EXHIBIT 10.5
ACME GROUP
SECOND AMENDMENT TO CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank
Chicago, Illinois
NBD Bank, N.A.
Detroit, Michigan
Mercantile Bank of St. Louis National Association
St. Louis, Missouri
National City Bank
Cleveland, Ohio
General Electric Capital Corporation
Chicago, Illinois
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
August 11, 1994 between the undersigned, Acme Steel Company, a Delaware
corporation ("ACME STEEL"), Acme Packaging Corporation, a Delaware corporation
("ACME PACKAGING"), Alpha Tube Corporation, a Delaware corporation ("ALPHA
TUBE"), and Universal Tool & Stamping Company, Inc., an Indiana corporation
("UNIVERSAL TOOL") (Acme Steel, Acme Packaging, Alpha Tube and Universal Tool
are being hereinafter referred to collectively as the "BORROWERS" and
individually as a "BORROWER") and you (the "LENDERS") as amended by that certain
First Amendment to Credit Agreement date as of May 21, 1995 (said Credit
Agreement as so amended being referred to herein as the "CREDIT AGREEMENT"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
The Borrowers have requested that the Lenders make certain amendments to
Section 7.12 of the Credit Agreement, and the Lenders are willing to do so under
the terms and conditions set forth in this Amendment.
1. AMENDMENTS.
Upon your acceptance hereof in the space provided for that purpose
below, subsections (g) and (h) of Section 7.12 of the Credit Agreement shall be
amended and as so amended shall be restated in their entirety to read as
follows:
"(g) acquisitions of all or substantially all of the assets
or business of any other Person or division thereof, or all or any part
of the Voting Stock of or other equity interest in any Person (including
as such an acquisition, any action to participate as a joint venturer in
any joint venture or as a partner in any partnership), in each case if
and so long as (i) no Default or Event of Default exists or would exist
after giving effect to such acquisition, (ii) the Board of Directors or
other governing body of such Person whose Property or Voting Stock or
other equity interest is being so acquired has approved the terms of
such acquisition, (iii) the Company shall have delivered to the Lenders
an updated Schedule 5.3 to reflect any new Subsidiary resulting from
such acquisition, (iv) at the time of each such acquisition and
immediately after giving effect thereto, the aggregate amount expended
by the Acme Group and its Subsidiaries as consideration for such
acquisition (and in any event including as such, any Indebtedness for
Borrowed Money assumed or incurred as a result of such acquisition),
when taken together with the aggregate amount expended as consideration
for all other acquisitions permitted solely by this Section 7.12(g) and
all investments in Persons (other than Subsidiaries) permitted solely by
subsection (h) below, in each case on a cumulative basis after the date
hereof, does not exceed $15,000,000, and (v) the Company can demonstrate
that on a pro forma basis (including financial projections prepared by
the Company) after giving effect to the subject acquisition that the
Acme Group will continue to comply with the all of the terms and
conditions of the Loan Documents;
(h) equity investments by the Company in, and loans and
advances by the Company to, any Subsidiary (or an entity which,
following and as a result of such investment, loan or advance, becomes a
Subsidiary of the Company) or any other Person in which the Company has
already acquired any Voting Stock or other equity interest in compliance
with the provisions of subsection (g) above, provided in each case that
(i) a Subsidiary that only becomes a Subsidiary through such investment,
loan or advance and any other Person in which the Company acquires any
Voting Stock or other equity interest only through such investment, loan
or advance in each case must comply with the provisions of subsection
(g) above, (ii) at the time of each such investment in, or loan or
advance to, any Person other than a Subsidiary (each, a "MINORITY
INVESTMENT"), the aggregate amount of Minority Investments, when taken
together with the aggregate amount expended for all acquisitions
permitted solely by subsection (g) above, in each case on a cumulative
basis after the date hereof, does not exceed $15,000,000, and (iii) the
obligations of each Subsidiary to the Company with respect to any such
loan or advance by the Company to such Subsidiary funded directly or
indirectly out of the proceeds (net of (i) costs and expenses directly
incurred and payable as a result of the issuance and sale hereinafter
described and (ii) the amount necessary to fully pay and satisfy the
indebtedness described in Sections 6.2(f) and 6.2(g) hereof) from the
Company's issuance and sale of the Special Stock Purchase Warrants are
subject to a subordination agreement between the Company and such
Subsidiary providing for the subordination of such obligations in right
of payment from and after such time as the Revolving Credit Notes issued
and outstanding shall become due and payable (whether at stated
maturity, by acceleration or otherwise) to the prior payment and
performance of the Obligations under the Revolving Credit Notes and
otherwise;"
2. WAIVER.
The Lenders waive any non-compliance with the terms of the Credit
Agreement which, after giving effect to this Amendment, shall no longer exist.
3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
(a) The Borrowers and the Lenders shall have executed and
delivered this Amendment.
(b) The Lenders shall have received copies (executed or
certified, as may be appropriate) of resolutions of the Board of
Directors of each Borrower authorizing the execution, delivery and
performance of, and indicating the authorized signers of, this Amendment
and all other documents relating thereto and containing the specimen
signatures of such signers.
(c) Legal matters incident to the execution and delivery of
this Amendment shall be satisfactory to the Lenders and their counsel.
4. REPRESENTATIONS.
In order to induce the Lenders to execute and deliver this Amendment,
the Borrowers hereby represent to the Lenders that as of the date hereof, the
representations and warranties set forth in Section 5 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 5.6 shall be deemed to refer to the most recent financial
statements of the Company delivered to the Lenders) and the Borrowers are in
full compliance with all of the terms and conditions of the Credit Agreement and
no Default or Event of Default has occurred and is continuing under the Credit
Agreement or shall result after giving effect to this Amendment.
5. MISCELLANEOUS.
(a) Except as specifically amended herein, the Credit Agreement
shall continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
or any other instrument or document executed in connection therewith, or in any
certificate, letter or communication issued or made pursuant to or with respect
to the Credit Agreement, any reference in any of such items to the Credit
Agreement being sufficient to refer to the Credit Agreement as amended hereby.
(b) The Borrowers agree to pay on demand all costs and expenses of
or incurred by the Agent in connection with the negotiation, preparation,
execution and delivery of this Amendment, including the fees and expenses of
counsel for the Agent.
(c) This Amendment may be executed in any number of counterparts,
and by the different parties on different counterpart signature pages, all of
which taken together shall constitute one and the same agreement. Any of the
parties hereto may execute this Amendment by signing any such counterpart and
each of such counterparts shall for all purposes be deemed to be an original.
This Amendment shall be governed by the internal laws of the State of Illinois.
ACME STEEL COMPANY
By /s/ Xx. Xxxxx Xxxxxxxxx
Its Treasurer
ACME PACKAGING CORPORATION
By /s/ Xx. Xxxxx Xxxxxxxxx
Its Treasurer
ALPHA TUBE CORPORATION
By /s/ Xx. Xxxxx Xxxxxxxxx
Its Treasurer
UNIVERSAL TOOL & STAMPING COMPANY, INC.
By /s/ Xx. Xxxxx Xxxxxxxxx
Its Treasurer
ACME METALS INCORPORATED
By /s/ Xx. Xxxxx Xxxxxxxxx
Its Treasurer
Accepted and agreed to as of the date and year last above written.
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxxx X. Xxxx
Its Vice President
NBD BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxx
Its Vice President
MERCANTILE BANK OF ST. LOUIS NATIONAL
ASSOCIATION
By /s/ Xxxxx Benteinger
Its Vice President
NATIONAL CITY BANK
By /s/ Xxxxx X. Xxxxxx, Xx.
Its Account Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxx Xxxxxx
Its Region Operations Manager
