BIRMINGHAM STEEL CORPORATION
-----------------------
FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENT
-----------------------
Re:
Amended and Restated Note Purchase Agreements Dated as of October 12, 1999,
and
$130,000,000
10.03% SENIOR NOTES DUE DECEMBER 15, 2005
DATED AS OF MARCH 31, 2002
TABLE OF CONTENTS
PAGE
----
1. PRELIMINARY STATEMENT....................................................................................1
1.1. Background......................................................................................1
1.2. Definitions.....................................................................................3
2. AMENDMENTS AND CONSENT...................................................................................5
2.1. Amendment of Existing Note Purchase Agreement...................................................5
2.2. Continuity and Affirmation of Obligations.......................................................5
3. REPRESENTATIONS AND WARRANTIES...........................................................................5
3.1. Corporate Existence and Power...................................................................5
3.2. Corporate Authority.............................................................................5
3.3. Binding Effect..................................................................................6
3.4. No Conflicts with Agreements, Etc...............................................................6
3.5. Consents, Etc...................................................................................6
3.6. Full Disclosure.................................................................................6
3.7. Outstanding Debt and Liens......................................................................7
3.8. Pending Litigation..............................................................................7
3.9. No Defaults.....................................................................................7
3.10. Compliance with Law.............................................................................8
3.11. Title to Properties.............................................................................8
3.12. Environmental Compliance........................................................................8
3.13. Restrictions on Company and Subsidiaries........................................................9
4. AMENDMENTS..............................................................................................10
4.1. Modification of Payment Date of Deferred SBQ Interest..........................................10
4.2. Required Scheduled Prepayments.................................................................10
4.3. Satisfaction of Cleveland Cessation Condition..................................................10
4.4. Engagement of CIBC; Additional Information Requirements........................................10
4.5. Additional Event of Default....................................................................11
5. CONDITIONS PRECEDENT....................................................................................11
5.1. Certificates...................................................................................11
5.2. Opinion of Counsel.............................................................................12
5.3. Amendment to 1995 Agreement....................................................................12
5.4. Tenth Amendment to Credit Agreement............................................................12
5.5. Amendment to Memphis Lease Documents...........................................................12
5.6. Payment of Special Counsel and Financial Advisor Fees..........................................12
5.7. Proceedings and Documents Satisfactory.........................................................12
6. MISCELLANEOUS...........................................................................................13
6.1. Effect of Amendment............................................................................13
6.2. No Legend Required.............................................................................13
6.3. Fees and Expenses..............................................................................13
6.4. Survival.......................................................................................13
6.5. Duplicate Originals; Execution in Counterpart..................................................14
6.6. Release of Claims..............................................................................14
6.7. Governing Law..................................................................................14
Schedule 3 -- Schedule Regarding Representations
Exhibit A -- Form of Opinion of Special Counsel to the Company and the
Restricted Subsidiaries
BIRMINGHAM STEEL CORPORATION
FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENT
Re:
Amended and Restated Note Purchase Agreements Dated as of October 12, 1999
and
$130,000,000
10.03% SENIOR NOTES DUE DECEMBER 15, 2005
Dated as of March 31, 2002
To the Persons listed on
the signature pages hereof
Ladies and Gentlemen:
BIRMINGHAM STEEL CORPORATION, a Delaware corporation (together with
its successors and assigns, the "COMPANY"), hereby agrees with you as follows:
1. PRELIMINARY STATEMENT.
1.1. BACKGROUND.
(A) The Company entered into those certain Note Purchase
Agreements dated as of September 1, 1993, as amended by an Amendment
to 1993 Note Purchase Agreement dated as of October 18, 1996 and an
Amendment to 1993 Note Purchase Agreement dated as of December 14,
1998, with each of the institutions named in Annex 1 thereto, under
and pursuant to which the Company issued and sold to such institutions
an aggregate principal amount of One Hundred Thirty Million Dollars
($130,000,000) of the Company's 7.28% Senior Notes due December 15,
2005 (the "1993 NOTES"). Pursuant to the terms of a Waiver and Third
Amendment to Note Purchase Agreement dated as of October 12, 1999 (the
"1999 THIRD AMENDMENT"), the Company entered into those certain
Amended and Restated Note Purchase Agreements dated as of October 12,
1999, and the Company subsequently entered into a First Amendment to
Note Purchase Agreement dated as of November 12, 1999, a Second
Amendment to Note Purchase Agreement dated as of May 15, 2000, a Third
Amendment to Note Purchase Agreement dated as of February 20, 2001 and
a Fourth Amendment to Note Purchase Agreement dated as of December 15,
2001 (collectively, as in effect immediately prior to the amendments
contemplated hereby, the "EXISTING NOTE PURCHASE AGREEMENT," and as
amended hereby, the "AMENDED NOTE PURCHASE AGREEMENT"), with each of
the
institutions named in Annex 1 thereto, pursuant to which the Company
issued to such institutions, in substitution for the 1993 Notes, an
aggregate principal amount of One Hundred Thirty Million Dollars
($130,000,000) of the Company's 10.03% Senior Notes due December 15,
2005 (collectively, the "NOTES").
(B) The institutions (other than the Company) listed on the
signature pages to this Agreement (collectively, the "NOTEHOLDERS")
are the holders of one hundred percent (100%) of the Notes outstanding
as of the date hereof.
(C) The Company entered into those certain Amended and
Restated Note Purchase Agreements dated as of October 12, 1999, with
each of the institutions named in Annex 1 thereto (together with their
successors and assigns, the "1995 NOTEHOLDERS"), as amended by a First
Amendment to Note Purchase Agreement dated as of November 12, 1999, a
Second Amendment to Note Purchase Agreement dated as of May 15, 2000,
and a Third Amendment to Note Purchase Agreement dated as of February
20, 2001 and by a Fourth Amendment to Note Purchase Agreement dated as
of December 15, 2001 (collectively, as in effect immediately prior to
the date hereof, the "1995 EXISTING NOTE PURCHASE AGREEMENT") as
amended by a Fifth Amendment dated as of the date hereof (the
"AMENDMENT TO 1995 AGREEMENT"; the 1995 Existing Note Purchase
Agreement, as amended by the Amendment to 1995 Agreement, is referred
to herein as the "1995 AMENDED NOTE PURCHASE AGREEMENT"), under and
pursuant to which the Company issued to such institutions, in
substitution for notes in the same amounts issued in 1995, (i) an
aggregate principal amount of Seventy-Six Million Dollars
($76,000,000) of the Company's 9.71% Series A Senior Notes due
December 15, 2002, (ii) an aggregate principal amount of Fourteen
Million Dollars ($14,000,000) of the Company's 9.82% Series B Senior
Notes due December 15, 2005, and (iii) an aggregate principal amount
of Sixty Million Dollars ($60,000,000) of the Company's 9.92% Series C
Senior Notes due December 15, 2005 (collectively, the "1995 NOTES").
(D) The Company entered into that certain Credit Agreement
dated as of March 17, 1997 (as in effect immediately prior to the date
hereof, the "EXISTING CREDIT AGREEMENT," and as heretofore amended and
as amended by a Tenth Amendment to Credit Agreement dated as of the
date hereof (the "TENTH AMENDMENT TO CREDIT AGREEMENT"), the "AMENDED
CREDIT AGREEMENT"), by and among the Company, the banks party thereto
(collectively, the "BANKS"), and Bank of America, N.A., as agent (the
"AGENT"), pursuant to which a credit facility has been provided to the
Company, the commitment for which has been reduced to Two Hundred
Eighty-Seven Million Eight Hundred Forty-Seven Thousand Thirty-Four
Dollars and Forty-Four Cents ($287,847,034.44).
(E) PNC Bank, National Association (the "L/C ISSUER") has
provided the Company with a letter of credit (the "LETTER OF CREDIT")
in the face amount of Twenty Six Million Two Hundred Ninety-Nine
Thousand One Hundred Seventy-Nine Dollars ($26,299,179), which Letter
of Credit was issued pursuant to a Reimbursement Agreement dated as of
October 1, 1996, between PNC Bank, National Association, successor to
PNC Bank, Kentucky, Inc. and the Company (as amended, "EXISTING
REIMBURSEMENT AGREEMENT"). The letter of credit in the face amount of
Fifteen Million
-2-
One Hundred Seventy-Two Thousand Six Hundred Three Dollars
($15,172,603) issued pursuant to the Amended and Restated
Reimbursement Agreement, dated as of October 12, 1999, among the
Company, American Steel & Wire Corporation and Bank of America, N.A.
was terminated as of February 28, 2002 (the "B OF A TERMINATED LETTER
OF Credit").
(F) BSE entered into that certain Credit Agreement dated as
of May 15, 2000 with certain of the Noteholders, the 1995 Noteholders,
and the Banks, and Bank of America, N.A., as agent, as amended by a
First Amendment to Credit Agreement dated as of February 20, 2001 and
as amended by a Second Amendment to Credit Agreement dated as of
December 15, 2001 (collectively the "BSE CREDIT AGREEMENT") pursuant
to which a Twenty-Five Million Dollar ($25,000,000) credit facility
was provided to BSE. The obligations under the BSE Credit Agreement
were paid on December 30, 2001.
(G) The Company and the Noteholders desire to amend the
Existing Note Purchase Agreement upon the terms and conditions set
forth herein to extend the payment date of $26 million of principal
payments from April 1, 2002 to May 15, 2002, in order to provide time
for the Company, in conjunction with its agent, CIBC World Markets
Corp. ("CIBC"), to complete the process of seeking acquisition,
merger, strategic alliance and restructuring proposals in an effort to
determine the best alternatives for the Company to satisfy its
obligations to the Noteholders and its other stakeholders.
1.2. DEFINITIONS.
Capitalized terms used but not specifically defined in this Agreement
have the respective meanings assigned to them in the Amended Note Purchase
Agreement. As used in this Agreement, the following terms have the respective
meanings specified below or set forth in the Section hereof following such
term:
AGENT - Section 1.1(d).
AGREEMENT - means this Fifth Amendment to Note Purchase
Agreement, as it may be amended or otherwise modified from time to
time.
AMENDED CREDIT AGREEMENT - Section 1.1(d).
AMENDED NOTE PURCHASE AGREEMENT - Section 1.1(a).
AMENDMENT TO 1995 AGREEMENT - Section 1.1(c).
BANKS - Section 1.1(d).
B OF A TERMINATED LETTER OF CREDIT - Section 1.1(e).
BSE - Birmingham Southeast, LLC.
BSE CREDIT AGREEMENT - Section 1.1(f).
-3-
BSE MATERIAL ADVERSE EFFECT - means a material adverse effect
on (a) the business, prospects, profits, Properties or condition
(financial or otherwise) of BSE, (b) the ability of BSE to perform its
obligations under any of the Financing Documents to which it is a
party, or (c) the validity or enforceability of any of the Financing
Documents to which BSE is a party.
CIBC - Section 1.1(g).
COLLATERAL AGENT - means SouthTrust Bank, National
Association, in its capacity as collateral agent under the Intercreditor
Agreement.
COMPANY - the introductory sentence.
EFFECTIVE DATE - Section 5.
EXISTING CREDIT AGREEMENT - Section 1.1(d).
EXISTING NOTE DOCUMENTS - Section 6.6.
EXISTING NOTE PURCHASE AGREEMENT - Section 1.1(a).
EXISTING REIMBURSEMENT AGREEMENT - Section 1.1(e).
FINANCING DOCUMENT - Section 3.1.
INDENTURE TRUSTEE - has the meaning set forth in the
Intercreditor Agreement.
L/C ISSUER - Section 1.1(e).
LETTER OF CREDIT - Section 1.1(e).
1993 NOTES - Section 1.1(a).
1995 AMENDED NOTE PURCHASE AGREEMENT - Section 1.1(c).
1995 EXISTING NOTE PURCHASE AGREEMENT - Section 1.1(c).
1995 NOTEHOLDERS - Section 1.1(c).
1995 NOTES - Section 1.1(c).
1999 THIRD AMENDMENT - Section 1.1(a).
NOTEHOLDERS - Section 1.1(b).
NOTES - Section 1.1(a).
OWNER TRUSTEE - has the meaning set forth in the
Intercreditor Agreement.
-4-
TENTH AMENDMENT TO CREDIT AGREEMENT - Section 1.1(d).
TRANSACTION DOCUMENTS - has the meaning specified in the
Omnibus Collateral Agreement.
2. AMENDMENTS AND CONSENT
2.1. AMENDMENT OF EXISTING NOTE PURCHASE AGREEMENT.
The amendments set forth herein shall take effect (and shall be deemed
to have taken effect) as of the Effective Date.
2.2. CONTINUITY AND AFFIRMATION OF OBLIGATIONS.
Notwithstanding any other provision of this Agreement or any other
document or agreement, the indebtedness of the Company under the Existing Note
Purchase Agreement and the Notes shall not be or be deemed to be paid or
discharged or novated hereby and shall continue in full force and effect as
amended hereby.
3. REPRESENTATIONS AND WARRANTIES
To induce the Noteholders to enter into this Agreement, (a) the
Company represents and warrants to the Noteholders that the representations and
warranties made by the Company in Section 3 of the 1999 Third Amendment and by
BSE in the BSE Credit Agreement are true as of the date hereof (except to the
extent that any such representation in the 1999 Third Amendment or the BSE
Credit Agreement relates to a specific other date or as set forth on Schedule 3
hereto or as disclosed to the Noteholders or Nightingale & Associates LLC in
writing prior to the date hereof), and (b) the Company makes the additional
representations and warranties set forth in this Section 3. The Company agrees
and acknowledges that for purposes of Section 10.1(e) of the Existing Note
Purchase Agreement, its representations and warranties, as set forth in this
Agreement, are and constitute representations and warranties furnished in
connection with the Existing Note Purchase Agreement.
3.1. CORPORATE EXISTENCE AND POWER.
Each of the Company and each Subsidiary has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement
and each other agreement and document that is being executed or delivered by
the Company and/or any such Subsidiary in connection herewith (each of such
agreements and documents, including this Agreement, being referred to herein as
a "FINANCING DOCUMENT").
3.2. CORPORATE AUTHORITY.
The execution, delivery and performance by the Company and each
Subsidiary of each Financing Document to which the Company or such Subsidiary
is a party, and the performance by the Company of the Amended Note Purchase
Agreement is within the corporate or limited liability company powers of the
Company or such Subsidiary, as the case may be, and has been duly authorized by
all necessary corporate or limited liability company action on the part of the
-5-
board of directors or management (no action on the part of the stockholders or
members of the Company or any such Subsidiary being required by law, other than
such actions which have been duly taken), of the Company or such Subsidiary.
3.3. BINDING EFFECT.
Each Financing Document to which the Company or any Subsidiary is a
party has been duly executed by the Company or such Subsidiary and each
Financing Document and the Amended Note Purchase Agreement, the Security
Documents and the BSE Collateral Documents are legal, valid and binding
obligations of the Company or such Subsidiary, as the case may be, enforceable
against the Company or such Subsidiary in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally, or by general
principles of equity.
3.4. NO CONFLICTS WITH AGREEMENTS, ETC.
Neither the execution and delivery by the Company or any Subsidiary of
any Financing Document to which it is a party, nor the fulfillment of, or
compliance with, the terms and provisions of the Amended Note Purchase
Agreement, the Notes, the Security Documents, or any of the Financing
Documents, will conflict with, or result in a breach or violation of any term,
condition or provision of, or constitute a default under, or result in the
creation of any Lien on any Property of the Company or such Subsidiary pursuant
to its charter or by-laws or operating agreement, or any contract, agreement,
mortgage, indenture, lease or instrument to which it is a party or by which it
is bound or to which it or any of its Property is subject, or any order,
statute, law, rule or regulation to which it or any of its Property is subject.
3.5. CONSENTS, ETC.
No consent, approval or authorization of, or declaration, registration
or filing with, any Governmental Authority or any nongovernmental Person,
including, without limitation, any creditor (other than the 1995 Noteholders,
the Banks, the L/C Issuer, the Owner Trustee and the Indenture Trustee), or any
stockholder or member of the Company or any Subsidiary, is required in
connection with the execution or delivery by the Company or any Subsidiary of
any Financing Document to which it is a party or the performance by the Company
or such Subsidiary of its obligations under any Financing Document, or as a
condition to the legality, validity or enforceability of any such Financing
Document, except, in each case, those which have been obtained or which are
contemplated by the Transaction Documents.
3.6. FULL DISCLOSURE.
The financial statements and other written statements, certificates
and materials provided to the Noteholders pursuant to the Existing Note
Purchase Agreement and the written statements, certificates and materials
furnished by or on behalf of the Company to you in connection with this
Agreement and the transactions contemplated hereby do not contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading in light of the
circumstances in which they were made. Except as disclosed (i) in the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 2001, (ii) in the
other reports filed by the Company with the Securities and Exchange
-6-
Commission after June 30, 2001, (iii) in press releases issued by the Company
prior to the date hereof, or (iv) to you or Nightingale Associates, LLC in
writing, there is no fact known to the Company which materially affects
adversely or, so far as the Company can now reasonably foresee, will materially
affect adversely the business, prospects, profits, Properties or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole,
or the ability of each of the Company and each Subsidiary to perform its
obligations set forth in the Financing Documents to which it is a party or, in
the case of the Company, the Amended Note Purchase Agreement or the Notes. The
financial statements included in the reports referred to in clauses (i) and
(ii) of the preceding sentence fairly present, in all material respects, the
financial condition and results of operations of the Company and its
Subsidiaries as of the dates thereof and for the periods covered thereby in
accordance with generally accepted accounting principles.
3.7. OUTSTANDING DEBT AND LIENS.
Except for deleting the B of A Terminated Letter of Credit and
reflecting the reduction of the indebtedness under the Cartersville Note
Purchase Agreements to $10,000,000, Schedule 3.8 to the 1999 Third Amendment
sets forth a correct and complete schedule and brief description of all Debt of
the Company and the Subsidiaries outstanding on the date hereof and all
consensual Liens securing such Debt. There are no Liens on any of the Property
of the Company or any Subsidiary except Liens permitted by Section 8.17(a) of
the Amended Note Purchase Agreement.
3.8. PENDING LITIGATION.
There are no proceedings, actions or investigations pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary in any court or before any Governmental Authority or arbitration
board or tribunal (a) challenging, or in any way dealing with, the legality,
validity or enforceability of any Financing Document, the Amended Note Purchase
Agreement or the Notes or the authority of the Company or any Subsidiary to
enter into or execute any Financing Document, the Amended Note Purchase
Agreement or the Notes, or (b) except as disclosed (i) in the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 2001, (ii) in the other
reports filed by the Company with the Securities and Exchange Commission after
June 30, 2001, (iii) in press releases issued by the Company prior to the date
hereof, or (iv) to you or Nightingale Associates, LLC in writing, that, in the
aggregate for all such proceedings, actions and investigations, could
reasonably be expected to have a Material Adverse Effect or a BSE Material
Adverse Effect.
3.9. NO DEFAULTS.
No event has occurred and is continuing and no condition exists which,
upon execution and delivery of this Agreement (and after giving effect to any
consents, waivers and amendments that have become effective on or before the
date hereof) and the other Transaction Documents, would constitute a Default or
Event of Default. Neither the Company nor any Subsidiary is in violation in any
respect of any term of any charter instrument or by-law or limited liability
company agreement and neither the Company nor any Subsidiary is in default in
the payment of principal or interest on any Debt or in default under any
instrument or instruments or agreements under and subject to which any Debt has
been issued and no event has occurred and is continuing under the provisions of
any such instrument or agreement which with the lapse of time or the
-7-
giving of notice, or both, would constitute a default or an event of default
thereunder, which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect or a BSE Material Adverse Effect.
3.10. COMPLIANCE WITH LAW.
Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation to which it is subject, except for
such violations that, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect or a BSE Material Adverse Effect.
3.11. TITLE TO PROPERTIES.
(A) Each of the Company and the Subsidiaries has good and
marketable title to all real Property, and good title to all of the
other Property, reflected in the most recent balance sheet delivered
pursuant to Section 9.1 of the Existing Note Purchase Agreement
(except as sold or otherwise disposed of in the ordinary course of
business), except for such failures to have such good and marketable
title as are immaterial to such financial statements and that, in the
aggregate for all such failures, could not reasonably be expected to
have a Material Adverse Effect or a BSE Material Adverse Effect. All
such Property is free from Liens not permitted by Section 8.17(a) of
the Amended Note Purchase Agreement.
(B) Each lease of real Property in the name or for the
benefit of the Company or any Subsidiary is valid and subsisting and
in full force and effect and good standing, except for such failures
to be valid and subsisting and in full force and effect and good
standing that, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect or a BSE Material Adverse Effect.
(C) Each of the Company and the Subsidiaries owns, possesses
or has the right to use all of the patents, trademarks, service marks,
trade names, copyrights and licenses, and rights with respect thereto,
necessary for the present and currently planned future conduct of its
business, without any known conflict with the rights of others, except
for such failures to own, possess, or have the right to use, that, in
the aggregate for all such failures, could not reasonably be expected
to have a Material Adverse Effect or a BSE Material Adverse Effect.
3.12. ENVIRONMENTAL COMPLIANCE.
Except as disclosed (i) in the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 2001, (ii) in the other reports filed by the
Company with the Securities and Exchange Commission after June 30, 2001, (iii)
in press releases issued by the Company prior to the date hereof, or (iv) to
the Noteholders or Nightingale Associates, LLC in writing:
(A) COMPLIANCE -- each of the Company and the Subsidiaries is
in compliance with all Environmental Protection Laws in effect in each
jurisdiction where it is presently doing business, and in which the
failure so to comply could be reasonably expected to have a Material
Adverse Effect or a BSE Material Adverse Effect;
-8-
(B) LIABILITY -- neither the Company nor any of the
Subsidiaries is subject to any liability under any Environmental
Protection Laws that, in the aggregate, could reasonably be expected
to have a Material Adverse Effect or a BSE Material Adverse Effect;
and
(C) NOTICES -- neither the Company nor any Subsidiary has
received any
(i) notice from any Governmental Authority by which
any of its present or previously-owned or leased real
Properties has been designated, listed, or identified in any
manner by any Governmental Authority charged with
administering or enforcing any Environmental Protection Law
as a Hazardous Substance disposal or removal site, "Super
Fund" clean-up site, or candidate for removal or closure
pursuant to any Environmental Protection Law,
(ii) notice of any Lien arising under or in
connection with any Environmental Protection Law that has
attached to any revenues of, or to, any of its owned or
leased real Properties, or
(iii) summons, citation, notice, directive, letter,
or other communication, written or oral, from any
Governmental Authority concerning any intentional or
unintentional action or omission by the Company or such
Subsidiary in connection with its ownership or leasing of any
real Property resulting in the releasing, spilling, leaking,
pumping, pouring, emitting, emptying, dumping, or otherwise
disposing of any Hazardous Substance into the environment
resulting in any material violation of any Environmental
Protection Law,
in each case where the effect of the matters that are the subject of
any such notice, summons, citation, directive, letter or other
communication could reasonably be expected to have a Material Adverse
Effect or a BSE Material Adverse Effect.
3.13. RESTRICTIONS ON COMPANY AND SUBSIDIARIES.
Neither the Company nor any Subsidiary:
(A) except as set forth in Schedule 3 hereto, is a party to
any contract or agreement, or subject to any charter or other
corporate or limited liability company restriction that, in the
aggregate for all such contracts, agreements, charter and corporate
and limited liability company restrictions, could reasonably be
expected to have a Material Adverse Effect or a BSE Material Adverse
Effect;
(B) is a party to any contract or agreement that restricts
the right or ability of such corporation to incur Debt, other than the
Amended Note Purchase Agreement, the 1995 Amended Note Purchase
Agreement, the Amended Credit Agreement, any other Transaction
Document and the agreements listed in Schedule 3 hereto, the terms of
none
-9-
of which is violated by the execution and delivery by the Company or
any Subsidiary of the Financing Documents to which it is a party, or
compliance by the Company or any Subsidiary with the Financing
Documents to which it is a party or, in the case of the Company, the
Amended Note Purchase Agreement and the Notes; and
(C) has agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its
Property, whether now owned or hereafter acquired, to be subject to a
Lien not permitted by Section 8.17(a) of the Amended Note Purchase
Agreement.
4. AMENDMENTS
Effective as of the Effective Date, the Existing Note Purchase
Agreement is amended as follows:
4.1. MODIFICATION OF PAYMENT DATE OF DEFERRED SBQ INTEREST.
Section 1.2(c)(ii)(A) is modified by substituting May 15,
2002 in place of April 1, 2002.
4.2. REQUIRED SCHEDULED PREPAYMENTS.
Section 5.1 is deleted and the following Section 5.1 is
substituted therefor:
5.1. REQUIRED SCHEDULED PREPAYMENTS.
In addition to paying the entire principal amount
and the interest due on the Amended Notes outstanding on the
maturity date thereof, the Company shall prepay, and there
shall become due and payable, Twenty-Six Million Dollars
($26,000,000) principal amount of the Amended Notes (a) on
May 15, 2002, and (b) on December 15 in each year beginning
on December 15, 2002 and ending on December 15, 2004,
inclusive. Each such prepayment shall be at one hundred
percent (100%) of the principal amount prepaid, together with
interest accrued thereon to the date of prepayment. The
principal of the Amended Notes remaining outstanding on
December 15, 2005, together with interest accrued thereon,
shall become due and payable on December 15, 2005.
4.3. SATISFACTION OF CLEVELAND CESSATION CONDITION.
Section 8.12A requiring Minimum SBQ Division EBITDA is deleted in its
entirety.
4.4. ENGAGEMENT OF CIBC; ADDITIONAL INFORMATION REQUIREMENTS.
The following shall be added as a new Section 8.26:
(a) The Company has engaged CIBC World Markets Corp. ("CIBC")
to engage in a process designed to maximize value for all of the
Company's
-10-
stakeholders. The Company covenants and agrees that it will (i)
through CIBC, seek prospective purchasers of the Company or its assets
and potential merger partners, investors and other strategic partners,
and (ii) seek CIBC's advice and assistance in connection with the
Company's efforts to restructure its debt. The Company has provided to
the Purchasers information about CIBC's engagement and the process in
which CIBC is engaged on behalf of the Company. The Company covenants
and agrees that it will diligently use all reasonable efforts to
support CIBC in the endeavors described in this subsection (a),
consistent with the Company's duties to the holders of Notes, and its
other stakeholders.
(b) The Company covenants and agrees to provide, and to cause
CIBC to provide, regular and full reporting to the holders of Notes
with respect to CIBC's activities described in subsection (a) above on
at least a weekly basis, and more frequently upon the occurrence of a
material event. Such reporting shall be provided to the Purchasers
through a subcommittee of holders of Notes and lenders party to the
Amended Credit Agreement.
4.5. ADDITIONAL EVENT OF DEFAULT.
The following is added to Section 10.1:
(M) FAILURE TO PURSUE STRATEGIC ALTERNATIVES - (i)
either the Company or CIBC terminates the CIBC engagement
described in Section 8.26 hereof; (ii) the Company, in the
judgment of the Majority Holders, has restricted the ability
of CIBC to pursue strategic alternatives; or (iii) the
Company, in the judgment of the Majority Holders, ceases to
pursue strategic alternatives that are acceptable to the
Majority Holders.
5. CONDITIONS PRECEDENT
The amendments set forth in Section 4 shall become effective upon the
satisfaction of the following conditions (the date of such effectiveness being
herein referred to as the "EFFECTIVE DATE"):
5.1. CERTIFICATES.
(A) COMPANY OFFICER'S CERTIFICATE. The Company shall have
delivered to the Noteholders (or their special counsel) a certificate
signed by the Chairman, the Vice Chairman, the President or the
Executive Vice President-Chief Financial Officer of the Company, dated
the date hereof, certifying that (i) no Default or Event of Default
under the Amended Note Purchase Agreement exists and (ii) the
representations and warranties set forth in Section 3 (including those
incorporated by reference from the 1999 Third Amendment and the BSE
Credit Agreement) and in each of the other Financing Documents are
true and correct on the date hereof.
(B) COMPANY SECRETARY'S CERTIFICATE. The Company shall have
delivered to the Noteholders a certificate signed by the Secretary or
one of the Assistant Secretaries of
-11-
the Company, dated the date hereof, certifying as true and correct the
resolutions attached thereto and other corporate proceedings relating
to the authorization, execution and delivery of each of the Financing
Documents to which the Company is a party.
5.2. OPINION OF COUNSEL.
The Noteholders shall have received an opinion (dated as of the
hereof, substantially in the form set forth in Exhibit A, and as to such other
matters as the Noteholders may reasonably request) from Xxxx & Xxxxxx LLP,
special counsel for the Company and the Restricted Subsidiaries.
5.3. AMENDMENT TO 1995 AGREEMENT.
The Company shall have delivered to the Noteholders (or their special
counsel) a true and correct counterpart of the fully executed Amendment to 1995
Agreement, which shall have been executed by the Company and each holder of
1995 Notes under the 1995 Existing Note Purchase Agreement.
5.4. TENTH AMENDMENT TO CREDIT AGREEMENT.
The Company, the Banks and the Agent shall have delivered to the
Noteholders (or their special counsel) a true and correct counterpart of the
fully executed Tenth Amendment to Credit Agreement, which shall be in form and
substance satisfactory to each Noteholder and their special counsel.
5.5. AMENDMENT TO MEMPHIS LEASE DOCUMENTS.
The Company shall have delivered to the Noteholders (or their special
counsel) a true and correct counterpart of an amendment to the Melt Shop
Equipment Financing Documents, which shall be in form and substance
satisfactory to each Noteholder and their special counsel.
5.6. PAYMENT OF SPECIAL COUNSEL AND FINANCIAL ADVISOR FEES.
Without limiting the provisions of Section 6.3, the Company shall have
paid on or before the date hereof the fees, charges and disbursements of the
Noteholders' special counsel referred to in Section 6.3, and Nightingale &
Associates, LLC, in each case to the extent reflected in statements rendered to
the Company on or prior to the date hereof.
5.7. PROCEEDINGS AND DOCUMENTS SATISFACTORY.
All opinions, certificates and other instruments and all proceedings
taken in connection with the execution and delivery of this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory to the
Noteholders and their special counsel; and the Noteholders and their special
counsel shall have received copies of such documents and papers as may be
reasonably requested in connection therewith.
-12-
6. MISCELLANEOUS
6.1. EFFECT OF AMENDMENT.
If the foregoing is acceptable to you, please note your acceptance in
the space provided below. Upon the execution and delivery of this Agreement by
each holder of Notes and the Company, the conditions set forth in Section 5
shall be deemed satisfied or waived and the Existing Note Purchase Agreement
shall be deemed to be amended as set forth above. This Agreement shall be
binding upon, and shall inure to the benefit of, the permitted successors and
assigns of the parties hereto and the holders from time to time of the Notes.
6.2. NO LEGEND REQUIRED.
Any and all notices, requests, certificates and other instruments
including, without limitation, the Notes, may refer to (a) the Note Purchase
Agreement or (b) the Note Purchase Agreement dated as of September 1, 1993 or
as of October 12, 1999, in each case without making specific reference to this
Fifth Amendment to Note Purchase Agreement, but nevertheless all such
references shall be deemed to include this Fifth Amendment to Note Purchase
Agreement unless the context shall otherwise require.
6.3. FEES AND EXPENSES.
Whether or not the transactions herein contemplated shall be
consummated, the Company agrees to pay directly all reasonable out-of-pocket
travel expenses and other reasonable out-of-pocket expenses of the Noteholders
in connection with the preparation, negotiation, execution and delivery of the
Financing Documents and the Amended Note Purchase Agreement, and the
transactions contemplated hereby and thereby, including, but not limited to,
the reasonable fees and disbursements of Xxxxxxx Xxxx LLP, the Noteholders'
special counsel, Nightingale & Associates, LLC, financial advisor to the
Noteholders and the 1995 Noteholders and special counsel to any individual
Noteholders and photocopying costs, and so long as any Noteholder shall hold
any of the Notes, all such expenses relating to any amendments, waivers or
consents pursuant to the provisions of the Amended Note Purchase Agreement,
including, without limitation, any amendments, waivers or consents resulting
from any work-out, restructuring or similar events relating to the performance
by the Company and the Subsidiaries of their respective obligations under the
Financing Documents, the Amended Note Purchase Agreement and the Notes. The
Company also agrees that it will pay and save each Noteholder harmless against
any and all liability with respect to stamp and other similar taxes, if any,
which may be payable or which may be determined to be payable in connection
with the execution and delivery of the Financing Documents and this Agreement.
The Company agrees to protect and indemnify each Noteholder against any
liability for any and all brokerage fees and commissions payable or claimed to
be payable to any Person retained by the Company, the Restricted Subsidiaries,
or any of the Affiliates that are controlled by the Company in connection with
the transactions contemplated by this Agreement.
6.4. SURVIVAL.
All warranties, representations, certifications and covenants made by
the Company in this Agreement or in any certificate or other instrument
delivered by it or on its behalf under this
-13-
Agreement shall be considered to have been relied upon by the Noteholders and
shall survive the execution of this Agreement, regardless of any investigation
made by or on behalf of the Noteholders. All statements in any such certificate
or other instrument shall constitute warranties and representations of the
Company under this Agreement.
6.5. DUPLICATE ORIGINALS; EXECUTION IN COUNTERPART.
Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed in one
or more counterparts and shall be effective when at least one counterpart shall
have been executed by each party to this Agreement, and each set of
counterparts which, collectively, show execution by each such party to this
Agreement shall constitute one duplicate original. A facsimile of an executed
counterpart shall have the same effect as the original executed counterpart.
6.6. RELEASE OF CLAIMS.
The Company, for itself and all of its predecessors, successors and
assigns, acknowledges, affirms and represents that immediately prior to giving
effect to this Agreement, it is legally, validly and enforceably obligated to
each of the Noteholders under and pursuant to the Notes and the Existing Note
Purchase Agreement and that the Company has no defense, offset, counterclaim or
right of recoupment with regard to such obligations. Additionally, the Company
for itself and all of its predecessors, successors and assigns, does hereby
fully, forever and completely release and discharge each of the Noteholders and
all of their respective employees, officers, directors, trustees, shareholders,
affiliates, agents, attorneys, representatives, predecessors, successors and
assigns (collectively, the "RELEASED PARTIES"), from any and all claims,
demands, liabilities, damages and causes of action of any kind whatsoever
(collectively, the "COMPANY CLAIMS") whether based on facts in existence prior
to or as of the date hereof, whether known or unknown, which the Company may
now have or may have had at any time heretofore or may have at anytime
hereafter, whether for contribution or indemnity or otherwise, and whether
direct or indirect, fixed or contingent, liquidated or unliquidated, arising
out of or related in any way to any of the following: (a) the Notes and the
Existing Note Purchase Agreement and all documents relating thereto or executed
in connection therewith (the "EXISTING NOTE DOCUMENTS"); and (b) any action,
inaction or omission by any of the Released Parties in connection with the
Existing Note Documents or the administration thereof. Upon the Effective Date,
the Company and each of its Subsidiaries covenants and agrees never to
commence, voluntarily aid in any way, prosecute or cause to be commenced or
prosecuted against any of the Released Parties any action or other proceeding
based upon any of the Company Claims which may have arisen at any time on or
prior to the date of this Amendment and were in any manner related to or
arising in connection with the Existing Note Documents.
6.7. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
-14-
If you are in agreement with the foregoing, please sign the form of
acceptance in the space provided below, whereupon the foregoing shall become a
binding agreement between you and the Company as of the date first above
written.
BIRMINGHAM STEEL CORPORATION
By:
----------------------------------------
Name:
Title:
[Signature Page to Fifth Amendment to Note Purchase Agreement re: 1993]
Accepted:
PRINCIPAL LIFE INSURANCE COMPANY
(F/K/A PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY)
BY: PRINCIPAL CAPITAL MANAGEMENT, LLC
A DELAWARE LIMITED LIABILITY COMPANY,
ITS AUTHORIZED SIGNATORY
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By:
--------------------------------------
Name:
Title:
JEFFERSON-PILOT LIFE INSURANCE
COMPANY
By:
--------------------------------------
Name:
Title:
AMERICAN UNITED LIFE INSURANCE
COMPANY
By:
--------------------------------------
Name:
Title:
[Signature Page to Fifth Amendment to Note Purchase Agreement re: 1993]
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
THE GREAT-WEST LIFE ASSURANCE COMPANY
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
CAPITAL FUNDING VII LLC
By:
--------------------------------------
Name:
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:
--------------------------------------
Name:
Title:
[Signature Page to Fifth Amendment to Note Purchase Agreement re: 1993]
THE CANADA LIFE ASSURANCE COMPANY
(J. ROMEO & CO. AS NOMINEE)
By:
--------------------------------------
Name:
Title:
CANADA LIFE INSURANCE COMPANY OF
AMERICA (J. ROMEO & CO. AS NOMINEE)
By:
--------------------------------------
Name:
Title:
THE GUARDIAN LIFE INSURANCE COMPANY
OF AMERICA
By:
--------------------------------------
Name:
Title:
[Signature Page to Fifth Amendment to Note Purchase Agreement re: 1993]
PROVIDENT MUTUAL LIFE INSURANCE
COMPANY
By:
--------------------------------------
Name:
Title:
AMERITAS LIFE INSURANCE CORP.
BY: AMERITAS INVESTMENT ADVISORS INC., AS AGENT
By:
--------------------------------------
Name:
Title:
[Signature Page to Fifth Amendment to Note Purchase Agreement re: 1993]
SCHEDULE 3
EXCEPTIONS TO REPRESENTATIONS
The representations contained in Section 3 of this Fifth Amendment are hereby
qualified by an exception for any matters disclosed (i) in the Company's Annual
Report on Form 10K for the year ended June 30, 2001, (ii) in any other report
filed by the Company with the Securities and Exchange Commission prior to the
date hereof, (iii) in any press release issued by the Company prior to the date
hereof, (iv) in writing to the holders of the Notes by the Company prior to the
date hereof, and (v) any adverse impact on the Company caused by the September
11, 2001 terrorist attacks and the resulting nationwide economic slowdown.
Fifth Amendment to Note Purchase Agreement re: 1993
EXHIBIT A
[FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY
AND THE RESTRICTED SUBSIDIARIES]
Fifth Amendment to Note Purchase Agreement re: 1993
