Exhibit 4(d)
CONFORMED COPY
AMENDED AND RESTATED INVENTORY CREDIT AGREEMENT
AMENDED AND RESTATED INVENTORY CREDIT AGREEMENT dated as of
June 19, 1998 among BETHLEHEM STEEL CORPORATION, the Lenders listed on
the signature pages hereof and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent and Structuring and Collateral Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into an
Inventory Credit Agreement dated as of September 12, 1995, which was
amended and restated by an Amended and Restated Inventory Credit
Agreement dated as of June 5, 1997 (as so amended and restated, the
"Agreement"), and
WHEREAS, the parties hereto desire to amend the Agreement to
increase the aggregate Commitments (as defined in the Agreement) from
$225,000,000 to $260,000,000 and otherwise as set forth herein and to
restate the Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
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specifically defined herein, each capitalized term used herein which
is defined in the Agreement shall have the meaning assigned to such
term in the Agreement. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the effective date
hereof refer to the Agreement as amended and restated hereby.
SECTION 2. Amendments to Definitions. (a) Section 1.1 of
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the Agreement is amended as follows:
(i) The definition of "Borrower's 1996 Form 10-K" is amended
by replacing "1996" in each place where it appears with "1997".
(ii) The definition of "Borrower's Latest Form 10-Q" is
amended by replacing "1997" with "1998".
(iii) Clause (i) of the definition of "Commitment" is
superceded by the provisions of Section 5 of this Amendment and
Restatement.
(iv) The definition of "Eligible Inventories" is amended as
follows:
(A) by replacing "1996" with "1997",
(B) by redesignating subclause (ii) in clause (b) as
subclause "(iii)" and adding the following new subclause
(ii):
"(ii) on the premises of a Xxxxxx Facility, but only for
so long as such premises remain owned or leased by the
Borrower or Xxxxxx, provided that, in the case of leased
premises or premises owned by Xxxxxx, the Collateral Agent
has received evidence satisfactory to it (including landlord
waivers satisfactory to it) that it may enter such premises
for the purposes specified in Section 8 (C) of the Inventory
Security Agreement;" and
(C) adding a further proviso at the end of the last
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proviso therein reading as follows:
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"and provided further that before any Inventory of the
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category described in subclause (b)(ii) of this definition
may be first included in Eligible Inventories (and without
prejudice to any other provision of the Financing Documents
that may thereafter be applicable), the Borrower shall have
(i) furnished to the Collateral Agent (and the Collateral
Agent in its reasonable discretion shall be satisfied with)
information (x) as to such procedures being established and
agreed to by the Borrower and Xxxxxx that will enable the
Collateral Agent to distinguish such Inventory from similar
property at such Xxxxxx Facility, if any, that remains owned
by Xxxxxx and (y) otherwise with respect to such Inventory
comparable to information that would be provided in a
Perfection Certificate (as defined in the Inventory Security
Agreement) and (ii) delivered to the Collateral Agent and the
Lenders such opinions of counsel (substantially in the
form
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of Annex B to Exhibit E), instruments and other
information requested by the Collateral Agent as
may be necessary or desirable to evidence that the
Lenders' Security Interest in such Inventory is
perfected subject to no prior Lien except as
permitted by the Financing Documents."
(v) The definition of "Inventories" is amended by changing
subclause (iii) in the parenthetical to (iv) and adding the following
as subclause (iii):
"following the sale of the No. 1 coke oven battery
at the coke oven facility at the Borrower's Xxxxx
Harbor facility, is coal inventories located at
such facility"
(vi) The definition of "Termination Date" is amended by
replacing the date "September 12, 2002" with "June 19, 2003".
(vii) The definition of "Inventory Information Memorandum" is
amended in its entirety to read as follows:
"Inventory Information Memorandum" means the Bethlehem
Steel Corporation Inventory Credit Agreement Inventory Review
dated May 1998.
(b) Section 1.1 of the Agreement is further amended by adding
the following new definitions in alphabetical order:
"Xxxxxx" means Xxxxxx Steel Company, a Pennsylvania
corporation.
"Xxxxxx Facilities" means the Conshohocken, Coatesville and
Piedmont facilities operated as of the date hereof by Xxxxxx.
"Xxxxxx Merger" means the merger of Xxxxxx Acquisition
Corporation into Xxxxxx Inc., which occurred on May 29, 1998 pursuant
to the Xxxxxx Merger Agreement.
"Xxxxxx Merger Agreement" means the Agreement and Plan of
Merger, dated as of December 15, 1997 and as amended as of January 4,
1998, among the Borrower, Xxxxxx Acquisition Corporation and Xxxxxx
Inc., as further amended from time to time.
"1998 Effective Date" means the date upon which the
conditions to effectiveness of this Amended and Restated Inventory
Credit Agreement dated as of June 19, 1998 are satisfied.
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SECTION 3. Updated Representations. (a) Each reference to
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"1996" in Section 4.4(a) of the Agreement is changed to "1997".
(b) Each reference to "March 31, 1997" in Section 4.4 of the
Agreement is changed to "March 31, 1998".
(c) The reference in Section 4.7 of the Agreement to
"December 31, 1990" is changed to "December 31, 1994".
SECTION 4. Sale of No. 1 Coke Oven Battery at Xxxxx Harbor.
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(a) Section 5.7 of the Agreement is amended by amending
subclause (B) of clause (ii) by (x) inserting the following at the
beginning of such subclause:
"(a) if such sale is of coal inventories located at the
coke oven facility at the Borrower's Xxxxx Harbor facility in
connection with the sale of the No. 1 coke oven battery at
such facility (which will cause the release of all coal
inventories at such facility from Collateral pursuant to
Section 9.13 of this Agreement) or (b)"; and
(y) inserting following "such sale is of such
Inventories" the words "or such coal inventories in
connection with the sale of the No. 1 coke oven battery".
(b) The following is added as SECTION 9.13 to the
Agreement:
SECTION 9.13 Release of Coal Inventories from Collateral
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upon Sale of No. 1 Coke Oven Battery at Xxxxx Harbor. Upon
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the sale of the No. 1 coke oven battery together with any
coal inventories located at the coke oven facility at the
Borrower's Xxxxx Harbor facility, all coal inventories at
such facility will be excluded from the Borrowing Base, will
be released as Collateral pursuant to Section 5(A) of the
Inventory Security Agreement and will no longer be considered
to be part of Inventories under this Agreement.
SECTION 5. Changes in Commitments. With effect from and
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including the 1998 Effective Date, (i) each Person listed on the
signature pages hereof that is not a party to the Agreement (a "New
Lender") shall become a Lender party to the Agreement and (ii) the
Commitment of each Lender shall be the amount set forth opposite the
name of such Lender on the signature pages hereof. Any Lender whose
Commitment is changed to zero (an "Exiting Lender") shall upon the
1998 Effective Date cease to be a Lender party to the Agreement (and,
without omitting the generality of the foregoing, its participation in
any outstanding Participated
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Letter of Credit shall automatically be canceled without any further
action), and all accrued Fees and other amounts (other than principal
and interest) payable under the Agreement for the account of an
Exiting Lender to the 1998 Effective Date shall, notwithstanding the
provisions of Article 2 of the Agreement, be due and payable for the
account of such Exiting Lender on the 1998 Effective Date; provided
that the provisions of Sections 8.3, 8.4 and 9.3 of the Agreement
shall continue to inure to the benefit of each Exiting Lender and,
provided further that each Exiting Lender shall continue to be bound
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by Section 9.8 of the Agreement with respect to information provided
to it prior to such date. The calculation of accrued Fees payable to
each continuing Lender on the first Quarterly Date or other date after
the 1998 Effective Date on which Fees are payable shall reflect any
changes in the Commitments of such Lenders made pursuant to this
Section 5 and, notwithstanding the provisions of Section 2.13 of the
Agreement, shall be paid to each such Lender accordingly. If Loans
are outstanding on the 1998 Effective Date and, as a result of changes
in the Commitments of the Lenders, such Loans are not held by the
continuing Lenders ratably in proportion to their Commitments, the
Lenders (including New Lenders and Exiting Lenders) shall, as
appropriate, buy and sell such Loans such that, after giving effect to
such purchases, such Loans are held ratably, and Section 2.14 of the
Agreement shall apply to any such purchases.
SECTION 6. Representations and Warranties. The Borrower
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hereby represents and warrants that as of the 1998 Effective Date
(after giving effect hereto):
(a) no Default, Increased Coverage Event or Potential
Termination Event or Termination Event (as such latter two terms are
defined in the Receivables Purchase Agreement) will have occurred and
be continuing; and
(b) each representation and warranty of the Borrower set
forth in the Agreement, after giving effect to this Amendment and
Restatement, will be true and correct.
SECTION 7. Assignment. (a) Section 1.1 of the Agreement is
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amended by adding the following new definition:
"Combined Commitment" means at any time with respect to each
Lender the sum of (x) such Lender's Commitment hereunder and (y) such
Lender's Receivables Commitment under the Receivables Purchase
Agreement.
(b) Section 9.6(c) of the Agreement is amended by amending
the second parenthetical therein to read as follows:
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(such portion to comprise a Combined Commitment of not less than
$5,000,000; provided that after giving effect to such assignment, (x)
the percentage of any Lender's Commitment hereunder be no less than
30% and no greater than 60% of its Combined Commitment and the
percentage of any Lender's Receivables Commitment under the
Receivables Purchase Agreement be no less than 40% and no greater than
70% of its Combined Commitment and (y) the Combined Commitment
retained by the assigning Lender shall be in an aggregate amount of
not less than $5,000,000)
(c) Section 9.6(c) of the Agreement is further amended by
deleting the clause ",which shall not be unreasonably withheld" which
appears immediately following the words "consent of the Borrower" and
inserting the clause ",which in each case shall not be unreasonably
withheld" after the words "the Administrative Agent and the L/C
Issuing Banks."
SECTION 8. Governing Law. This Amendment and Restatement
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shall be governed by and construed in accordance with the laws of the
State of New York.
SECTION 9. Counterparts; Effectiveness. This Amendment and
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Restatement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Amendment and
Restatement shall become effective as of the date (the "1998 Effective
Date", which must be not later than June 26, 1998) on which each of
the following conditions shall have been satisfied:
(i) receipt by the Administrative Agent of duly executed
counterparts hereof signed by each of the parties hereto (or,
in the case of any Lender as to which an executed counterpart
shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such
Lender of execution of a counterpart hereof by such Lender)
with the endorsed acknowledgment and agreement of each
Special Purpose Member, as provided on the signature pages
hereof;
(ii) receipt by the Administrative Agent of new Notes
for the Lenders;
(iii) receipt by the Administrative Agent of (x) a
certificate of the secretary or an assistant secretary of the
Borrower certifying as of the 1998 Effective Date (A) as to
no amendments to the certificate of incorporation of the
Borrower; (B) as to no liquidation or dissolution proceeding;
(C) as to the occurrence of the Xxxxxx Merger; and (D) a copy
of the By-laws of the Borrower; (y) the certificate of
incorporation of the Borrower certified as of a date
reasonably near the 1998 Effective Date by the Secretary
of
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State of the State of Delaware; and (z) a good standing
certificate for the Borrower issued by the Secretary of State
of the State of Delaware, dated a date reasonably near the
1998 Effective Date;
(iv) receipt by the Administrative Agent of an opinion
of the Assistant General Counsel of the Borrower (or such
other counsel for the Borrower as may be acceptable to the
Administrative Agent), dated the 1998 Effective Date and
substantially to the effect of paragraphs 1, 3, 5, and 7 of
Exhibit G to the Agreement with reference to this Amendment
and Restatement and the Agreement as amended and restated
hereby;
(v) The Borrower shall have paid to the Administrative
Agent, for the several accounts of the Lenders, such
participation fees as are set forth in the attached Schedule
I;
(vi) the Borrower shall have paid to the Administrative
Agent, for its own account as Administrative Agent and
Structuring and Collateral Agent and the account of X.X.
Xxxxxx Securities Inc. as Arranger, such fees as are agreed
to between the Borrower and the Administrative Agent in a
separate letter;
(vii) receipt by the Administrative Agent of a
certificate dated the 1998 Effective Date signed by the Chief
Financial Officer, Treasurer or Controller of the Borrower as
to the accuracy of the representations and warranties set
forth in Section 6 of this Amendment and Restatement; and
(viii) the Amendment and Restatement dated as of June
19, 1998 of the Receivables Purchase Agreement shall have
become, or concurrently shall become, effective.
The Administrative Agent shall promptly notify the Borrower
and the Lenders of the effectiveness of this Amendment and
Restatement, and such notice shall be conclusive and binding on all
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be duly executed by their respective
authorized officers as of the day and year first above written.
BETHLEHEM STEEL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
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Title: EVP, Chief Financial Officer
and Treasurer
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
ACKNOWLEDGED AND AGREED:
BETHLEHEM STEEL CREDIT AFFILIATE ONE, INC.
By /s/ Xxxx X. Xxxxxxxxxxx
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Title: Authorized Agent
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: X.X. Xxxxxxxx, President
BETHLEHEM STEEL CREDIT AFFILIATE TWO, INC.
By /s/ Xxxx X. Xxxxxxxxxxx
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Title: Authorized Agent
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: X.X. Xxxxxxxx, President
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent,
Structuring and Collateral Agent,
and L/C Issuing Bank
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone:
Facsimile:
Attention:
THE CHASE MANHATTAN BANK,
as L/C Issuing Bank
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., as L/C Issuing Bank
By: /s/ Xxxxxxx X. Xxxx
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Title: Deputy General Manager
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LENDERS:
Commitment: $34,666,666.67 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
Commitment: $28,166,666.67 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Title: Deputy General Manager
Commitment: $26,000,000.00 THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
Commitment: $21,666,666.67 CORESTATES BANK, N.A.
(Corestates Bank, N.A. has merged
into First Union National Bank)
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------
Title: Vice President
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Commitment: $21,666,666.67 THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
Commitment: $21,666,666.67 UNION BANK OF SWITZERLAND
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxx
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Title: Vice President
Structured Finance
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Managing Director
Commitment: $19,5000,000.00 THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxx XxXxxxxx
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Title: Corporate Banking Officer
Commitment: $17,333,333.33 BANK OF AMERICA NT & SA
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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Commitment: $17,333,333.33 NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
Commitment: $10,833,333.33 BANK AUSTRIA
AKTIENGESELLSCHAFT
By: /s/ J. Xxxxxxx Xxxx
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Title: First Vice Preisdent
Bank Austria, AG
By: /s/ X. Xxxxxx
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Title: Assistant Vice President
Commitment: $10,833,333.33 SUMMIT BANK
By: /s/ Xxxxx X. Xxxxxxx
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Title: Regional Vice President
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Commitment: $10,833,333.33 THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxx
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Title: Joint General Manager
Commitment: $10,833,333.33 WILMINGTON TRUST
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
Commitment: $8,666,666.67 THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Xxxx Xxxxx
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Title: Senior Vice President
TOTAL COMMITMENTS: $260,000,000
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