EXHIBIT 4(a)
EXECUTION COPY
AMENDMENT ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇ dated as of June 28, 2001 to the Inventory
Credit Agreement dated as of September 12, 1995 among Bethlehem Steel
Corporation (the "Borrower"), the Lenders party thereto and ▇▇▇▇▇▇ Guaranty
Trust Company of New York (the "Administrative Agent"), as Administrative Agent
and Structuring and Collateral Agent (as amended, the "Inventory Credit
Agreement").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders grant certain interim
waivers under the Inventory Credit Agreement, and make certain other
modifications thereto, as set forth herein;
WHEREAS, the Lenders are willing to grant such waivers and make such other
modifications, on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined Terms; References. (a) Unless otherwise specifically
defined herein, each term used herein which is defined in the Inventory Credit
Agreement shall have the meaning assigned to such term in the Inventory Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Inventory Credit Agreement shall,
after this Amendment and Waiver becomes effective, refer to the Inventory
Credit Agreement as modified hereby.
(b) As used herein, the following additional terms have the following
meanings:
"Amendment No. 4 Effective Date" has the meaning given in Section 11.
"Cash Availability" means, as at any time of determination, the sum of the
amount of all money, currency and temporary cash investments arising out of its
operations held or carried in any deposit, custody or other account maintained
by the Borrower and its Subsidiaries.
"EBITDAPO" means, for any period, Net Income for such period, plus Interest
Expense plus depreciation and amortization plus income tax expense plus
non-cash pension expense plus non-cash OPEB expense minus gains or plus losses
on asset sales, and plus or minus, as the case may be, other unusual and
non-recurring adjustments, in each case to the extent subtracted or added in
determining Net Income for the corresponding period and in each case, of the
Borrower and its Consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Interest Expense" means, with respect to any period, the interest expense
of the Borrower and its Consolidated Subsidiaries for such period determined on
a consolidated basis in accordance with generally accepted accounting
principles.
"Inventory Availability" means (i) the Borrowing Base less (ii) the sum of
(x) the aggregate principal amount of Loans, (y) the face amount of all undrawn
Letters of Credit and (z) all unreimbursed amounts of all drawn Letters of
Credit.
"Net Income" means, with respect to any period, the net income of the
Borrower and its Consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Receivables Availability" means the Available Commitment as defined in the
Receivables Purchase Agreement, as amended.
"Waiver Period" means the period beginning on the Amendment No. 4
Effective Date and ending at 5:00 P.M. (New York City time) on the date on
which the Administrative Agent receives the Borrower's audited financial
statements for fiscal year 2001 pursuant to Section 5.1(a) of the Inventory
Credit Agreement, provided that if on such date there are any existing Events
of Default, the Waiver Period shall instead end at 5:00 P.M. (New York City
time) on such date, if ever, by which all such Events of Default have been
cured or waived pursuant to the Inventory Credit Agreement, it being understood
and agreed that the duration of the Waiver Period shall have no bearing on the
determination of whether the Borrower is in compliance with Section 5.6 of the
Inventory Credit Agreement as at December 31, 2001 or the ability of the
Lenders or the Agents to exercise any of their rights and remedies on account
of such Event of Default. The Lenders further agree that any failure of the
Borrower to be in compliance with Section 5.6 of the Inventory Credit Agreement
as of December 31, 2001 shall not constitute a Default unless such failure is
continuing on January 30, 2002.
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Section 2. Amendments. (a) Change in Control. (i) Section 1.1 of the
Inventory Credit Agreement is hereby amended by the addition of the following
new definitions in their appropriate alphabetical order:
"Amendment No. 4" means the Amendment and Waiver dated
June 29, 2001 to this Agreement.
"Amendment No. 4 Effective Date" means the date on
which Amendment No. 4 becomes effective in accordance with
its terms.
"Change in Control" means (a) the acquisition of
ownership, directly or indirectly, beneficially or of record,
by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date
hereof) of shares representing more than 35% of the aggregate
ordinary voting power represented by the issued and
outstanding capital stock of the Borrower; (b) occupation of
a majority of the seats (other than vacant seats) on the
board of directors of the Borrower by Persons who were
neither (i) in office as of the Amendment No. 4 Effective
Date, (ii) nominated by the board of directors of the
Borrower in office as of the Amendment No. 4 Effective Date,
nor (iii) appointed by directors so nominated; (c) the
acquisition of direct or indirect Control of the Borrower by
any such Person or group; or (d) the sale of all or
substantially all of the assets of Borrower.
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the
management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
(ii) Section 6.1 of the Inventory Credit Agreement is hereby
amended by the addition of the word "or" after the semi-colon at the
end of clause (m) and the addition of the following new clause (n):
(n) a Change in Control shall have occurred;
(b) Pricing Schedule. The currently effective Pricing Schedule is
hereby replaced in its entirety with the Pricing Schedule attached hereto.
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Section 3. Waivers. (a) The Lenders waive (including for
purposes of Section 3.2 of the Inventory Credit Agreement) any
Default occurring on account of the Borrower's (i) failure to be
in compliance with Section 5.6 of the Inventory Credit Agreement
as of June 30, 2001 or September 30, 2001 or (ii) entering into
the agreements attached to the Borrower's letter to the
Administrative Agent dated June 28, 2001 or into definitive
agreements substantially on the terms and conditions set forth in
the term sheets attached to such letter.
(b) The Borrower understands and accepts:
(i) the interim nature of the waivers provided hereby, and
that the Lenders have given no assurances that they will extend
the waivers provided hereby or provide other waivers under or
amendments to the Inventory Credit Agreement or any other
Financing Document;
(ii) that except as expressly set forth herein, the waivers
contained herein shall not constitute a waiver or amendment of any
term or condition of the Inventory Credit Agreement or any other
Financing Document and all such terms and conditions shall remain
in full force and effect and are hereby ratified and confirmed in
all respects, and that no failure or delay by the Lenders or any
one of them in exercising any right, power or privilege under any
Financing Document, or any other action taken or not taken or
statement made, during the period prior to the date hereof or
during the Waiver Period shall operate as a waiver thereof or
obligate any Lender to agree to an extension of the waivers
provided hereby or any other waiver under or amendment to any
Financing Document; and
(iii) that the Lenders are under no obligation to extend, and
in their sole and absolute discretion may refuse to extend, (A)
the waivers in clause (i) of Section 3(a) to dates beyond
September 30, 2001 or (B) the Waiver Period.
Section 4. Waiver Period Covenants. (a) Financial Covenant.
The Borrower agrees that for the fiscal quarters ending June 30,
2001 and September 30, 2001, EBITDAPO shall not be less than $0
and $12.5 million, respectively. Compliance with this covenant
for each quarter shall be determined upon the delivery of the
financial statements for such quarter pursuant to Section 5.1(b)
of the Inventory Credit Agreement, such financial statements to be
accompanied by a certificate of the Borrower
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demonstrating in reasonable detail the calculation of EBITDAPO for
such quarter.
(b) Negative Covenants. The Lenders party hereto agree that
during the Waiver Period, the Borrower shall not be required to
comply with Sections 5.5 and 5.9 of the Inventory Credit
Agreement. The Borrower agrees that during the Waiver Period, it
will comply with the following covenants (except in any instance
where such compliance is waived by the subsequent written consent
of the Required Lenders):
(i) Debt and Guarantees. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist
any Debt or any Guarantees, except:
(A) Debt or Guarantees created under the Financing
Documents or the Receivables Documents;
(B) Debt or Guarantees of the Borrower and its
Subsidiaries existing on the date hereof and set forth in
Schedule 4(b)(i)(B) hereto;
(C) Debt of the Borrower to any Subsidiary and Debt of
any Subsidiary to the Borrower or any other Subsidiary, in
each case, in the ordinary course of business consistent with
past practices;
(D) Guarantees (1) by the Borrower of Debt of any
Subsidiary permitted under this Section 4(b)(i), (2) by the
Borrower in connection with joint ventures to the extent
permitted by Section 4(b)(iii) and (3) by any Subsidiary of
Debt of the Borrower or any other Subsidiary permitted under
this Section 4(b)(i);
(E) as an account party in respect of trade letters of
credit in the ordinary course of business;
(F) other Debt or Guarantees in an aggregate principal
amount not exceeding $10,000,000 at any time outstanding plus
the amount of all Debt or Guarantees permitted under clause
(B) above that has been repaid in the aggregate; provided
that any repaid Debt that provides the basis for incurring
Debt pursuant to
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this clause (F) may not be made the basis for incurring
any Debt pursuant to clause (I);
(G) Debt (including sale/leasebacks) or Guarantees
arising with respect to Columbus Coatings Company ("CCC") or
Chicago Cold ▇▇▇▇▇▇▇▇, LLC ("CCR");
(H) Debt incurred in the ordinary course of business by
Hibbing Taconite Company not requiring and without the
consent of the Borrower, in an aggregate outstanding
principal amount not exceeding $5,000,000;
(I) extensions, renewals or refinancings (including
sale/leasebacks) of any of the Debt or Guarantees permitted
under Sections 4(b)(i)(A) - (H), but only to the extent such
extended, renewed or refinanced Debt or Guarantees (a) is in
an aggregate principal amount not greater than the aggregate
outstanding principal amount of the Debt or Guarantees being
extended, renewed or refinanced, or in the case of
sale/leasebacks, the fair market value of the property, plus,
in any case, the amount of any premiums required to be paid
thereon and fees and expenses associated therewith, (b) has
terms, conditions and covenants, taken as a whole,
substantially similar and no more restrictive than those
contained in the Inventory Credit Agreement, as amended by
this Amendment and Waiver, or if such Debt or any such
Guarantee has a new or more restrictive financial covenant,
as determined by the Administrative Agent, then the benefits
thereof shall have been made available to the Lenders under
the Inventory Credit Agreement and shall remain so long as
the Debt or Guarantees in which such covenant was established
remains outstanding, (c) has a final maturity date, or a
committed term ending, after or concurrent with the final
maturity date of the Debt or Guarantees being extended,
renewed or refinanced and (d) at the time of and after giving
effect to such extension, renewal or refinancing, no Default
has occurred or will occur or be continuing.
(ii) Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset relating to its steel operations and steel
manufacturing activities now owned or hereafter acquired by it, or
assign or sell any income or revenues (excluding accounts receivable
and any related assets
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sold pursuant to the Receivables Documents) in respect thereof,
or in any event, with respect to any Collateral constituting part of
the Borrowing Base, except:
(A) Liens created under the Financing Documents or the
Receivables Documents;
(B) any Lien on any property or asset of the Borrower or
any Subsidiary existing on the date hereof and set forth in
Schedule 4(b)(ii)(B) plus any Liens existing on the date
hereof not so scheduled securing Debt or other obligations in
an aggregate amount not to exceed $5,000,000;
(C) (1) Liens imposed by law for taxes that are not yet
due; (2) Liens being contested in good faith by appropriate
proceedings and adequate reserves with respect thereto shall
have been set aside on the books of the applicable party, and
such contest operates to suspend enforcement of a Lien; (3)
carriers', warehousemen's, mechanics', materialmen's,
suppliers', repairmen's, landlord's and other like Liens
imposed by law (other than Federal Liens for amounts due),
arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days, except
to the extent any such Liens are being contested in good
faith by appropriate proceedings and the applicable party has
set aside on its books adequate reserves with respect
thereto, and such contest operates to suspend collection of
the contested amount, charge, levy or claim and enforcement
of a Lien; (4) pledges and deposits made in the ordinary
course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations; and (5) Liens or deposits to secure the
performance of tenders, bids, trade contracts, leases,
progress or advance payments, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of
a like nature, in each case in the ordinary course of
business; provided, in each case, that the Borrower shall pay
any obligations giving rise to such Lien immediately upon
commencement of proceedings to foreclose such Lien unless the
same shall be stayed or a surety bond, which is reasonably
satisfactory to the Administrative Agent and, in the event
the Lien is on Collateral, is delivered to the Administrative
Agent;
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(D) Liens on property, plant and equipment and related
general intangibles relating to industrial revenue and
pollution control bonds in the ordinary course of business;
(E) (1) easements, zoning restrictions, rights-of-way
and similar encumbrances on real property imposed by law or
arising in the ordinary course of business and (2) title
defects or irregularities, which do not, in either case,
secure any monetary obligation and, in the case of Liens
created, incurred or assumed after the Amendment No. 4
Effective Date, do not materially detract from the value of
the affected property or interfere with the ordinary conduct
of business of the Borrower or any Subsidiary;
(F) judgment liens in respect of judgments that do not
constitute an Event of Default under Section 6.1(k) of the
Inventory Credit Agreement;
(G) Liens securing refinancings of Debt or Guarantees
permitted by Section 4(b)(i)(I) secured by Liens permitted by
(B) and (D) above, provided that such replacement Liens
encumber the same assets and to the same extent as the Liens
being replaced thereby;
(H) Liens in favor of the Borrower or a Subsidiary;
(I) Permitted Liens (as defined in the Inventory
Security Agreement);
(J) Liens in connection with Debt or Guarantees
permitted by Sections 4(b)(i) and (iii); and
(K) Liens securing Debt permitted by clause (H) of
Section 4(b)(i).
(iii) Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries to,
purchase or acquire any capital stock or evidences of indebtedness of,
make any loans or advances to, Guarantee any obligations of, or make
any investment in (by capital contribution or otherwise), any other
Person (other than contributions of regularly scheduled sinking fund
payments
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and interest and amortization payments, or any repayment of
principal, together with interest thereon, or investment required on
account of any casualty or similar involuntary event, or purchase or
otherwise acquire (in one transaction or a series of transactions)
assets of any other Person (other than pursuant to scheduled existing
rights and options) constituting substantially all of the assets of
such Person or of any division or line of business of such Person,
except:
(A) cash and non-cash loans or advances to, Guarantees
of obligations of, and investments in, new or Existing Joint
Ventures not to exceed $5,000,000 in the aggregate during the
Waiver Period, where "Existing Joint Ventures" means,
collectively, CCC, CCR, Hibbing Taconite Company, ▇▇▇▇▇▇▇▇▇
Coatings Company, Double G Coatings Company, Mineracoes
Brasileiras Reunidos, TWB Company, LLC, South Buffalo Railway
Company, Bethlehem Roll Technologies, L.L.C., BethNova Tube,
LLC, Chesapeake Heavy Machine Services, L.L.C., Columbus
Processing Company L.L.C., Indiana Pickling and Processing
Company, MetalSite Inc., ▇▇▇▇▇▇▇▇.▇▇▇ Inc., Steel
Construction Systems and Steel Health Resources;
(B) loans or advances made by the Borrower to any
Subsidiary or made by any Subsidiary to the Borrower or any
other Subsidiary;
(C) investments by the Borrower or a Subsidiary in a
Subsidiary or any transaction permitted by Section
4(b)(iv)(B); and
(D) investments in (1) direct obligations of, or
obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America
(or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date
of acquisition thereof; (2) investments in commercial paper
maturing within 270 days from the date of acquisition thereof
and having, at such date of acquisition, an A-1/P-1 credit
rating obtainable from S&P or from ▇▇▇▇▇'▇; (3) investments
in certificates of deposit, banker's acceptances and time
deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with,
and money market deposit accounts issued or offered by, any
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domestic office of any commercial bank organized under
the laws of the United States of America or any State thereof
which has a combined capital and surplus and undivided
profits of not less than $500,000,000; and (4) investments in
money market mutual funds having assets in excess of
$2,000,000,000.
(iv) Fundamental Changes; Sale of Assets. (A) The Borrower will
not, and will not permit any Subsidiary to, sell, lease, transfer or
otherwise dispose of all or any material portion of its property (in
each case, whether now owned or hereafter acquired). Notwithstanding
the foregoing, the Borrower and its Subsidiaries may (1) make sales of
inventory in the ordinary course, (2) make sales of worn out,
obsolete, scrap or surplus assets, (3) sell accounts receivable and
related assets pursuant to the Receivable Documents, (4) make sales
permitted by Section 5.7 of the Inventory Credit Agreement and (5)
make sales of all or a portion of the Borrower or any Subsidiary's
interest in (u) Hibbing Taconite Company, (v) Mineracoes Brasileiras
Reunidos, (w) South Buffalo Railway Company, (x) other assets
(including capital stock of a Subsidiary) not to exceed $25,000,000 in
aggregate book value, (y) CCC and (z) CCR, in each case, the proceeds
of which are concurrently used to repay Loans under the Inventory
Credit Agreement (but not reduce the Commitments), provided that
proceeds from the sale of all or substantially all of the Borrower's
or any Subsidiary's interest in CCR may be used to repay debt of CCR
outstanding under the Credit Agreement dated as of March 14, 1996
between CCR and Bank of America, N.A., successor to NationsBank, N.A.
(B) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that,
if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing (1)
any Subsidiary (other than the Special Purpose Members) may
merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (2) any Subsidiary may
merge into another Subsidiary and (3) any Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to
the Borrower or to another Subsidiary.
(C) The Borrower will not, and will not permit any
Subsidiary to, enter into sale/leaseback arrangements other
than
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those sale/leaseback arrangements with respect to Debt
or Guarantees scheduled pursuant to Section 4(b)(i)(B) or
other scheduled existing rights and options.
(D) The Borrower will not, and will not permit any of
its Subsidiaries to, engage to any material extent in any
business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date of execution of
this Amendment and Waiver and businesses reasonably related
thereto.
(E) The Borrower will not change its fiscal year.
(v) Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (A)
Subsidiaries may declare and pay dividends ratably with respect to
their capital stock, (B) the Borrower may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit
plans for management or employees of the Borrower and its
Subsidiaries, (C) the Borrower may declare and pay regularly scheduled
dividends with respect to its preferred stock for the fiscal quarters
ending June 30, 2001, September 30, 2001 and December 30, 2001 in an
aggregate amount not to exceed $31,000,000, provided that the Borrower
shall not be permitted to declare such dividends for the fiscal
quarters ending September 30, 2001 and December 31, 2001 unless at the
time such dividends are declared the sum of the Borrower's Inventory
Availability, Receivables Availability and Cash Availability exceeds
$50 million and $100 million, respectively, and provided further that
no Restricted Payments may be declared pursuant to clause (C) or paid
pursuant to the proviso to the definition of Restricted Payment below
if at the time of declaration or payment, as the case may be, a
Default exists. "Restricted Payment" means any cash dividend with
respect to any shares of any class of capital stock of the Borrower or
any Subsidiary, or any cash payment, including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital
stock of the Borrower or any option, warrant or other right to acquire
any such shares of capital stock of the Borrower or any prepayment,
redemption, purchase or retirement of any notes or debentures or other
Debt (other than the Loans) prior to the final maturity thereof (other
than regularly scheduled sinking fund payments and interest and
amortization payments, any repayment of principal, together with
interest thereon, required on account
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of any casualty or similar involuntary event), provided that the
Borrower may, and may permit its Subsidiaries to, repay Debt owed by
such Person (x) in respect of existing Guarantees of obligations of
CCR in an aggregate amount not to exceed $2,000,000 and (y) in respect
of Debt outstanding under the amended and restated credit agreement
dated September 29, 2000 between the Borrower and RZB Finance LLC in
an aggregate amount not to exceed $1,000,000, if, at the time of each
such payment, the sum of the Borrower's Inventory Availability,
Receivables Availability and Cash Availability exceeds $100 million.
(c) As soon as available and in any event within 15 Domestic
Business Days after the end of each fiscal month, the Borrower agrees
to deliver to each of the Lenders, consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries as of the end of such month
and the related consolidated statements of income for such month and
for the portion of the Borrower's fiscal year ended at the end of such
month and statements of cash flow for the portions of the Borrower's
fiscal year ended at the end of such month, and such other reporting
information reasonably requested by the Lenders, all certified
(subject to normal year-end adjustments and the absence of footnotes)
as to fairness of presentation, generally accepted accounting
principles and consistency by the Chief Financial Officer, the
Treasurer or the Controller of the Borrower.
(d) The Borrower agrees that its failure to observe or perform
any covenant contained in Sections 4(a), 4(b) and 4(c) of this
Amendment and Waiver shall constitute an Event of Default for all
purposes of the Inventory Credit Agreement; provided that the
Borrower's failure to observe or perform the covenant contained in
Section 4(b)(ii) caused by any Lien arising involuntarily shall
constitute an Event of Default on and after 30 days after an officer
of the Borrower obtains knowledge thereof. The Borrower further
agrees that in the event that (1) (x) a definitive agreement with
respect to the forbearance of the Borrower's liabilities with respect
to CCR (the "CCR Forbearance") has not become effective in accordance
with its terms by July 6, 2001 or (y) a definitive agreement with
respect to the forbearance of the Borrower's liabilities with respect
to CCC (the "CCC Forbearance", together with the CCR Forbearance, the
"Forbearances") has not become effective in accordance with its terms
by July 3, 2001, in each case, substantially on the terms and
conditions set forth in the relevant term sheet or draft attached to
the letter referred to in Section 3 hereof, or (2) either Forbearance
ceases to be in full force and effect during the Waiver Period, such
failure shall constitute an Event of Default for all purposes of
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the Inventory Credit Agreement, provided that each Forbearance
may be replaced with a forbearance on substantially the same terms and
conditions as such Forbearance, so long as the Borrower is not
required to and does not post additional collateral with respect to
any such replacement forbearance.
(e) During the Waiver Period, in the event that the Borrower
issues any equity securities for cash (other than pursuant to and in
accordance with existing stock option plans or other benefit plans for
management or employees of the Borrower and its Subsidiaries), the net
proceeds of any such issuance shall be used to repay Loans under the
Inventory Credit Agreement (but not reduce the Commitments).
Section 5. Financing Document. The Borrower agrees that
this Amendment and Waiver shall be considered a "Financing
Document" for all purposes of the Inventory Credit Agreement.
Section 6. Inventory Security Agreement Supplement. The
Borrower agrees that no later than 10 Domestic Business Days
after the Amendment No. 4 Effective Date it will enter into (and
cause Bethlehem Steel Credit Affiliate One, Inc. and Bethlehem
Steel Credit Affiliate Two, Inc. to agree to) a supplement to
the Inventory Security Agreement (the "Inventory Security
Agreement Supplement") to be in form and substance reasonably
satisfactory to the Administrative Agent providing the Collateral
Agent with a Lien on and a pledge of the Borrower's cash and cash
equivalents (other than funds and accounts subject to the
Receivables Documents and not including any cash, cash
equivalents or accounts of any Subsidiary). The Lenders hereby
consent to the execution and delivery of the Inventory Security
Agreement Supplement by the Administrative Agent, in its capacity
as Collateral Agent, and the Borrower.
Section 7. Release of Bank Liability. The Borrower, for
itself and on behalf of its affiliated entities, successors,
assigns and legal representatives (the "Borrower Parties"),
jointly and severally releases, acquits and forever discharges
the Administrative Agent and each Lender (collectively, the "Bank
Parties"), and their respective subsidiaries, parents,
affiliates, officers, directors, employees, agents, attorneys,
successors and assigns, both present and former (collectively,
the "Banks' Affiliates") from any and all manner of actions,
causes of action, suits, debts, controversies, damages,
judgments, executions, claims and demands whatsoever, asserted or
unasserted, in contract, tort, law or equity which
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the Borrower or any other Borrower Party has or may have
against any of the Bank Parties and/or the Banks' Affiliates by
reason of any action, failure to act, matter or thing whatsoever
arising from or based on facts occurring prior to the date
hereof, including but not limited to any claim or defense that
relates to, in whole or in part, directly or indirectly, (i) the
making or administration of the Loans, including without
limitation, any such claims and defenses based on fraud, mistake,
duress, usury or misrepresentation, or any other claim based on
so-called "lender liability theories", (ii) any covenants,
agreements, duties or obligations set forth in the Financing
Documents, (iii) any actions or omissions of any of the Bank
Parties and/or the Banks' Affiliates in connections with the
initiation or continuing exercise of any right or remedy
contained in the Financing Documents or at law or in equity, (iv)
lost profits, (v) loss of business opportunity, (vi) increased
financing costs, (vii) increased legal or other administrative
fees, or (viii) damages to business reputation.
Section 8. Representations and Warranties. (a) The
Borrower has heretofore furnished to the Administrative Agent (i)
on a monthly basis for the 2001 fiscal year a computation of the
Borrower's actual and projected liquidity position (including
cash, receivables, inventory and borrowings), (ii) on a quarterly
basis for the 2001 fiscal year and annually thereafter through
the Termination Date, a projected business plan with financial
forecasts and (iii) an analysis of the business and prospects of
the Borrower and its Subsidiaries from the Amendment No. 4
Effective Date through the Termination Date, all such projections
disclosing all assumptions made by the Borrower in formulating
such projections. The projections are based upon reasonable
estimates and assumptions, all of which are reasonable in light
of the conditions which existed at the time the projections were
made, have been prepared on the basis of the assumptions stated
therein, and reflect as of the Amendment No. 4 Effective Date
the good faith estimate of the Borrower of the results of
operations and other information projected therein.
(b) The Borrower represents and warrants that (i) the representations
and warranties of the Borrower set forth in Article 4 of the Credit Agreement
(other than Section 4.4(c)) will be true on and as of the Amendment No. 4
Effective Date and (ii) no Default will have occurred and be continuing on such
date, except in any case as expressly contemplated to be waived by this
Amendment and Waiver.
(c) Without limiting the generality of the foregoing clause (b), the
Borrower further represents and warrants that all information furnished by the
14
Borrower to the Administrative Agent or any Lender for purposes of or
in connection with this Amendment and Waiver or any transaction contemplated
hereby is, taken as whole and in light of the circumstances under which such
information is furnished, true and accurate in all material respects on the
date as of which such information is stated or certified. It is understood
that the foregoing is limited to the extent that (i) information relating to
the steel industry generally is to the best of the Borrower's knowledge, (ii)
projections have been made in good faith by the management of the Borrower and
in the view of the Borrower's management are reasonable in light of all
information known to management as of the Amendment No. 4 Effective Date, and
(iii) no representation or warranty is made as to whether the projected results
will be realized. The Borrower has disclosed to the Lenders in writing any and
all facts which materially and adversely affect or may so affect (to the extent
that the Borrower can now reasonably foresee), the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries, taken as
a whole, or the ability of the Borrower to perform its obligations under any of
the Financing Documents.
Section 9. Governing Law. This Amendment and Waiver shall
be governed by and construed in accordance with the laws of the
State of New York.
Section 10. Counterparts. This Amendment and Waiver may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Section 11. Effectiveness. (a) This Amendment and Waiver
shall become effective as of the date hereof on the date (the
"Amendment No. 4 Effective Date") when:
(i) the Administrative Agent shall have received from each
of the Borrower and the Required Lenders a counterpart hereof
signed by such party or facsimile or other written confirmation
(in form satisfactory to the Administrative Agent) that such
party has signed a counterpart hereof;
(ii) the Administrative Agent shall have received evidence
satisfactory to it that the Required Buyers (as defined in the
Receivables Purchase Agreement), the Borrower, Bethlehem Steel
Funding, LLC, Bethlehem Steel Credit Affiliate One, Inc.,
Bethlehem Steel Credit
15
Affiliate Two, Inc. and the Administrative Agent have
executed and delivered Amendment No. 4 to the Receivables
Purchase Agreement and all conditions to the effectiveness
thereof, other than the reaffirmation of the rating assigned to
the Buyers' Certificates (as defined in the Receivables Purchase
Agreement) by Standard & Poor's Ratings Group, have been
satisfied; and
(iii) the Administrative Agent shall have received
confirmation that the Borrower has paid all statements of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Administrative Agent,
that have been rendered to the Borrower at least one Domestic
Business Day prior to the Amendment No. 4 Effective Date in
respect of this Amendment and Waiver or other matters related to
or arising under the Inventory Credit Agreement.
(b) No later than the first Domestic Business Day after the Amendment
No. 4 Effective Date, the Borrower shall pay the Administrative Agent, in
immediately available funds (i) for the account of each Lender that has
evidenced its agreement hereto by 3:00 P.M. (New York City time) on the later
of (x) June 29, 2001 and (y) the date the Administrative Agent issues a notice
to the Lenders saying this Amendment and Waiver has become effective, a fee of
0.25% of such Lender's Commitment (as of the opening of business on the date
hereof) and (ii) solely for its own account, an arrangement fee in connection
with this Amendment and Waiver in the amount separately agreed between the
Borrower and the Administrative Agent.
16
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above
written.
BETHLEHEM STEEL CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice Chairman & Chief
Financial Officer
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative,
Structural and Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
17
LENDERS:
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
18
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
19
GENERAL ELECTRIC
CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
21
FIRST UNION NATIONAL BANK
By:
--------------------------------
Name:
Title:
22
UBS, AG
STAMFORD BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
23
BANK ONE, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
24
CITIBANK, N.A.
By: /s/
--------------------------------
Name:
Title:
25
SOCIETE GENERALE
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
26
BANK AUSTRIA
AKTIENGESELLSCHAFT
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
27
SUMITOMO MITSUI
BANKING CORPORATION
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
28
SUMMIT BANK BY MERGER NOW KNOWN AS
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
29
WILMINGTON TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
30
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:
--------------------------------
Name:
Title:
31
AGREED AND ACCEPTED:
BETHLEHEM STEEL CREDIT AFFILIATE
ONE, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇, President
BETHLEHEM STEEL CREDIT AFFILIATE
TWO, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇, President
32
Pricing Schedule
Each of "Euro-Dollar Margin", "CD Margin", "Base Rate Margin", "Commitment
Fee Rate" and "L/C Fee Rate" means, for any date, the rates set forth below in
the row opposite such term and in the column corresponding to the "Pricing
Level" that applies at such date.
For any day before October 1, 2001:
-------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
-------------------------------------------------------------------------
CD Margin 2.375% 2.625% 2.875% 3.125% 3.375%
Euro-Dollar
Margin 2.25% 2.50% 2.75% 3.00% 3.25%
Base Rate
Margin 1.25% 1.50% 1.75% 2.00% 2.25%
Commitment
Fee Rate 0.50% 0.50% 0.50% 0.50% 0.625%
L/C Fee Rate 2.25% 2.50% 2.75% 3.00% 3.25%
For any day on or after October 1, 2001:
-------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
-------------------------------------------------------------------------
CD Margin 2.625% 2.875% 3.125% 3.375% 3.625%
Euro-Dollar
Margin 2.50% 2.75% 3.00% 3.25% 3.50%
Base Rate
Margin 1.50% 1.75% 2.00% 2.25% 2.50%
Commitment
Fee Rate 0.50% 0.50% 0.50% 0.50% 0.625%
L/C Fee Rate 2.50% 2.75% 3.00% 3.25% 3.50%
For purposes of this Schedule, the following terms have the following
meanings:
33
"Level I Pricing" applies on any day if on such day the Borrower's unsecured
long-term debt is rated BB+ or higher by S&P and Ba1 or higher by ▇▇▇▇▇'▇.
"Level II Pricing" applies on any day if on such day Level I Pricing does not
apply and the Borrower's unsecured long-term debt is rated BB or higher by S&P
and Ba2 or higher by ▇▇▇▇▇'▇.
"Level III Pricing" applies on any day if on such day no lower Pricing Level
applies and the Borrower's unsecured long-term debt is rated BB- or higher by
S&P and Ba3 or higher by ▇▇▇▇▇'▇.
"Level IV Pricing" applies on any day if on such day no lower Pricing Level
applies and the Borrower's unsecured long-term debt is rated B+ or higher by
S&P and B1 or higher by ▇▇▇▇▇'▇.
"Level V Pricing" applies on any day if no lower Pricing Level applies on such
day.
"Pricing Level" refers to the determination of which of Level I Pricing, Level
II Pricing, Level III Pricing, Level IV Pricing or Level V Pricing applies.
Level I Pricing is the lowest Pricing Level and Level V Pricing is the highest
Pricing Level.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior secured bank debt of the Borrower, or if no such
Credit Rating is available, the rating assigned to the unsecured long-term
public debt securities of the Borrower without third-party credit enhancement,
and any rating assigned to any other debt security of the Borrower shall be
disregarded. The rating in effect on any date is that in effect at the close
of business on such date.
34