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EXHIBIT 10.4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of January 18, 2001
(this "Third Amendment"), is among ROUGE INDUSTRIES, INC., a Delaware
corporation ("Holdings"), ROUGE STEEL COMPANY, a Delaware corporation (the
"Borrower"), the financial institutions party hereto (collectively with the
Agent (defined below), the "Banks") and BANK ONE, MICHIGAN, a Michigan banking
corporation, as agent for the Banks (in such capacity, the "Agent").
RECITALS
A. Holdings, the Borrower, the Agent and the Banks are parties to a
Credit Agreement dated as of December 16, 1997, as amended by the First
Amendment to Credit Agreement dated July 23, 1999, and as further amended by the
Second Amendment to Credit Agreement dated as of April 21, 2000 (as amended, and
as may be further amended, modified, or restated from time to time, the "Credit
Agreement").
B. Holdings and Borrower have informed Agent and the Banks that (i)
increases to its current Revolving Loan Commitments are necessary to meet
working capital requirements and (ii) amendments need to be made to the
financial covenants so that Borrower is not in default as of December 31, 2000.
C. On the date of this Third Amendment the outstanding principal amount
of the Obligations is $66,500,000.
D. Holdings and the Borrower desire to amend the Credit Agreement, and
the Agent and the Banks are willing to do so strictly in accordance with the
terms hereof and in consideration for the liens and security interests granted
by Borrower, Holdings, and QS Steel. Without such additional liens and security
interests Agent and the Banks would not enter into this Third Amendment.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1
AMENDMENT
Upon fulfillment of the conditions set forth in Article III
hereof, the Credit Agreement is amended as follows:
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1.1 The following definitions either replace existing definitions or
are added to Section 1 in the appropriate alphabetical order:
"Applicable Margin" means (i) with respect to Base
Rate Loans, 1.50% and from and after July 1, 2001, 2.00% and
(ii) with respect to LIBOR Loans and the Letter of Credit fees
payable under Section 2A.4(b) 3.25%, and from and after July
1, 2001, 3.75% and (iii) with respect to the facility fees, 50
basis points.
"Borrowing Base" means the sum of (a) up to 75% of
the net amount of Eligible Accounts; (b) up to 50% of the
lesser of the cost or market value, or whatever other
reasonable valuation is set by Agent, of Eligible Raw Material
Inventory, and (c) up to 60% of the lesser of the cost or
market value, or whatever other reasonable valuation is set by
Agent, of Eligible Steel Products Inventory; provided that the
sum of all advances outstanding at any one time against the
collateral referred to in subparagraphs (b) and (c) may not
exceed $75,000,000. Agent may, at any time and from time to
time, in its reasonable discretion, reduce the percentage
advance rates against Eligible Accounts, Eligible Raw Material
Inventory, Eligible Steel Products Inventory or establish
reserves with respect to any of the foregoing
"Capital Expenditures" means all expenditures of
Holdings and its Subsidiaries on a consolidated basis for any
fixed assets or improvements, or for replacements,
substitutions or additions thereto, which have a useful life
of more than one year, including, but not limited to, the
direct or indirect acquisition of such assets by way of
increased product or service charges, offset items or
otherwise, including all expenditures under Capitalized
Leases, all determined in accordance with GAAP.
"Collateral Activity Report" is defined in Section
5.1(k).
"Eligible Accounts" means each of Borrower's accounts
listed on a Collateral Activity Report delivered to Agent that
Agent, in its reasonable discretion, determines to be an
Eligible Account. Without limiting the generality of the
immediately preceding sentence, unless otherwise determined in
writing by Agent and the Required Banks, no account will be an
Eligible Account unless it meets all of the following minimum
requirements:
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(a) The account is valued at its face amount and
represents a complete, bona fide transaction for Eligible
Steel Products Inventory sold, delivered, and accepted by the
account debtor (but excluding any amounts in the nature of a
service charge added to the amount due on an invoice because
the invoice has not been paid when due or any amounts due or
claimed to be due from the cancellation or termination of a
contract or agreement) that requires no further act under any
circumstances on the part of Borrower or any other person or
entity to make such account payable by the account debtor, and
the account arises from an arm's-length transaction in the
ordinary course of Borrower's business between Borrower and an
account debtor that is not an Affiliate of Borrower.
(b) The account is not unpaid more than 90 days from
the earlier of (A) the date on which the original invoice
rendered in connection with such account was issued and (B)
the date on which the Eligible Steel Products Inventory was
shipped to the account debtor or the services performed.
(c) The account is not owing from an account debtor
whose accounts are Tainted. "Tainted" means (A) that 35% or
more of the total accounts owing from a particular account
debtor are 90 days or more old from date of invoice or (B)
that 35% or more of the total accounts owing from a particular
account debtor are not Eligible Accounts for any reason.
(d) The goods the sale of which gave rise to the
account were shipped or delivered or provided to the account
debtor on an absolute and final sale basis and not on a xxxx
and hold sale basis, a consignment sale basis, a guaranteed
sale basis, a sale or return basis, or on the basis of any
other similar understanding, and no part of such goods have
been returned or rejected.
(e) The account is not evidenced by chattel paper or
an instrument of any kind.
(f) The account debtor with respect to the account
(A) is not insolvent, (B) is not the subject of any bankruptcy
or insolvency proceedings of any kind or of any other
proceeding or action, threatened or pending, which might have
a materially adverse effect on its business, and (C) is not,
in Agent's reasonable discretion, deemed ineligible for credit
for other reasons (including, without limitation,
unsatisfactory past experience of
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Borrower or Agent with the account debtor or unsatisfactory
reputation of the account debtor).
(g) The account debtor is located within the
continental United States of America.
(h) (A) The account debtor is not the government of
the United States of America, or any department, agency or
instrumentality thereof, or (B) if the account debtor is an
entity mentioned in the preceding clause, the Federal
Assignment of Claims Act (or applicable similar legislation)
has been fully complied with so as to validly perfect Agent's
first-priority security interest to Agent's satisfaction.
(i) The account is a valid, legally enforceable
obligation of the account debtor with respect thereto and is
not subject to any dispute, condition, contingency, set-off,
recoupment, reduction, claim for credit, allowance,
adjustment, counterclaim or defense on the part of such
account debtor, and no fact is known to Borrower that may
provide a basis for any of the foregoing in the present or
future.
(j) The account is subject to a first-priority
security interest in Agent's favor, and is not subject to any
other lien, claim, encumbrance, or security interest other
than as permitted by this Agreement or the other Loan
Documents.
(k) The account is evidenced by an invoice or other
documentation in form reasonably acceptable to Agent and
arises from a contract that is reasonably satisfactory in form
and substance to Agent.
(l) Borrower has observed and complied with (A) all
laws of the United States of America (including the Fair Labor
Standards Act) and (B) all laws of the state in which the
account debtor or the account is located which, if not
observed and complied with, would deny to Borrower access to
the courts of such state.
(m) No representation or warranty contained in this
Agreement, in any other Loan Document, or in any Collateral
Activity Report with respect to such account is inaccurate or
has been breached.
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(n) The account is not subject to any provision
prohibiting its assignment or requiring notice of or consent
to such assignment and is not a bonded account.
(o) The account does not represent any manufacturer's
or supplier's credits, discounts, incentive plans, or other
similar arrangements entitling Borrower to discounts on future
purchases.
(p) The Eligible Steel Products Inventory giving rise
to the account was not, at the time of sale thereof, subject
to any lien or encumbrance except in Agent's favor, and is not
subject to any other lien, claim, encumbrance, or security
interest other than as permitted by this Agreement or the
other Loan Documents.
(q) Agent has not notified Borrower that the account
or the account debtor is otherwise unsatisfactory.
(r) The account is payable in freely transferable
United States Dollars.
In addition to the foregoing requirements, accounts of any
account debtor that are otherwise qualified will be reduced to
the extent of (1) any accounts payable (including, without
limitation, Agent's good faith estimate of any contingent
liabilities) by Borrower to such account debtor ("Contras")
unless governed by the No Offset Agreement, and (2) that
portion of an account representing a retainage or holdback by
the account debtor; provided that Agent, in its sole
discretion may determine that none of the accounts in respect
of such account debtor are Eligible Accounts if Contras
represent 25% or more of the amount owing to Borrower from
such account debtor.
Any account that is at any time an Eligible Account
and that subsequently fails to meet any of the requirements
set forth above immediately ceases to be an Eligible Account
and must be removed from the Borrowing Base immediately.
"Eligible Raw Material Inventory" means that portion
of Borrower's inventory consisting of raw materials that is
listed on a Collateral Activity Report delivered to Agent that
Agent, in its reasonable discretion, determines to be Eligible
Raw Material Inventory. Without limiting the generality of the
immediately preceding sentence, unless otherwise determined in
writing by Agent and the Required Banks, no inventory will be
Eligible Raw
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Material Inventory unless it meets all the following minimum
requirements:
(a) The inventory has not been shipped, delivered,
provided to, purchased or sold by Borrower on a xxxx and hold,
consignment sale, guaranteed sale, or sale or return basis, or
any other similar basis or understanding.
(b) The inventory is located on premises listed on
Exhibit B-1 to the Third Amendment and no negotiable or
non-negotiable warehouse receipt, xxxx of lading or other
document of title that has not previously been delivered to
Agent (duly endorsed or naming Agent as consignee, as
applicable) has been issued for the inventory.
(c) No account has arisen with respect to such
inventory.
(d) The inventory has not been billed to a customer
on a "progress billing" basis.
(e) The inventory is valued at the lower of cost or
market, on a first-in-first-out basis.
(f) The inventory is in Borrower's possession.
(g) The inventory is not subject to any royalty,
copyright, trademark, tradename, or licensing arrangement, or
any law, rule, or regulation that could limit or impair
Agent's ability to exercise its rights with respect to such
inventory.
(h) If the inventory is located on premises not owned
by Borrower, the landlord or owner of such premises must have
waived its distraint, lien, and similar rights with respect to
such inventory and must have agreed in a written agreement
reasonably satisfactory to Agent (A) to give Agent notice of
any default by Borrower and the option to cure such default,
(B) to permit Agent to enter such premises to sell, repossess,
or remove the inventory at any time, and (C) to grant Agent
such other rights as Agent may reasonably request.
(i) The inventory is not packaging, labels, or
manuals.
(j) The inventory is not inactive or slow moving
inventory.
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(k) The inventory meets all standards imposed by any
governmental or agency, department, or division having
regulatory authority over such inventory or its use or sale
including, without limitation, standards set forth in the Fair
Labor Standards Act.
(l) No representation or warranty in this Agreement,
any other Loan Document, or any Collateral Activity Report is
inaccurate or has been breached with respect to such
inventory.
(m) The inventory is new, not obsolete, of good and
merchantable quality, and is readily salable.
(n) The inventory is subject to a first-priority lien
and security interest in Agent's favor and, except for
Permitted Liens, is not subject to any other lien or
encumbrance.
Any inventory that is at any time Eligible Raw Material
Inventory and that subsequently fails to meet any of the
requirements set forth above ceases to be Eligible Raw
Material Inventory immediately and must be removed from the
Borrowing Base immediately.
"Eligible Steel Products Inventory" means that
portion of Borrower's inventory consisting of finished steel
products located at Borrower's Xxxxxx Road premises (or other
premises in the continental United States that Agent and the
Required Banks agree to in their reasonable discretion)
intended by Borrower for sale that is listed on a Collateral
Activity Report delivered to Agent that Agent, in its
reasonable discretion, determines to be Eligible Steel
Products Inventory. Without limiting the generality of the
immediately preceding sentence, unless otherwise determined in
writing by Agent and the Required Banks, no inventory will be
Eligible Steel Products Inventory unless it meets all the
following minimum requirements:
(a) The inventory has not been shipped, delivered,
provided to, purchased or sold by Borrower on a xxxx and hold,
consignment sale, guaranteed sale, or sale or return basis, or
any other similar basis or understanding.
(b) The inventory is located on premises listed on
Exhibit B-1 to the Third Amendment and no negotiable or
non-negotiable warehouse receipt, xxxx of lading or other
document of
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title that has not previously been delivered to Agent has been
issued for the inventory.
(c) No account has arisen with respect to such
inventory.
(d) The inventory has not been billed to a customer
on a "progress billing" basis.
(e) The inventory is valued at the lower of cost or
market, on a first-in-first-out basis.
(f) The inventory is in Borrower's possession.
(g) The inventory is not subject to any royalty,
copyright, trademark, tradename, or licensing arrangement, or
any law, rule, or regulation that could limit or impair
Agent's ability to exercise its rights with respect to such
inventory.
(h) If the inventory is located on premises not owned
by Borrower, the landlord or owner of such premises must have
waived its distraint, lien, and similar rights with respect to
such inventory and must have agreed in a written agreement
reasonably satisfactory to Agent (A) to give Agent notice of
any default by Borrower and the option to cure such default,
(B) to permit Agent to enter such premises to sell, repossess,
or remove the inventory at any time, and (C) to grant Agent
such other rights as Agent may reasonably request.
(i) The inventory is not packaging, labels, or
manuals.
(j) The inventory is not inactive or slow moving
inventory.
(k) The inventory meets all standards imposed by any
governmental or agency, department, or division having
regulatory authority over such inventory or its use or sale
including, without limitation, standards set forth in the Fair
Labor Standards Act.
(l) No representation or warranty in this Agreement,
any other Loan Document, or any Collateral Activity Report is
inaccurate or has been breached with respect to such
inventory.
(m) The inventory is new, not obsolete, of good and
merchantable quality, and is readily salable.
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(n) The inventory is subject to a first-priority lien
and security interest in Agent's favor and, except for
Permitted Liens, is not subject to any other lien or
encumbrance.
Any inventory that is at any time Eligible Steel Products
Inventory and that subsequently fails to meet any of the
requirements set forth above ceases to be Eligible Steel
Products Inventory immediately and must be removed from the
Borrowing Base immediately.
"Guaranties" means the Holdings Guaranty and the QS
Guaranty.
"Guarantors" means collectively Holdings and QS
Steel, and "Guarantor" means any of the Guarantors.
"Holdings Guaranty" shall mean the Guaranty by
Holdings in favor of the Agent for the benefit of the Banks
dated December 16, 1997, as amended by the First Amendment to
Guaranty attached to the Third Amendment as Exhibit C-1.
"Loan Documents" means this Agreement, the Notes, the
Letters of Credit, the Security Documents, the Guaranties and
any guaranty agreement executed and delivered by a Subsidiary
pursuant to Section 6.6(i) hereof, as each may be amended,
modified, restated and in effect from time to time.
"Loans" means the Revolving Loans.
"Lockbox Agreement" means the Treasury Management
Services Controlled Lockbox and Collateral Account Service
Agreement executed by Borrower and others in the form attached
as Exhibit D-1 to the Third Amendment.
"Maturity Date" means January 31, 2002.
"Modified Dominion of Funds Agreement" means the
Modified Dominion of Funds Agreement executed by Borrower in
the form attached as Exhibit E-1 to the Third Amendment, which
contains among other things, the requirement for Borrower to
establish a Collateral Account (as defined in the Lockbox
Agreement). Borrower's receipts will be collected in the
Collateral Account and provided that (a) Borrower has
$20,000,000 or more of availability under both its Borrowing
Base and Revolving Loan
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Commitments and (b) no Default or Event of Default has
occurred, receipts in the Collateral Account will be released
to Borrower on a basis reasonably satisfactory to Agent and
the lockbox bank. If Borrower is not entitled to the amounts
in the Collateral Account then Agent may, at the direction of
the Required Banks, apply all amounts received by it from the
Collateral Account to the Obligations in the order and manner
set forth in the Credit Agreement or as otherwise approved by
the Required Banks. Once Borrower is not entitled to amounts
in the Collateral Account it is permanently not entitled to
receive any amounts in the Collateral Account even if it
subsequently meets the conditions in (a) and (b) of this
definition of Modified Dominion of Funds Agreement.
"No Offset Agreement" means a no offset agreement
satisfactory in form and substance to Agent and the Required
Banks.
"Notes" mean each Revolving Note.
"Obligations" means all obligations, liabilities and
indebtedness of every nature of any one or more of QS Steel,
Holdings and the Borrower from time to time owing to the
Agent, the Issuing Bank, any Bank or any L/C Participant
arising under or in connection with this Agreement, as
amended, or any other Loan Document.
"Pledge Agreements" means the Continuing Pledge
Agreements executed by Holdings pledging 100% of the stock of
Borrower and QS Steel and the Assignment as Security executed
by Borrower pledging 100% of its interest in Double Eagle, all
in favor of Agent for the benefit of the Bank, in the forms
attached as collective Exhibit G-1 to the Third Amendment.
"Permitted Liens" means liens permitted under Section
6.2, and subordinate liens in favor of Banc One Leasing
Corporation, as more particularly described in the Lien
Subordination Agreement dated on or about the same date as the
Third Amendment.
"Prime Rate" means the per annum rate equal to the
prime rate of interest announced from time to time by Bank
One, Michigan or its parent (which is not necessarily the
lowest rate charged to any customer), changing when and as
said prime rate changes.
"QS Guaranty" means the Guaranty by QS Steel in favor
of the Agent for the benefit of the Banks dated December 16,
1997, as
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amended by the First Amendment to Guaranty attached to the
Third Amendment as Exhibit H-1.
"QS Steel" means QS Steel Inc.
"Security Agreements" means the Security Agreement
dated July 12, 2000 executed by Borrower in favor of Agent for
the Banks and the Security Agreements dated the approximate
even date of the Third Amendment and attached to the Third
Amendment as Exhibit I-1 and entered into by the Borrower or
any Guarantor in favor of the Agent and the Banks, along with
all security agreements entered into by Borrower in favor of
Agent and the Banks prior to the date of the Third Amendment,
all as amended or modified from time to time, and any other
agreement executed by the Borrower or any Guarantor granting a
liens for the benefit of the Agent and the Banks in form or
substance satisfactory to the Agent, as amended or modified
from time to time.
"Security Documents" means the Lockbox Agreement, the
Modified Dominion of Funds Agreement, the Pledge Agreements,
the Security Agreements, the Guaranties, and all other
agreements and documents delivered pursuant to this Agreement,
as amended or otherwise entered into by any Person to secure
or guaranty the obligations of the Borrower under this
Agreement, as amended.
"Solvent" means when used with respect to any Person,
that, as of any date of determination, (a) the amount of the
"present fair saleable value" of the assets of such Person
will, as of such date, exceed the amount of all "liabilities
of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with or defined
in applicable federal and state laws governing determinations
of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of
such date, an unreasonably small amount of capital with which
to conduct its business, and (d) such Person will be able to
pay its debts as they mature. For purposes of this definition,
(i) "debt" means liability on a "claim", and (ii) "claim"
means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to
a right to payment, whether or not such right to
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an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or
unsecured.
"Third Amendment" means the Third Amendment to this
Agreement dated as of January 18, 2001.
"Third Amendment Effective Date" means the effective
date of the Third Amendment.
"Total Commitment" means, at any time, the sum of the
Revolving Loan Commitments of all the Banks at such time,
which, on the Third Amendment Effective Date is $150,000,000.
1.2 From and after the date of this Third Amendment, the only Loans
which will be available to the Borrower will be Revolving Loans, and any
reference to Competitive Bid Loans or Swingline Loans are hereby deleted.
1.3 Section 2.1(a) is replaced in its entirety as follows:
2.1 Revolving Loans. (a) Each Bank severally and not
jointly agrees, at any time and from time to time on and after
the Third Amendment Effective Date to the Business Day
immediately preceding the Maturity Date, to make revolving
loans (collectively, "Revolving Loans") to the Borrower on the
terms described in this Agreement, which Revolving Loans and
any Letter of Credit Outstandings shall not exceed in
aggregate principal amount at any time outstanding the lesser
of (i) the Borrowing Base or (ii) the aggregate Revolving Loan
Commitments.
1.4 Section 2.1(d) is replaced in its entirety as follows:
(d) Notwithstanding anything contained herein to the
contrary, at no time shall the aggregate principal amount of
the sum of (i) Revolving Loans outstanding plus the Letter of
Credit Outstandings exceed the lesser of (i) the Borrowing
Base or (ii) the Total Commitment then in effect.
1.5 Section 2.6(a) is restated as follows:
Section 2.6 Notes. (a) The Borrower's obligation to
pay the principal of, and interest on, each Bank's Revolving
Loans shall be evidenced by a promissory note (a "Revolving
Note") duly executed and delivered by the Borrower
substantially in the form of Exhibit J-1 to the Third
Amendment with blanks appropriately completed in conformity
herewith. Each Note issued to a Bank
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shall (x) be payable to the order of such Bank, (y) be dated
the Closing Date, and (z) mature on the Maturity Date.
1.6 Section 2.8(a) is amended to replace "one month, two-month,
three-month or six-month" with "one-month, two-month, or three-month".
1.7 Section 2.13 is restated as follows:
Section 2.13 Mandatory Prepayments. On each date on
which the amount of aggregate outstanding Revolving Loans plus
the Letter of Credit Outstandings exceeds the lesser of the
Total Commitment or Borrowing Base then in effect (including
any such date on which the Total Commitment is reduced or
terminated pursuant to Section 2.11 after giving effect to
such reduction or termination), the Borrower shall immediately
prepay the Revolving Loans to the extent of such excess.
1.8 Section 2.23 is hereby deleted in its entirety.
1.9 Section 5.1(j) is moved to 5.1(m) and the following sections
are added to Section 5.1:
(j) Within 15 days after the end of each month, as of
the last day of the preceding month, aging and summary reports
of Borrower's accounts receivable and payable in such form and
detail as Agent may reasonably request.
(k) By Tuesday of each week, weekly collateral
activity reports (each, a "Collateral Activity Report") as of
the last day of the preceding week, on forms supplied by
Agent, with Eligible Raw Material Inventory and Eligible Steel
Products Inventory amounts updated on a monthly basis.
(l) Within 10 Business Days after the end of each
month, monthly Sales and EBITDA flash reports as of the close
of the preceding month.
1.10 Section 5.2 is amended to add the following to the end of
that section:
Borrower and Holdings will be jointly and severally
responsible for all reasonable costs of Agent's personnel
allocated to such audits, inspections, and monitoring at such
rates as Agent establishes from time to time, including time
spent preparing for, conducting, and preparing reports with
respect to field examinations, travel time, and
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all reasonable costs incurred by Agent's personnel with
respect to two field examinations annually (including lodging
and meals), with the first such field examination taking place
no later than February 28, 2001. Notwithstanding anything to
the contrary herein, after a Default or an Event of Default,
Borrower and Holdings, jointly and severally, must reimburse
Agent and each Bank for all reasonable costs incurred in
connection with all field examinations conducted by Agent or
any Bank within 10 days after receipt of an invoice therefor.
1.11 Section 6.1(a) is restated as follows:
(a) Debt to Capitalization Ratio. Holdings shall not at any
time permit the Debt to Total Capitalization Ratio to be greater than
.35 to 1.0.
1.12 Section 6.1(b) is restated as follows:
(b) Net Worth. Holdings shall not at any time permit its Net
Worth to be less than:
(i) From and after December 31, 2000 through March
30, 2001: $345,000,000;
(ii) From and after March 31, 2001 through June 29,
2001: $320,000,000;
(iii) From and after June 30, 2001 through September
29, 2001: $325,000,000;
(iv) From and after September 30, 2001 through
December 30, 2001: $309,000,000; and
(v) From and after December 31, 2001: $290,000,000.
1.13 Section 6.1(c) is restated as follows:
(c) Minimum EBITDA. Holdings shall not permit its cumulative
EBITDA to be less than the following:
(i) For the three months ended March 31, 2001:
negative $22,500,000;
(ii) For the six months ended June 30, 2001:
negative $9,000,000;
(iii) For the nine months ended September 30, 2001:
negative $30,000,000; and
(iv) For the 12 months ended December 31, 2001:
negative $57,000,000.
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1.14 Section 6.1(d) is amended in its entirety to read as follows:
"Capital Expenditures. Holdings shall not permit Capital
Expenditures to exceed $35,000,000 for the period from January 1, 2001
through the Maturity Date."
1.15 Section 6.2(i) and (j) are moved to 6.2(j) and (k) and 6.2(i) is
added as follows:
(i) Liens in favor of the Agent and the Banks under the Security
Documents and subordinated liens granted to Banc One Leasing Corporation.
1.16 Section 6.2(j) is amended to change "(h)" to "(i)".
1.17 Section 6.4(iv) is replaced with the following "(iv) the sale or
other disposition of other assets in an aggregate amount from and after December
15, 2000 not to exceed $2,500,000 (based on the fair market value of such assets
at the time of such sale or other disposition) during the term of this Agreement
and until all obligations are paid in full, provided that the proceeds therefrom
are used to immediately pay down the Revolving Loans and".
1.18 Section 6.5(i)(A) is amended to replace "$8,000,000" with
"$2,750,000".
1.19 Section 6.5 is amended to delete the following at the end thereof:
"and (vi) Holdings may make purchases of its common stock in the open market at
the then prevailing market prices at any time prior to April 30, 2001 in an
aggregate amount not to exceed $10,000,000".
1.20 Section 6.6(d) is amended in its entirety as follows:
(d) loans and advances in cash to, or the provision of credit
in the nature of guarantees for the benefit of, Double Eagle and
any New JV only to the extent they have been made prior to
December 15, 2000;
1.21 Section 6.6(h) is amended in its entirety as follows:
(h) capital contributions by Holdings to Double Eagle only to
the extent they have been made prior to December 15, 2000; and
1.22 Section 6.6(i) is amended in its entirety as follows:
(i) capital contributions from and after December 15, 2000,
solely to existing Subsidiaries limited to an aggregate of
$5,000,000 in total for all Subsidiaries during the period from
December 15, 2000 through the term of this Agreement and until all
Obligations are paid in full ("Subsidiary Cap"), and any such
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further capital contributions may only be made if the Subsidiary
Cap is not exceeded and (A) prior to and subsequent to the capital
contribution, Borrower has at least $15,000,000 in availability
under both the Borrowing Base and Total Commitment, and (B) if
such Subsidiary to which such contribution is made executes a
guaranty reasonably satisfactory in form and substance to the
Agent and the Banks guaranteeing the Obligations to the extent of
the total amount of capital contributions to any such Subsidiary,
together with a security agreement reasonably satisfactory in form
and substance to the Agent and the Banks securing such guaranty
with a perfected first priority security interest and lien in all
of such Subsidiary's assets and such other documents and opinions
of counsel as may be reasonably requested by the Agent or its
counsel in connection therewith.
1.23 Section 7.1(a) is amended to add the following to the end of that
section:
Notwithstanding anything to the contrary in this section, all
Mandatory Payments described in Section 2.13 must be paid
immediately and no grace periods apply to any such Mandatory
Payments.
1.24 Annex 1 attached hereto is hereby substituted for Annex 1 attached
to the Credit Agreement.
ARTICLE 2
REPRESENTATIONS
Each of Holdings and Borrower represents and warrants to the Agent
and the Banks that:
2.1 The execution, delivery and performance of this Third Amendment are
within its powers, have been duly authorized and are not in contravention with
any law, of the terms of its Articles of Incorporation or By-Laws, or any
undertaking to which it is a party or by which it is bound.
2.2 This Third Amendment is the legal, valid and binding obligation of
it, enforceable against it in accordance with the terms hereof.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Section 4 of the Credit Agreement
and the representations and warranties contained in the other Loan Documents are
true on and as of the date hereof with the same force and effect as if made on
and as of the date hereof, and Borrower additionally represents and warrants
that all of its inventory is located on those locations listed on Exhibit B-1 to
this Third
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Amendment.
2.4 Each of Borrower, Holdings, and QS Steel is, and after giving
effect to the incurrence of all indebtedness and obligations being incurred in
connection herewith and will be and will continue to be, Solvent.
ARTICLE 3
CONDITIONS OF EFFECTIVENESS
This Third Amendment shall become effective on the date that
each of the following has been satisfied to Agent's satisfaction:
3.1 This Third Amendment shall be signed by Holdings, the Borrower, and
the Banks with all exhibits thereto and documents referred to in the Preliminary
Closing List being fully executed, including, without limitation, the Security
Documents from Borrower, QS Steel, and Holdings which secure all of the
Obligations.
3.2 Holdings, QS Steel, and Borrower shall have delivered a certified
board resolution approving the execution, delivery and performance of this Third
Amendment.
3.3 The Agent receives an opinion of Borrower's counsel satisfactory in
form and substance to the Agent.
3.4 Holdings, QS Steel, and the Borrower, jointly and severally, must
pay to the Agent upon the execution of this Third Amendment by Holdings,
Borrower, the Banks, for the pro rata benefit of the Banks signing this Third
Amendment, an amendment fee equal to .25% on the amount of such Bank's Revolving
Loan Commitment after giving effect to this Third Amendment. Holdings and
Borrower, jointly and severally, must also pay to the Agent the payment required
under the letter between the Agent and the Borrower dated the approximate even
date herewith for its services. Both fees referred to in the preceding two
sentences are fully earned and non-refundable on the date of this Third
Amendment.
3.5 The financing statements to be filed with the Michigan Secretary of
State's Office perfecting the Agent's liens and security interests in the
collateral set forth in the Security Agreements must have been duly filed.
3.6 Notwithstanding the foregoing, when this Third Amendment becomes
effective the amendments to Sections 6.1(a), 6.1(b), 6.1(c), and 6.1(d) will be
treated as effective as of December 31, 2000.
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ARTICLE 4
MISCELLANEOUS
4.1 References in any Loan Document to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended hereby and as further
amended from time to time.
4.2 Holdings and Borrower, jointly and severally, agree to pay and to
save the Agent harmless for the payment of all costs and expenses arising in
connection with the transactions contemplated by this Third Amendment, including
the reasonable fees of counsel (including, without limitation, the fees of
Agent's counsel, Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP), consultants and
advisers, and the fees, costs and expenses associated with any appraisals
conducted by the Agent or its agents. Holdings and Borrower agree to cooperate,
and to cause its Subsidiaries to cooperate, in all respects with the Agent's
consultants, advisers, appraisers, and their respective agents. In addition,
Holdings and Borrower, jointly and severally, agree to pay the reasonable
attorney's fees of each Bank incurred in connection with negotiating and
documenting this Third Amendment.
4.3 Each of Holdings and Borrower acknowledge and agree that (i) the
Agent and the Banks have fully performed all of their obligations under the Loan
Documents and all documents executed in connection with the Loan Documents and
(ii) all actions taken by the Agent and the Banks are reasonable and appropriate
under the circumstances and within their rights under the Loan Documents.
4.4. Each of Holdings and Borrower acknowledge that neither the Banks
nor their affiliates will, under any circumstances, be obligated to honor any
checks or other items presented to Banks or their affiliates for payment for
which there are insufficient available funds in the respective Borrower's
account, and Banks or their affiliates may return any such items so presented.
4.5 Except as expressly amended hereby, each of Holdings and Borrower
agree that the Loan Documents are ratified and confirmed and shall remain in
full force and effect and that it has no set off, counterclaim or defense with
respect to any of the foregoing. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
4.6 (a) This Third Amendment constitutes each of Holdings', the
Borrower's and the Banks' entire understanding with respect to the subject
matter hereof. Modifications or amendments to this Third Amendment must be in
writing and comply with Section 9.5 of the Credit Agreement in order to be
effective. This Third Amendment is governed by the internal laws of the State of
Michigan (without regard to conflicts of law principles). This Third Amendment
is binding on each of Holdings and Borrower and their respective successors,
assigns, heirs, and personal representatives and inures to Banks' benefit and
the benefit of its successors and assigns. If any provision of this Third
Amendment conflicts with any applicable statute or law, or is otherwise
unenforceable, such offending provision is null and void only to the extent of
such conflict or unenforceability, and is deemed separate from and does not
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invalidate any other provision of this Third Amendment.
(b) This Third Amendment is being entered into among competent
persons, who are experienced in business and represented by counsel (or who have
had the opportunity to be represented by counsel), and has been reviewed by each
of Holdings and Borrower and their counsel, if any. Therefore, any ambiguous
language in this Third Amendment will not necessarily be construed against any
particular party as the drafter of such language.
4.7 This Third Amendment may be signed upon any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties signing this Third Amendment have
caused this Third Amendment to be executed and delivered as of the day and year
first above written.
ROUGE INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxxxxxx
Vice Chairman And Chief Financial Officer
ROUGE STEEL COMPANY
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxxxxxx
Vice Chairman And Chief Financial Officer
BANK ONE, MICHIGAN, as Agent, as Issuing
Bank and as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
First Vice President
COMERICA BANK
By: /s/ Xxxxxx X. XxXxxxxxx
-------------------------------------------------
Name: Xxxxxx X. XxXxxxxxx
--------------------------------------------
Title: Assistant Vice President
-------------------------------------
NATIONAL CITY BANK
By: /s/ Xxxx X. XxXxxxxxxxx
-------------------------------------------------
Name: Xxxx X. XxXxxxxxxxx
--------------------------------------------
Title: Vice President
-------------------------------------
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Exhibits:
B-1: Inventory Locations
C-1: Holdings First Amendment to Guaranty
D-1: Lockbox Agreement
E-1: Modified Dominion of Funds Agreement
G-1: Pledge Agreements
H-1: QS Steel First Amendment to Guaranty
I-1: Security Agreements
J-1: Form of Promissory Note
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REAFFIRMATION OF AGREEMENTS
The undersigned, while not a party to this Third Amendment, is a party
to various other guaranties, security agreements, documents, instruments, and
agreements with or in favor of Agent, for the benefit of the Banks (each, a
"Related Agreement" and collectively, the "Related Agreements"). In order to
induce Agent and the Banks to enter into the Third Amendment set forth above,
the undersigned (1) acknowledges and agrees that all of its respective Related
Agreements remain in full force and effect and are hereby ratified, confirmed,
approved and, extend to and cover all of the obligations described in the Third
Amendment; (2) consents to all of the terms and conditions of the Third
Amendment; (3) if it has executed a guaranty in Lender's favor, it acknowledges
and agrees that its guaranty (and the collateral security therefor) extends to
and covers all of Borrower's obligations to Agent and the Banks, including those
arising under, in connection with, or described in the Third Amendment; (4) it
acknowledges and agrees that the fact that Agent has sought this reaffirmation
does not create any obligation, right, or expectation that Agent will seek its
consent to or reaffirmation with respect to any other or further amendments or
modifications to the relationship between it, the Banks and Borrower or any
other party; and (5) acknowledges and agrees that the references to it in the
Related Agreements (including in its Guaranty) as being a Delaware corporation
are amended to read that it is a Michigan corporation.
QS STEEL INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxxx
President
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ANNEX 1
REVOLVING LOAN COMMITMENTS
REVOLVING LOAN COMMITMENTS FOR THE PERIOD FROM AND INCLUDING THE THIRD AMENDMENT
EFFECTIVE DATE TO BUT EXCLUDING THE MATURITY DATE:
Name of Bank Amount of Revolving Loan Commitment
Bank One, Michigan $60,000,000
Comerica Bank $45,000,000
National City Bank $45,000,000
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