Exhibit 4.21
AMENDMENT NO. 5
TO
REVOLVING CREDIT, GUARANTY AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 ("Amendment") is entered into as of December
27, 1996, among NEWPORT STEEL CORPORATION, a corporation organized
under the laws of the State of Kentucky ("Newport"), XXXXXX STEEL
CORPORATION, a corporation organized under the laws of the State of
Pennsylvania ("Koppel"), and IMPERIAL ADHESIVES, INC., a corporation
organized under the laws of the State of Ohio (Imperial") (each of Newport,
Xxxxxx and Imperial a "Borrower" and, jointly and severally, the
"Borrowers"), NS GROUP, INC., a corporation organized under the laws of
the State of Kentucky ("Holdings"), ERLANGER TUBULAR CORPORATION, a
corporation organized under the laws of the State of Oklahoma
("Erlanger"), NORTHERN KENTUCKY AIR, INC., a corporation organized under
the laws of Kentucky ("Air"), NORTHERN KENTUCKY MANAGEMENT, INC., a
corporation organized under the laws of the State of Kentucky
("Management") (each of Holdings, Erlanger, Air and Management, a
"Guarantor" and, jointly and severally, the "Guarantors"), the undersigned
financial institutions and any financial institution that hereafter
becomes a lender under the Loan Agreement (as hereinafter defined)
(collectively, the "Lenders" and individually a "Lender"),
THE BANK OF NEW YORK COMMERCIAL CORPORATION (BNYCC), a
corporation organized under the laws of the State of New York, PNC BANK,
OHIO, NATIONAL ASSOCIATION ("PNC"), BNYCC and PNC as co-agents
for Lenders (BNYCC and PNC in such capacity, the "Co-Agents) and BNYCC
as administrative and collateral monitoring agent for the Lenders
(BNYCC, in such capacity, the "ACM Agent").
BACKGROUND
Borrowers, Guarantors and Lenders are parties to a
Revolving Credit, Guaranty and Security Agreement dated as
of July 28, 1995 (as the same has been amended by
Amendment No. 1 thereto, Amendment No. 2 thereto,
Amendment No. 3 thereto, and Amendment No. 4 thereto, and
as the same may further be amended, supplemented or
otherwise modified from time to time, the ("Loan
Agreement") pursuant to which Lenders provide Borrowers
with certain financial accommodations.
Borrowers have requested that Lenders increase the
sublimit for Letters of Credit and Lenders are willing to
do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or
advance or grant of credit heretofore or hereafter made to
or for the account of Borrowers by Lenders, and for other
good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties
hereto hereby agree as follows:
1. Definitions. All capitalized terms not
otherwise defined herein shall have the meanings given to
them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to
satisfaction of the conditions precedent set forth in
Section 3 below, the Loan Agreement is hereby amended as
follows:
(a) the following defined term is hereby added in
its appropriate alphabetical order
"Acceptances" shall have the meaning set forth in
Section 2.8 hereof.
(b) the following defined terms are hereby amended
in their entirety to provide as follows:
"Advances" shall mean and include the Revolving
Advances, Letters of Credit and Acceptances.
"Individual Formula Amount" shall mean at the
date of determination thereof, with respect to each
Borrower an amount equal to: (a) up to the Receivables
Advance Rate of Eligible Receivables of such Borrower,
plus (b) up to the Inventory Advance Rate of the value of
Eligible Inventory of such Borrower; minus (c) the
aggregate amount of Letters of Credit and Acceptances
issued, caused to be issued or created on behalf of such
Borrower minus (d) such reserves as ACM Agent may
reasonably deem proper and necessary from time to time.
"Individual Maximum Revolving Advance Amount" shall
mean (a) on the Closing Date, with respect to Newport,
$30,000,000, with respect to Xxxxxx, $20,250,000, and with
respect to Imperial $4,500,000 and (b) at such time as the
Maximum Revolving Amount is increased to $50,000,000, with
respect to Newport $30,000,000, with respect to Xxxxxx
$22,500,000 and with respect to Imperial $5,000,000.
"Revolving Advances" shall mean Advances made other
than Letters of Credit and Acceptances.
(c) Section 2.1(a)(iii) is hereby amended in its
entirety to provide as follows.
"(iii) the aggregate undrawn amount of outstanding
Letters of Credit and Acceptances minus"
(d) Sections 2.8 and 2.9(a) are hereby amended in
its entirety to provide as follows:
"2.8 Letters of Credit and Acceptances. Subject to
the terms and conditions hereof, the ACM Agent shall issue
or cause the issuance of Letters of Credit ("Letters of
Credit") on behalf of Newport or Xxxxxx or (b) accept, or
cause to be accepted, drafts on behalf of any Borrower
under such Letters of Credit ("Acceptances"), provided,
however, that the ACM Agent will not be required to issue
or cause to be issued any Letters of Credit or accept or
cause to be accepted any Acceptances to the extent that
the face amount of such Letters of Credit and Acceptances
would then cause the sum of (i) the outstanding Revolving
Advances, plus (ii) the outstanding Letters of Credit
(with the requested Letter of Credit being deemed to be
outstanding for purposes of this calculation), plus (iii)
outstanding Acceptances to exceed the lesser of (x) the
Maximum Revolving Advance Amount or (y) the Formula
Amount; provided, further, however, that ACM Agent will
hot be required to issue or cause to be issued any Letters
of Credit or accept or cause to be accepted any
Acceptances to the extent that the face amount of such
Letters of Credit and Acceptances issued for such Borrower
would then cause the sum of (i) the outstanding Revolving
Advances to such Borrower plus (ii) the outstanding
Letters of Credit issued or caused to be issued on behalf
of such Borrower (with the requested Letter of Credit
deemed to be outstanding for purposes of this calculation)
plus (iii) outstanding Acceptances created or caused to
be created for such Borrower to exceed the lesser of (x)
such Borrower's Individual Maximum Revolving Advance
Amount or (y) such Borrower's Individual Formula Amount
(assuming that (c) of the definition of Individual Formula
Amount is deemed to be $O). The maximum amount of
outstanding Letters of Credit and Acceptances shall not
exceed $30,000,000 for the benefit of Newport or
$2,000,000 for the benefit of Xxxxxx in the aggregate at
any time.
The maximum amount of all outstanding Letters of
Credit and Acceptances shall not exceed $30,000,000 in the
Aggregate at any time. All disbursements or payments
related to Letters of Credit and Acceptances shall be
deemed to be Revolving Advances and shall bear interest at
the Revolving Interest Rate with respect to Domestic Rate
Loans; Letters of Credit that have not been drawn upon and
unmatured Acceptances shall not bear interest. Letters of
Credit and Acceptances shall be subject to the terms and
conditions set forth in the Letter of Credit and Security
Agreement attached hereto as Exhibit 2.8.
2.9. Issuance of Letters of Credit and Acceptances.
(a) Borrowing Agent on behalf of Newport or Xxxxxx
may request ACM Agent to issue or cause the issuance of a
Letter of Credit or create an Acceptance by delivering to
ACM Agent at the Payment office, ACM Agent's standard form
of Letter of Credit and Security Agreement in the form
attached hereto as Exhibit 2.8, together with Bank's
standard form of Letter of Credit Application
(collectively, the "Letter of Credit Application")
completed to the satisfaction of ACM Agent; and such other
certificates, documents, and other papers and information
as ACM Agent may reasonably request."
(e) Sections 2.10(a), 2.10(b) and 2.10(c) are hereby
amended in their entirety to provide as follows:
2.10 Requirements For Issuance of Lettersof Credit
and Acceptances.
(a) In connection with the issuance of any Letter of
Credit or Acceptance, Borrowers shall indemnify, save and
hold ACM Agent and each Lender harmless from any loss,
cost, expense or liability, including, without limitation,
payments made by ACM Agent and any Lender, and expenses
and reasonable attorneys' fees incurred by ACM Agent or
any Lender arising out of, or in connection with, any
Letter of Credit or Acceptance to be issued or created for
Newport or Xxxxxx. Borrowers shall be bound by ACM
Agent's or any issuing or accepting bank's regulations and
good faith interpretations of any Letter of Credit or
Acceptance issued or created for its account, although
this interpretation may be different from its own; and,
neither ACM Agent nor any Lender, the bank which opened
the Letter of Credit or Acceptance, nor any of its
correspondents shall be liable for any error, negligence,
or mistakes, whether of omission or commission, in
following Borrowing Agent's or any Borrower's instructions
or those contained in any Letter of Credit or Acceptance
or of any modifications, amendments or supplements thereto
or in issuing or paying any Letter of Credit or
Acceptance, except for ACM Agent's or any Lender's or such
correspondents' gross (not mere) negligence or willful
misconduct.
(b) Borrowing Agent shall authorize and direct any
bank which issues a Letter of Credit to name the
applicable Borrower as the "Account Party" therein and to
deliver to ACM Agent all instruments, documents, and other
writings and property received by the bank pursuant to the
Letter of Credit or in connection with any Acceptance and
to accept and rely upon ACM Agent's instructions and
agreements with respect to all matters arising in
connection with the Letter of Credit, Acceptance or the
application therefor.
(c) In connection with all Letters of Credit and
Acceptances issued or caused to be issued and Acceptances
created or caused to be created by ACM Agent under this
Agreement, each Borrower hereby appoints ACM Agent, or its
designee, as its attorney, with full power and authority
(i) to sign and/or endorse such Borrower's name upon any
warehouse or other receipts, letter of credit applications
and acceptances; (ii) to sign such Borrower's name on
bills of lading; (iii) to clear Inventory through the
United States of America Customs Department ("Customs") in
the name of such Borrower or ACM Agent or ACM Agent's
designee, and to sign and deliver to Customs officials
powers of attorney in the name of such Borrower for such
purpose; and (iv) to complete in such Borrower's name or
ACM Agent's name, or in the name of ACM Agent's designee,
any order, sale or transaction, obtain the necessary
documents in connection therewith, and collect the
proceeds thereof. Neither ACM Agent nor its attorneys
will be liable for any acts or omissions nor for any error
of judgment or mistakes of fact or law, except for ACM
Agent's or its attorneys gross (not mere) negligence or
willful misconduct. This power, being coupled with an
interest, is irrevocable as long as any Letters of Credit
or Acceptances remain outstanding."
(f) The first paragraph of Section 3.2 is hereby
amended in its entirety to provide as follows:
"Borrowers shall pay ACM Agent (i) for the ratable
benefit of Lenders for issuing or causing the issuance of
a Letter of Credit or for creating or causing to be
created an Acceptance, a fee computed at a rate per annum
of two and three quarters percent (2.75%) on the
outstanding amount thereof from time to time, ("Letter of
Credit Fees"), and (ii) Bank's other customary charges
payable in connection with Letters of Credit and
Acceptances, as in effect from time to time (which charges
shall be furnished to Borrowing Agent by ACM Agent upon
request). Such fees and charges shall be payable (i) in
the case of any Letter of Credit or any Acceptance, on its
opening or creation (ii) in the case of a standby Letter
of Credit, (A) monthly thereafter in advance and (B) upon
each increase in the outstanding amount thereof, and (iii)
in the case of any Letter of Credit that is not a standby
Letter of Credit, at the time of each increase in face
amount thereof. Any such charge in effect at the time of
a particular transaction shall be the charge for that
transaction, notwithstanding any subsequent change in
Bank's prevailing charges for that type of transaction.
All Letter of Credit Fees payable hereunder shall be
deemed earned in full on the date when the same are due
and payable hereunder and shall not be subject to rebate
or proration upon the termination of this Agreement for
any reason."
3. Conditions of Effectiveness. This Amendment
shall become effective as of December 27, 1996, when and
only when ACM Agent shall have received (i) six (6) copies
of this Amendment executed by Borrowers and Guarantors and
(ii) such other certificates, instruments, documents,
agreements and opinions of counsel as may be required by
ACM Agent or its counsel, each of which shall be in form
and substance satisfactory to ACM Agent and its counsel..
4. Representations and Warranties. Borrowers and Guarantors
hereby represent and warrant as follows:
(a) This Amendment and the Loan Agreement,amended
hereby, constitute legal, valid and binding obligations of
Borrowers and Guarantors and are enforceable against
Borrowers and Guarantors in accordance with their
respective terms.
(b) Upon the effectiveness of this Amendment,
Borrowers and Guarantors hereby reaffirm all covenants,
representations and warranties made in the Loan Agreement
to the extent the same are not amended hereby and agree
that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective
date of this Amendment.
(c) No Event of Default or Default has occurred and
is continuing or would exist after giving effect to this
Amendment.
(d) Neither any Borrower or any Guarantor has any
defense, counterclaim or offset with respect to the Loan
Agreement.
5. Effect on the Loan Agreement
(a) Upon the effectiveness of Section 2 hereof,
each reference in the Loan Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Loan
Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement, and All other documents, instruments and
agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right,
power or remedy of ACM Agent or Lenders, nor constitute a
waiver of any provision of the Loan Agreement, or any
other documents, instruments or agreements executed and/or
delivered under or in connection therewith.
6. Governing Law. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and
their respective successors and assigns and shall be
governed by and construed in accordance with the laws of
the State of New York.
7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and
shall not constitute a part of this Amendment for any
other purpose.
8. Counterparts. This Amendment may be executed by
the parties hereto in one or more counterparts, each of
which shall be deemed an original and all of which taken
together shall be deemed to constitute one and the same
agreement.
IN WITNESS WHEREOF, this Amendment has been duly
executed as of the day and year first written above.
NEWPORT STEEL CORPORATION
XXXXXX STEEL CORPORATION
IMPERIAL ADHESIVES, INC.
NS GROUP, INC.
ERLANGER TUBULAR CORPORATION
NORTHERN KENTUCKY AIR, INC.
NORTHERN KENTUCKY MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Title: Treasurer of each
of the foregoing
Corporations
THE BANK OF NEW YORK COMMERCIAL CORPORATION, as Lender, as
Co-Agent and as ACM Agent
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, OHIO, NATIONAL
ASSOCIATION, as Lender and as
Co-Agent
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
