FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement is entered into effective
as of April 6, 2001 (this "Agreement"), is among Huntco Steel, Inc., HSI
Aviation, Inc., Huntco Inc., Huntco Nevada, Inc. and Midwest Products, Inc.
(the "Obligors") and Enron North America Corp. (the "Lender").
INTRODUCTION
Reference is made to the Loan Agreement dated as of April 6, 2001 (as
amended, the "Loan Agreement"), among the Obligors and the Lender, the
defined terms of which are used herein unless otherwise defined herein. The
Obligors and the Lender have agreed to (a) modify the subordination language
on the first page of the Loan Agreement, (b) modify certain definitions used
in the Loan Agreement and make appropriate conforming changes, (c)
acknowledge Lender's Consent to HSI Aviation, Inc.'s dissolution and the
proposed sale of Huntco Steel, Inc.'s Springfield, Missouri property, (d)
replace the Exhibits and Schedules to the Loan Agreement with those attached
to this Agreement, and (e) otherwise modify the Loan Agreement as more fully
set forth below.
THEREFORE, in connection with the foregoing and for other good and
valuable consideration, the Obligors and the Lender hereby agree as follows:
1. Amendments and Consents.
1.1 The paragraph on the top of the cover page of the Loan Agreement
is hereby replaced with the following:
THE LIENS, RIGHTS, AND/OR OTHER OBLIGATIONS CREATED IN FAVOR OF
ENRON NORTH AMERICA CORP. BY THIS AGREEMENT ARE SUBORDINATE TO
THE LIENS, RIGHTS, AND/OR OTHER OBLIGATIONS IN FAVOR OF CONGRESS
(AS SUCH TERM IS DEFINED IN THE CONGRESS INTERCREDITOR AGREEMENT
DESCRIBED BELOW) AS PROVIDED IN THAT CERTAIN INTERCREDITOR AND
SUBORDINATION AGREEMENT BETWEEN ENRON NORTH AMERICA CORP. AND
CONGRESS FINANCIAL CORPORATION (CENTRAL) AS THE SAME NOW EXISTS
OR MAY HEREAFTER BE AMENDED, SUPPLEMENTED, MODIFIED, RENEWED,
RESTATED, OR REPLACED (THE "CONGRESS INTERCREDITOR AGREEMENT").
1.2 Section 1.1 of the Loan Agreement is amended by adding the
following definitions which, where applicable, replace the prior definition
for the same term.
"Blytheville Sale Agreement" means the Asset Purchase and Sale
Agreement dated as of April 30, 2001, by and among Huntco Steel, Inc., a
Delaware corporation, Huntco Inc., a Missouri corporation, and Enron
Industrial Markets LLC, a Delaware limited liability company, as amended by
that certain First Amendment to Asset Purchase Agreement dated as of June 8,
2001, with respect to the sale of the Blytheville Arkansas property.
"Collateral" means, all of the following with respect to each Obligor:
(a) Accounts;
(b) all present and future contract rights, general intangibles
(including tax and duty refunds, registered and unregistered patents,
trademarks, service marks, copyrights, trade names, applications for
the foregoing, trade secrets, goodwill, processes, drawings,
blueprints, customer lists, licenses, whether as licensor or licensee,
chooses in action and other claims and existing and future leasehold
interests in equipment, real estate and fixtures), chattel paper,
documents, instruments, investment property, letters of credit,
bankers' acceptances and guaranties;
(c) all present and future monies, securities and other
investment property, credit balances, deposits, deposit accounts and
other property of Obligor now or hereafter held or received by or in
transit to Lender or its Affiliates or at any other depository or other
institution from or for the account of Obligor whether for safekeeping,
pledge, custody, transmission, collection or otherwise, and all present
and future Liens, security interests, rights, remedies, title and
interest in, to and in respect of Accounts and other Collateral,
including (i) rights and remedies under or relating to guaranties,
contracts of suretyship, letters of credit and credit and other
insurance related to the Collateral, (ii) rights of stoppage in
transit, replevin, repossession, reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, (iii) goods
described in invoices, documents, contracts or instruments with respect
to, or otherwise representing or evidencing, Accounts or other
Collateral, including returned, repossessed and reclaimed goods, and
(iv) deposits by and property of account debtors or other persons
securing the obligations of account debtors;
(d) Inventory;
(e) Equipment;
(f) Records;
(g) Real Property; and
(h) all products and proceeds of the foregoing, in any form,
including insurance proceeds and any claims against third parties for
loss or damage to or destruction of any or all of the foregoing.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement dated as of June 8, 2001, between Lender and Congress and
agreed to and acknowledged by the Obligors as the same now exists or
may hereafter be amended, modified, supplemented, renewed, restated or
replaced.
"Loan Obligations" means all principal, interest, fees, reimbursements,
indemnifications, and other amounts now or hereafter owed by the
Obligors to Lender under the Loan Documents.
"Replacement Senior Loan Agreement" means the Senior Loan Agreement as
amended, renewed, restated, replaced or restructured in a manner which
is not prohibited by Section 5.23 hereto, and any loan agreement
between Borrower and any lender thereto which, following receipt of
consent from Congress, refinances or otherwise replaces the Senior Loan
Agreement in a manner which is not prohibited under Section 5.23 hereto
as such loan agreement may hereafter be amended, renewed, restated,
replaced or restructured in a manner which is not prohibited by Section
5.23 hereto.
"Senior Amendment No. 1" means the Amendment No. 1 to Loan and Security
Agreement dated June 8, 2001, by and among Congress, as lender,
Borrower and Midwest Products, Inc., as borrowers, and Huntco Inc.,
Huntco Nevada, Inc., and HSI Aviation, Inc., as guarantors that is
attached to Exhibit B hereto, provided, that no amendment or
modification to such documents shall amend the provisions of this
Agreement unless specifically agreed to in writing by the parties
hereto.
"Senior Loan Agreement" means the Loan and Security Agreement dated
April 15, 1999, by and among Congress, as lender, Borrower and Midwest
Products, Inc., as borrowers, and Huntco Inc., Huntco Nevada, Inc., and
HSI Aviation, Inc., as guarantors, as amended by Senior Amendment No.
1, that is attached to Exhibit B hereto, provided, that no amendment or
modifications to such documents shall amend this Agreement unless
specifically agreed to in writing by the parties hereto.
1.3 The first paragraph in Article 5 of the Loan Agreement is hereby
replaced with the following:
"Until Lender receives irrevocable payment of the Loan
Obligations and has terminated this Agreement and each other Loan
Document, each Obligor shall comply and cause compliance with the
following covenants unless and to the extent the same are waived
by Lender:"
1.4 Section 5.4 of the Loan Agreement is hereby replaced by the
following:
"5.4 Use of Proceeds. The proceeds of the Loan shall be
used by Borrower only for the repayment of Debt to trade vendors
and Senior Lender and to pay for transaction expenses incurred in
connection with entering into the Transaction Documents and the
Blytheville Sale Agreement. Borrower shall not, directly or
indirectly, use any part of such proceeds for any purpose which
violates applicable laws or regulations."
1.5 Section 5.9(b) of the Loan Agreement is hereby replaced by the
following:
"(b) sell, assign, lease, transfer, abandon or otherwise
dispose of any Capital Stock or Debt to any other Person or any
of its assets to any other Person except as permitted pursuant to
(i) the terms of Section 2.6 of the Intercreditor Agreement or
(ii) the terms of Section 9.7(b) of the Senior Loan Agreement,
provided, that, in connection with such Section 9.7(b), Lender
shall have the rights described in Section 5.22 hereof.
1.6 Section 5.12(b) of the Loan Agreement is hereby replaced by the
following:
"(b) At its option, Lender may apply any insurance
proceeds received by Lender at any time to the cost of repairs or
replacement of Collateral and/or to payment of the Loan
Obligations, whether or not then due, in any order and in such
manner as Lender may determine or hold such proceeds as cash
collateral for the Loan Obligations, except that to the extent
any Obligor has the right under Section 9.5(b) of the Senior Loan
Agreement to require that insurance proceeds be applied to
rebuilding a portion of the damaged Collateral such Obligor shall
have identical rights under this Agreement as though such Section
9.5(b) of the Senior Loan Agreement were set forth in its
entirety in this Agreement with all references to Senior Lender
being treated as references to Lender under this Agreement."
1.7 Section 5.23 of the Loan Agreement is hereby replaced by the
following:
"5.23 Amendments of Senior Loan Agreements. Obligors
shall not enter into any Replacement Senior Loan Agreement or
effect any amendment, waiver, modification, or refinancing of the
Senior Loan Agreement or of a Replacement Senior Loan Agreement
that permits or causes there to be a new Senior Lender unless
such new Senior Lender shall have entered into an intercreditor
agreement with Lender that is substantially the same as the
Intercreditor Agreement between Congress and Lender that was
executed in connection with this Agreement. Additionally,
Obligors shall not enter into any Replacement Senior Loan
Agreement or effect any amendment, waiver, modification, or
refinancing of the Senior Loan Agreement or of a Replacement
Senior Loan Agreement in any manner that (a) causes the Maximum
Credit or the aggregate outstanding principal amount of
Indebtedness under such Agreements to exceed the Revolver Limit
as such term is defined in the Intercreditor Agreement and (b)
allows another party a lien on the Enron Inventory Collateral (as
such term is defined in the Intercreditor Agreement). Each
Obligor agrees to furnish Lender all notices or demands in
connection with such Senior Loan Agreements, Replacement Senior
Loan Agreements and any amendments or modifications thereto and
to provide Lender with true and correct copies of Replacement
Senior Loan Agreements and any amendments or modifications to the
Senior Loan Agreement or Replacement Senior Loan Agreements."
1.8 Section 6.1(c) of the Loan Agreement is hereby replaced by the
following:
"Breach of Covenant. Any breach by an Obligor of (i) any
of the covenants contained in Sections 5.1, 5.2, 5.14, 5.15,
5.16, 5.17, 5.18 and 5.20 of this Agreement and such failure is
not cured within ten (10) days of the occurrence of such breach;
provided, that, such ten (10) day cure period shall not apply in
the case of: (A) any failure to observe any such covenant which
is not capable of being cured at all or within such ten (10) day
period or which has been the subject of a prior failure within a
six (6) month period or (B) an intentional breach by any Obligor
of any such covenant or (ii) any Obligor fails to perform any of
the terms, covenants, conditions, or provisions contained in this
Agreement or any of the other Loan Documents other than those
described in Sections 6.1(c)(i);"
1.9 Section 6.3 of the Loan Agreement is hereby replaced by the
following:
"6.3 Acceleration of Loan Obligations. Upon the
occurrence of any Bankruptcy Event of Default, the aggregate
outstanding principal amount of all loans made hereunder, all
accrued but unpaid interest thereon, and all other Loan
Obligations shall immediately and automatically become due and
payable. During the existence of any Event of Default, Lender
may declare by written notice to Borrower the aggregate
outstanding principal amount of all loans made hereunder, all
accrued but unpaid interest thereon, and all other Loan
Obligations to be immediately due and payable, whereupon the same
shall immediately become due and payable. In connection with the
foregoing, except for any express notice requirements in this
Agreement, Borrower waives notice of any Default or Event of
Default, notice of intent to accelerate, notice of acceleration,
presentment for payment, demand for payment, notice of
enforcement of remedies, and all other notices."
1.10 Section 6.4 of the Loan Agreement is hereby replaced by the
following:
"6.4 Default Interest. During the existence of an Event
of Default under Section 6.1(a), whether by maturity,
acceleration, or otherwise, Lender may declare by written notice
to Borrower that the Loan Obligations specified in such notice
shall bear interest beginning on the date specified in such
notice (which may not be earlier than the date of such notice)
until paid in full at the Default Rate, whereupon Borrower shall
pay such interest to Lender upon demand."
1.11 The following is hereby added to the last sentence of Section 6.5
of the Loan Agreement:
"For purposes of this Section 6.5, EBF LLC, a Delaware LLC, shall
be deemed to not be an Affiliate of Lender."
1.12 Section 6.8(a) of the Loan Agreement is hereby replaced by the
following:
"(a) Prior to the existence of any Bankruptcy Event of
Default or any Event of Default existing after the acceleration
or maturity of the Loan Obligations, all payments made hereunder
shall be applied to the Loan Obligations as directed by Borrower,
subject to the rules regarding the application of payments to
certain Loan Obligations provided for hereunder and in the other
Loan Documents. If no direction is provided by Borrower, then
applications shall be made as directed by Lender."
1.12 Huntco Steel, Inc., agrees that it shall not permit HSI Aviation,
Inc., to engage in any activity or business operations other than the winding
up of its business and its dissolution. On or before, June 30, 2001, Huntco
Steel Inc., shall file articles of dissolution by voluntary action with the
Secretary of State of Missouri with respect to the dissolution of HSI
Aviation, Inc., and Lender hereby consents to such dissolution provided that
(a) Huntco Steel, Inc., incurs no additional liabilities in connection with
such dissolution, (b) all of HSI Aviation, Inc.'s assets become assets of
Huntco Steel, Inc., in connection with such dissolution and (c) such
dissolution otherwise complies with the requirements set forth in Section 5
of Senior Amendment No. 1.
1.13 Lender hereby consents to Huntco Steel, Inc.'s sale of its
offices in Springfield Missouri provided that (a) such sale is completed on
or before August 15, 2001, (b) $435,000 of the proceeds of such sale are used
to pay amounts owed under the Senior Loan Agreement and (c) such sale
otherwise complies with the requirements set forth in Section 9.7(b)(vi) of
Senior Amendment No. 1.
1.14 The Exhibits and Schedules attached to the Loan Agreement are
hereby replaced by Exhibit A, Exhibit B, and Schedules 4.7, 4.9, 4.12, 4.17,
4.18 and 5.7 which are attached hereto.
1.15 Lender consents to the sale of the property covered by and
pursuant to the terms of the Blytheville Sale Agreement.
2. Representations and Warranties. Each Obligor represents and warrants that
(a) the execution, delivery, and performance of this Agreement are within the
corporate power and authority of such Obligor and have been duly authorized
by appropriate proceedings, (b) this Agreement constitutes legal, valid, and
binding obligations of such Obligor enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the rights of creditors generally and
general principles of equity, and (c) no Event of Default shall exist under
the Loan Documents and there shall have occurred no event which with notice
or lapse of time would become an Event of Default under the Loan Documents,
as amended.
3. Effect on Loan Documents. Except as amended herein, the Loan Agreement
and all other Loan Documents remain in full force and effect as originally
executed. Subject to Section 1.1 above, nothing herein shall act as a waiver
of the Lender's rights under the Loan Documents as amended, including the
waiver of any default or event of default, however denominated. Each Obligor
must continue to comply with the terms of the Loan Documents, as amended.
This Agreement is a Loan Document for the purposes of the provisions of the
other Loan Documents. Without limiting the foregoing, any breach of
representations, warranties, and covenants under this Agreement shall be a
default under the other Loan Documents.
4. Effectiveness. This Agreement shall become effective and the Loan
Agreement shall be amended as provided in this Agreement when the Lender
shall have received duly executed counterparts hereof signed by the Obligors
and the Lender.
5. Miscellaneous. The miscellaneous provisions of the Loan Agreement apply
to this Agreement. This Agreement may be signed in any number of
counterparts, each of which shall be an original.
THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
LENDER:
ENRON NORTH AMERICA CORP.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
OBLIGORS:
HUNTCO STEEL, INC.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx
President
HSI AVIATION, INC.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx
President
HUNTCO INC.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx
President & CEO
HUNTCO NEVADA, INC.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx
Vice President
MIDWEST PRODUCTS, INC.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx
Vice President
