THIS AMENDMENT NO. 2 TO MASTER AGREEMENT (the "Amendment") is
dated as of this __ day of August 1999, by and between JOHNSTOWN INDUSTRIAL
DEVELOPMENT CORPORATION, a nonprofit corporation organized and existing under
the laws of the Commonwealth of Pennsylvania and an industrial development
agency certified by PIDA ("JIDC"), the COUNTY OF CAMBRIA, a county of the fourth
class under the laws of Pennsylvania ("Cambria County"), the CITY OF JOHNSTOWN,
a home rule city of the third class organized and existing under its home rule
charter (the "City of Johnstown") (JIDC, Cambria County, and the City of
Johnstown collectively, the "Assistance Entities"), and REPUBLIC TECHNOLOGIES
INTERNATIONAL, LLC, a Delaware limited liability company (the "Borrower").
ARTICLE I
BACKGROUND
1.01. The Assistance Entities, together with the COMMONWEALTH
OF PENNSYLVANIA, acting by and through the DEPARTMENT OF COMMERCE ("Commerce'),
THE COMMONWEALTH OF PENNSYLVANIA acting by and through the DEPARTMENT OF
COMMUNITY AFFAIRS ("DCA"), THE PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY, a
body corporate and politic and an agency and instrumentality of the Commonwealth
of Pennsylvania (`PIDA"), are parties to a Master Agreement dated July 18, 1994,
as amended by Amendment No.1 thereto dated September 21, 1994 (such agreement,
as so amended, the "original Master Agreement"), providing for the acquisition
and subsequent modernization, by a Delaware corporation then named BRW STEEL
CORPORATION and subsequently renamed BAR TECHNOLOGIES, INC. authorized to carry
on business as a foreign corporation (such corporation, "BarTech"), of certain
facilities in
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Cambria County, Pennsylvania formerly owned by Bethlehem Steel Corporation and
comprising a portion of its Bar, Rod and Wire Division and for financial
assistance to BarTech by the Assistance Entities for a portion of the cost of
such acquisition and modernization.
1.02. In connection with a recapitalization of and a change in
control in BarTech effected April 2, 1996, BarTech and certain of the Assistance
Entities entered into a letter agreement dated March __,1996, providing for
amendment of certain of the terms and conditions of the original Master
Agreement (the "1996 Letter Agreement"), a true and correct copy of which is
attached as Exhibit A hereto.
1.03. Subsequent to the 1996 Letter Agreement, BarTech has
requested and the Assistance Entities have agreed to certain additional changes
to the Original Master Agreement, as set forth in a letter from Xxxx X.
Xxxxxxxx, Deputy Chief Counsel of the Commonwealth of Pennsylvania Department of
Community and Economic Development to BarTech dated October 31,1997 (the "1997
Letter Agreement"), a true and correct copy of which is attached as Exhibit B
hereto.
1.04. As of the date hereof, the following events are taking
place, pursuant to a Master Restructuring Agreement dated ________,1999, a true
and correct copy of which, exclusive of exhibits, schedules and appendices, is
attached as Exhibit C-1 hereto (the "Master Restructuring Agreement"), and as
described in a Consent Information Memorandum dated July __, 1999, a true and
correct copy of which is attached as Exhibit C-2 hereto: (a) the Facility is
being acquired by the Borrower named herein, (b) the PIDA Loans and the Sunny
Day Loan (each as defined in the Master Agreement) are being prepaid in full,
(c) the Assistance Entities whose loans are not being prepaid in full are
consenting to the placement of additional senior and superior liens on the
Facility Real Property and Facility Equipment, pursuant to an Amended and
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Restated Intercreditor and Subordination Agreement of even date herewith between
and among the Borrower, the Assistance Entities, United States Trust Company of
New York, as Collateral Agent, United States Trust Company of New York, as
Trustee (the "Trustee"), BankBoston, N.A., as Agent (the "Agent"), Republic
Technologies International Holdings, LLC, a Delaware limited liability company
("Holdings"), RTI Capital Corp., a Delaware corporation, Bliss & Xxxxxxxx LLC, a
Delaware limited liability company ("Bliss LLC"), Canadian Drawn Steel Company,
a Canadian corporation, Nimishillen & Tuscarawas, LLC, a Delaware limited
liability company ("N&T") and certain other parties thereto (the "Intercreditor
Agreement"), (d) the ECP Loan is being closed, (e) all payments of principal and
interest on the BID Loan and CDBG Loans required under the respective notes
therefor to be paid on or before the date hereof are being made as of the date
hereof to the extent not made previously, notwithstanding any prior waiver or
deferral agreement by the Assistance Entities or any of them with respect
thereto; (f) the terms of the EDP Loans, the BID Loan, the CDBG Loan and the
Section 108 Loans (as defined in the Section 108 Loan Agreement dated as of July
20, 1994, as amended, between and among Cambria County, the City of Johnstown,
BarTech, and "BRW Steel Corporation--Johnstown", a former subsidiary of BarTech
subsequently merged into BarTech (such agreement, the "Section 108 Loan
Agreement", and such loans, the "Section 108 Loans") (the EDP Loans, the BID
Loan, the CDBG Loans and the Section 108 Loans collectively, the "Loans") are
being assumed by the Borrower and amended and restated as set forth in Amended
and Restated Loan Agreements and Amended and Restated Notes being executed and
delivered by the Borrower concurrently herewith, and (g) BarTech is being
released from is obligations in respect of the Loans.
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1.05. In light of the foregoing, the Assistance Entities and
the Borrower wish to enter into this Amendment No. 2 to the Master Agreement to
reflect the changes described herein and to confirm the amendments, waivers and
payment deferrals referred to in the 1996 Letter Agreement and 1997 Letter
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE II
AMENDMENTS TO ORIGINAL MASTER AGREEMENT
Section 2.01. Substitution of Borrower for BarTech. On the
date hereof, Borrower will assume all the obligations, responsibilities and
liabilities of BarTech in respect of the Loans, and each of Holdings, Bliss LLC,
and N&T (the "Guarantors") will guarantee and act as surety for such
obligations. Subject to this assumption by the Borrower and guarantee by the
Guarantors, the Assistance Entities will release and discharge BarTech from all
obligations in respect of the Loans, and BarTech will release and discharge the
Assistance Entities from any and all obligations to it. The parties hereto agree
that any reference to "Borrower" in the Master Agreement shall mean the Borrower
as defined in this Amendment.
Section 2.02. Closing on ECP Loan. Borrower, the Guarantors
and the City of Johnstown will execute and deliver the Loan Agreement, Note and
Guaranty for the ECP Loan in substantially the form attached as Exhibits X-0,
X-0 and D-3 hereto; subject to such execution and delivery by the Borrower and
the Guarantors, the City of Johnstown will disburse the proceeds of the ECP Loan
to the Borrower on the date hereof.
Section 2.03. Repayment Sunny Day Loans: Payment of
Arrearages. On the date hereof, Borrower will repay the full outstanding
principal and interest balances of the PIDA and
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Sunny Day Loans by wire transfer to the Commonwealth of Pennsylvania as directed
by the Commonwealth of Pennsylvania. On the date hereof, Borrower will pay to
JIDC an aggregate amount equal to the difference between the sum of all
scheduled payments of principal and interest due to be made under the BID Note
as originally in effect (without giving effect to any deferral of principal or
interest payments heretofore granted) and the sum of all such payments actually
made through the date hereof. On the date hereof, Borrower will pay to Cambria
County an aggregate amount equal to the difference between the sum of all
scheduled payments of principal and interest due to be made under the CDBG Note
as originally in effect (without giving effect to any deferral of principal or
interest payments heretofore granted) and the sum of all such payments actually
made through the date hereof.
Section 2.04. Amended and Restated Loan Documents; Amendment
No. 2 to Section 108 Loan Agreement. The EDP Loans, CDBG Loans, and BID Loans
shall be amended and restated as set forth in Exhibits E-1 through E-_, F-1
through F-_, and G-1 through G-_ attached hereto. The Section 108 Loan Agreement
shall be amended as set forth in Amendment No. 2 to the Section 108 Loan
Agreement set forth as Exhibit H hereto.
Section 2.05. Appendix C: Appendix C to the original Master
Agreement is hereby restated and replaced in is entirety by the form of Appendix
C attached to this Amendment. All references in any of the Loan Documents to
"Appendix C to the Master Agreement" shall henceforth refer to Appendix C as
amended and restated herein.
To induce the Assistance Entities to consent to the
transactions occurring on the date hereof, including without limitation the
assumption of the Loans by Borrower and the release of BarTech, Borrower assumes
and repeats, as of the date of this Amendment, the representations and
warranties set forth in Appendix C to the Master Agreement.
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Section 2.06. Amended and Restated Appendix D. Except as
otherwise provided in this Amendment, Appendix D to the original Master
Agreement is hereby restated and replaced in its entirety by the form of
Appendix D attached to this Amendment. All references in any of the Loan
Documents to "Appendix D to the Master Agreement" shall henceforth refer to
Appendix D as amended and restated herein.
Section 2.07. Affirmation of 1997 Letter Agreement. Any other
provision of this Amendment notwithstanding, the Borrower accepts and agrees to
the 1997 Letter Agreement and to those provisions of the original Master
Agreement specifically amended or otherwise referred to in the 1997 Letter
Agreement. Without limiting the generality of the foregoing, Section D.1.5 of
the Original Master Agreement (as amended by the 1997 Letter Agreement) shall
remain unchanged and shall not be amended hereby.
Section 2.08. Fulfillment of Financing Obligations. Borrower
acknowledges that, upon receipt by the Borrower of the proceeds of the ECP Loan
as described in section 2.02 hereof, the Assistance Entities, Commerce, PIDA and
DCA shall have fulfilled in all respects their obligations to provide funds
under the Master Agreement.
Section 2.09. Collateral. The Collateral for the Loans shall
be as set forth in Section 4.2 of the Intercreditor Agreement.
Section 2.10. Release of Lower Works Property and Separation
of Utilities. The Assistance Entities acknowledge the cooperation of BarTech in
preparing for the donation of the property known as the "Lower Works" to one or
more of the Assistance Entities for purposes of industrial redevelopment and
historic preservation, including without limitation the incurrence by BarTech of
significant expense for separation of utilities and improvement of access to the
Lower Works site. Borrower pledges to use its best reasonable efforts to
complete the donation of the
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Lower Works in a timely fashion and in connection therewith to carry out the
currently identified projects for access and separation of utilities. The
parties hereto agree that any reference to the "Facility" in the Master
Agreement shall henceforth be deemed not to refer to the Lower Works.
ARTICLE III
MISCELLANEOUS
Section 3.01. (a) References to Master Agreement. All
references in this instrument and in all other agreements, instruments and
documents executed and delivered by the parties hereto or any of them to the
Master Agreement shall be deemed to refer to the original Master Agreement as
further amended by this Amendment and as hereafter amended, supplemented or
otherwise modified pursuant to its terms.
(b) Upon execution and delivery of this instrument, each
reference in the Master Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in any document related
thereto or executed in connection therewith or herewith, shall mean and be a
reference to the Master Agreement as amended hereby and the Master Agreement and
this Amendment shall be read together and construed as one single instrument.
Section 3.02 Master Agreement Preserved. (a) Except as
expressly amended by this Agreement, the original Master Agreement and any
document related thereto or executed in connection therewith, shall remain in
full force and effect and are hereby ratified and confirmed.
(b) The Master Agreement, as defined in this Amendment to
include the amendments referred to herein, shall be automatically incorporated
by reference in all agreements, instruments and documents executed and delivered
by the parties hereto or any of
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them which incorporate the Master Agreement by reference therein, all of which
are expressly ratified and confirmed hereby.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any party under the Master Agreement or any
document related thereto or constitute a waiver of the Master Agreement or any
provision of any document related thereto.
Section 3.03. Defined Terms. All capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Master
Agreement, or, if not defined in the Master Agreement, in the Intercreditor
Agreement.
Section 3.04. Address for Notices. For purposes of the Master
Agreement and the Loan Documents, notices to the Borrower shall be addressed to
the following address, or to such other address as Borrower may direct in a
notice to the Assistance Entities:
REPUBLIC TECHNOLOGIES INTERNATIONAL LLC
0000 Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx Xxxxxxx
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed by their duly authorized officers as of the day and year first
above written.
THE CITY OF JOHNSTOWN
By:
-------------------------------- -------------------------------------
City Clerk City Manager
ATTEST: JOHNSTOWN INDUSTRIAL DEVELOPMENT
CORPORATION
By:
-------------------------------- -------------------------------------
County Clerk Title: President
ATTEST: THE COUNTY OF CAMBRIA
By:
-------------------------------- -------------------------------------
County Clerk President Commissioner
ATTEST: REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC.
By:
-------------------------------- -------------------------------------
Title:
(COMPANY SEAL)
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ACKNOWLEDGEMENT BY THE COMMONWEALTH OF PENNSYLVANIA
The Commonwealth of Pennsylvania, Acting by and through its
Department of Community and Economic Development (formerly known as the
Department of Commerce), on its own behalf and as successor to the Commonwealth
of Pennsylvania Acting by and through the Department of Community Affairs,
hereby acknowledges and consents to the execution and delivery by the Assistance
Entities of this Amendment No. 2 to Master Agreement.
THE COMMONWEALTH OF PENNSYLVANIA, Acting by and
through its DEPARTMENT OF COMMUNITY AND ECONOMIC
DEVELOPMENT
By:
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Xxxxx X. Xxxxx, Deputy Secretary
By:
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Xxxxx X. Xxxxx, Deputy Secretary
