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AMENDMENT NO. 4 TO LOAN AGREEMENT
AND
AMENDMENT NO. 1 TO REVOLVING CREDIT SECURITY AGREEMENT
AMENDMENT, dated as of December 1, 1997, among GS TECHNOLOGIES
OPERATING CO., INC., a Delaware corporation ("GSTOC"), and its direct and
indirect Subsidiaries, CI (U.S.) CORP. (formerly Control International, Inc.), a
Utah corporation ("CII"), GEORGETOWN STEEL CORPORATION, a Delaware corporation
("GSC"), and FLORIDA WIRE AND CABLE, INC., a Delaware corporation ("FWCC"),
(GSTOC, CII, GSC and FWCC, individually a "Borrower", and collectively
"Borrowers"), the Lenders (as defined herein), MELLON BANK, N.A., a national
banking association ("Mellon") as documentation agent for the Lenders (Mellon,
in such capacity, being "Documentation Agent"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation ("GE Capital"), as agent for the Lenders (GE
Capital, in such capacity, being "Agent").
Borrowers, Agent, Documentation Agent and Lenders are parties to a Loan
Agreement, dated as of October 5, 1995, as amended by Amendment No. 1 to Loan
Agreement dated July 8, 1996, Amendment No. 2 to Loan Agreement dated as of
December 20, 1996, and Amendment No. 3 to Loan Agreement dated as of March 18,
1997 (the "Loan Agreement"). Pursuant to the Loan Agreement, Borrowers executed
and delivered a certain Revolving Credit Security Agreement in favor of Agent
dated as of October 5, 1995 (the "Revolving Credit Security Agreement").
Borrowers, Agent, Documentation Agent and the Lenders desire to amend the Loan
Agreement and the Revolving Credit Security Agreement in certain respects and,
accordingly, Borrowers, Agent, Documentation Agent and Lenders agree as follows:
1. DEFINITIONS. Except as otherwise provided herein, the terms
defined in the Loan Agreement are used herein as defined therein.
2. AMENDMENTS TO PERMIT COMMODITY PRICE PROTECTION AGREEMENTS.
Effective as of the date hereof, the following amendments shall be made to the
Loan Agreements and the Revolving Credit Security Agreement:
(a) The following definition is inserted in Section 1 of the Loan
Agreement immediately following the definition of "Commission":
"COMMODITY PRICE PROTECTION AGREEMENT" shall mean any
commodity price protection agreement (including, without
limitation, commodity price swaps, futures, options, caps,
floors, collars and similar agreements), and/or other types of
commodity price hedging agreements with respect to raw
materials that are used by any of the Borrowers or their
Subsidiaries or the DRI Entity in the production of steel rod,
wire rod, grinding media and/or direct reduced iron, to
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or under which any Borrower or any Subsidiary of a Borrower is
or becomes a party or a beneficiary.
(b) The definition of "Indebtedness" in Section 1 of the Loan
Agreement is hereby amended by deleting the word "and" at the end of item (e),
replacing the period at end of item (f) with a semicolon and inserting the word
"and" after the semicolon, and inserting immediately after item (f) a new item
(g) as follows:
(g) all obligations or liabilities under Permitted Commodity
Price Protection Agreements.
(c) The definition of "Obligations" in Section 1 of the Loan
Agreement is hereby amended and restated as follows:
"OBLIGATIONS" shall mean all loans, advances, letter of credit
reimbursement obligations, obligations and liabilities under
Permitted Commodity Price Protection Agreements, debts,
liabilities, and obligations for monetary amounts (whether or
not such amounts are liquidated or determinable) owing by any
or all Borrowers or any or all of their Subsidiaries or all of
them to Lenders or Agent or L/C Issuer, and all covenants and
duties regarding such amounts, of any kind or nature, present
or future, whether or not evidenced by any note, agreement or
other instrument, arising under any of the Loan Documents or
any Permitted Commodity Price Protection Agreement. This term
includes, without limitation, all interest, the Financing Fee,
charges, expenses, attorneys' fees and any other sum
chargeable to Borrowers or any or all of their Subsidiaries
under any of the Loan Documents.
(d) The following definition is inserted in Section 1 of the Loan
Agreement immediately following the definition of "PBGC":
"PCPPA SECURED AMOUNT" shall mean, at any time, the stated secured
amount under an outstanding Permitted Commodity Price Protection
Agreement, which amount shall be mutually agreed upon by the applicable
Revolving Credit Lender and the Borrower or a Subsidiary of Borrower,
and acknowledged in writing by Agent, and which amount is secured by
the Revolving Credit Collateral pursuant to the Revolving Credit
Security Agreement.
(e) The following definition is inserted in Section 1 of the Loan
Agreement immediately following the definition of "Permanent Advance":
"PERMITTED COMMODITY PRICE PROTECTION AGREEMENT" of any Person
shall mean any Commodity Price Protection Agreement (i)
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entered into with one or more of the Revolving Credit Lenders
acting as the financial institution provider(s), (ii) for
which the applicable Borrower or Subsidiary has received the
prior written consent of the Agent, (iii) which is unsecured
or, if secured, the amount of the obligations thereunder which
are secured is limited to a stated amount (the "PCPPA Secured
Amount") and such secured obligations are only secured by a
Lien on the Revolving Credit Collateral pursuant to the
Revolving Credit Security Agreement, and (iv) for which the
Agent has established a reserve against the Revolving Credit
Loan in an amount equal to the PCPPA Secured Amount.
(f) Section 2.15 of the Loan Agreement is hereby amended and
restated as follows:
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Term Loans or the Revolving
Credit Loan made by it, or on account of a Permitted Commodity
Price Protection Agreement provided by it, in excess of its
ratable share of payments on account of the Term Loans or the
Revolving Credit Loan made by all Lenders, or the Permitted
Commodity Price Protection Agreements provided by all Lenders,
such Lender shall forthwith purchase from each other Lender
such participations in the Term Loans or the Revolving Credit
Loan, or in the Permitted Commodity Price Protection
Agreement, as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each other
Lender; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total
amount so recovered. Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to
this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if
such Lender were the direct creditor of Borrowers in the
amount of such participation.
(g) Section 2.16 of the Loan Agreement is hereby amended by
amending and restating the third sentence thereof as follows:
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In the absence of a specific determination by Agent and
Lenders with respect thereto, the same shall be applied in the
following order: (i) then due and payable fees and expenses;
(ii) then due and payable interest payments on the Revolving
Credit Loan and the Term Loans; (iii) then due and payable
principal payments on the Revolving Credit Loan and the Term
Loans; and (iv) then due and payable obligations under
Permitted Commodity Price Protection Agreements; provided that
payments arising out of the Revolving Credit Collateral shall
be first applied to then due and payable interest and
principal payments on the Revolving Credit Loan and to other
Revolving Credit Obligations and then to then due and payable
obligations under Permitted Commodity Price Protection
Agreements (up to but not exceeding the PCPPA Secured Amount),
and payments arising out of the Term Loan Collateral shall be
first applied to then due and payable interest and principal
payments on the Term Loans and to other Term Loan Obligations.
(h) Section 7.3(a) of the Loan Agreement is hereby amended by
deleting "and (xii)" in Line 21 thereof and inserting the following in lieu
thereof:
"(xii) Indebtedness pursuant to any Permitted Commodity Price
Protection Agreement, and (xiii)"
(i) Section 7.9 of the Loan Agreement is hereby amended by
deleting the word "and" at the end of subsection (f), replacing the period at
the end of subsection (g) with a semicolon and inserting the word "and" after
the semicolon, and inserting immediately after subsection 7.9(g) a new
subsection (h) as follows:
(h) Liens on the Revolving Credit Collateral in connection
with any Permitted Commodity Price Protection Agreement.
(i) The definition of "Secured Obligations" in the Revolving
Credit Security Agreement is amended and restated as follows:
"Secured Obligations" shall mean (i) all of the unpaid
principal amount of, and accrued interest on, the Revolving
Credit Notes, (ii) all commitment and other fees owing by
Grantors under the Loan Agreement to Revolving Credit Lenders
and Agent, (iii) all other Revolving Credit Obligations owing
from Grantors to Revolving Credit Lenders, Agent or any of
them, and (iv) all other Indebtedness, liabilities and
obligations of Grantors to Revolving Credit Lenders and Agent,
whether now existing or hereafter incurred, and whether
created under, arising out of or in connection with the Loan
Agreement, this Security Agreement, any of the other Loan
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Documents or otherwise, including any PCPPA Secured Amounts
but excluding any other obligations under any Permitted
Commodity Price Protection Agreement, and excluding the Term
Loan Obligations.
3. AMENDMENT TO DEFINITION OF ELIGIBLE ACCOUNTS RECEIVABLE.
Effective as of the date hereof, the definition of "Eligible Accounts Receivable
in Section 1 of the Loan Agreement is hereby amended by deleting subparagraph
(j) thereof and inserting the following in lieu thereof:
"(i) the sale represented by such Account Receivable is on
terms longer than 45 days, as to an Account Receivable billed
on standard terms of payment, or 60 days as to an Account
Receivable billed on dating terms of payment by FWCC, or 120
days as to an Account Receivable billed on dating terms of
payment by any other Borrower, provided that Accounts
Receivable billed on dating terms of payment by FWCC shall be
limited to $5,000,000, and by GSTOC shall be limited to
$3,000,000, and by GSC shall be limited to $3,000,000, and by
any other Borrower shall be limited to $1,000,000."
4. DECREASE IN CONSOLIDATED NET WORTH REQUIREMENT. Effective as
of the date hereof, Section 6.3 of the Loan Agreement is hereby amended by
deleting subparagraph (d) thereof and inserting the following in lieu thereof:
"(d) at the end of each Fiscal Quarter, a Consolidated Net
Worth of not less than $22,500,000."
5. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES. Borrowers
hereby confirm that the representations and warranties of Borrowers contained in
the Loan Documents were correct in all material respects as to Borrowers and
their Subsidiaries taken as a whole on and as of October 5, 1995, and that such
representations and warranties are correct as to Borrowers and their
Subsidiaries taken as a whole on the date hereof, except (i) to the extent that
any such representation or warranty expressly relates to an earlier date, and
(ii) for changes resulting from transactions contemplated or permitted by the
Loan Documents and changes occurring in the ordinary course of business that in
the aggregate are not materially adverse.
6. NO DEFAULT. Borrowers represent and warrant that no Default or
Event of Default exists as of the date hereof.
7. MISCELLANEOUS. The Loan Agreement is, and shall be, in full
force and effect and is hereby ratified and confirmed in all respects except
that on and after the date of this Amendment No. 4 (i) all references in the
Loan Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words of
like import referring to the Loan Agreement shall mean the Loan Agreement as
amended by this Amendment No. 4, and (ii) all references in the other Loan
Documents to the "Loan Agreement", "thereto", "thereof", "thereunder" or words
of like import referring to the Loan
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Agreement shall mean the Loan Agreement as amended by this Amendment No. 4. The
execution, delivery and effectiveness of this Amendment No. 4 shall not, except
as expressly provided herein, operate as a waiver of any right, power or remedy
of the Agent or any Lender under the Loan Agreement or any other Loan Document,
nor constitute a waiver of any provision of the Loan Agreement or any other Loan
Document. This Amendment No. 4 and the obligations arising hereunder shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Illinois applicable to contracts made and performed in such state,
without regard to the principles thereof regarding conflict of laws, and any
applicable laws of the United States of America.
8. COUNTERPARTS. This Amendment No. 4 may be executed in any
number of separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
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IN WITNESS WHEREOF, this Amendment No. 4 has been duly executed of the date
first written above.
GS TECHNOLOGIES OPERATING CO., INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President & Chief Financial
Officer
CI (U.S.) CORP. (FORMERLY CONTROL INTERNATIONAL, INC.)
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
GEORGETOWN STEEL CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
FLORIDA WIRE AND CABLE, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
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Agreed to and accepted as of the date first above written.
GENERAL ELECTRIC CAPITAL MELLON BANK, N.A., as Documentation
CORPORATION, as Agent and Lender Agent and Lender
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Name: Xxxxxx X. Xxxxxx
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Title: Title: Assistant Vice President
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NATIONSBANK, N.A., as Lender PILGRIM AMERICA PRIME RATE
TRUST, as Lender
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx Tiffen
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Name: Xxxx X. Xxxxxxxx Name: Xxxxxx Tiffen
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Title: Vice President Title: FVP
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THE FIRST NATIONAL BANK OF CHICAGO, as Lender PNC BANK, NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxx X. XxXxxxxx By: /s/ Xxxxxx Briris
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Name: Xxxx X. XxXxxxxx Name: Xxxxxx Briris
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Title: Vice President Title: Executive Vice President
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LASALLE NATIONAL BANK, as Lender XXXXXX TRUST AND SAVINGS BANK, as Lender
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxxxx Name: Xxxx X. Xxxxxx
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Title: Assistant Vice President Title: Vice President
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SCOA PLANT FINANCING COMPANY, as Lender
By: Sumitomo Corporation of America,
General Partner
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Senior Vice President and
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General Manager
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