Exhibit 4.3
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FIFTH AMENDMENT
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF APRIL 18, 1997
BY AND AMONG
NIAGARA LASALLE CORPORATION
(FORMERLY NIAGARA COLD DRAWN CORP.),
LASALLE STEEL COMPANY
AND
MANUFACTURERS AND TRADERS TRUST COMPANY,
CIBC INC.
AND
NATIONAL CITY BANK
AND
MANUFACTURERS AND TRADERS TRUST COMPANY, AS AGENT
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Effective as of May 21, 1999
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WHEREAS, NIAGARA LASALLE CORPORATION (formerly NIAGARA COLD
DRAWN CORP.), a Delaware corporation, having its principal office at 000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx ("NCDC"), LASALLE STEEL COMPANY, a
Delaware corporation, having its principal office at 0000 000xx Xxxxxx,
Xxxxxxx, Xxxxxxx ("LaSalle") (NCDC and LaSalle being collectively referred
to as the "Borrowers", and individually as a "Borrower"), MANUFACTURERS AND
TRADERS TRUST COMPANY, a New York banking corporation having its principal
office at One M&T Plaza, Buffalo, New York ("M&T"), CIBC INC., a Delaware
banking corporation having its principal office at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx ("CIBC") and NATIONAL CITY BANK, a national banking
association having its principal office at National City Center, 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx ("National"), and M&T, as administrative,
collateral and documentation agent (M&T to be referred to in such capacity
as "Agent"), are parties to a Revolving Credit and Term Loan Agreement
dated as of April 18, 1997 (the "Original Agreement"); and
WHEREAS, THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey mutual insurance company having an office at One Gateway Center,
Newark, New Jersey ("Prudential") and THE NATIONAL BANK OF CANADA, a
Canadian chartered bank having a domestic branch at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx ("NBC"), became parties to the Original Agreement by
assignment of portions of the credit commitments of various parties thereto
(M&T, CIBC, National, Prudential and NBC being collectively referred to
herein as the "Banks", and individually as a "Bank"); and
WHEREAS, the Borrowers, the Banks and the Agent amended the
Original Agreement with a First Amendment dated as of September 4, 1997
(the "First Amendment") for the purpose, among other things, of providing
"Swingline Loans" (as described in the First Amendment) under the credit
facilities provided in the Original Agreement; and
WHEREAS, the Borrowers, the Banks and the Agent amended the
Original Agreement with a Second Amendment dated as of December 31, 1997
(the "Second Amendment") for the purpose, among other things, of permitting
the Borrowers to apply the "1993 Warrant Forced Exercise Net Proceeds
Amount" to the repayment of the outstanding and unpaid principal amount of
the "Revolving Credit Note" (as such terms are defined in the Original
Agreement), and to revise the terms of the Original Agreement with respect
to dividends; and
WHEREAS, the Borrowers, the Banks and the Agent amended the
Original Agreement with a Third Amendment effective as of May 15, 1998 (the
"Third Amendment") for the purpose, among other things, of reducing the
interest payable with respect to "LIBOR Rate Loans" (as defined in the
Original Agreement), and to provide for the further reduction of the
interest payable with respect to LIBOR Rate Loans upon the conclusion of a
new collective bargaining agreement with LaSalle's hourly employees in
Hammond, Indiana; and
WHEREAS, the Borrowers, the Banks and the Agent amended the
Original Agreement with a Fourth Amendment effective as of December 1, 1998
(the "Fourth Amendment") (the Original Agreement together with the First
Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment to be collectively referred to as the "Credit Agreement") for the
purpose, among other things, of increasing by One Million Dollars
($1,000,000) the amount of permitted "Capital Expenditures" (as defined in
the Credit Agreement) that may be made by the Borrowers in any "Fiscal
Year" (as defined in the Credit Agreement); and
WHEREAS, the Borrowers have requested the Agents and the Banks
to amend certain provisions of the Credit Agreement to, among other things,
(a) waive the requirement for mandatory repayment of principal from "Excess
Cash Flow" (as defined in the Credit Agreement) for the Fiscal Year ended
December 31, 1998, and (b) in connection with a proposed business
acquisition by a UK subsidiary of Niagara Corporation, permit the Borrowers
to provide guarantys to certain banks providing standby letters of credit
to support acquisition financing to such UK subsidiary.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Notwithstanding the provisions of Subsection 2.2(c) of the
Credit Agreement, the Borrowers shall not be required to pay to the Agent,
and the Borrowers shall be permitted to retain, the amount required
pursuant to the terms of Subsection 2.2(c) of the Credit Agreement to be
applied as a mandatory principal repayment from Excess Cash Flow for the
Fiscal Year ended December 31, 1998, and the non-payment of such amount to
the Agent shall not be deemed to be an Event or Default under the terms of
the Credit Agreement; provided, however, the foregoing shall not serve to
amend, alter or otherwise change any other provision of the Credit
Agreement, nor shall it be deemed to act as a waiver or abridgment by Agent
or any Bank of any of its or their respective rights or powers under the
terms of the Credit Agreement.
2. A new item 11 shall be added to Schedule 3.9 to the Credit
Agreement to read as follows:
"11. Pursuant to general security agreements by and between
each of the Borrowers and M&T, the Borrowers shall permit a Lien on
the respective assets of the Borrowers as described therein (the "2d
Lien"), which 2d Lien shall secure the respective guarantys of the
Borrowers to M&T described in item 6 of Schedule 6.7 of the Credit
Agreement. The 2d Lien shall be subject to, and subordinate in
priority to, the Liens granted to the Agent pursuant to the Security
Agreements."
3. The last sentence of Subsection 5.14 shall be deleted in
its entirety and replaced with the following:
"Additionally, the Borrowers represent and covenant that the
proceeds of the Revolving Credit Loan not used pursuant to the
preceding sentence shall be used (i) to fund the general working
capital purposes of the Borrowers and their Subsidiaries, (ii) to the
extent permitted by the terms of Subsection 6.10(h) hereof, fund the
amount of any loan made by the Borrowers to Niagara", or (iii) to the
extent permitted by the terms of Subsection 6.12(b) hereof, to fund
repayment to Niagara of amounts applied by Niagara as Excess Warrant
Proceeds to repay the outstanding and unpaid principal amount of the
Revolving Credit Note or to prepay the outstanding and unpaid
principal amount of the Term Loan Note pursuant to Subsection 2.11
hereof.
4. A new item 6 shall be added to Schedule 6.7 of the Credit
to read as follows:
"6. Pursuant to unconditional continuing guaranty agreements by
and between each of the Borrowers and M&T, the Borrowers shall
guaranty the obligations of Niagara LaSalle (UK) Limited to M&T under
one or more Letter of Credit Applications and Letter of Credit
Reimbursement Agreements providing for the issuance of one or more
standby letters of credit by M&T for the account of Niagara LaSalle
(UK) Limited and for the benefit of National Westminster Bank PLC in
a maximum aggregate principal amount equal to Thirty Million pounds
sterling ((pound)30,000,000), plus interest, costs and expenses
(collectively, the "UK Standby Letters of Credit")."
5. The conjunction "and" ending Subsection 6.10(f) shall be
deleted, and the period ending Subsection 6.10(g) shall be deleted and
shall be replaced with the ending "; and".
6. A new Subsection 6.10(h) shall be added as follows:
"(h) one or more unsecured demand loans to Niagara in an
aggregate amount on any date not to exceed an amount (in U.S.
Dollars) equal to Five Million British Pounds Sterling ((pound)
5,000,000) based on the Agent's selling rate of exchange for
British Pounds Sterling on such date.
7. The conjunction "or" at the end of Subsection 7.1(j) shall
be deleted and the period ending Subsection 7.1(k) shall be deleted and
shall be replaced with the ending "; or".
8. A new Subsection 7.1(l) shall be added to Subsection 7.1 as
follows:
"l. Any UK Standby Letter of Credit shall be drawn against
by the beneficiary thereof in any amount."
9. A new sentence shall be added to the end of Subsection 8.1
as follows:
"Notwithstanding the foregoing, the Agent shall not be required
or authorized to execute, deliver or consent to any amendment, change
or modification of the provisions of Section 6.12 hereof effective
after May 21, 1999 without the unanimous prior consent and
instruction of the Banks."
10. This Fifth Amendment shall be effective as of May 21, 1999.
11. All capitalized terms used herein, unless otherwise defined
herein, have the same meaning provided therefor in the Credit Agreement.
12. The amendments set forth herein are limited precisely as
written and shall not be deemed to (a) be a consent to or a waiver of any
other term or condition of the Credit Agreement or any of the documents
referred to therein, or (b) prejudice any right or rights which the Agent
or any Bank may now have or may have in the future under or in connection
with the Credit Agreement or any documents referred to therein. Whenever
the Credit Agreement is referred to in the Credit Agreement or in any of
the instruments, agreements or other documents or papers executed and
delivered in connection therewith, it shall be deemed to mean the Credit
Agreement as modified by this Fifth Amendment.
13. The Borrowers hereby represent and warrant, jointly and
severally, that upon giving effect to the terms and provisions of this
Fifth Amendment no default or Event of Default shall have occurred and be
continuing under the terms of the Credit Agreement.
14. This Fifth Amendment may be executed by one or more of the
parties to this Fifth Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be duly executed and delivered by their respective duly
authorized officers.
NIAGARA LASALLE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
LASALLE STEEL COMPANY
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
CIBC INC.
By: /s/ Xxxxxxx Xxxxxx Xx.
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Name: Xxxxxxx Xxxxxx Xx.
Title: Executive Director
NATIONAL CITY BANK
By:________________________________
Name:
Title:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:________________________________
Name:
Title:
THE NATIONAL BANK OF CANADA
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President and Manager
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY, AS AGENT
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
ACKNOWLEDGMENT
By executing below, Niagara Corporation hereby consents and
agrees to the terms and conditions contained herein and hereby reaffirms
its obligations and liabilities pursuant to the terms of the Unconditional
and Continuing Guaranty Agreement by and between Niagara Corporation and
Manufacturers and Traders Trust Company, as Agent dated as of April 18,
1997:
NIAGARA CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
