Exhibit 4-M
AMENDMENT NO. 3
TO
NATIONAL STEEL CREDIT AGREEMENT
AMENDMENT No. 3 (this "Amendment"), dated as of December 8, 2000, by and
among National Steel Corporation (the "Borrower"), the financial institutions
parties hereto (the "Consenting Lenders"), Citicorp USA, Inc., as agent for the
Lenders and Issuers under the Credit Agreement defined below (the
"Administrative Agent"), and The Fuji Bank, Limited as syndication agent for the
Lenders and Issuers under the Credit Agreement (defined below) (the "Syndication
Agent"), to that certain Credit Agreement dated as of November 19, 1999 by and
among the Borrower, the Administrative Agent, the Syndication Agent and the
financial institutions and other entities from time to time party thereto as a
Lender or Issuer (such Credit Agreement, as heretofore amended, the "Credit
Agreement"; capitalized terms used herein but not defined herein being used
herein as defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, the Borrower, the Consenting Lenders, the Administrative Agent and
the Syndication Agent are parties to the Credit Agreement and, as of the date
hereof, the Consenting Lenders collectively hold Commitments aggregating more
than sixty-six and two-thirds percent (66-2/3%) of the aggregate outstanding
amounts of the Commitments; and
WHEREAS, the parties hereto wish to amend the terms of the Credit Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
obligations herein set forth and other good and valuable consideration, the
adequacy and receipt of which is hereby acknowledged, and in reliance upon the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Amendments.
(a) Amendments to Article 1 (Definitions, Interpretations and
Accounting Terms). Article 1 of the Credit Agreement is hereby amended as
follows:
(1) the definition of "Cash Dominion Event" in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Cash Dominion Event" means (a) the occurrence of an Event of
Default, (b) the failure of the Combined Availability to exceed thirty
million Dollars ($30,000,000) or (c) the occurrence of a Reduced
Availability Period.
Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(2) a new definition of "Combined Availability" is hereby inserted in
Section 1.1 (Defined Terms) immediately prior to the definition of
"Commitment" to read as follows:
"Combined Availability" means, at any date, the sum of (i)
Available Credit at such date plus (ii) Receivables Availability at
such date plus (iii) the amount of all cash and Cash Equivalents
deposited in the account of the Borrower, No. 0000000, at Mellon Bank,
N.A. or at any other investment accounts summarized in writing to the
Administrative Agent either prior to December 8, 2000 or as updated in
writing thereafter.
(3) the definition of "EBITDA" in Section 1.1 (Defined Terms) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"EBITDA" means, with respect to any Person for any period, an
amount equal to (a) Consolidated Net Income of such Person for such
period plus (b) the sum of, in each case to the extent included in the
calculation of Consolidated Net Income of such Person for such period
in accordance with GAAP, but without duplication, (i) any provision
for income taxes, (ii) Interest Expense, (iii) loss from extraordinary
items, (iv) depreciation, depletion and amortization of intangibles or
financing or acquisition costs, (v) all other non-cash charges and
non-cash losses for such period, including the amount of any
compensation deduction as the result of any grant of Stock or Stock
Equivalents to employees, officers, directors or consultants and (vi)
the excess, if any, of pension expenses over actual cash contributions
to pension plans (in accordance with Statement of Financial Accounting
Standards No. 87 (Employers' Accounting for Pensions) of the Financial
Accounting Standards Board) minus (c) the sum of, in each case to the
extent included in the calculation of Consolidated Net Income of such
Person for such period in accordance with GAAP, but without
duplication, (i) any credit for income tax, (ii) gains from
extraordinary items for such period, (iii) any aggregate net gain (but
not any aggregate net loss) from the sale, exchange or other
disposition of capital assets by such Person, (iv) any other non-cash
gains which have been added in determining Consolidated Net Income,
(v) cash payments in respect of employee or retiree benefits (but only
to the extent not reflected in Consolidated Net Income in accordance
with Statement of Financial Accounting Standards No. 106 (Employer's
Accounting for Postretirement Benefits Other than Pensions) of the
Financial Accounting Standards Board) and (vi) the excess, if any, of
actual cash contributions to pension plans over pension expenses (in
accordance with Statement of Financial Accounting Standards No. 87
(Employers' Accounting for Pensions) of the Financial Accounting
Standards Board).
(4) new definitions of "EG Lease Agreement," "EG Line", "EG Line
Financing" and "EG Line Subsidiary" are hereby inserted in this order in
Section 1.1 (Defined Terms) of the Credit Agreement immediately prior to
the definition of "Eligibility Reserves" to read as follows:
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
"EG Lease Agreement" means the Amended and Restated Lease
Agreement, dated as of December 20, 1985, between the Borrower and
Wilmington Trust Company, as amended as of November 1, 2000.
"EG Line" means the electrolytic-galvanizing line servicing the
facilities of the Borrower in Ecorse, Michigan and subject to the EG
Lease Agreement, or a replacement financing arrangement with the EG
Line Subsidiary on terms at least as favorable to the EG Line
Subsidiary on an annual cash basis as those of the EG Lease Agreement
were to the Borrower.
"EG Line Financing" has the meaning specified in Section 5.3(a)
(Capital Expenditures).
"EG Line Subsidiary" means the Subsidiary of the Borrower (a)
that is wholly-owned and controlled by the Borrower, (b) the sole
business of which is owning and operating the EG Line and (c) the sole
assets of which are the EG Line and other assets used directly in
relation to the ownership or operation thereof.
(5) a new definition of "Gross Receivables Availability" is hereby
inserted in Section 1.1 (Defined Terms) of the Credit Agreement immediately
prior to the definition of "Guarantor" to read as follows:
"Gross Receivables Availability" means, at any date, the sum of
(a) Receivables Availability at such date, plus (b) the undrawn amount
of any outstanding letters of credit issued under the Receivables
Purchase Agreement at such date plus (c) the principal amount
outstanding as of such date of the accounts receivables sold to the
participating financial institutions pursuant to the Receivables
Purchase Agreement.
(6) the definition of "Material Subsidiary" in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Material Subsidiary" means (a) the Guarantor, (b) NSFC and the
EG Line Subsidiary (when formed) and (c) any Subsidiary of the
Borrower other than (i) the Guarantor, NSFC and the EG Line Subsidiary
(when formed), (ii) any Subsidiary of the Borrower listed on Schedule
1.1 (Non-Material Subsidiaries) as long as the book value of the total
assets of such Subsidiary does not exceed the figure set forth
opposite such subsidiary on Schedule 1.1 by more than ten million
Dollars ($10,000,000) and (iii) any Subsidiary of the Borrower that
has total assets with a book value not in excess of ten million
Dollars ($10,000,000).
(7) a new definition of "Reduced Availability Period" is hereby
inserted in Section 1.1 (Defined Terms) of the Credit Agreement immediately
prior to the definition of "Refinancing" to read as follows:
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
"Reduced Availability Period" means any period for which (a) at
the end of the last preceding Quarter, the Borrower did not maintain
the Leverage Ratio required by Section 5.1(a) (Leverage Ratio) for
such Quarter and (b) during such period, the Combined Availability
does not exceed seventy-five million Dollars ($75,000,000) for four
(4) or more consecutive Business Days. For the avoidance of doubt, it
is understood and agreed that two Business Days shall be considered to
be consecutive if one immediately follows the other or if such
Business Days are separated solely by days that are not Business Days.
(b) Amendment to Article III (Conditions Precedent to the
Effectiveness of this Agreement and to Loans and Letters of Credit).
Article III of the Credit Agreement is hereby amended as follows:
(1) A new clause (f) is hereby inserted immediately after clause (e)
in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) of
the Credit Agreement (and accordingly the word "and" at the end of clause
(d) thereof is hereby deleted and the period at the end of clause (e)
thereof is hereby replaced by the expression "; and") to read in its
entirety as follows:
(f) Reduced Availability Period. The date of the making of such
Loan or issuance shall not occur during a Reduced Availability Period.
(c) Amendments to Article IV (Representations and Warranties). Article
IV of the Credit Agreement is hereby amended as follows:
(1) Section 4.3(a) (Accuracy of Financial Statements) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(a) Accuracy of Financial Statements. The consolidated balance
sheets of the Borrower and its Subsidiaries as at December 31, 1999
(the "Balance Sheet Date") and December 31, 1998, and the related
consolidated statements of income, retained earnings and cash flows of
the Borrower and its Subsidiaries for the Years then ended, certified
by Ernst & Young, LLP, and the consolidated balance sheets of the
Borrower and its Subsidiaries as at September 30, 2000, and the
related consolidated statements of income, retained earnings and cash
flows of the Borrower and its Subsidiaries for the nine (9) months
then ended, certified by a Responsible Officer of the Borrower, copies
of which have been furnished to each Lender, fairly present, subject,
in the case of said balance sheets as at September 30, 2000, and said
statements of income, retained earnings and cash flows for the nine
(9) months then ended, to the absence of footnote disclosure and
normal recurring year-end audit adjustments, the consolidated
financial condition of the Borrower and its Subsidiaries as at such
dates and the consolidated results of the operations of the Borrower
and its Subsidiaries for the period ended on such dates, all in
conformity with GAAP.
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(2) Section 4.8 (Ownership of the Material Subsidiaries) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
Section 4.8. Ownership of the Material Subsidiaries. Set forth on
Schedule 4.8 (Material Subsidiaries) is a true, complete and accurate
list showing all Material Subsidiaries of the Borrower and, as to each
such Material Subsidiary (if formed), the jurisdiction of its
incorporation, the number of shares of each class of Stock authorized,
the number outstanding on the date hereof and the percentage of the
outstanding shares of each such class owned (directly or indirectly)
by the Borrower and any other Stock and Stock Equivalents of such
Material Subsidiary. All of the outstanding Stock of each Material
Subsidiary of the Borrower (other than that of the EG Line Subsidiary
if not formed) has been validly issued, is fully paid and
non-assessable and is owned by the Borrower or a Material Subsidiary
of the Borrower free and clear of all Liens and Encumbrances (other
than the Lien in favor of the Secured Parties created pursuant to the
Security Agreement and the Pledge Agreement). Neither the Borrower nor
any such Material Subsidiary is a party to, or has knowledge of, any
Contractual Obligation restricting the transfer or hypothecation of
any Stock or Stock Equivalent of any such Material Subsidiary, other
than the Loan Documents. The Borrower does not own or hold, directly
or indirectly, any Securities of any Person other than such
Subsidiaries and Investments permitted by Section 8.8 (Investments in
Other Persons). There are no Material Subsidiaries other than the
Guarantor, NSFC and, when formed, the EG Line Subsidiary.
(3) a new Section 4.24 (Reduced Availability Period) is hereby added
to the Credit Agreement to read in its entirety as follows:
Section 4.24. Reduced Availability Period. After November 1,
2000, no date for the making of a Loan or the issuance of a Letter of
Credit occurs during a Reduced Availability Period.
(d) Amendments to Article V (Financial Covenants). Article V of the
Credit Agreement is hereby amended as follows:
(1) Section 5.1 (Leverage Ratio) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Section 5.1 Leverage Ratio. (a) The Borrower will maintain either
(i) at the end of each Quarter during the years set forth below, a
Leverage Ratio, in each case determined (x) in respect of Financial
Covenant Debt of the Borrower, on the last day of such Quarter and (y)
in respect of EBITDA of the Borrower, on the basis of the four
Quarters ending on the last day of such Quarter, not in excess of the
ratio set forth below for such Quarter:
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
For the
Quarter Ending on Maximum Ratio
----------------- -------------
December 31, 1999 4.50 to 1
March 31, 2000 4.50 to 1
June 30, 2000 4.50 to 1
September 30, 2000 4.50 to 1
December 31, 2000 4.25 to 1
March 31, 2001 4.25 to 1
June 30, 2001 4.25 to 1
September 30, 2001 4.25 to 1
December 31, 2001 4.00 to 1
; or
(ii) for each Business Day of each Quarter for which, at the end
of the immediately preceding Quarter, the Borrower did not maintain
the Leverage Ratio required under clause (i) above, a Combined
Availability in excess of fifty million Dollars ($50,000,000).
(b) The Borrower will maintain, at the end of each Quarter during
the years set forth below, a Leverage Ratio, in each case determined
(x) in respect of Financial Covenant Debt of the Borrower, on the last
day of such Quarter and (y) in respect of EBITDA of the Borrower, on
the basis of the four Quarters ending on the last day of such Quarter,
not in excess of the ratio set forth below for such Quarter:
For the
Quarter Ending on Maximum Ratio
----------------- -------------
March 31, 2002 4.00 to 1
June 30, 2002 4.00 to 1
September 30, 2002 4.00 to 1
December 31, 2002 4.00 to 1
March 31, 2003 4.00 to 1
June 30, 2003 4.00 to 1
September 30, 2003 4.00 to 1
December 31, 2003 4.00 to 1
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
March 31, 2004 4.00 to 1
June 30, 2004 4.00 to 1
September 30, 2004 4.00 to 1
(2) Section 5.2 (Minimum Interest Coverage Ratio) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
Section 5.2 Minimum Interest Coverage Ratio. The Borrower will
maintain at the end of each Quarter during the Years set forth below a
minimum Interest Coverage Ratio, in each case determined on the basis
of the four Quarters ending on the date of determination, not less
than the ratio set forth below for such Quarter:
Minimum Interest
For the Quarter Ending on Coverage Ratio
------------------------- --------------
December 31, 2000 0.50 to 1
March 31, 2001 0.01 to 1
June 30, 2001 0.05 to 1
September 30, 2001 0.60 to 1
December 31, 2001 1.25 to 1
March 31, 2002 2.35 to 1
June 30, 2002 2.35 to 1
September 30, 2002 2.35 to 1
December 31, 2002 2.45 to 1
March 31, 2003 2.45 to 1
June 30, 2003 2.45 to 1
September 30, 2003 2.55 to 1
December 31, 2003 2.55 to 1
March 31, 2004 2.55 to 1
June 30, 2004 2.55 to 1
September 30, 2004 2.55 to 1
-7-
Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(3) Section 5.3 (Capital Expenditures) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
Section 5.3 Capital Expenditures. The Borrower will not permit
any Capital Expenditures to be made during each of the periods set
forth below, to be in excess of the maximum amount set forth below:
Maximum Amount of
Period Capital Expenditures
------ --------------------
Five Succeeding Fiscal Quarters $ 175,000,000
ending December 31, 2001
Year Beginning on January 1, 2002 $ 115,000,000
Year Beginning on January 1, 2003 $ 135,000,000
Year Beginning on January 1, 2004 $ 125,000,000
; provided, however, that,
(a) Capital Expenditures attributable to the purchase by the
Borrower or the Guarantor of property being, at the time of such
purchase, leased to the Borrower or the Guarantor under an operating
lease shall be excluded from all of the foregoing limitations if the
consideration for such purchase is not more than the Fair Market Value
of such property and the aggregate consideration for all such
purchases does not exceed one hundred million Dollars ($100,000,000);
provided, further, that Capital Expenditures attributable to the EG
Line financing arrangement in an aggregate amount not to exceed
forty-three million Dollars ($43,000,000) shall be excluded from all
of the foregoing limitations, as long as such Capital Expenditures
shall be financed through the EG Lease Agreement or a replacement
financing arrangement with the EG Line Subsidiary in an aggregate
amount not to exceed forty-three million Dollars ($43,000,000)
(collectively, the "EG Line Financing") on terms at least as favorable
to the EG Line Subsidiary on an annual cash basis as those of the EG
Lease Agreement were to the Borrower, and shall comply with the terms
of the Indenture;
(b) to the extent that actual Capital Expenditures for any Year
shall be less than the maximum amount set forth in the chart above for
such Year, the difference between such stated maximum amount and such
actual Capital Expenditures up to seventy-five percent (75%) such
stated maximum amount shall increase the maximum permissible Capital
Expenditures that would have otherwise been authorized hereunder in
the next succeeding Year (and in such succeeding Year, the Capital
Expenditures actually made shall be applied first to reduce the
carryover permitted by this proviso); and
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(c) commencing in the Year 2002, the amount of maximum
permissible Capital Expenditures in any Year as set forth in the chart
above shall be increased by an amount equal to the difference between
(i) two-thirds (2/3rd) of the excess, if any, of (A) the sum of the
EBITDA of the Borrower in all previous Years commencing in the Year
2000 (as calculated from the audited Financial Statements for such
previous Years) over (B) the sum of the EBITDA of the Borrower
reflected in the Projections delivered to the Lenders on September 30,
1999 (without considering any updates thereto) for all such previous
Years and (ii) the aggregate of all Capital Expenditures made pursuant
to this proviso.
(4) A new Section 5.4 (Borrowing Base) is added to the Credit
Agreement immediately after Section 5.3 (Capital Expenditures) thereof to
read in its entirety as follows:
Section 5.4 Borrowing Base. The Borrower shall at all times maintain a
Borrowing Base in excess of two hundred and fifty million Dollars
($250,000,000).
(e) Amendment to Article VI (Reporting Covenants). Article VI of the Credit
Agreement is hereby amended as follows:
(1) A new clause (a) is inserted in Section 6.1(Financial Statements)
of the Credit Agreement immediately prior to the existing clause (a) to
read in its entirety as follows (and such existing clause (a) and the
following clauses in such Section 6.1 are hereby renumbered accordingly
clauses (b), (c) and the following, and references to such clauses
individually (but not to the entire Section 6.1) in the Loan Documents are
hereby modified accordingly to refer to such clauses as so renumbered):
(a) Monthly Reports. As soon as available and in any event within
thirty (30) days after the end of each fiscal month in each Year
(other than any fiscal month ending on the last day of any Quarter),
consolidated and consolidating unaudited balance sheets of the
Borrower and its Subsidiaries as of the close of such month and
consolidated and consolidating statements of income, retained earnings
and cash flow of the Borrower and its Subsidiaries for such month and
that portion of the current Year ending as of the close of such month,
in each case prepared in accordance with GAAP (subject to the absence
of footnote disclosure and normal recurring year-end audit
adjustments) together with (i) a statement by a Responsible Officer of
the Borrower that such financial information presents fairly in
accordance with GAAP (subject to the absence of footnote disclosure
and normal recurring year-end adjustments) the financial position,
results of operations and statements of cash flow of the Borrower and
its Subsidiaries, on both a consolidated and consolidating basis, as
at the end of such month and for the period then ended and (ii) a
certificate of such Responsible Officer stating that no Default or
Event of Default has occurred and is continuing or, if a Default or an
Event of Default has occurred and is continuing, a statement as to the
nature thereof and the action which the Borrower proposes to take with
respect thereto;
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(f) Amendments to Article VII (Affirmative Covenants). Article
VII of the Credit Agreement is hereby amended as follows:
(1) clause (b) (Sharp Decreases in Borrowing Base or Other
Liquidity) of Section 7.13 (Borrowing Base Determination) of the
Credit Agreement is hereby amended and restated in its entirety
to read as follows:
(b) Sharp Decreases in Borrowing Base or Other
Liquidity. The Borrower shall promptly notify the
Administrative Agent in writing in the event that at any
time the Borrower or any of its Material Subsidiaries
receives or otherwise gains knowledge that (i) the Borrowing
Base is less than ninety (90%) of the Borrowing Base
reflected in the most recent Borrowing Base Certificate
delivered pursuant to Section 6.1(e) (Borrowing Base
Certificate), (ii) a Borrowing Base Deficiency exists as a
result of a decrease in the Borrowing Base (in which case
such notice shall include the amount of such deficiency) or
(iii) there has been a decrease of more than fifteen percent
(15%) in the Gross Receivables Availability from the amount
last reported to the Administrative Agent by the Borrower.
(2) a new Section 7.16 (EG Line Subsidiary) is hereby
inserted in the Credit Agreement immediately after Section 7.15
(Accounting Changes; Year) to read in its entirety as follows:
Section 7.16. EG Line Subsidiary. The Borrower shall
cause the EG Line Subsidiary to at all times (a) conduct no
business other than owning and operating the EG Line (and
other business directly related thereto) and (b) own or
lease no assets other than the EG Line and other assets
directly used in relation to the ownership or operation
thereof.
(g) Amendments to Article VIII (Negative Covenants). Article VIII
of the Credit Agreement is hereby amended as follows:
(1) clause (b) of Section 8.1 (Liens) of the Credit
Agreement is hereby amended and restated in its entirety to read
as follows:
(b) Liens securing Indebtedness permitted under Section
8.2(g) and Liens on the EG Line securing Indebtedness in
respect of the EG Line Financing in an amount not to exceed
forty-three million Dollars ($43,000,000) in the aggregate;
(2) Section 8.2(e) is hereby amended by deleting in its entirety the
reference to "Schedule 4.22" replacing such reference by a reference to
"Schedule 4.21."
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(3) Section 8.3 (Guaranty Obligations) is hereby amended and restated
in its entirety to read as follows:
Section 8.3 Guaranty Obligations. The Borrower will not, and will
not permit any of its Subsidiaries to, incur, assume, endorse, be or
become liable for, guaranty (whether directly or indirectly) or permit
or suffer to exist, any Guaranty Obligation, except for (a) Guaranty
Obligations evidenced by a Loan Document, (b) Guaranty Obligations
incurred by the Borrower or the Guarantor in respect of Indebtedness
of the Borrower or the Guarantor permitted by Section 8.2
(Indebtedness) and (c) Guaranty Obligations incurred by the Borrower
to guaranty the obligations of the EG Line Subsidiary under the EG
Line Financing.
(4) Section 8.5 (Restricted Payments) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
Section 8.5. Restricted Payments. The Borrower will not, and will
not permit any of its Material Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any
Restricted Payment; provided, however, that any Material Subsidiary
may make Restricted Payments to the Borrower or the Guarantor;
provided, further, that, the Borrower and its Material Subsidiaries
may make any Restricted Payment permitted under Section 4.06
(Limitation on Restricted Payments) of the Indenture so long as (a)
the amount of all such Restricted Payments does not exceed fifty
million Dollars ($50,000,000) in the aggregate, (b) such Restricted
Payment is not made during a Cash Dominion Period and (c) after giving
effect to any such Restricted Payment, the Combined Availability is
greater than seventy-five million Dollars ($75,000,000); and,
provided, further, that, notwithstanding the foregoing, the Borrower
will not, and will not permit any of its Material Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum
for any Restricted Payment if the Borrower is not in compliance with
the financial covenants that were set forth in this Agreement as in
effect immediately prior to the effectiveness of Amendment No. 3 to
this Agreement, such compliance being determined solely by using the
amounts set forth in the latest Compliance Certificate furnished to
the Administrative Agent pursuant to Section 6.1(a) (Quarterly
Financial Statements and Compliance Certificates).
(5) Section 8.6 (Restriction on Fundamental Changes) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
Section 8.6 Restriction on Fundamental Changes. The Borrower will
not, and will not permit any of its Material Subsidiaries to, (i)
merge with any Person other than a wholly-owned Material Subsidiary of
the Borrower, provided, however, that neither the Guarantor nor the EG
Line Subsidiary shall merge with any other Person, (ii) consolidate
with any Person, (iii) acquire all or substantially all of the Stock
or Stock Equivalents of any Person or (iv) acquire all or
substantially all of the assets of any Person or all or substantially
all of the assets constituting the business of a division, branch or
other unit operation of any Person; provided, however, that the
Borrower shall
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
be authorized to consummate any transaction described in clauses (i)
through (iv) and the Guarantor shall be authorized to consummate any
transaction described in clauses (ii) through (iv), in each case to
the extent the Stock, Stock Equivalents and assets that are acquired
do not have in the aggregate a Fair Market Value of more than fifty
million Dollars ($50,000,000) per Year and, in the case of any
transaction described in clause (i) involving the Borrower, the
surviving corporation is the Borrower.
(6) clause (c) of Section 8.8 (Investments in Other Persons) of the
Credit Agreement is hereby amended and restated its entirety to read as
follows:
(c) Investments in Subsidiaries existing as of the Closing Date,
any Investment in the Guarantor, Investments resulting from any
transaction permitted under Section 8.6 (Restriction on Fundamental
Changes) and Investments in the EG Line Subsidiary consisting of the
EG Line and other assets in an aggregate amount not to exceed one
million Dollars ($1,000,000);
(7) Section 8.17 (Material Subsidiaries) of the Credit Agreement is
hereby amended and restated its entirety to read as follows:
Section 8.17. Material Subsidiaries. The Borrower will not have
any Subsidiary other than the Guarantor, NSFC and the EG Line
Subsidiary (when formed) that is a Material Subsidiary. The Borrower
will not permit the sum of (a) the aggregate of the amounts by which
the book value of the total assets of each Subsidiary listed in
Section 1.1 (Non-Material Subsidiaries) exceeds the amount set forth
opposite such Subsidiary in such Schedule plus (b) the aggregate book
value of all assets of all Subsidiaries of the Borrower (other than
the Guarantor, NSFC, the EG Line Subsidiary and such Subsidiaries
listed on Schedule 1.1) to exceed ten million Dollars ($10,000,000).
(h) Amendment to Schedules.
(1) Schedule III (Applicable Margins and Fees) of the Credit
Agreement is hereby replaced in its entirety by Exhibit A hereto.
(2) Schedule 4.8 (Material Subsidiaries) of the Credit
Agreement is hereby replaced in its entirety by Exhibit B hereto.
Section 2. Material Adverse Change.
(a) Copies of the consolidated balance sheet of the Borrower and its
Subsidiaries as at September 30, 2000, and the related consolidated statements
of income, retained earnings and cash flows of the Borrower and its Subsidiaries
for the nine (9) months then ended, certified by a Responsible Officer of the
Borrower (the "September 2000 Financial Statements"), have been furnished to
each Lender.
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
(b) The Borrower hereby represents and warrants that such September 2000
Financial Statements fairly present, subject to the absence of footnote
disclosure and normal recurring year-end audit adjustments, the consolidated
financial condition of the Borrower and its Subsidiaries as at such dates and
the consolidated results of the operations of the Borrower and its Subsidiaries
for the period ended on such dates, all in conformity with GAAP.
(c) The Lenders acknowledge and agree, based solely on the information set
forth in such September 2000 Financial Statements, that they do not believe any
such information is enough in itself and without any further developments to
constitute a Material Adverse Change under the Credit Agreement.
Section 3. Conditions of Effectiveness. This Amendment No. 3 shall become
effective when, and only when, the Administrative Agent shall have received:
(a) copies of this Amendment duly executed by the Borrower and Lenders
constituting Super Majority Lenders;
(b) a favorable opinion of Yukevich, Marchetti, Liekar & Xxxxxxxxx, P.C.,
counsel to the Loan Parties;
(c) the consolidated balance sheets of the Borrower and its Subsidiaries as
at September 30, 2000, and the related consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for the
nine (9) months then ended, certified by a Responsible Officer of the Borrower;
(d) for the account of each Lender having executed this Amendment No. 3 and
for which the Administrative Agent shall have received by 5:00 P.M. (New York
City time) on December 8, 2000 an executed signature page, an amendment fee in
the amount of ?th of a percent of such Lender's Commitment (whether or not
utilized); and
(e) payment for all costs, expenses and fees due and owing under any Loan
Document.
Section 4. Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent and each Lender that this Amendment has
been duly authorized, executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms. After giving effect to this Amendment No.
3, each of the representations and warranties set forth in Article IV
(Representations and Warranties) of the Credit Agreement is true and correct on
and as of the date hereof, and no Default or Event of Default has occurred and
is continuing.
Section 5. Reference to the Effect on the Loan Documents.
(a) Upon the effectiveness of this Amendment No. 3, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof,"
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Amendment No. 3 to Credit Agreement
National Steel Corporation
Citicorp USA, Inc.
"herein," or words of like import, and each reference in the other Loan
Documents to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as specifically amended herein, the Credit Agreement and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment No. 3 shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
Section 6. Guarantor Consent. The Guarantor hereby consents to, and agrees
to be bound by, the terms of the Credit Agreement as amended hereby.
Section 7. Execution in Counterparts. This Amendment No. 3 may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which taken together shall constitute but one and the
same instrument.
Section 8. Governing Law. This Amendment No. 3 shall be governed by and
construed in accordance with the law of the State of New York.
Section 9. Headings. Section headings in this Amendment No. 3 are included
herein for convenience of reference only and shall not constitute a part of this
Amendment No. 3 for any other purpose.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers and general partners thereunto duly
authorized, as of the date first above written.
NATIONAL STEEL CORPORATION
By:
------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By:
------------------------------
Name:
Title:
THE FUJI BANK, LIMITED,
as Syndication Agent
By:
------------------------------
Name:
Title:
CITIBANK, N.A.,
as Issuer
By:
------------------------------
Name:
Title:
[SIGNATURE PAGE FOR AMENDMENT 3 TO THE CREDIT AGREEMENT]
Lenders:
BANK OF AMERICA, N.A.
By:
------------------------------
Name:
Title:
CITICORP USA, INC.
By:
------------------------------
Name:
Title:
COMERICA BANK
By:
------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:
------------------------------
Name:
Title:
LASALLE BUSINESS CREDIT, INC.
By:
------------------------------
Name:
Title:
[SIGNATURE PAGE FOR AMENDMENT 3 TO THE CREDIT AGREEMENT]
MELLON BANK, N.A.
By:
------------------------------
Name:
Title:
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By:
------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
------------------------------
Name:
Title:
[SIGNATURE PAGE FOR AMENDMENT 3 TO THE CREDIT AGREEMENT]
Consented to, Acknowledged and Agreed as of
December 8, 2000
NATIONAL STEEL PELLET COMPANY,
as Guarantor
By:
------------------------------
Name:
Title:
[SIGNATURE PAGE FOR AMENDMENT 3 TO THE CREDIT AGREEMENT]
