SECOND AMENDMENT TO POST-
PETITION LOAN AND SECURITY AGREEMENT
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This SECOND AMENDMENT TO POST-PETITION LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into this 10th day of January, 2000, by and
among GULF STATES STEEL, INC. OF ALABAMA, an Alabama corporation and a Chapter
11 debtor-in-possession ("Borrower"); the financial institutions listed on the
signature pages to the Revolver Loan Agreement (as hereinafter defined) and
their respective successors and assigns which become "Lenders" as provided
therein (such financial institutions and their respective successors and assigns
referred to collectively herein as "Revolver Lenders" and individually as a
"Revolver Lender"); and FLEET CAPITAL CORPORATION, a Rhode Island corporation,
in its capacity as collateral and administrative agent for the Lenders pursuant
to Section 12 of the Revolver Loan Agreement (together with its successors in
such capacity, "Revolver Agent").
Recitals:
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Borrower, Revolver Lenders, and Revolver Agent are parties to a certain
Post-Petition Loan and Security Agreement dated July 1, 1999, as amended by that
certain First Amendment to Post-Petition Loan and Security Agreement dated July
20, 1999 (as at any time amended, the "Revolver Loan Agreement"), pursuant to
which Revolver Lenders have made certain revolving loans to Borrower.
Borrower, the various lenders from time to time party thereto (the "Term
Loan Lenders"), and ABLECO FINANCE LLC, a Delaware limited liability company, in
its capacity as agent for the Term Loan Lenders (together with its successors in
such capacity, "Term Loan Agent"), are parties to a certain Financing Agreement
dated as of July 1, 1999, as amended by that certain Amendment Number One and
Waiver and Consent to Financing Agreement dated as of December 29, 1999 (as at
any time amended, the "Term Loan Agreement"), pursuant to which Term Loan
Lenders have made certain term loans to Borrower.
Both the Revolver Loan Agreement and the Term Loan Agreement contain, among
other things, certain financial covenants applicable to Borrower, and the
Revolver Lenders and Borrower intended for such covenants to be the same.
The parties desire to amend the Revolver Loan Agreement as hereinafter set
forth in order to, among other things, modify the financial covenants to match
the financial covenants set forth in the Term Loan Agreement.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. Capitalized terms used in this Amendment (including in the
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Recitals above), unless otherwise defined herein, shall have the meaning
ascribed to such terms in the Revolver Loan Agreement.
1. Amendment to Revolver Loan Agreement. The Revolver Loan Agreement is
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hereby amended as follows:
a. By deleting Section 9.2.11 in its entirety and inserting the following
in lieu thereof:
9.2.11. Permitted Debt. Incur or suffer to exist any Debt
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other than Claims in existence on the Petition Date; the Obligations;
Debt to Term Lender under the Term Lender Documents; Capitalized Lease
Obligations and Permitted Purchase Money Debt to the extent
expenditures in connection therewith are not in violation of Section
9.3 hereof; and Debt (other than Debt for Money Borrowed, Capitalized
Lease Obligations and Permitted Purchase Money Debt) incurred in the
ordinary course of Borrower's business during the Chapter 11 Case,
including Debt incurred pursuant to the Preferred Supplier Continuous
Credit Program.
a. By deleting Sections 9.3.1, 9.3.2 and 9.3.3 in their entirety and
inserting the following in lieu thereof:
9.3.1. Minimum Net Revenues. Permit Borrower's Net Revenue from
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operations to fall below the amount shown below for the period
corresponding thereto:
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For the period of: Minimum Net Revenues
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November 1, 1999 to December 31, 1999 $49,865,000
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December 1, 1999 to January 31, 2000 $51,380,000
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January 1, 2000 to February 29, 2000 $50,485,000
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February 1, 2000 to March 31, 2000 $52,895,000
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March 1, 2000 to April 30, 2000 $56,965,000
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April 1, 2000 to May 31, 2000 $58,080,000
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May 1, 2000 to June 30, 2000 $58,670,000
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9.3.2. Minimum Consolidated EBITDA. Permit Borrower's
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Consolidated EBITDA to be less than the amount shown below for the
period corresponding thereto:
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For the period of: Minimum Consolidated EBITDA
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January 1, 1999 to December 31, 1999 - $25,150,000
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February 1, 1999 to January 31, 2000 - $28,075,000
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March 1, 1999 to February 29, 2000 - $23,725,000
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April 1, 1999 to March 31, 2000 - $20,135,000
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May 1, 1999 to April 30, 2000 - $16,375,000
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June 1, 1999 to May 31, 2000 - $14,800,000
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July 1, 1999 to June 30, 2000 - $12,725,000
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9.3.3. Capital Expenditures. Permit Borrower's Capital
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Expenditures to exceed the amount shown below for the period
corresponding thereto, provided that Borrower may carry forward the
amount by which the monthly limit exceeds Capital Expenditures
actually made in any given month, it being
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agreed that the amount carried forward in respect of periods prior to
December 1999 is $3,428,000:
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For the month of: Maximum Capital Expenditures
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June 1999 $ 905,000
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July 1999 $1,680,000
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August 1999 $ 875,000
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September 1999 $1,005,000
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October 1999 $1,030,000
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November 1999 $ 975,000
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December 1999 $ 980,000
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January 2000 $ 980,000
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February 2000 $ 985,000
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March 2000 $ 985,000
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April 2000 $ 980,000
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May 2000 $ 975,000
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June 2000 $ 965,000
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9.3.4. Minimum Liquidity. At any time, permit (i) the sum of
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(a) unrestricted cash, plus (b) Cash Equivalents, plus (c)
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Availability to be less than (ii) the remainder of (a) the aggregate
amount Borrower has paid on pre-petition claims to trade creditors,
minus (b) any amounts paid on account of pre-petition claims pursuant
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to the order of the Bankruptcy Court, minus (c) any amounts paid by
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Borrower to its secured creditors as adequate protection payments,
minus (d) any amounts paid by Borrower to Kvaerner Metals.
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a. By deleting the definition of "Availability Reserve"
from Appendix A in its entirety and inserting the following in lieu thereof:
Availability Reserve - on any date of determination thereof, an
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amount equal to the sum of the following (without duplication): (i)
the amount of the Pre-Petition Debt outstanding as of the opening of
business on such date (excluding the amount of any Pre-Petition Debt
to be satisfied on the Closing Date); (ii) a reserve for general
Inventory shrinkage that is determined by Agent from time to time in
its reasonable credit judgment based upon Borrower's historical losses
due to such shrinkage; (iii) any amount that Borrower is obligated to
pay pursuant to the provisions of any of the DIP Financing Documents
that Agent or Lenders elect to pay for the account of Borrower in
accordance with authority contained in any of the DIP Financing
Documents; (iv) all amounts of past due rent or other charges owing at
such time by Borrower to any landlord of any premises where any of the
Collateral is located; (v) the Professional Expense Reserve; (vi) a
reserve in the amount of monthly charges due from time to time to the
Alabama State Docks Department; (vii) the Inventory Reserve; (viii)
the LC Reserve; (ix) such additional reserves as Agent may, in its
sole credit judgment, determine to be appropriate from time to time;
(x) $500,000 (provided that Agent may, in its discretion, increase
such amount to $1,000,000 after the earlier to occur of (a) the day on
which average Availability for the preceding 5 consecutive Business
Days is less than
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$3,500,000 or (b) the day on which Availability on any Business Day is
less than $1,000,000); and (xi) for so long as any Event of Default
exists, such additional reserves as Agent, in its sole and absolute
discretion, may elect to impose from time to time, without waiving any
such Event of Default or Agent's entitlement to accelerate the
maturity of the Obligations as a consequence thereof.
a. By deleting the definition of "Consolidated EBITDA" from
Appendix A in its entirety and inserting the following in lieu thereof:
Consolidated EBITDA - with respect to any Person for any period,
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the consolidated net income of such Person for such period, plus (i)
----
without duplication, the sum of the following amounts of such Person
and its Subsidiaries for such period and to the extent deducted in
determining consolidated net income of such Person for such period:
(a) Consolidated Net Interest Expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) extraordinary or
unusual non-cash losses and other losses from sales of assets other
than Inventory sold in the ordinary course of business, and (f) any
reserves, in an amount not to exceed $15,000,000 in the aggregate,
established by Borrower for the settlement of claims asserted by any
Governmental Authority arising from the breach of any Environmental
Law by Borrower which claims are not to be paid prior to the
confirmation of Borrower's Reorganization Plan, minus (ii)
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extraordinary or unusual non-cash gains and other gains from sales of
assets other than Inventory sold in the ordinary course of business.
a. By adding the following definition of "Net Revenue" to
Appendix A in appropriate alphabetical order:
Net Revenue - with respect to any Person for any period, the
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sum of (a) the aggregate amount of all revenues of such Person that
would, as determined in accordance with GAAP, be classified as gross
revenues on the consolidated income statement of such Person for such
period, minus (b) the amount of all sales credits, discounts, credits
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as a result of fraud, and any other credits that would, in accordance
with GAAP, be charged against gross revenues for such period.
1. Limited Waiver of Default. Events of Default have occurred and
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currently exist under the Revolver Loan Agreement as a result of (a) Borrower's
breach of Section 9.3.1 for the month of November 1999, (b) Borrower's breach of
Section 9.3.2 for the months of July 1999, August 1999, September 1999, October
1999 and November 1999, (c) the existence of defaults or events of default under
the Term Loan Agreement arising because of Borrower's breach of the financial
covenants set forth in the Term Loan Agreement (the "Designated Defaults").
Borrower represents and warrants that the Designated Default are the only
Defaults or Events of Default that exist under the Revolver Loan Agreement and
the other Loan Documents as of the date hereof. Revolving Lenders hereby waive
the Designated Defaults in existence on the date hereof. In no event shall such
waiver be deemed to constitute a waiver of (a) any Default or Event of Default
other than the Designated Defaults in existence on the date of this Amendment or
(b) Borrower's obligation to comply with all of the terms and conditions of the
Revolver Loan Agreement and the other Loan Documents from and after the date
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hereof. Notwithstanding any prior, temporary mutual disregard of the terms of
any contracts between the parties, Borrower hereby agrees that it shall be
required strictly to comply with all of the terms of the Loan Documents on and
after the date hereof.
1. Ratification and Reaffirmation. Borrower hereby ratifies and reaffirms
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the Obligations, each of the Loan Documents and all of Borrower's covenants,
duties, indebtedness and liabilities under the Loan Documents.
1. Acknowledgments and Stipulations. Borrower acknowledges and stipulates
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that the Revolver Loan Agreement and notes are legal, valid and binding
obligations of Borrower that are enforceable against Borrower in accordance with
the terms thereof; all of the Obligations are owing and payable without defense,
offset or counterclaim (and to the extent there exists any such defense, offset
or counterclaim on the date hereof, the same is hereby waived by Borrower); the
security interests and liens granted by Borrower in favor of Revolver Agent are
duly perfected, first priority Liens, except as otherwise expressly provided in
the Intercreditor Agreement; and the unpaid principal amount of the Revolver
Loans on and as of the opening of business on January 10, 2000, totaled
$47,039,846.64.
1. Representations and Warranties. Borrower represents and warrants to
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Revolver Agent and each Revolver Lender, to induce Revolver Agent and each
Revolver Lender to enter into this Amendment, that no Default or Event of
Default exists on the date hereof other than the Designated Defaults; the
execution, delivery and performance of this Amendment have been duly authorized
by all requisite corporate action on the part of Borrower and this Amendment has
been duly executed and delivered by Borrower; and all of the representations and
warranties made by Borrower in the Revolver Loan Agreement are true and correct
on and as of the date hereof, except for such matters that have changed in
compliance with the Loan Documents.
1. Expenses of Revolver Agent and Revolver Lenders. Borrower agrees to
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pay, on demand, all costs and expenses incurred by Revolver Agent and each
Revolver Lender in connection with the preparation, negotiation and execution of
this Amendment and any other Loan Documents executed pursuant hereto and any and
all amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of Revolver Agent's and each Revolver Lender's
legal counsel and any taxes or expenses associated with or incurred in
connection with any instrument or agreement referred to herein or contemplated
hereby.
1. Effectiveness; Governing Law. This Amendment shall be effective upon
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acceptance by Revolver Agent in Atlanta, Georgia (notice of which acceptance is
hereby waived), whereupon the same shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
1. No Novation, etc. Except as otherwise expressly provided in this
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Amendment, nothing herein shall be deemed to amend or modify any provision of
the Revolver Loan Agreement or any of the other Loan Documents, each of which
shall remain in full force and effect. This Amendment is not intended to be,
nor shall it be construed to create, a novation or accord and satisfaction, and
the Revolver Loan Agreement as herein modified shall continue in full force and
effect.
1. Counterparts; Telecopied Signatures. This Amendment may be executed in
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any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and
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the same agreement. Any signature delivered by a party by facsimile transmission
shall be deemed to be an original signature hereto.
1. Further Assurances. Borrower agrees to take such further actions as
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Revolver Agent or any Revolver Lender shall reasonably request from time to time
in connection herewith to evidence or give effect to the amendments set forth
herein or any of the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
BORROWER:
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GULF STATES STEEL, INC. OF ALABAMA
By: /s/ Xxxxx X. Xxxxx
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Title: Senior VP & CFO
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LENDERS:
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FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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AGENT:
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FLEET CAPITAL CORPORATION, as Agent
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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