, irregularity or unenforceability of all or part of the Guaranteed
Obligations or of any security therefor.
279
EXHIBIT F
Page 4
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor or the Borrower and whether or not any other Guarantor, any other
guarantor of the Borrower or the Borrower be joined in any such action or
actions. Each Guarantor waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrower or other circumstance which
operates to toll any statute of limitations as to the Borrower shall operate to
toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives (to the fullest extent permitted by
applicable law) notice of acceptance of this Guaranty and notice of any
liability to which it may apply, and waives promptness, diligence, presentment,
demand of payment, protest, notice of dishonor or nonpayment of any such
liabilities, suit or taking of other action by the Administrative Agent or any
other Creditor against, and any other notice to, any party liable thereon
(including such Guarantor or any other guarantor or the Borrower).
6. Any Creditor may (except as shall be required by applicable statute
and cannot be waived) at any time and from time to time without the consent of,
or notice to, any Guarantor, without incurring responsibility to such Guarantor,
without impairing or releasing the obligations of such Guarantor hereunder, upon
or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations, any security therefor, or any
liability incurred directly or indirectly in respect thereof, and the
guaranty herein made shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or
280
EXHIBIT F
Page 5
any part thereof to the payment of any liability (whether due or not)
of the Borrower to creditors of the Borrower;
(e) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Creditors
regardless of what liabilities of the Borrower remain unpaid;
(f) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or
supplement any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of such other
instruments or agreements;
(g) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation
against the Borrower to recover full indemnity for any payments made
pursuant to this Guaranty; and/or
(h) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors.
7. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall be primary, absolute
and unconditional notwithstanding the occurrence of any event or the existence
of any other circumstances which might constitute a legal or equitable discharge
of a surety or guarantor except payment in full of the Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Creditor in exercising any right, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Creditor would otherwise have. No notice to or demand on any Guarantor
in any case shall entitle such Guarantor to any other further notice or demand
in similar or other circumstances or constitute a waiver of the rights of any
Creditor to any other or further action in any circumstances without notice or
demand. It is not necessary for any Creditor to inquire into the capacity or
powers of the Borrower or any of its Subsidiaries or the officers, directors,
partners or agents acting or purporting to act on its
281
EXHIBIT F
Page 6
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
9. Any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Creditors; and such indebtedness of the Borrower to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred and is continuing,
so requests, shall be collected, enforced and received by such Guarantor as
trustee for the Creditors and be paid over to the Creditors on account of the
indebtedness of the Borrower to the Creditors, but without affecting or
impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Guarantor of any note
or negotiable instrument evidencing any indebtedness of the Borrower to such
Guarantor, such Guarantor shall xxxx such note or negotiable instrument with a
legend that the same is subject to this subordination. Without limiting the
generality of the foregoing, each Guarantor hereby agrees with the Creditors
that it will not exercise any right of subrogation which it may at any time
otherwise have as a result of this Guaranty (whether contractual, under Section
509 of the Bankruptcy Code or otherwise) until all Guaranteed Obligations have
been irrevocably paid in full in cash.
10. (a) Each Guarantor waives any right (except as shall be required by
applicable statute or law and cannot be waived) to require the Creditors to: (i)
proceed against the Borrower, any other Guarantor, any other guarantor of the
Borrower or any other party; (ii) proceed against or exhaust any security held
from the Borrower, any other Guarantor, any other guarantor of the Borrower or
any other party; or (iii) pursue any other remedy in the Creditors' power
whatsoever. Each Guarantor waives (to the fullest extent permitted by applicable
law) any defense based on or arising out of any defense of the Borrower, any
other Guarantor, any other guarantor of the Borrower or any other party other
than payment in full of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability of the
Borrower, any other Guarantor, any other guarantor of the Borrower or any other
party, or the unenforceability of the Guaranteed Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower
other than payment in full of the Guaranteed Obligations. The Creditors may, at
their election, foreclose on any security held by the Administrative Agent, the
Collateral Agent or the other Creditors by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable
(to the extent such sale is permitted by applicable law), or exercise any other
right or remedy the Creditors may have against the Borrower or any other party,
or any security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full. Each Guarantor waives any defense arising out of any such election
by the Creditors, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other party or any security.
282
EXHIBIT F
Page 7
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Creditors shall have no duty
to advise any Guarantor of information known to them regarding such
circumstances or risks.
11. The Creditors agree that this Guaranty may be enforced only by the
action of the Administrative Agent or the Collateral Agent, in each case acting
upon the instructions of the Required Banks (or, after the date on which all
Credit Document Obligations have been paid in full, the holders of at least a
majority of they outstanding Other Obligations) and that no other Creditor shall
have any right individually to seek to enforce or to enforce this Guaranty or to
realize upon the security to be granted by the Security Documents, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent or the Collateral Agent or the holders of at least a
majority of the outstanding Other Obligations, as the case may be, for the
benefit of the Creditors upon the terms of this Guaranty and the Security
Documents. The Creditors further agree that this Guaranty may not be enforced
against any director, officer, employee, or stockholder of any Guarantor (except
to the extent such stockholder is also a Guarantor hereunder).
12. In order to induce the Banks to make Loans and issue Letters of
Credit pursuant to the Credit Agreement, and in order to induce the Other
Creditors to execute, deliver and perform the Interest Rate Protection
Agreements or Other Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the corporate power and
authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing
in each jurisdiction where the conduct of its business requires such
qualification except for failures to be so qualified which,
individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Borrower, the Borrower and its Subsidiaries taken as a whole or
Holdings and its Subsidiaries taken as a whole.
283
EXHIBIT F
Page 8
(b) Such Guarantor has the corporate power and authority to
execute, deliver and perform the terms and provisions of this Guaranty
and each other Credit Document to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of each such Credit Document. Such Guarantor has duly
executed and delivered this Guaranty and each other Credit Document to
which it is a party, and each such Credit Document constitutes the
legal, valid and binding obligation of such Guarantor enforceable in
accordance with its terms.
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is
a party, nor compliance by it with the terms and provisions hereof and
thereof, (i) will contravene any provision of any applicable law,
statute, rule or regulation, or any applicable order, writ, injunction
or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or
impose) any Lien (except pursuant to the Security Documents or the
Receivables Documents) upon any of the property or assets of such
Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement,
or any other material agreement or other instrument to which such
Guarantor or any of its Subsidiaries is a party or by which it or any
of its property or assets is bound or to which it may be subject or
(iii) will violate any provision of the certificate of incorporation or
by-laws (or equivalent organizational documents) of such Guarantor or
any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as
have been obtained or made), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution,
delivery and performance of this Guaranty or any other Credit Document
to which such Guarantor is a party or (ii) the legality, validity,
binding effect or enforceability of this Guaranty or any other Credit
Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings (private or
governmental) pending or threatened (i) with respect to any Credit
Documents to which such Guarantor is a party or (ii) with respect to
such Guarantor that could reasonably be expected to materially and
adversely affect (a) the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of
Holdings, Parent, the Borrower, Howmet Cercast (U.S.A.), Howmet Cercast
(Canada), the Intellectual Property Subsidiary or any such Person and
its Subsidiaries taken as a
284
EXHIBIT F
Page 9
whole or (b) the rights or remedies of the Creditors or on the ability
of such Guarantor to perform its respective obligations to the
Creditors hereunder and under the other Credit Documents to which it is
a party.
13. Each Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Total Commitments and all Interest Rate
Protection Agreements or Other Hedging Agreements and when no Note or Letter of
Credit remains outstanding and all Guaranteed Obligations have been paid in
full, such Guarantor shall take, or will refrain from taking, as the case may
be, all actions that are necessary to be taken or not taken so that no violation
of any provision, covenant or agreement contained in Section 8 or 9 of the
Credit Agreement, and so that no Default or Event of Default, is caused by the
actions of such Guarantor or any of its Subsidiaries.
14. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of each Creditor in connection with
the enforcement of this Guaranty and any amendment, waiver or consent relating
hereto (including, without limitation, the reasonable fees and disbursements of
counsel (including in-house counsel) employed by any of the Creditors).
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and either (x) the Required Banks (or to the
extent required by Section 13.12 of the Credit Agreement, with the written
consent of each Bank) at all times prior to the time on which all Credit
Document Obligations have been paid in full or (y) the holders of at least a
majority of the outstanding Other Obligations at all times after the time on
which all Credit Document Obligations have been paid in full; provided, that any
change, waiver, modification or variance affecting the rights and benefits of a
single Class (as defined below) of Creditors (and not all Creditors in a like or
similar manner) shall require the written consent of the Requisite Creditors (as
defined below) of such Class of Creditors (it being understood that the addition
or release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released). For the purpose of this Guaranty the term "Class" shall mean
each class of Creditors, i.e., whether (x) the Bank Creditors as holders of the
Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to the Credit
Document Obligations, the Required Banks (or to the extent required by Section
13.12 of the Credit Agreement, each Bank) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection Agreements or Other Hedging
Agreements.
285
EXHIBIT F
Page 10
16. Each Guarantor acknowledges that an executed (or conformed) copy of
each of the Credit Documents and Interest Rate Protection Agreements or Other
Hedging Agreements has been made available to its principal executive officers
and such officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under applicable
law (including, without limitation, Section 151 of the New York Debtor and
Creditor Law) and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default (such term to mean
and include any "Event of Default" as defined in the Credit Agreement or any
payment default under any Interest Rate Protection Agreement or Other Hedging
Agreement continuing after any applicable grace period), each Creditor is hereby
authorized at any time or from time to time, without notice to any Guarantor or
to any other Person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Creditor to or for the credit or
the account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Creditor under this Guaranty, irrespective
of whether or not such Creditor shall have made any demand hereunder and
although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured. Each Creditor acknowledges and agrees that the
provisions set forth in this Section 17 are subject to the sharing provisions
set forth in Section 13.06 of the Credit Agreement.
18. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Bank Creditor, as provided in the Credit Agreement, (ii)
in the case of any Guarantor, at its address set forth opposite its signature
below and (iii) in the case of any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Guarantor; or in any case at
such other address as any of the Persons listed above may hereafter notify the
others in writing.
19. If claim is ever made upon any Creditor for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected in good faith by
such payee with any such claimant (including the Borrower), then and in such
event each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so
286
EXHIBIT F
Page 11
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
20. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS
AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Guaranty or any other Credit Document to which any
Guarantor is a party may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York, and, by
execution and delivery of this Guaranty, each Guarantor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor hereby
irrevocably designates, appoints and empowers CT Corporation System, with
offices on the date hereof at 1633 Broadway, New York, New York 10019 as its
designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and in respect of its property, service of any and all legal process,
summons, notices and documents which may be served in any such action or
proceeding. If for any reason such designee, appointee and agent shall cease to
be available to act as such, each Guarantor agrees to designate a new designee,
appointee and agent in New York City on the terms and for the purposes of this
provision satisfactory to the Administrative Agent. Each Guarantor further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Guarantor at its address
set forth opposite its signature below, such service to become effective 30 days
after such mailing. Nothing herein shall affect the right of' any of the
Creditors to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(B) Each Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty or any other
Credit Document to which such Guarantor is a party brought in the courts
referred to in clause (A) above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(C) EACH GUARANTOR AND EACH CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS
OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY,
THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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EXHIBIT F
Page 12
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of (except to Holdings or any of its
Subsidiaries) or liquidated in compliance with the requirements of Section 9.02
of the Credit Agreement (or such sale or other disposition or liquidation has
been approved in writing by the Required Banks) and the proceeds of such sale,
disposition or liquidation are applied in accordance with the provisions of the
Credit Agreement, to the extent applicable, such Guarantor shall be released
from this Guaranty and this Guaranty shall, as to each such Guarantor or
Guarantors, terminate, and have no further force or effect (it being understood
and agreed that the sale of one or more Persons that own, directly or
indirectly, all of the capital stock or partnership interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this Section
21).
22. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Borrower and the Administrative
Agent.
23. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense, and on the same basis as payments are mad
e by the Borrower under Sections 4.03 and 4.04 of the Credit Agreement.
24. It is understood and agreed that any Subsidiary of the Borrower
that is required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement shall automatically become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to the
Administrative Agent.
25. Upon the execution and delivery of this Guaranty by the parties
hereto, the Original Guaranty shall be amended and restated in its entirety by
this Agreement, effective as of the date hereof, with all rights, obligations
and security interests created under or granted pursuant to the Original
Guaranty continuing from the date thereof.
* * *
288
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address: HOWMET MANAGEMENT
SERVICES, INC., as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul By______________________________
Telephone No.: (203) 625-8770 Title:
Facsimile No.: (203) 625-8771
Address: HOWMET THERMATECH CANADA,
INC., as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul By______________________________
Telephone No.: (203) 625-8770 Title
Facsimile No.: (203) 625-8771
Address: HOWMET-TEMPCRAFT, INC.,
as a Guarantor
475 Steamboat Road
Greenwich, CT
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770 By______________________________
Facsimile No.: (203) 625-8771 Title:
Address: HOWMET TRANSPORT SERVICES,
INC., as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770 By______________________________
Facsimile No.: (203) 625-8771 Title
289
Address: HOWMET SALES, INC.,
as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul By______________________________
Telephone No.: (203) 625-8770 Title:
Facsimile No.: (203) 625-8771
Address: HOWMET REFURBISHMENT, INC.,
as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul By______________________________
Telephone No.: (203) 625-8770 Title:
Facsimile No.: (203) 625-8771
Address: TURBINE COMPONENTS CORPORA-
TION, as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul By______________________________
Telephone No.: (203) 625-8770 Title:
Facsimile No.: (203) 625-8771
Address: HOWMET CERCAST (USA), INC.,
as a Guarantor
475 Steamboat Road
Greenwich, CT 06830
Attention: Mr. Roland A. Paul By______________________________
Telephone No.: (203) 625-8776 Title:
Facsimile No.: (203) 625-8771
290
Accepted and Agreed to:
THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative
Agent and Collateral Agent
By______________________________
Title:
291
EXHIBIT G
---------
AMENDED AND RESTATED PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of December 13, 1995 and amended and
restated as of December 5, 1996 (as amended, modified or supplemented from time
to time, this "Agreement") made by each of the undersigned (each a "Pledgor"
and, together with any other entity that becomes a party hereto pursuant to
Section 23 hereof, the "Pledgors"), to THE FIRST NATIONAL BANK OF CHICAGO, as
Collateral Agent (the "Pledgee"), for the benefit of the Secured Creditors (as
defined below). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Blade Acquisition Corp., Howmet Holdings Corporation (f/k/a
Pechiney Corporation), Howmet Corporation (the "Borrower"), various lenders from
time to time party thereto (the "Banks"), Bankers Trust Company, Citicorp USA,
Inc. and The First National Bank of Chicago, as Managing Agents (the "Managing
Agents"), Bankers Trust Company, as Syndication Agent (the "Syndication Agent"),
Citicorp USA, Inc., as Documentation Agent (the "Documentation Agent"), and The
First National Bank of Chicago, as Administrative Agent (together with any
successor administrative agent, the "Administrative Agent"), have entered into a
Credit Agreement, dated as of December 13, 1995 and amended and restated as of
the date hereof (as amended, modified or supplemented from time to time, the
"Credit Agreement"), providing for the making of Loans and the issuance of, and
participation in, Letters of Credit as contemplated therein (as used herein, the
term "Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may be amended, modified, extended, renewed, replaced,
restated or supplemented from time to time, and including any agreement
extending the maturity of, or restructuring the Indebtedness under such
agreement or any successor agreements) (the Banks, the Managing Agents, the
Syndication Agent, the Documentation Agent, the Administrative Agent and the
Pledgee are herein called the "Bank Creditors");
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EXHIBIT G
Page 2
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements or Other Hedging Agreements with
one or more Banks or any affiliate thereof (each such Bank or affiliate, even if
the respective Bank subsequently ceases to be a Bank under the Credit Agreement
for any reason, together with such Bank's or affiliate's successors and assigns,
if any, collectively, the "Other Creditors," and together with the Bank
Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Parent Guaranty, each Parent Guarantor has
jointly and severally guaranteed to the Secured Creditors the payment when due
of all the Guaranteed Obligations as described therein;
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, the Pledgors have heretofore entered into a Pledge Agreement,
dated as of December 13, 1995 (as amended, modified or supplemented prior to the
date hereof, the "Original Pledge Agreement");
WHEREAS, it is a condition to the making of Loans and the issuance of
Letters of Credit under the Credit Agreement that each Pledgor shall have
executed and delivered this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of Loans
and the issuance of Letters of Credit under the Credit Agreement and the
entering into of Interest Rate Protection Agreements or Other Hedging Agreements
and, accordingly, each Pledgor desires to enter into this Agreement in order to
(I) satisfy the conditions described in the preceding paragraph and (ii) amend
and restate the Original Pledge Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor for
the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
liabilities (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) of such
Pledgor to the Bank Creditors, whether now
293
EXHIBIT G
Page 3
existing or hereafter incurred under, arising out of, or in connection with the
Credit Agreement and the other Credit Documents to which such Pledgor is a party
(including without limitation (x) in the case of the Borrower, all such
obligations and indebtedness of the Borrower under the Credit Agreement and (y)
in the case of each other Pledgor, all such obligations and indebtedness under
the Guaranty to which such Pledgor is a party) and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements
contained in the Credit Agreement and such other Credit Documents (all such
obligations and liabilities under this clause (i), except to the extent
consisting of obligations or indebtedness with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, being herein collectively
called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) owing by such Pledgor to the Other
Creditors under, or with respect to, any Interest Rate Protection Agreement or
Other Hedging Agreement, whether such Interest Rate Protection Agreement or
Other Hedging Agreement is now in existence or hereafter arising, and the due
performance and compliance by such Pledgor with all of the terms, conditions and
agreements contained therein (all such obligations and liabilities described in
this clause (ii) being herein collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve the
Collateral (as hereinafter defined) or preserve its security interest in the
Collateral (to the extent provided for in the Credit Documents);
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of such Pledgor referred to in
clauses (i), (ii) and (iii) above, after an Event of Default (as such term is
defined in the Security Agreement) shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease, selling
or otherwise disposing of or realizing on the Collateral, or of any exercise by
the Pledgee of its rights hereunder, together with reasonable attorneys' fees
and court costs; and
(v) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 11 of this Agreement.
All such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations,"it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above,
294
EXHIBIT G
Page 4
whether outstanding on the date of this Agreement or extended from time to time
after the date of this Agreement.
2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used herein: (i) the
term "Stock" shall mean (x) with respect to corporations incorporated under the
laws of the United States or any State or territory thereof (each a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
Domestic Corporation at any time owned by each Pledgor and (y) with respect to
corporations not Domestic Corporations (each a "Foreign Corporation"), all of
the issued and outstanding shares of capital stock at any time owned by any
Pledgor of any Foreign Corporation, provided that, subject to Section 8.16 of
the Credit Agreement, such Pledgor shall not be required to pledge hereunder,
and nothing herein shall be deemed to constitute a pledge hereunder of, more
than 65% of the total combined voting power of all classes of capital stock of
any Foreign Corporation entitled to vote; (ii) the term "Notes" shall mean all
promissory notes from time to time issued to, or held by, each Pledgor,
provided, that, except as provided in the last sentence of this Section 2, no
Pledgor shall be required to pledge hereunder, and nothing herein shall be
deemed to constitute a pledge hereunder of, any promissory notes issued to such
Pledgor (A) by any direct or indirect Subsidiary of the Borrower which is a
Foreign Corporation or (B) by any employee of the Borrower issued in the
ordinary course of business so long as not more than $600,000 of such employee
loans are outstanding at any one time; provided, however, if more than $600,000
of such employee loans are outstanding, Pledgor shall deliver to Pledgee all
notes representing such loans, except up to $100,000 in notes of $25,000 or
less; and (iii) the term "Securities" shall mean all of the Stock and Notes.
Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
of such Pledgor, and the direct ownership thereof, is listed in Annex A hereto;
(ii) the Stock held by such Pledgor consists of the number and type of shares of
the stock of the corporations as described in Annex A hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex A hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex B hereto where
such Pledgor is listed as the Lender; and (v) on the date hereof, such Pledgor
owns no other Securities.
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. To secure the Obligations of such Pledgor and for the
purposes set forth in Section 1 hereof, each Pledgor hereby (i) grants to the
Pledgee a security interest (subject to Permitted Liens) in all of the
Collateral (as defined herein) owned by such Pledgor, (ii) pledges and deposits
as security (subject to Permitted Liens) with the Pledgee the Securities owned
by such Pledgor on the date hereof, and delivers to the Pledgee certificates or
instruments therefor, duly endorsed in blank by such Pledgor in the case of
Notes and accompanied by undated stock powers duly executed in blank by such
Pledgor (and accompanied by any transfer tax stamps required in connection with
the pledge
295
EXHIBIT G
Page 5
of such Securities) in the case of Stock, or such other instruments of transfer
as are reasonably acceptable to the Pledgee and (iii) hypothecates mortgages,
charges and sets over to the Pledgee all of such Pledgor's right, title and
interest in and to such Securities (and in and to the certificates or
instruments evidencing such Securities) (subject to Permitted Liens), to be held
by the Pledgee upon the terms and conditions set forth in this Agreement.
3.2. Subsequently Acquired Securities. If any Pledgor shall acquire (by
purchase, stock dividend or otherwise) any additional Securities at any time or
from time to time after the date hereof, such Pledgor will promptly thereafter
pledge and deposit such Securities (or certificates or instruments representing
such Securities) as security (subject to Permitted Liens) with the Pledgee and
deliver to the Pledgee certificates or instruments therefor, duly endorsed in
blank in the case of such Notes, and accompanied by undated stock powers duly
executed in blank by such Pledgor (and accompanied by any transfer tax stamps
required in connection with the pledge of such Securities) in the case of such
Stock, or such other instruments of transfer as are reasonably acceptable to the
Pledgee, and will promptly thereafter deliver to the Pledgee a certificate
executed by a principal executive officer of such Pledgor describing such
Securities and certifying that the same has been duly pledged with the Pledgee
hereunder. Subject to Section 8.16 of the Credit Agreement, no Pledgor shall be
required at any time to pledge hereunder any Stock which is more than 65% of the
total combined voting power of all Classes of Capital Stock of any Foreign
Subsidiary entitled to vote.
3.3. Uncertificated Securities. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2 hereof, if any Securities (whether
now owned or hereafter acquired) are uncertificated securities, the relevant
Pledgor shall promptly notify the Pledgee thereof, and shall promptly take all
actions required to perfect the security interest of the Pledgee under
applicable law (including, in any event, under Sections 8-313 and 8- 321 of the
New York Uniform Commercial Code, if applicable). Each Pledgor further agrees to
take such actions as the Pledgee deems reasonably necessary or desirable to
effect the foregoing and to permit the Pledgee to exercise any of its rights and
remedies hereunder.
3.4. Definitions of Pledged Stock; Pledged Notes; Pledged Securities
and Collateral. All Stock at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Stock;" all Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "Pledged
Notes;" all Pledged Stock and Pledged Notes together are called the "Pledged
Securities;" and the Pledged Securities, together with all proceeds thereof,
including any securities and moneys received and at the time held by the Pledgee
hereunder, are hereinafter called the "Collateral."
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall have
the right to appoint one or more sub-agents for the purpose of retaining
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EXHIBIT G
Page 6
physical possession of the Pledged Securities, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default and (i) the
Obligations shall have been accelerated or (ii) the Pledgee shall have given the
applicable Pledgor written notice that the Pledgee has elected to exercise such
rights, each Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Securities owned by it, and to give
consents, waivers or ratifications in respect thereof, provided, that no vote
shall be cast or any consent, waiver or ratification given or any action taken
which would violate or be inconsistent with any of the terms of this Agreement,
the Credit Agreement, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"). All such rights of each Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default has occurred
and is continuing and (i) the Obligations shall have been accelerated or (ii)
the Pledgee shall have given the applicable Pledgor written notice that the
Pledgee has elected to exercise such rights, and Section 7 hereof shall become
applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall have
occurred and be continuing an Event of Default, all cash dividends and
distributions payable in respect of the Pledged Stock and all payments in
respect of the Pledged Notes shall be paid to the respective Pledgor. The
Pledgee shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock or other securities (other
than cash) paid or distributed by way of dividend or otherwise, as the
case may be, in respect of the Pledged Stock;
(ii) all other or additional stock or other securities paid or
distributed in respect of the Pledged Stock by way of stock-split,
spin-off, split-up, reclassifica-tion, combination of shares or similar
rearrangement; and
(iii) all other or additional stock or other securities or
property which may be paid in respect of the Collateral by reason of
any consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any
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EXHIBIT G
Page 7
Pledgor contrary to the provisions of this Section 6 and Section 7 hereof shall
be received in trust for the benefit of the Pledgee, shall be segregated from
other property or funds of such Pledgor and shall be promptly paid over to the
Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
7. REMEDIES IN CASE OF EVENTS OF DEFAULT. If there shall have occurred
and be continuing an Event of Default, then and in every such case, the Pledgee
shall be entitled to (i) exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, (ii) exercise all the rights and remedies of a secured party under
the Uniform Commercial Code and (iii) without limitation, exercise the following
rights, which each Pledgor hereby agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(d) to vote all or any part of the Pledged Stock (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifica-tions in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor, with full power
of substitution to do so); and
(e) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' prior notice of the time and
place of any such sale shall be given to such Pledgor. The Pledgee
shall not be obligated to make any such sale of Collateral regardless
of whether any such notice of sale has theretofore been given. Each
Pledgor hereby waives and releases to the fullest extent permitted by
law any right or equity of
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EXHIBIT G
Page 8
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshalling the Collateral and
any other security for the Obligations or otherwise. At any such sale,
unless prohibited by applicable law, the Pledgee on behalf of the
Secured Creditors may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any other Secured Creditor shall be liable for
failure to collect or realize upon any or all of the Collateral or for
any delay in so doing nor shall any of them be under any obligation to
take any action whatsoever with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and remedy
of the Pledgee provided for in this Agreement or any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. No notice to or demand
on any Pledgor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Creditor to any other or further
action in any circumstances without notice or demand. The Secured Creditors
agree that this Agreement may be enforced only by the action of the Pledgee
acting upon the instructions of the Required Banks (or, after the date on which
all Credit Document Obligations have been paid in full, the holders of at least
the majority of the outstanding Other Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to enforce this
Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Pledgee or the holders of at least a majority of the outstanding Other
Obligations, as the case may be, for the benefit of the Secured Creditors upon
the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee
upon any sale or other disposition of the Collateral, together with all other
moneys received by the Pledgee hereunder, shall be applied to the payment of the
Obligations in the manner provided in Section 7.4 of the Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
299
EXHIBIT G
Page 9
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee in such capacity and each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing out of or resulting from this Agreement or
the exercise by any Indemnitee of any right or remedy granted to it hereunder or
under any other Secured Debt Agreement (but excluding any claims, demands,
losses, judgments and liabilities or expenses to the extent incurred by reason
of gross negligence or willful misconduct of such Indemnitee). In no event shall
the Pledgee be liable, in the absence of gross negligence or willful misconduct
on its part, for any matter or thing in connection with this Agreement other
than to account for moneys actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under this
Section 11 are unenforceable for any reason, such Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees that
it will join with the Pledgee in executing and, at such Pledgor's own expense,
file and refile under the Uniform Commercial Code or other applicable law such
financing statements, continuation statements and other documents in such
offices as the Pledgee may reasonably deem necessary and wherever required by
law in order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time after the occurrence
and during the continuance
300
EXHIBIT G
Page 10
of an Event of Default, in the Pledgee's reasonable discretion to take any
action and to execute any instrument which the Pledgee may reasonably deem
necessary or advisable to accomplish the purposes of this Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with this
Agreement all items of the Collateral at any time received under this Agreement.
It is expressly understood and agreed by each Secured Creditor that by accepting
the benefits of this Agreement each such Secured Creditor acknowledges and
agrees that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
Section 12 of the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise dispose
of, grant any option with respect to, or mortgage, pledge or otherwise encumber
any of the Collateral or any interest therein (except as may be permitted in
accordance with the terms of the Credit Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. Each
Pledgor represents, warrants and covenants that (i) it is the legal, record and
beneficial owner of, and has good and marketable title to, all Pledged
Securities pledged by it hereunder, subject to no Lien (except the Lien created
by this Agreement and other Permitted Liens); (ii) it has full corporate power,
authority and legal right to pledge all the Pledged Securities pledged by it
pursuant to this Agreement; (iii) this Agreement has been duly authorized,
executed and delivered by such Pledgor and constitutes a legal, valid and
binding obligation of such Pledgor enforceable in accordance with its terms;
(iv) no consent of any other party (including, without limitation, any
stockholder or creditor of such Pledgor or any of its Subsidiaries) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required to be obtained by such Pledgor in connection with the
execution, delivery or performance of this Agreement, the validity or
enforceability of this Agreement, the perfection or enforceability of the
Pledgee's security interest in the Collateral or except for compliance with or
as may be required by applicable securities laws, the exercise by the Pledgee of
any of its rights or remedies provided herein; (v) the execution, delivery and
performance of this Agreement by such Pledgor will not violate any provision of
any applicable law or regulation or of any order, judgment, writ, award or
decree of any court, arbitrator or governmental authority, domestic or foreign,
applicable to such Pledgor, or of the certificate of incorporation or by-laws
(or equivalent organizational documents) of such Pledgor or of any securities
issued by such Pledgor or any of its Subsidiaries, or of any mortgage,
indenture, lease, deed of trust, loan agreement, credit agreement or other
material agreement, contract, or instrument to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such Pledgor or
301
EXHIBIT G
Page 11
any of its Subsidiaries or upon any of their respective assets and will not
result in the creation or imposition of (or the obligation to create or impose)
any lien or encumbrance on any of the assets of such Pledgor or any of its
Subsidiaries except as contemplated by this Agreement; (vi) all the shares of
Stock have been duly and validly issued, are fully paid and non-assessable and
are subject to no options to purchase or similar rights; (vii) each of the
Pledged Notes constitutes, or when executed by the obligor thereof will
constitute, the legal, valid and binding obligation of such obligor, enforceable
in accordance with its terms; and (viii) the pledge, assignment and delivery to
the Pledgee of the Securities (other than uncertificated securities) pursuant to
this Agreement creates a valid and perfected first priority Lien in the
Securities, and the proceeds thereof, subject to no other Lien (other than
Permitted Liens) or to any agreement purporting to grant to any third party a
Lien on the property or assets of the Pledgor which would include the
Securities. Each Pledgor covenants and agrees that it will defend the Pledgee's
right, title and security interest in and to the Securities and the proceeds
thereof against the claims and demands of all persons whomsoever in accordance
with the Credit Documents; and such Pledgor covenants and agrees that it will
have like title to and right to pledge any other property at any time hereafter
pledged to the Pledgee as Collateral hereunder and will likewise defend the
right thereto and security interest therein of the Pledgee and the Secured
Creditors.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
17. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected
302
EXHIBIT G
Page 12
with respect to all or any part of the Pledged Stock, such Pledgor as soon as
practicable and at its expense will cause such registration to be effected (and
be kept effective) and will cause such qualification and compliance to be
declared effected (and be kept effective) as may be so requested and as would
permit or facilitate the sale and distribution of such Pledged Stock, including,
without limitation, registration under the Securities Act of 1933, as then in
effect (or any similar statute then in effect), appropriate qualifications under
applicable blue sky or other state securities laws and appropriate compliance
with any other government requirements, provided, that the Pledgee shall furnish
to such Pledgor such information regarding the Pledgee as such Pledgor may
reasonably request in writing and as shall be required in connection with any
such registration, qualification or compliance. Such Pledgor will cause the
Pledgee to be kept advised in writing as to the progress of each such
registration, qualification or compliance and as to the completion thereof, will
furnish to the Pledgee such number of prospectuses, offering circulars or other
documents incident thereto as the Pledgee from time to time may reasonably
request, and will indemnify the Pledgee, each other Secured Creditor and all
others participating in the distribution of such Pledged Stock against all
claims, losses, damages and liabilities caused by any untrue statement (or
alleged untrue statement) of a material fact contained therein (or in any
related registration statement, notification or the like) or by any omission (or
alleged omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to such Pledgor by the Pledgee or such other
Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Pledged Securities pursuant to Section 7
hereof, and such Pledged Securities or the part thereof to be sold shall not,
for any reason whatsoever, be effectively registered under the Securities Act of
1933, as then in effect, the Pledgee may, in its sole and absolute discretion,
sell such Pledged Securities or part thereof by private sale in such manner and
under such circumstances as the Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Pledged Securities or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale; and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Pledged
Securities or part thereof. In the event of any such sale, the Pledgee shall
incur no responsibility or liability for selling all or any part of the Pledged
Securities at a price which the Pledgee, in its sole and absolute discretion, in
good faith deems reasonable under the circumstances,
303
EXHIBIT G
Page 13
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
18. TERMINATION; RELEASE. (a) After the Termination Date (as defined
below), this Agreement and the security interest created hereby shall terminate
(provided that all indemnities set forth herein including, without limitation,
in Section 11 hereof shall survive any such termination), and the Pledgee, at
the request and expense of any Pledgor, will execute and deliver to such Pledgor
a proper instrument or instruments acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
such Pledgor (without recourse and without any representation or warranty) such
of the Collateral as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement, together with any moneys at the time held
by the Pledgee or any of its sub-agents hereunder. As used in this Agreement,
"Termination Date" shall mean the date upon which the Total Commitments and all
Interest Rate Protection Agreements or Other Hedging Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
have been repaid in full), all Letters of Credit have been terminated and all
Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold (except to
Holdings or any of its Subsidiaries) in connection with a sale permitted by
Section 9.02 of the Credit Agreement or otherwise released pursuant to the
Credit Agreement or at the direction of the Required Banks (or all Banks if
required by Section 13.12 of the Credit Agreement) and the proceeds of such.
sale or sales or from such release are applied in accordance with the provisions
of Section 4.02 of the Credit Agreement, to the extent required to be so
applied, the Pledgee, at the request and expense of any Pledgor, will duly
assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral (and releases therefor) as is
then being (or has been) so sold or released and has not theretofore been
released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
18(a) or (b) hereof, it shall deliver to the Pledgee a certificate signed by a
principal executive officer of such Pledgor stating that the release of the
respective Collateral is permitted pursuant to such Section 18(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any other Secured
Creditor as the result of any release of Collateral by it in accordance with
this Section 18.
19. NOTICES, ETC. All notices and communications hereunder shall be
sent or delivered by mail, telex, telecopy or overnight courier service and all
such notices and communications shall, when mailed, telexed, telecopied or sent
by overnight courier, be effective when deposited in the mails or delivered to
the overnight courier, prepaid and
304
EXHIBIT G
Page 14
properly addressed for delivery on such or the next Business Day, or sent by
telex or telecopier, except that notices and communications to the Pledgee shall
not be effective until received by the Pledgee. All notices and other
communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at the address set forth opposite its
signature below;
(b) if to the Pledgee, at:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Mr. David G. Dixon
Telephone No.: (312) 732-8142
Facsimile No.: (312) 732-3885
(c) if to any Bank Creditor, either (x) to the Administrative
Agent, at the address of the Administrative Agent specified in the
Credit Agreement or (y) at such address as such Bank Creditor shall
have specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Pledgors and the
Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Pledgor directly affected thereby and the
Pledgee (with the written consent of either (x) the Required Banks (or all of
the Banks, to the extent required by Section 13.12 of the Credit Agreement) at
all times prior to the time on which all Credit Document Obligations have been
paid in full or (y) the holders of at least a majority of the outstanding Other
Obligations at all times after the time on which all Credit Document Obligations
have been paid in full); provided, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (i) the Bank
Creditors as holders of the Credit Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of
305
EXHIBIT G
Page 15
(i) with respect to the Credit Document Obligations, the Required Banks and (ii)
with respect to the Other Obligations, the holders of 51% of all obligations
outstanding from time to time under the Interest Rate Protection Agreements or
Other Hedging Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be enforceable by each of the parties hereto and its successors
and assigns. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings in this Agreement
are for purposes of reference only and shall not limit or define the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which shall constitute one instrument. In
the event that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other
provisions of this Agreement which shall remain binding on all parties hereto.
22. RECOURSE. This Agreement is made with full recourse to the Pledgors
and pursuant to and upon all the representations, warranties, covenants and
agreements on the part of the Pledgors contained herein and in the other Secured
Debt Agreements and otherwise in writing in connection herewith or therewith.
23. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Pledgee.
24. AMENDMENT AND RESTATEMENT. Upon the execution and delivery of this
Agreement by the parties hereto., the Original Pledge Agreement shall be amended
and restated in its entirety by this Agreement, effective as of the date hereof,
with all rights, obligations and security interests created under or granted
pursuant to the Original Pledge Agreement continuing from the date thereof.
* * *
306
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Addresses:
----------
BLADE ACQUISITION CORP..,
1001 Pennsylvania Avenue., N.W. as a Pledgor
Suite 200 South
Washington, D.C. 20004
Attention: Mr. Allan M. Holt
Telephone No.: (202) 347-2626
Facsimile No.: (202) 347-9250 By______________________________
Title:
HOWMET HOLDINGS CORPORATION,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
HOWMET CORPORATION,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
307
HOWMET MANAGEMENT SERVICES,
INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
HOWMET THERMATECH CANADA, INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
HOWMET-TEMPCRAFT, INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
HOWMET TRANSPORT SERVICES, INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
308
HOWMET SALES, INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
HOWMET REFURBISHMENT, INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
TURBINE COMPONENTS CORPORATION,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
HOWMET CERCAST (USA), INC.,
475 Steamboat Road as a Pledgor
Greenwich, CT 06830
Attention: Mr. Roland A. Paul
Telephone No.: (203) 625-8770
Facsimile No.: (203) 625-8771 By______________________________
Title:
309
THE FIRST NATIONAL BANK OF
One First National Plaza CHICAGO, as Pledgee
Chicago, Illinois 60670
Attention: Mr. David Dixon
Telephone No.: (312) 732-8142
Facsimile No.: (312) 732-3885 By______________________________
Title:
310
ANNEX A
to
Pledge Agreement
----------------
LIST OF STOCK
-------------
I. Blade Acquisition Corp.
Percentage of
Outstanding
Name of Issuing Number of Shares of Voting
Corporation Type of Shares Voting Shares Capital Stock
----------- -------------- ------------- -------------
Howmet Holdings(1) Common par 10 100%
Corporation value $1 per
(f/k/a Pechiney share
Corporation)
II. Howmet Holdings Corporation
Percentage of
Outstanding
Name of Issuing Number of Shares of Voting
Corporation Type of Shares Voting Shares Capital Stock
----------- -------------- ------------- -------------
a) Howmet Corporation Common par 10 100%
value $1.00 per
share
b) Howmet Insurance(2) Common par 100,000 100%
Company, Inc. value $1.00 per
share
----------
(1) New shares required, shares pledged to FNBC are those of Pechiney
Corporation.
(2) Issued to Pechiney Corporation currently, and stock power is granted by
Pechiney.
311
ANNEX A
Page 2
III. Howmet Corporation
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Capital Stock
----------- -------------- ------------- -------------
a) Howmet Foreign Common par 10 100%*
Sales Corp. value $1.00 per
share
b) Howmet Limited Common par 1,000,002 99.99%*
value (pound)1.00
per share
c) Howmet Management Common par 10 100%
Services, Inc. value $1.00 per
share
d) Howmet Common par 10 100%
Refurbishment, Inc. value $1.00 per
share
e) Howmet Sales, Inc. Common par 10 100%
value $1.00 per
share
f) Howmet Thermatech Common par 10 100%
Canada, Inc. value $1.00 per
share
g) Howmet Transport Common par 10 100%
Services, Inc. value $1.00 per
share
h) Howmet-Tempcraft, Common non- 83 100%
Inc. par
----------
* Pledgee is limited to 65% of the common stock.
312
ANNEX A
Page 3
i) Howmet S.A. Common par 2,903,281(3) 99.99%(4)
value Fr 100.00
per share
j) Blade Receivables Common 1,000 100%
Corporation
k) Howmet Cercast Common per 10 100%
(USA), Inc. value $1.00 per
share
----------
(3) Includes 70 shares issued to Board of Directors.
(4) Pledgee is limited to 65% of the common stock. Pursuant to French law, no
physical stock certificates will be delivered.
313
ANNEX A
Page 4
IV. Howmet Management Services. Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
V. Howmet Thermatech Canada. Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
VI. Howmet-Tempcraft, Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
314
ANNEX A
Page 5
VII. Howmet Transport Services. Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
VIII. Howmet Sales. Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
IX. Howmet Refurbishment, Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
Turbine Components Class A 1,572 100%
Corporation common par
value $10.00
per share
315
ANNEX A
Page 6
Turbine Components Class B 7,388 100%
Corporation common par
value $1.00 per
share
X. Turbine Components Corporation
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
XI. Howmet Cercast (USA), Inc.
Percentage of
Outstanding
Name of Issuing Number of Voting Shares of
Corporation Type of Shares Voting Shares Voting Capital Stock
----------- -------------- ------------- --------------------
None
316
ANNEX B
to
Pledge Agreement
----------------
LIST OF NOTES
-------------
I. Blade Acquisition Corp.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
II. Howmet Holdings Corporation
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
III. Howmet Corporation
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
Howmet Holdings Corporation(1) $598,500,000 2,010
(f/k/a Pechiney Corporation)
IV. Howmet Management Services. Inc
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
(1) Note pledged to FNBC is executed by Howmet Holdings Acquisition Corp. in
favor of Howmet Holdings Acquisition Corp. and assignment of note is by
Howmet Acquisition Corp. to FNBC.
317
ANNEX B
Page 2
V. Howinet Thermatech Canada, Inc.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
VI. Howmet-Tempcraft, Inc.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
VII. Howmet Transport Services. Inc.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
VIII. Howmet Sales, Inc.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
318
ANNEX B
Page 3
IX. Howmet Refurbishment. Inc.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
Turbine Components Corporation $200,000 None
Turbine Components Corporation $250,000 None
Turbine Components Corporation $350,000 None
X. Turbine Components Corporation
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
XI. Howmet Cercast (USA), Inc.
Principal Amount Maturity Date
Obligor (if any) (if any)
------- -------- --------
None
319
EXHIBIT H
---------
AMENDED AND RESTATED SECURITY AGREEMENT
among
BLADE ACQUISITION CORP.,
HOWMET HOLDINGS CORPORATION,
HOWMET CORPORATION,
CERTAIN SUBSIDIARIES AND AFFILIATES OF
HOWMET CORPORATION,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Collateral Agent
Dated as of December 13, 1995
and
Amended and Restated as of December 5, 1996
320
TABLE OF CONTENTS
Page
----
ARTICLE I SECURITY INTERESTS ............................................. 2
1.1. Grant of Security Interests ................................ 2
1.2. Power of Attorney .......................................... 3
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES
AND COVENANTS ................................................. 3
2.1. Necessary Filings .......................................... 3
2.2. No Liens ................................................... 4
2.3. Other Financing Statements ................................. 4
2.4. Chief Executive Office; Records ............................ 4
2.5. Location of Inventory and Equipment ........................ 5
2.6. Recourse ................................................... 5
2.7. Trade Names; Change of Name ................................ 5
ARTICLE III SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS;
INSTRUMENTS; ACQUISITION LETTERS
OF CREDIT .................................................... 6
3.1. Additional Representations and Warranties .................. 6
3.2. Maintenance of Records ..................................... 6
3.3. Direction to Account Debtors; Contracting Parties; etc ..... 7
3.4. Modification of Terms; etc ................................. 7
3.5. Collection ................................................. 8
3.6. Instruments ................................................ 8
3.7. Acquisition Letters of Credit .............................. 8
3.8. Installment Notes Trust .................................... 9
3.9. Further Actions ............................................ 10
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS ...................... 10
4.1. Additional Representations and Warranties .................. 10
4.2. Licenses and Assignments ................................... 10
4.3. Infringements .............................................. 10
4.4. Preservation of Marks ...................................... 11
4.5. Maintenance of Registration ................................ 11
4.6. Future Registered Marks .................................... 11
4.7. Remedies ................................................... 11
(i)
321
Page
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ARTICLE V SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS .......................... 12
5.1. Additional Representations and Warranties .................. 12
5.2. Licenses and Assignments ................................... 12
5.3. Infringements .............................................. 12
5.4. Maintenance of Patents or Copyrights ....................... 13
5.5. Prosecution of Patent or Copyright Application ............. 13
5.6. Other Patents or Copyrights ................................ 13
5.7. Remedies ................................................... 13
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL .......................... 14
6.1. Protection of Collateral Agent's Security .................. 14
6.2. Warehouse Receipts Non-negotiable .......................... 14
6.3. Further Actions ............................................ 14
6.4. Financing Statements ....................................... 14
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT
OF DEFAULT ................................................... 15
7.1. Remedies; Obtaining the Collateral Upon Default ................ 15
7.2. Remedies; Disposition of the Collateral ........................ 16
7.3. Waiver of Claims ............................................... 17
7.4. Application of Proceeds ........................................ 18
7.5. Remedies Cumulative ............................................ 20
7.6. Discontinuance of Proceedings .................................. 21
ARTICLE VIII INDEMNITY ................................................... 21
8.1. Indemnity .................................................. 21
8.2. Indemnity Obligations Secured by Collateral; Survival ...... 23
ARTICLE IX DEFINITIONS ................................................... 23
ARTICLE X MISCELLANEOUS .................................................. 29
10.1. Notices ................................................... 29
10.2. Waiver; Amendment ......................................... 29
10.3. Obligations Absolute ...................................... 30
10.4. Successors and Assigns .................................... 30
10.5. Headings Descriptive ...................................... 30
10.6. Governing Law ............................................. 31
10.7. Assignor's Duties ......................................... 31
10.8. Termination; Release ...................................... 31
10.9. Counterparts .............................................. 32
(ii)
322
Page
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10.10. Severability ............................................. 32
10.11. The Collateral Agent ..................................... 32
10.12. Benefit of: Agreement .................................... 32
10.13. Additional Assignors ..................................... 32
10.14. Amendment and Restatement ................................ 33
ANNEX A Schedule of Chief Executive Offices and
Other Record Locations
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Trade and Fictitious Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patents and Applications
ANNEX F Schedule of Copyrights and Applications
ANNEX G Assignment of Security Interest in United
States Trademarks and Patents
ANNEX H Assignment of Security Interest in
United States Copyrights
ANNEX I Schedule of Acquisition Letters of Credit
(iii)
323
EXHIBIT H
---------
AMENDED AND RESTATED SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of December 13, 1995 and amended and
restated as of December 5, 1996, among each of the undersigned (each an
"Assignor" and, together with any other entity that becomes a party hereto
pursuant to Section 10.13 hereof, the "Assignors") and The First National Bank
of Chicago, as Collateral Agent (the "Collateral Agent"), for the benefit of the
Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Blade Acquisition Corp., Howmet Holdings Corporation (f/k/a
Pechiney Corporation), Howmet Corporation (the "Borrower"), various lenders from
time to time party thereto (the "Banks"), Bankers Trust Company, Citicorp USA,
Inc. and The First National Bank of Chicago, as Managing Agents (the "Managing
Agents"), Bankers Trust Company, as Syndication Agent (the "Syndication Agent"),
Citicorp USA, Inc., as Documentation Agent (the "Documentation Agent") and The
First National Bank of Chicago, as Administrative Agent (together with any
successor administrative agent, the "Administrative Agent"), have entered into a
Credit Agreement, dated as of December 13, 1995 and amended and restated as of
the date hereof (as amended, modified or supplemented from time to time, the
"Credit Agreement"), providing for the making of Loans and the issuance of, and
participation in, Letters of Credit, as contemplated therein (as used herein,
the term "Credit Agreement" means the Credit Agreement described above in this
paragraph as the same may be amended, modified, extended, renewed, replaced,
restated or supplemented from time to time, and including any agreement
extending the maturity of, or restructuring the Indebtedness under such
agreement or any successor agreement) (the Banks, the Managing Agents, the
Syndication Agent, the Documentation Agent, the Administrative Agent and the
Collateral Agent are herein called the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements or Other Hedging Agreements with
one or more Banks or any affiliate thereof (each such Bank or affiliate, even if
the respective Bank subsequently ceases to be a Bank under the Credit Agreement
for any reason, together with such Bank's or affiliate's successors and assigns,
if any, collectively, the "Other Creditors," and together with the Bank
Creditors, the "Secured Creditors");
324
EXHIBIT H
Page 2
WHEREAS, pursuant to the Parent Guaranty, each Parent Guarantor has
jointly and severally guaranteed to the Secured Creditors the payment when due
of all Guaranteed Obligations as described therein;
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, the Assignors have heretofore entered into a Security
Agreement, dated as of December 13, 1995 (as amended, modified or supplemented
prior to the date hereof, the "Original Security Agreement");
WHEREAS, it is a condition precedent to the making of Loans and the
issuance of Letters of Credit under the Credit Agreement that each Assignor
shall have executed and delivered this Agreement; and
WHEREAS, each Assignor will obtain benefits from the incurrence of
Loans and the issuance of Letters of Credit under the Credit Agreement and the
entering into of Interest Rate Protection Agreements or Other Hedging Agreements
and, accordingly, each Assignor desires to execute this Agreement to (i) satisfy
the conditions described in the preceding paragraph and (ii) amend and restate
the Original Security Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Assignor, the receipt and sufficiency of which are hereby
acknowledged, each Assignor hereby makes the following representations and
warranties to the Collateral Agent for the benefit of the Secured Creditors and
hereby covenants and agrees with the Collateral Agent for the benefit of the
Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the prompt and
complete payment and performance when due of all of its Obligations, each
Assignor does hereby assign and transfer unto the Collateral Agent, and does
hereby pledge and grant to the Collateral Agent for the benefit of the Secured
Creditors, a continuing security interest of first priority (subject to any
Permitted Liens) in all of the right, title and interest of such Assignor in, to
and under all of the following, whether now existing or hereafter from time to
time acquired: (i) each and every Receivable, (ii) all Contracts, together with
all Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment,
(v) all Marks,
325
EXHIBIT H
Page 3
together with the registrations and right to all renewals thereof, and the
goodwill of the business of such Assignor symbolized by the Marks, (vi) all
Patents and Copyrights, and all reissues, renewals or extensions thereof, (vii)
all computer programs of such Assignor and all intellectual property rights
therein and all other proprietary information of such Assignor, including, but
not limited to, trade secrets, (viii) all Acquisition Letters of Credit and all
rights of such Assignor with respect thereto, (ix) all rights of such Assignor
with respect to the Installment Notes Trust and under the Installment Notes
Trust Documents, (x) all other Goods, General Intangibles, Chattel Paper,
Documents, Instruments and other assets of such Assignor, (xi) the Cash
Collateral Account and all moneys, securities and Instruments deposited or
required to be deposited in such Cash Collateral Account and (xii) all Proceeds
and products of any and all of the foregoing (all of the above, collectively,
the "Collateral"). Notwithstanding the foregoing, the term "Collateral" shall
not include any Receivables Facility Asset that is transferred to the
Receivables Subsidiary pursuant to the Receivables Documents.
(b) The security interest of the Collateral Agent under this Agreement
extends to all Collateral of the kind which is the subject of this Agreement
which any Assignor may acquire at any time during the continuation of this
Agreement.
1.2. Power of Attorney. Each Assignor hereby constitutes and appoints
the Collateral Agent its true and lawful attorney, irrevocably, with full power
after the occurrence of and during the continuance of an Event of Default (in
the name of such Assignor or otherwise) to act, require, demand, receive,
compound and give acquittance for any and all moneys and claims for moneys due
or to become due to such Assignor under or arising out of the Collateral, to
endorse any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute any proceedings which the
Collateral Agent may reasonably deem to be necessary or advisable to protect the
interests of the Secured Creditors, which appointment as attorney is coupled
with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. Necessary Filings. All filings, registrations and recordings
necessary or appropriate to create, preserve and perfect the security interest
granted by such Assignor to the Collateral Agent hereby in respect of the
Collateral have been accomplished or will be accomplished within 10 Business
Days from the date hereof and upon such filings,
326
EXHIBIT H
Page 4
registrations or recordations, the security interest granted to the Collateral
Agent pursuant to this Agreement in and to the Collateral creates a perfected
security interest therein prior to the rights of all other Persons therein and
subject to no other Liens (other than Permitted Liens) and is entitled to all
the rights, priorities and benefits afforded by the Uniform Commercial Code or
other relevant law as enacted in any relevant jurisdiction to perfected security
interests, in each case to the extent that the Collateral consists of the type
of property in which a security interest may be perfected by filing a financing
statement under the Uniform Commercial Code as enacted in any relevant
jurisdiction or in the United States Patent and Trademark Office or the United
States Copyright Office.
2.2. No Liens. Such Assignor is, and as to Collateral acquired by it
from time to time after the date hereof such Assignor will be, the owner of, or
has rights in, all Collateral free from any Lien, security interest, encumbrance
or other right, title or interest of any other Person (other than Permitted
Liens), and such Assignor shall defend the Collateral to the extent of its
rights therein against all claims and demands of all Persons at any time
claiming the same or any interest therein adverse to the Collateral Agent.
2.3. Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral (other than in respect of Permitted Liens), and so long
as the Total Commitment has not been terminated or any Letter of Credit or Note
remains outstanding or any of the Obligations remain unpaid or any Interest Rate
Protection Agreement or Other Hedging Agreement remains in effect or any
Obligations are owed with respect thereto, such Assignor will not execute or
authorize to be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing statements filed or to
be filed in respect of and covering the security interests granted hereby by
such Assignor or as permitted by the Credit Agreement.
2.4. Chief Executive Office; Records. The chief executive office of
such Assignor is located, as of the date hereof, at the address or addresses
indicated on Annex A hereto for such Assignor. Such Assignor Will not move its
chief executive office except to such new location as such Assignor may
establish in accordance with the last sentence of this Section 2.4. All
documents evidencing all Receivables and Contract Rights and Trade Secret Rights
of such Assignor and the only original books of account and records of such
Assignor relating thereto are, and will continue to be, kept at such chief
executive office, at one or more of the other record locations set forth on
Annex A hereto or at such new locations as such Assignor may establish in
accordance with the last sentence of this Section 2.4. All Receivables and
Contract Rights of such Assignor are, and will continue to be, maintained at,
and controlled and directed (including, without limitation, for general
accounting purposes) from, the office locations described above or such new
location
327
EXHIBIT H
Page 5
established in accordance with the last sentence of this Section 2.4. No
Assignor shall establish new locations for such offices until (i) it shall have
given to the Collateral Agent not less than 15 days' prior written notice of its
intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Collateral Agent may reasonably
request, (ii) with respect to such new location, it shall have taken all action,
reasonably satisfactory to the Collateral Agent, to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect and (iii) the
Collateral Agent shall have received evidence that all other actions (including,
without limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby (subject to
Permitted Liens).
2.5. Location of Inventory and Equipment. All Inventory and Equipment
held on the date hereof by each Assignor is located at one of the locations
shown on Annex B hereto for such Assignor. Each Assignor agrees that all
Inventory and Equipment now held or subsequently acquired by it shall be kept at
(or shall be in transport to) any one of the locations shown on Annex B hereto,
or such new location as such Assignor may establish in accordance with the last
sentence of this Section 2.5. Any Assignor may establish a new location for
Inventory and Equipment if (i) it shall have given to the Collateral Agent not
less than 15 days' prior written notice of its intention so to do, clearly
describing such new location and providing such other information in connection
therewith as the Collateral Agent may reasonably request, (ii) with respect to
such new location, it shall have taken all action reasonably satisfactory to the
Collateral Agent to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and in
full force and effect and (iii) the Collateral Agent shall have received
evidence that all other actions (including, without limitation, the payment of
all filing fees and taxes, if any, payable in connection with such filings) have
been taken, in order to perfect (and maintain the perfection and priority of)
the security interest granted hereby (subject to Permitted Liens).
2.6. Recourse. This Agreement is made with full recourse to each
Assignor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Assignor contained herein, in the other
Credit Documents, in the Interest Rate Protection Agreements or Other Hedging
Agreements and otherwise in writing in connection herewith or therewith.
2.7. Trade Names; Change of Name. No Assignor has or operates in any
jurisdiction under, or in the preceding 12 months has had or has operated in any
jurisdiction under, any trade names, fictitious names or other names except its
legal name and such other trade or fictitious names as are listed on Annex C
hereto for such Assignor. No Assignor shall change its legal name or assume or
operate in any jurisdiction under any
328
EXHIBIT H
Page 6
trade, fictitious or other name except those names listed on Annex C hereto for
such Assignor and new names established in accordance with the last sentence of
this Section 2.7. No Assignor shall assume or operate in any jurisdiction under
any new trade, fictitious or other name until (i) it shall have given to the
Collateral Agent not less than 15 days' prior written notice of its intention so
to do, clearly describing such new name and the jurisdictions in which such new
name shall be used and providing such other information in connection therewith
as the Collateral Agent may request, (ii) with respect to such new name, it
shall have taken all action to maintain the security interest of the Collateral
Agent in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect and (iii) the Collateral Agent shall have
received evidence that all other actions (including, without limitation, the
payment of all filing fees and taxes, if any, payable in connection with such
filings) have been taken, in order to perfect (and maintain the perfection and
priority of) the security interest granted hereby (subject to Permitted Liens).
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS;
ACQUISITION LETTERS OF CREDIT
3.1. Additional Representations and Warranties. As of the time when
each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that each such Receivable, and all records, papers and
documents delivered to the Collateral Agent relating thereto (if any) are what
they purport to be, and that all papers and documents (if any) relating thereto
(i) will represent the genuine, legal, valid and binding obligation of the
account debtor evidencing indebtedness unpaid and owed by the respective account
debtor arising out of the performance of labor or services or the sale or lease
and delivery of the merchandise listed therein, or both, (ii) will be the only
original writings evidencing and embodying such obligation of the account debtor
named therein (other than copies created for general accounting purposes), (iii)
will evidence true and valid obligations, enforceable in accordance with their
respective terms and (iv) will be in compliance and will conform in all material
respects with all applicable federal, state and local laws and applicable laws
of any relevant foreign jurisdiction.
3.2. Maintenance of Records. Each Assignor will keep and maintain at
its own cost and expense satisfactory and complete records of its Receivables
and Contracts, including, but not limited to, the originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and such Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection during
329
EXHIBIT H
Page 7
such Assignor's normal business hours, at such Assignor's own cost and expense,
at any and all reasonable times and intervals and to such extent as the
Collateral Agent may request. Upon the occurrence and during the continuance of
an Event of Default, at the reasonable request of the Collateral Agent, such
Assignor shall, at its own cost and expense, deliver all tangible evidence of
its Receivables and Contract Rights (including, without limitation, all
documents evidencing the Receivables and all Contracts) and such books and
records to the Collateral Agent or to its representatives (copies of which
evidence and books and records may be retained by such Assignor) at a reasonable
place designated by the Collateral Agent. Upon the occurrence and during the
continuance of an Event of Default, if the Collateral Agent so directs, such
Assignor shall legend, in form and manner reasonably satisfactory to the
Collateral Agent, its Receivables and the Contracts, as well as books, records
and documents (if any) of such Assignor evidencing or pertaining to such
Receivables and Contracts with an appropriate reference to the fact that such
Receivables and Contracts have been assigned to the Collateral Agent and that
the Collateral Agent has a security interest therein.
3.3. Direction to Account Debtors; Contracting Parties; etc. Upon the
occurrence and during the continuance of an Event of Default, if the Collateral
Agent so directs any Assignor, such Assignor agrees (x) to cause all payments on
account of the Receivables and Contracts to be made directly to the Cash
Collateral Account, (y) that the Collateral Agent may, at its option, directly
notify the obligors with respect to any Receivables and/or under any Contracts
to make payments with respect thereto as provided in the preceding clause (x)
and (z) that the Collateral Agent may enforce collection of any such Receivables
and Contracts and may adjust, settle or compromise the amount of payment
thereof, in the same manner and to the same extent as such Assignor. Without
notice to or assent by any Assignor, the Collateral Agent may apply any or all
amounts then in, or thereafter deposited in, the Cash Collateral Account in the
manner provided in Section 7.4 of this Agreement. The reasonable costs and
expenses (including attorneys' fees) of collection, whether incurred by an
Assignor or the Collateral Agent, shall be borne by the relevant Assignor.
3.4. Modification of Terms; etc. Except in the ordinary course of
business and except as may be permitted by and in accordance with the provisions
of the Credit Agreement, no Assignor shall rescind or cancel any indebtedness
evidenced by any Receivable or under any Contract, or modify any term thereof or
make any adjustment with respect thereto, or extend or renew the same, or
compromise or settle any dispute, claim, suit or legal proceeding relating
thereto, or sell any Receivable or Contract, or interest therein, without the
prior written consent of the Collateral Agent. Each Assignor will use its best
efforts to duly fulfill all obligations on its part to be fulfilled under or in
connection with the Receivables and Contracts and will do nothing to impair the
rights of the Collateral Agent in the Receivables or Contracts.
330
EXHIBIT H
Page 8
3.5. Collection. Each Assignor shall cause to be collected from the
account debtor named in each of its Receivables or obligor under any Contract,
as and when due (including, without limitation, amounts which are delinquent,
such amounts to be collected in accordance with generally accepted lawful
collection procedures) any and all amounts owing under or on account of such
Receivable or Contract, and apply promptly upon receipt thereof all such amounts
as are so collected to the outstanding balance of such Receivable or under such
Contract, except that, prior to the occurrence of an Event of Default, any
Assignor may allow in the ordinary course of business as adjustments to amounts
owing under its Receivables and Contracts (i) an extension or renewal of the
time or times of payment, or settlement for less than the total unpaid balance,
which such Assignor finds appropriate in accordance with reasonable business
judgment and (ii) a refund or credit due as a result of returned or damaged
merchandise or improperly performed services or for other reasons which such
Assignor finds appropriate in accordance with reasonable business judgment. The
reasonable costs and expenses (including, without limitation, attorneys' fees)
of collection, whether incurred by an Assignor or the Collateral Agent, shall be
borne by the relevant Assignor.
3.6. Instruments. If any Assignor owns or acquires any Instrument
(other than Instruments not required to be delivered to the Pledgee under
Section 2 of the Pledge Agreement) constituting Collateral which is in the
principal amount in excess of $25,000 individually or $100,000 in the aggregate,
such Assignor will within 10 Business Days notify the Collateral Agent thereof,
and upon request by the Collateral Agent will promptly deliver such Instrument
to the Collateral Agent appropriately endorsed to the order of the Collateral
Agent as further security hereunder.
3.7. Acquisition Letters of Credit. (a) Annex I hereto is a true and
complete list, as of the Restatement Effective Date, of each Acquisition Letter
of Credit. On the Restatement Effective Date, true and correct photocopies of
each Acquisition Letter of Credit issued on or prior to the Restatement
Effective Date shall have been delivered to the Collateral Agent, together with
(for each Acquisition Letter of Credit), an appropriately completed Transfer
Instruction (in the form of Exhibit B to the respective Acquisition Letter of
Credit) executed by the respective Assignor which is a beneficiary under such
Acquisition Letter of Credit, whereby such Assignor designates the Collateral
Agent as a transferee in accordance with the provisions of the respective
Acquisition Letter of Credit (with any such executed Transfer Instruction,
together with any such executed Transfer Instruction executed and delivered
pursuant to following clause (b) being herein called a "Transfer Instruction").
(b) If at any time any additional Acquisition Letter of Credit is
issued, or any replacement letter of credit is issued for an Acquisition Letter
of Credit or any substitute letter of credit is issued therefor, then all
actions shall be taken with respect thereto, in any event to be completed within
five Business Days after the issuance of the
331
EXHIBIT H
Page 9
respective additional, replacement or substitute letter of credit, as would have
been required to be taken pursuant to preceding clause (a) if such letter of
credit bad been issued on the Restatement Effective Date. If at any time the
Collateral Agent requests same, the respective Assignor shall also deliver to
the Collateral Agent any additional or modified Transfer Instructions, executed
by the Assignor which is a beneficiary under the respective Acquisition Letter
of Credit, as may be reasonably requested by the Collateral Agent from time to
time.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Collateral Agent is authorized to (x) deliver to the respective
issuer(s) Transfer Instructions with respect to any or all of the Acquisition
Letters of Credit, whereby the Collateral Agent shall become a direct
beneficiary under such Acquisition Letter of Credit or Acquisition Letters of
Credit and/or (y) directly make any drawing permitted to be made by the
respective Assignor which is a beneficiary under any Acquisition Letter of
Credit, in each case in accordance with the terms and conditions thereof. To the
extent any drawing under any Acquisition Letter of Credit is in respect of
amounts previously paid by the respective Assignor or on its behalf, then, and
so long as any Event of Default has occurred and is continuing, the Collateral
Agent shall be entitled to directly receive the proceeds of any drawing which
would otherwise be paid to any Assignor, and shall hold all cash received in
connection therewith as Collateral hereunder. The proceeds of any other drawings
under any Acquisition Letter of Credit shall be applied in accordance with the
requirements of the respective Acquisition Letter of Credit. Without limiting
the right of the Collateral Agent to take any of the foregoing actions, upon the
occurrence and during the continuance of any Event of Default, upon the request
of the Collateral Agent, each Assignor shall deliver to the Collateral Agent any
original Acquisition Letters of Credit then held by such Assignor.
(d) To the extent proceeds of any drawing under any Acquisition Letter
of Credit are deposited into any trust or escrow arrangement other than the
Installment Notes Trust, the Assignor shall take such, action as is reasonably
requested by the Collateral Agent to create, establish and perfect a security
interest in such trust or escrow arrangement.
3.8. Installment Notes Trust. At any time when any Event of Default has
occurred and is continuing, the Collateral Agent shall be entitled to directly
receive (and the respective Assignor shall direct the trustee thereunder to make
all payments owing to any Assignor pursuant to the Installment Notes Trust
directly to the Collateral Agent) any payments owing to any Assignor pursuant to
the terms of the Installment Notes Trust, in each case to the extent such
payments constitute reimbursement for amounts previously paid by any Assignor.
332
EXHIBIT H
Page 10
3.9. Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments, Acquisition Letters
of Credit and other property or rights covered by the security interest hereby
granted, as the Collateral Agent may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful exclusive owner of or
otherwise has the right to use the Marks listed in Annex D hereto for such
Assignor and that, to the best of each Assignor's knowledge, said listed Marks
include all United States marks and applications for registrations of United
States marks in the United States Patent and Trademark Office that such Assignor
owns as of the date hereof and that said registrations are valid, subsisting and
have not been cancelled. Each Assignor further warrants that it is aware of no
third party claim that any aspect of such Assignor's present or contemplated
business operations, infringes or will infringe any trademark, service mark or
trade name. Each Assignor represents and warrants that it is the true and lawful
owner of or otherwise has the right to use all U.S. trademark registrations and
applications listed in Annex D hereto and that said registrations are valid,
subsisting, have not been cancelled and that such Assignor is not aware of any
third-party claim that any of said registrations is invalid or unenforceable, or
is not aware that there is any reason that any of said registrations is invalid
or unenforceable, or is not aware that there is any reason that any of said
applications will not pass to registration. Each Assignor hereby grants to the
Collateral Agent an absolute power of attorney to sign, upon the occurrence and
during the continuance of an Event of Default, any document which may be
required by the United States Patent and Trademark Office in order to effect an
absolute assignment of all right, title and interest in each Mark, and record
the same.
4.2. Licenses and Assignments. Except as otherwise permitted by the
Credit Agreement or this Agreement, each Assignor hereby agrees not to divest
itself of any right under any Significant Mark absent prior written approval of
the Collateral Agent.
4.3. Infringements. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
any party who such Assignor believes is infringing or diluting or otherwise
violating in any material respect any of such Assignor's rights in and to any
Significant Mark, or with respect to any party claiming that
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such Assignor's use of any Significant Mark violates in any material respect any
property right of that party. Each Assignor further agrees, unless otherwise
agreed by the Collateral Agent, to prosecute any Person infringing any
Significant Mark owned by such Assignor in accordance with reasonable business
practices.
4.4. Preservation of Marks. Each Assignor agrees to use its Significant
Marks in interstate commerce during thee time in which this Agreement is in
effect, sufficiently to preserve such Marks as trademarks or service marks under
the laws of the United States.
4.5. Maintenance of Registration. Each Assignor shall, at its own
expense, diligently process all documents required to maintain trademark
registrations, including but not limited to affidavits of use and applications
for renewals of registration in the United States Patent and Trademark Office
for all of its registered Significant Marks, and shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of
all administrative and judicial remedies without prior written consent of the
Collateral Agent.
4.6. Future Registered Marks. If any Mark registration issues hereafter
to any Assignor as a result of any application now or hereafter pending before
the United States Patent and Trademark Office, within 30 days of receipt of such
certificate, such Assignor shall deliver to the Collateral Agent a copy of such
certificate, and an assignment for security in such Mark, to the Collateral
Agent and at the expense of such Assignor, confirming the assignment for
security in such Mark to the Collateral Agent hereunder, the form of such
security to be substantially the same as the form hereof.
4.7. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions; (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks and the goodwill of the
business associated therewith, together with all trademark rights and rights of
protection to the same, vested in the Collateral Agent for the benefit of the
Secured Creditors, in which event such rights, title and interest shall
immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors, and the Collateral Agent shall be entitled to exercise the power of
attorney referred to in Section 4.1 hereof to execute, cause to be acknowledged
and notarized and record said absolute assignment with the applicable agency;
(ii) take and use or sell the Marks and the goodwill of such Assignor's business
symbolized by the Marks and the right to carry on the business and use the
assets of such Assignor in connection with which the Marks have been used; (iii)
in connection with the exercise of any of the other remedies provided for in
this Agreement or any other Security Document, direct such Assignor to refrain,
in which event such Assignor shall refrain, from using the Marks in any manner
whatsoever, directly or indirectly, and, if requested by the Collateral Agent,
change such Assignor's corporate
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name to eliminate therefrom any use of any Mark; and (iv) direct such Assignor
to execute such other and further documents that the Collateral Agent may
reasonably request to further confirm the foregoing and to transfer ownership of
the Marks and registrations and any pending trademark application in the United
States Patent and Trademark Office to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner or licensee of all
rights in (i) all United States trade secrets and proprietary information
necessary to operate the business of such Assignor (the "Trade Secret Rights"),
(ii) the Patents listed in Annex E hereto for such Assignor and that said
Patents include, to the best of each Assignor's knowledge, all United States
patents and applications for United States patents that such Assignor owns as of
the date hereof and (iii) the Copyrights listed in Annex F hereto for such
Assignor and that said Copyrights constitute, to the best of each Assignor's
knowledge, all the United States copyrights registered with the United States
Copyright Office and applications to United States copyrights that such Assignor
now owns. Each Assignor further warrants that it has no knowledge of any third
party claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any patent or any copyright or such
Assignor has misappropriated any trade secret or proprietary information. Each
Assignor hereby grants to the Collateral Agent, an absolute power of attorney to
sign, upon the occurrence and during the continuance of any Event of Default,
any document which may be required by the United States Patent and Trademark
Office or United States Copyright Office, as the case may be, in order to effect
an absolute assignment of all right, title and interest in each Patent and
Copyright, and to record the same.
5.2. Licenses and Assignments. Except as otherwise permitted by the
Credit Agreement, each Assignor hereby agrees not to divest itself of any right
under any Significant Patent or Significant Copyright absent prior written
approval of the Collateral Agent.
5.3. Infringements. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributing infringement or active inducement to infringe in any Significant
Patent or Significant Copyright or to any claim that the practice of any
Significant Patent or the use of any Significant Copyright violates any property
right of a third party, or with respect to any misappropriation of any Trade
Secret Right or any claim that practice of any Trade Secret Right violates any
property right of
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a third party. Each Assignor further agrees, absent direction of the Collateral
Agent to the contrary, diligently to prosecute any Person infringing any
Significant Patent or Significant Copyright or any Person misappropriating any
Trade Secret Right to the extent that such Assignor reasonably believes that
such infringement is material to its business.
5.4. Maintenance of Patents or Copyrights. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required to
maintain in force rights under each Significant Patent or Significant Copyright,
absent prior written consent of the Collateral Agent.
5.5. Prosecution of Patent or Copyright Application. At its own
expense, each Assignor shall diligently prosecute all applications for (i)
Patents listed in Annex E hereto and (ii) Copyrights listed in Annex F hereto,
in each case for such Assignor.
5.6. Other Patents or Copyrights. Within 30 days of the acquisition or
issuance of a Patent or Copyright or of filing of an application for a Patent or
Copyright, the relevant Assignor shall deliver to the Collateral Agent a copy of
said certificate or registration of, or application for, said Patent or
Copyright, as the case may be, with an assignment for security as to such Patent
or Copyright, as the case may be, to the Collateral Agent and at the expense of
such Assignor, confirming the assignment for security, the form of such
assignment for security to be substantially the same as the form attached
hereto.
5.7. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may by written notice to the relevant Assignor, take any or
all of the following actions; (i) declare the entire right, title, and interest
of such Assignor in each of the Patents and Copyrights vested in the Collateral
Agent for the benefit of the Secured Creditors, in which event such right,
title, and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, in which case the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 5.1 hereof to
execute, cause to be acknowledged and notarized and to record said absolute
assignment with the applicable agency; (ii) in connection with the exercise of
any of the other remedies provided for in this Agreement or any other Security
Document, take and practice or sell the Patents and Copyrights; (iii) in
connection with the exercise of any of the other remedies provided for in this
Agreement or any other Security Document, direct such Assignor to refrain, in
which event such Assignor shall refrain, from practicing the Patents and
Copyrights directly or indirectly; and (iv) direct such Assignor to execute such
other and further documents as the Collateral Agent may request further to
confirm the foregoing and to transfer ownership of the Patents and Copyrights to
the Collateral Agent for the benefit of the Secured Creditors.
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ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Collateral Agent's Security. Each Assignor will do
nothing to impair the rights of the Collateral Agent in the Collateral. Each
Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor's own expense to the extent and in the
manner provided in the Credit Agreement; all policies or certificates with
respect to such insurance (and any other insurance maintained by such Assignor)
(i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of
the Collateral Agent (including, without limitation, by naming the Collateral
Agent as additional insured or loss payee), (ii) shall state that such insurance
policies shall not bee cancelled or revised without at least 30 days' prior
written notice thereof by the insurer to the Collateral Agent and (iii) shall
provide that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the Secured Creditors. The
Collateral Agent shall, at the time such proceeds of such insurance are
distributed to the Secured Creditors, apply such proceeds in accordance with
Section 7.4 hereof. Each Assignor assumes all liability and responsibility in
connection with the Collateral acquired by it and the liability of such Assignor
to pay the Obligations shall in no way be affected or diminished by reason of
the fact that such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to such Assignor.
6.2. Warehouse Receipts Non-negotiable. Each Assignor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
with respect to any of its Inventory, such Assignor shall request that such
warehouse receipt or receipt in the nature thereof shall not be "negotiable" (as
such term is used in Section 7-104 of the Uniform Commercial Code as in effect
in any relevant jurisdiction or under other relevant law).
6.3. Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
reasonably deems appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral.
6.4. Financing Statements. Each Assignor agrees to execute and deliver
to the Collateral Agent such financing statements, in form reasonably acceptable
to the
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Collateral Agent, as the Collateral Agent may from time to time request or as
are necessary or desirable in the opinion of the Collateral Agent to establish
and maintain a valid, enforceable and first priority perfected security interest
in the Collateral as provided herein and in the other rights and security
contemplated hereby all in accordance with the Uniform Commercial Code as
enacted in any and all relevant jurisdictions or any other relevant law. Each
Assignor will pay any applicable filing fees, recordation taxes and related
expenses relating to its Collateral. Each Assignor hereby authorizes the
Collateral Agent to file any such financing statements without the signature of
such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, the Collateral Agent, in addition to any rights now or
hereafter existing under applicable law, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and
may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
such Assignor's premises where any of the Collateral is located and
remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the
Receivables and the Contracts) constituting the Collateral to make any
payment required by the terms of such agreement, instrument or other
obligation directly to the Collateral Agent and may exercise any and
all remedies of such Assignor in respect of such Collateral;
(iii) withdraw all moneys, securities and instruments in the
Cash Collateral Account for application to the Obligations in
accordance with Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof,
or direct the relevant Assignor to sell, assign or otherwise liquidate
any or all of the Collateral or any part thereof, and, in each case,
take possession of the proceeds of any such sale or liquidation;
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(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or places designated by the Collateral
Agent that is reasonable under the circumstances, in which event such
Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place
or places so designated by the Collateral Agent and there
delivered to the Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further
action by the Collateral Agent as provided in Section 7.2
hereof;
(z) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain
them in good condition;
(vi) license or sublicense, whether on an exclusive or
nonexclusive basis, any Marks, Patents and Copyrights included in the
Collateral for such term and on such conditions and in such manner as
the Collateral Agent shall in its sole judgment determine; and
(vii) take any of the actions specified in Sections 3.7(c)
and/or 3.8;
it being understood that each Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by such Assignor of said obligation. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Administrative Agent or the Collateral Agent, in each case acting upon
the instructions of the Required Banks (or, after the date on which all Credit
Document Obligations have been paid in full, the holders of at least the
majority of the outstanding Other Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to enforce this
Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent or the Collateral Agent or the holders of at least a
majority of the outstanding Other Obligations, as the case maybe, for the
benefit of the Secured Creditors upon the terms of this Agreement.
7.2. Remedies; Disposition of the Collateral. Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1 hereof and
any other Collateral whether or not so repossessed by the Collateral Agent, may
be sold, assigned, leased or otherwise disposed of under one or more contracts
or as an entirety, and without the neces-
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sity of gathering at the place of sale the property to be sold, and in general
in such manner, at such time or times, at such place or places and on such terms
as the Collateral Agent may, in compliance with any mandatory requirements of
applicable law, determine to be commercially reasonable. Any of the Collateral
may be sold, leased or otherwise disposed of, in the condition in which the same
existed when taken by the Collateral Agent or after any overhaul or repair at
the expense of the relevant Assignor which the Collateral Agent shall determine
to be commercially reasonable. Any such disposition which shall be a private
sale or other private proceedings permitted by such requirements shall be made
upon not less than 10 days' written notice to the relevant Assignor specifying
the time at which such disposition is to be made and the intended sale price or
other consideration therefor, and shall be subject, for the 10 days after the
giving of such notice, to the right of the relevant Assignor or any nominee of
such Assignor to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified. Any such disposition which shall be a public sale permitted by
such requirements shall be made upon not less than 10 days' written notice to
the relevant Assignor specifying the time and place of such sale and, in the
absence of applicable requirements of law, shall be by public auction (which
may, at the Collateral Agent's option, be subject to reserve), after publication
of notice of such auction not less than 10 days prior thereto in two newspapers
in general circulation in the City of New York. To the extent permitted by any
such requirement of law, the Collateral Agent and the other Secured Creditors
may bid for and become the purchaser of the Collateral or any item thereof,
offered for sale in a commercially reasonable manner in accordance with this
Section without accountability to the relevant Assignor. If, under mandatory
requirements of applicable law, the Collateral Agent shall be required to make
disposition of the Collateral within a period of time which does not permit the
giving of notice to the relevant Assignor as hereinabove specified, the
Collateral Agent need give such Assignor only such notice of disposition as
shall be reasonably practicable in view of such mandatory requirements of
applicable law. Each Assignor agrees to do or cause to be done all such other
acts and things as may be reasonably necessary to make such sale or sales of all
or any portion of the Collateral valid and binding and in compliance with any
and all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at
such Assignor's expense.
7.3. Waiver of Claims. Except as otherwise provided in this Agreement,
EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLI- CABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION
OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL, and each
Assignor hereby further waives, to the extent permitted by law:
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(i) all damages occasioned by the Collateral Agent's taking of
possession of any of the Collateral except any damages which are the
direct result of the Collateral Agent's gross negligence or willful
misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and each
Assignor, for itself and all who may claim under it, insofar as it or
they now or hereafter lawfully may, hereby waives the benefit of all
such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4. Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement, the Mortgages or
Additional Security Documents require proceeds of collateral under such Security
Documents to be applied in accordance with the provisions of this Agreement, the
Pledgee or Mortgagee under such other Security Document) upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing the
Collateral Agent of the type provided in clauses (iii) and (iv) of the
definition of Obligations;
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Primary Obligations shall be paid to the Secured
Creditors as provided in Section 7.4(e) hereof, with each Secured
Creditor receiving an amount equal to its outstanding Primary
Obligations or, if the proceeds are insufficient to pay in full all
such Primary Obligations, its Pro Rata Share (as defined below) of the
amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an amount
equal to the outstanding Secondary
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Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(e) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Secondary Obligations or, if the proceeds are
insufficient to pay in full all such Secondary Obligations, its Pro
Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i), (ii) and (iii) and
following the termination of this Agreement pursuant to Section 10.8
hereof, to the relevant Assignor or, to the extent directed by such
Assignor or a court of competent jurisdiction, to whomever may be
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Credit Document Obligations, all principal of, and interest on, all Loans, all
Unpaid Drawings theretofore made (together with all interest accrued thereon),
and the aggregate Stated Amounts of all Letters of Credit issued under the
Credit Agreement, and all Fees and (ii) in the case of the Other Obligations,
all amounts due under the Interest Rate Protection Agreements or Other Hedging
Agreements (other than indemnities, fees (including, without limitation,
attorneys' fees) and similar obligations and liabilities) and (z) "Secondary
Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective
Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall
be applied (for purposes of making determinations under this Section 7.4 only)
(i) first, to their Primary Obligations (with the amount to be applied by any
Secured Creditor to its Primary Obligations to be applied (x) first, to interest
and (y) second, to any other Primary Obligations) and (ii) second, to their
Secondary Obligations. If any payment to any Secured Creditor of its Pro Rata
Share of any distribution would result in overpayment to such Secured Creditor,
such excess amount shall instead be distributed in respect of the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
such Secured Creditor and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
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(d) Each of the Secured Creditors agrees and acknowledges that if the
Bank Creditors are to receive a distribution on account of undrawn amounts with
respect to Letters of Credit issued under the Credit Agreement (which shall only
occur after all outstanding Loans and Unpaid Drawings with respect to such
Letters of Credit have been paid in full), such amounts shall be paid to the
Administrative Agent under the Credit Agreement and held by it, for the equal
and ratable benefit of the Bank Creditors, as cash security for the repayment of
Obligations owing to the Bank Creditors as such. If any amounts are held as cash
security pursuant to the immediately preceding sentence, then upon the
termination of all outstanding Letters of Credit, and after the application of
all such cash security to the repayment of all Obligations owing to the Bank
Creditors after giving effect to the termination of all such Letters of Credit,
if there remains any excess cash, such excess cash shall be returned by the
Administrative Agent to the Collateral Agent for distribution in accordance with
Section 7.4(a) hereof.
(e) Except as set forth in Section 7.4(c) hereof, all payments required
to be made to the Bank Creditors hereunder shall be made to the Administrative
Agent under the Credit Agreement for the account of the Bank Creditors and all.
payments required to be made to the Other Creditors hereunder shall be made
directly to the respective Other Creditor.
(f) For purposes of applying payments received in accordance with this
Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Other Creditors for
a determination (which the Administrative Agent, each Other Creditor and the
Secured Creditors agree (or shall agree) to provide upon request of the
Collateral Agent) of the outstanding Obligations owed to the Bank Creditors or
the Other Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Bank Creditor or an Other Creditor)
to the contrary, the Administrative Agent under the Credit Agreement, in
furnishing information pursuant to the preceding sentence, and the Collateral
Agent, in acting hereunder, shall be entitled to assume that (x) no Secondary
Obligations are owing to any Bank Creditor or Other Creditor and (y) no Interest
Rate Protection Agreement or Other Hedging Agreement, or Other Obligations in
respect thereof, are in existence.
(g) It is understood that the Assignors shall remain jointly and
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the sums referred to in
clause (a) of this Section 7.4 with respect to the relevant Assignor.
7.5. Remedies Cumulative. Each and every right, power and remedy hereby
specifically given to the Collateral Agent shall be in addition to every other
right, power and remedy specifically given under this Agreement, the Interest
Rate Protection Agreements or Other Hedging Agreements, the other Credit
Documents or now or hereafter
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existing at law, in equity or by statute and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time or simultaneously and as often and in such order as may be
deemed expedient by the Collateral Agent. All such rights, powers and remedies
shall be cumulative and the exercise or the beginning of the exercise of one
shall not be deemed a waiver of the right to exercise any other or others. No
delay or omission of the Collateral Agent in the exercise of any such right,
power or remedy and no renewal or extension of any of the Obligations shall
impair any such right, power or remedy or shall be construed to be a waiver of
any Default or Event of Default or an acquiescence therein. No notice to or
demand on any Assignor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Collateral Agent to any other or further action in any
circumstances without notice or demand. In the event that the Collateral Agent
shall bring any suit to enforce any of its rights hereunder and shall be
entitled to judgment, then in such suit the Collateral Agent may recover
expenses, including attorneys' fees, and the amounts thereof shall be included
in such judgment.
7.6. Discontinuance of Proceedings. In case the Collateral Agent shall
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the relevant
Assignor, the Collateral Agent and each holder of any of the Obligations shall
be restored to their former positions and rights hereunder with respect to the
Collateral subject to the security interest created under this Agreement, and
all rights, remedies and powers of the Collateral Agent shall continue as if no
such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, permitted assigns, employees, agents and
servants (hereinafter in this Section 8.1 referred to individually as
"Indemnitee," and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including attorneys' fees and expenses) (for the purposes of this Section 8.1
the foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement, any Interest Rate Protection
Agreement or Other Hedging Agreement, any other Credit Document or any other
document executed in connection herewith or therewith
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or in any other way connected with the administration of the transactions
contemplated hereby or thereby or the enforcement of any of the terms of, or the
preservation of any rights under any thereof, or in any way relating to or
arising out of the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition, sale,
return or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the violation
of the laws of any country, state or other governmental body or unit, any tort
(including, without limitation, claims arising or imposed under the doctrine of
strict liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage), or contract claim; provided
that no Indemnitee shall be indemnified pursuant tb this Section 8.1(a) for
losses, damages or liabilities to the extent caused by the gross negligence or
willful misconduct of such Indemnitee. Each Assignor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the relevant
Assignor shall assume full responsibility for the defense thereof. Each
Indemnitee agrees to use its best efforts to promptly notify the relevant
Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof; each
Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for any and all fees, costs and expenses of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filling of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the Collateral
and the Collateral Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof,
each Assignor agrees, jointly and severally, to pay, indemnify and hold each
Indemnitee harmless from and against any loss, costs, damages and expenses which
such Indemnitee may suffer, expend or incur in consequence of or growing out of
any misrepresentation by any Assignor in this Agreement, any other Credit
Document or in any writing contemplated by or made or delivered pursuant to or
in connection with this Agreement or any other Credit Document.
(d) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
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8.2. Indemnity Obligations Secured by Collateral; Survival. Any amounts
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements or Other Hedging Agreements and the payment of all other
Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Acquisition Letters of Credit" shall mean all letters of credit issued
in connection with the Stock Purchase Agreement, together with any replacements
issued therefor or letters of credit issued in substitution thereof, and shall
include all "Acquisition Letters of Credit" as defined in the Credit Agreement.
"Administrative Agent" shall have the meaning provided in the recitals
to this Agreement.
"Agreement" shall mean this Security Agreement, as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Banks" shall have the meaning provided in the recitals to this
Agreement.
"Borrower" shall have the meaning provided in the recitals to this
Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with, and in the sole dominion and control of, the
Collateral Agent for the benefit of the Secured Creditors.
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"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Contract Rights" shall mean all rights of any Assignor (including,
without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, any Interest Rate
Protection Agreement or Other Hedging Agreement), but excluding any contract to
the extent that the terms thereof prohibit (after giving effect to any approvals
or waivers) the assignment of, or granting a security interest in, such
contract.
"Copyrights" shall mean any United States or foreign copyright owned by
any Assignor, including any registrations of any Copyrights, in the United
States Copyright Office or the equivalent thereof in any foreign country, as
well as any application for a United States copyright registration now or
hereafter made with the United States Copyright Office by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals to
this Agreement.
"Credit Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now
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or hereafter owned by any Assignor and any and all additions, substitutions and
replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event, without limitation,
include any payment default on any of the Obligations after the expiration of
any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Goods" shall have the meaning provided in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through
work-in-process to finished goods -- and all products and proceeds of whatever
sort and wherever located and any portion thereof which may be returned,
rejected, reclaimed or repossessed by the Collateral Agent from any Assignor's
customers, and shall specifically include all "inventory" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any United
States or foreign trademarks, service marks and trade names now held or
hereafter acquired by any Assignor, including any registration of any trademarks
and service marks, or the equivalent thereof in any foreign country, in the
United States Patent and Trademark Office and any trade dress including logos
and/or designs used by any Assignor in the United States or any foreign country.
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"Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities of each
Assignor, now existing or hereafter incurred under, arising out of or in
connection with any Credit Document to which it is a party and the due
performance and compliance by each Assignor with the terms of each such Credit
Document (all such obligations and liabilities under this clause (i), except to
the extent consisting of obligations or indebtedness with respect to Interest
Rate Protection Agreements or Other Hedging Agreements, being herein
collectively called the "Credit Document Obligations"); (ii) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) and liabilities
of each Assignor now existing or hereafter incurred under, arising out of or in
connection with any Interest Rate Protection Agreement or Other Hedging
Agreement with the Secured Creditors including, in the case of Assignors other
than the Borrower, all obligations of such Assignor under the Subsidiaries
Guaranty in respect of Interest Rate Protection Agreements or Other Hedging
Agreements (all such obligations and liabilities under this clause (ii) being
herein collectively called the "Other Obligations"); (iii) any and all sums
advanced by the Collateral Agent in order to preserve the Collateral or preserve
its security interest in the Collateral; (iv) in the event of any proceeding for
the collection or enforcement of any indebtedness, obligations, or liabilities
of any Assignor referred to in clauses (i) and (ii) above, after an Event of
Default shall have occurred and be continuing, the reasonable expenses of
re-taking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by the Collateral Agent of
its rights hereunder, together with reasonable attorneys' fees and court costs;
and (v) all amounts paid by any Indemnitee as to which such Indemnitee has the
right to reimbursement under Section 8.1 of this Agreement.
"Other Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Other Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article IX.
"Patents" shall mean any United States or foreign patent to which any
Assignor now or hereafter has title and any divisions or continuations thereof,
as well as any application for a United States or foreign patent now or
hereafter made by any Assignor.
"Primary Obligations" shall have the meaning provided in Section 7.4(b)
of this Agreement.
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"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or any Assignor from time to time with respect to any of
the Collateral, (ii) any and all payments (in any form whatsoever) made or due
and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for goods
sold or leased or services performed by such Assignor, whether now in existence
or arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, security agreement, chattel paper, or
other evidence of indebtedness or security, together with (a) all security
pledged, assigned, hypothecated or granted to or held by such Assignor to secure
the foregoing, (b) all of any Assignor's right, title and interest in and to any
goods, the sale of which gave rise thereto, (c) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (d) all powers of attorney for
the execution of any evidence of indebtedness or security or other writing in
connection therewith, (e) all books, records, ledger cards, and invoices
relating thereto, (f) all evidences of the filing of financing statements and
other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties,
and certificates from filing or other registratio