Exhibit 10(a)(ii)
AMENDMENT NO. 2 AND WAIVER AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER AGREEMENT ("Amendment No. 2") is
entered into as of November 13, 2001, by and among COLD METAL PRODUCTS, INC., a
New York corporation ("CMP"), ALKAR STEEL CORPORATION, a Michigan corporation
("Alkar") (CMP and Alkar each individually a "Borrower" and collectively the
"Borrowers") and GMAC Commercial Credit LLC, a New York limited liability
company having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Lender").
BACKGROUND
Borrowers, Cold Metal Products, Limited ("Canadian Guarantor")
(Borrowers and Canadian Guarantor each a "Loan Party" and collectively "Loan
Parties") and Lender are parties to a Fourth Amended and Restated Credit and
Security Agreement dated as of September 29, 2000 (as amended by Amendment No. 1
dated as of May 16, 2001 and as same may be further amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Lender provides Borrowers with certain financial
accommodations.
Loan Parties have requested that Lender amend certain provisions of the
Loan Agreement and waive certain financial covenants on the terms set forth
herein and Lender is willing to do so on the terms and conditions hereafter set
forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Loan Parties by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 5 below, the Loan Agreement is hereby
amended as follows:
2.1. Section 1.2 of the Loan Agreement is hereby amended as follows:
(a) the following defined terms are hereby added in their
appropriate alphabetical order:
"AMENDMENT NO. 2" shall mean Amendment No. 2 and Waiver
Agreement dated as of November 13, 2001.
"AMENDMENT NO. 2 EFFECTIVE DATE" shall mean the later of
November 13, 2001 or the date upon which all of the
conditions precedent contained in Section 5 of Amendment
No. 2 shall have been satisfied. "ODOD" shall mean the Ohio
Department of Development.
"ODOD Financing" shall mean a secured financing provided or
to be provided by the ODOD to CMP in the maximum aggregate
principal amount of $2,000,000 for the purpose of financing
the purchase and refurbishment of certain Equipment to be
used in connection with CMP's Youngstown, Ohio location and
otherwise pursuant to such terms, conditions and
documentation as are satisfactory to Lender in its
discretion.
(b) the following defined term is hereby amended in its
entirety to read as follows:
"REVOLVING INTEREST RATE" shall mean an interest rate per
annum equal to the sum of the Average Monthly LIBOR Rate
plus two percent (2.00%).
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(c) The defined term "Permitted Encumbrance" is hereby amended
by deleting the word "and" appearing before the sectional reference "(d)" with a
comma and inserting a new subsection "(e)" to read as follows:
"(e) Liens in favor of ODOD securing the ODOD
Financing so long as such Liens cover only the
Equipment being purchased or refurbished in
connection with such ODOD Financing."
(d) The following defined term is hereby deleted in its
entirety:
Applicable Margin
2.2. Section 2.1(a)(y)(ii) is hereby amended in its entirety to
read as follows:
"(ii) up to 40%, subject to the provisions of Section 2.1(b)
hereof ("Inventory Advance Rate"), of the value of the
Eligible Inventory (calculated based upon the Dollar
Equivalent of the Inventory of Canadian Guarantor) (the
Receivables Advance Rate and the Inventory Advance Rate shall
be referred to collectively, as the "Advance Rates");
PROVIDED, however, the maximum amount of outstanding Advances
against Eligible Inventory shall not exceed $41,000,000 at any
one time, PLUS"
2.3. Section 2.2 is hereby amended by deleting the penultimate
sentence thereof and restating the last sentence thereof in its entirety to read
as follows:
"Whenever, subsequent to the date of this Agreement, the
Average Monthly LIBOR Rate is increased or decreased, the
applicable Contract Rate shall be similarly changed without
notice or demand by an amount equal to the amount of such
change in the Average Monthly LIBOR Rate."
2.4. Section 2.4 is hereby amended by restating the last sentence
thereof in its entirety to read as follows:
"Capital Expenditure Loans shall consist of LIBOR Rate Loans."
2.5. Section 3.5 is hereby amended by deleting the reference to
"applicable to Domestic Rate Loans" appearing on the last line thereof.
2.6. Section 4.19 is hereby amended by deleting the reference to
"Domestic Rate Loans constituting" appearing in the last sentence thereof.
2.7. Sections 6.8 and 6.9 are hereby amended in their entirety to
read as follows:
"6.8. FIXED CHARGE COVERAGE. Commencing with the fiscal
quarter ending on December 31, 2001 and each fiscal quarter
ending thereafter, in each case for the four fiscal quarters
then ended, cause the ratio of (x) the sum of aggregate net
income of Borrowers on a Consolidated Basis for such fiscal
period plus any Capital Expenditure Loans advanced by Lender
to Borrowers plus the aggregate amount of income tax,
interest, depreciation and amortization, and all other
non-cash expense used in determining such net income during
such fiscal period as set forth in the adjustments to
reconcile net income to net cash provided by operating
activities as reflected on the Borrowers and Guarantors
Consolidated Statement of Cash Flows to (y) aggregate
consolidated interest expense during such fiscal period plus
aggregate amount of income tax expense and capital
expenditures paid in cash during such fiscal period (and not
financed with the proceeds of a Capital Expenditure Loan)
plus, without duplication, the aggregate amount of scheduled
reductions in availability during such fiscal period pursuant
to Section 2.1(a)(y)(iii) hereof to be not less than the ratio
set forth below as corresponds to the applicable fiscal
periods set forth below.
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FOUR FISCAL QUARTERS ENDING Ratio
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December 31, 2001 (.375) to 1.0
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March 31, 2002 .35 to 1.0
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June 30, 2002 .75 to 1.0
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September 30, 2002 and each four fiscal quarter period ending
at the end of each fiscal quarter thereafter during the Term." 1.0 to 1.0
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6.9. TOTAL LIABILITIES TO EQUITY. Cause the ratio of total
consolidated Indebtedness (which for the purpose of this
calculation shall mean Indebtedness exclusive of $4,292,000
"Additional Minimum Liability" as defined by Statement of
Financial Accounting Standards Number 87, that represents the
change in recognized pension obligations occurring principally
as a result of changes in market interest discount rates and
pension plan asset values as of March 31, 2001, for actuarial
valuation purposes for the defined benefit plans of CMP having
an unfunded accumulated benefit obligation) to consolidated
stockholders' equity (which for the purpose of this
calculation shall exclude any element of "other comprehensive
income/(loss)" as reported in CMP's balance sheet) for
Borrowers on a Consolidated Basis to be not more than the
ratios set forth below at the end of each fiscal quarter set
forth below:
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FISCAL QUARTER Ratio
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December 31, 2001 5.00 to 1.0
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March 31, 2002 5.25 to 1.0
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June 30, 2002 5.00 to 1.0
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September 30, 2002 and at the end of each fiscal
quarter thereafter during the Term. 4.75 to 1.0
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For purposes of this Section 6.9, the effect of CMP's adoption
of "Statement of Financial Accounting Standard No. 142,
goodwill and other intangible assets" required to be adopted
subsequent to March 31, 2002 shall be disregarded.
2.8. Section 7.8 is hereby amended in its entirety to read as
follows:
"7.8 INDEBTEDNESS. Create, incur, assume or suffer to exist
any Indebtedness (exclusive of trade debt) of any Loan Party
except in respect of (i) Indebtedness to Lender; (ii)
Indebtedness incurred for capital expenditures permitted under
Section 7.6 hereof, (iii) Indebtedness disclosed on SCHEDULE
7.8, (iv) Indebtedness in connection with loans permitted
under Section 7.5, (v) Indebtedness to the ODOD in connection
with the ODOD Financing and (vi) Indebtedness to third party
lenders in connection with a refinancing of Obligations
constituting Amortizing Availability permitted under Section
4.21, provided that such third party lender shall subordinate
such debt and any Liens securing such debt to the Obligations
pursuant to a subordination agreement in form and substance
satisfactory to Lender.
2.9. Section 11.1 is hereby amended by deleting the reference to
"five (5) days" and inserting "ten (10) days" in lieu thereof.
3. WAIVERS. Subject to the satisfaction of the conditions set forth in
Section 5 below, Lender hereby waives (i) the Event of Default that has occurred
as a result of Borrowers' non-compliance with Section 6.8 of the Loan Agreement
solely as a result of Borrowers' failure to maintain the requisite Fixed Charge
Coverage as of the end of the fiscal quarter ending September 30, 2001 so long
as the Fixed Charge Coverage at the end of such fiscal quarter was not less than
(.43) to 1.00, and (ii) the provisions of Section 3.1 insofar as a Default Rate
of Interest may have applied at any time through to the Amendment No. 2
Effective Date with respect to the Event of Default being waived in Section 3(i)
hereof.
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4. PROJECTIONS; APPRAISALS.
(a) Not later than January 31, 2002, Lender shall have
received an appraisal of each Loan Party's Real Property (other than with
respect to the New Britain, Connecticut facility) prepared by Xxxxxxx &
Xxxxxxxxx or such other appraiser satisfactory to Lender.
(b) Not later than January 31, 2002, Lender shall have
received an appraisal of each Loan Party's Equipment, in form and substance
satisfactory to Lender, prepared by an appraiser satisfactory to Lender.
5. CONDITIONS OF EFFECTIVENESS. This Amendment No. 2 shall become
effective when Lender shall have received:
(i) four (4) copies of this Amendment No. 2 executed
by each Loan Party and consented to by the Participants; and
(ii) an amendment fee equal to $50,000, which fee
shall be charged to Borrowers' Account.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Loan
Party hereby represents, warrants and covenants as follows:
(a) This Amendment No. 2 and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of Loan Parties and are
enforceable against Loan Parties in accordance with their respective terms.
(b) Except as set forth in Section 3 hereof, no Event of
Default or Default has occurred and is continuing or would exist after giving
effect to this Amendment No. 2.
(c) No Loan Party has any defense, counterclaim or offset
with respect to the Obligations.
7. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of SECTION 2 hereof, each
reference in the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement, and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment No. 2 shall not operate as a waiver of any right, power or remedy of
Lender, nor constitute a waiver of any provision of the Loan Agreement, or any
other documents, instruments or agreements executed and/or delivered under or in
connection therewith.
8. GOVERNING LAW. This Amendment No. 2 shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall be governed by and construed in accordance with the laws of
the State of New York.
9. HEADINGS. Section headings in this Amendment No. 2 are
included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 2 for any other purpose.
10. COUNTERPARTS. This Amendment No. 2 may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which taken together shall be deemed to constitute one and
the same agreement.
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IN WITNESS WHEREOF, this Amendment No. 2 has been duly
executed as of the day and year first written above.
COLD METAL PRODUCTS, INC., as Borrower
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President and
Chief Financial Officer
ALKAR STEEL CORPORATION, as Borrower
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
COLD METAL PRODUCTS, LIMITED, as
Canadian Guarantor
By:
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Name: Xxxxxxx X. Xxxxx
Title Director
GMAC COMMERCIAL CREDIT LLC, as Lender
By:
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Name:
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Title:
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AMENDMENT NO. 2 AND WAIVER AGREEMENT TO FOURTH AMENDED AND RESTATED CREDIT AND
SECURITY AGREEMENT DATED AS OF NOVEMBER 13, 2001 IS HEREBY CONSENTED AND AGREED
TO AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN:
THE CIT GROUP/BUSINESS CREDIT INC.
By:
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Name:
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Title:
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NATIONAL CITY BANK
By:
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Name:
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Title:
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