EXHIBIT 10.5
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AMENDMENT AGREEMENT NO. 1
TO 364 DAY CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment Agreement") is made and
entered into as of this 24th day of February, 2000, by and among AMERISTEEL
CORPORATION, a Florida corporation (herein called the "Borrower"), BANK OF
AMERICA, N.A. (the "Administrative Agent"), as Administrative Agent for the
lenders (the "Lenders") party to the 364 Day Credit Agreement dated October 20,
1999 (the "Agreement") among the Lenders, Borrower and the Administrative Agent.
W I T N E S S E T H:
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WHEREAS, the parties hereto have entered into the Agreement pursuant to
which the Lenders have agreed to make revolving loans (the "364 Day Loans") to
the Borrower in the aggregate principal amount of up to $70,000,000 as evidenced
by the Notes (as defined in the Agreement); and
WHEREAS, as a condition to the making of the 364 Day Loans the Lenders
have required that all wholly-owned Subsidiaries of the Borrower guarantee
payment of all Obligations of the Borrower arising under the Agreement; and
WHEREAS, by the terms of the Agreement the proceeds of the 364 Day
Loans may be used only to repurchase Borrower's 8 3/4% Senior Notes due 2008
(the "Senior Notes"); and
WHEREAS, the Borrower has requested that the Agreement be amended in
order to (i) increase the amount of the Total 364 Day Commitment by an
additional $20,000,000 from $70,000,000 to $90,000,000 and to permit the use of
a portion of such additional $20,000,000 to repay intercompany indebtedness to
FLS which shall use such amount to repay the outstanding principal balance of
Subordinated Notes of FLS payable to Mitsubishi International Corp., and the
balance to repay indebtedness arising under the Existing Credit Agreement (ii)
extend the 364 Day Termination Date, (iii) to amend the definition of Security
Event and (iv) permit a one time change in its fiscal year; and
WHEREAS, the Borrower has requested that the Agreement be amended in
the manner described herein in order to permit the change in ownership and the
incurrence of the additional Indebtedness and the Agents and the Lenders have
agreed, subject to the terms and conditions hereof, to make such amendment, as
provided herein;
NOW, THEREFORE, the Borrower, the Agents and the Lenders party hereto
do hereby agree as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. Amendment. Subject to the conditions set forth herein, the Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The second "WHEREAS" paragraph in the preamble to the
Agreement is hereby amended in its entirety so that as amended it shall
read as follows:
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"WHEREAS, as a result of such change of ownership the
holders of the Borrower's 8 3/4% Senior Notes due 2008 (the
"Senior Notes") and FLS's Note (with payment terms similar to
the Borrower's Subordinated Intercompany Note) are entitled to
require that the Borrower repurchase the Senior Notes and FLS
repay its Note and the Borrower has requested that the Lenders
make a loan of $90,000,000 to the Borrower, the proceeds of
which loan will be used to repurchase Senior Notes, repay the
Subordinated Intercompany Note and indebtedness arising under
the Existing Credit Agreement and the Lenders are willing to
make the loan to the Borrower on the terms and the conditions
set forth herein;"
(b) The definition of "Security Event" in Section 1.1 is
hereby amended in its entirety so that as amended it shall read as
follows:
"'Security Event' means the earlier to occur of (i)
the occurrence of either a Default or Event of Default, (ii)
the occurrence of a default or event of default under the
Existing Credit Agreement, (iii) September 23, 2000 and (iv)
the date the Consolidated Leverage Ratio shall exceed 2.75 to
1.00."
(c) The definition of "Stated Termination Date" in Section 1.1
is hereby amended in its entirety so that as amended it shall read as
follows:
"'Stated Termination Date' means January 18, 2001.
(d) The definition of "Total 364 Day Commitment" in Section
1.1 is hereby amended in its entirety so that as amended it shall read
as follows:
"'Total 364 Day Commitment' means a principal amount
equal to $90,000,000, as reduced from time to time in
accordance with Section 2.3 and Section 2.7."
(e) Section 2.13 is hereby amended in its entirety so that as
amended it shall read as follows:
"2.13 Use of Proceeds. The proceeds of the Loans made
pursuant to the 364 Day Facility hereunder shall be used by
the Borrower to (i) prepay Senior Notes, (ii) pay in full the
remaining $15,000,000 principal balance of the Subordinated
Intercompany Note, and (iii) repay Indebtedness outstanding
under the Existing Credit Agreement."
(f) Section 5.2(e) is hereby amended in its entirety so that
as amended it shall read as follows:
"(e) The Administrative Agent shall have received
evidence acceptable to the Administrative Agent that the
proceeds of such 364 Day Loans are used to (i) purchase Senior
Notes, (ii) pay in full the Subordinated Intercompany Note, or
(iii) repay Indebtedness arising under the Existing Credit
Agreement.
(g) Exhibit A to the Agreement is hereby amended in its
entirety so that as amended it is in the form of Exhibit A attached to
this Amendment Agreement.
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3. Agreement and Consent. The Borrower, the Administrative Agent and
the Lenders agree by their execution of this Amendment Agreement that the
replacement of the Subordinated Intercompany Note with proceeds of the 364 Day
Facility shall not constitute a refinancing of such Indebtedness pursuant to
either Section 8.5(a) or Section 8.5(f) or a Restricted Payment under Section
8.9 or an Affiliate transaction under Section 8.10. The Lenders hereby consent
to the payment of the Subordinated Intercompany Notes notwithstanding the
limitation set forth in Section 8.18(a) of the Agreement and to a one time
change of the fiscal year of Borrower from March 31 to December 31 of each
calendar year.
4. Subsidiary Consents. Each Subsidiary of the Borrower that has
delivered a Guaranty to the Administrative Agent has joined in the execution
of this Amendment Agreement for the purpose of (i) agreeing to the amendment
to the Agreement and (ii) confirming its guarantee of payment of all the
Obligations.
5. Representations and Warranties. The Borrower hereby represents and
warrants that:
(a) The representations and warranties made by Borrower in
Article VI of the Agreement are true on and as of the date hereof with
the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 6.6(a)(i)
of the Agreement shall be deemed to be those financial statements most
recently delivered to the Administrative Agent and the Lenders pursuant
to Section 7.1 from the date financial statements are delivered to the
Administrative Agent and the Lenders in accordance with such Section;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the Borrower
received by each Lender under Section 8.1 thereof, other than changes
in the ordinary course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not and have not been adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts;
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Borrower under the
Agreement, the Notes or any other Loan Document either immediately or
with the lapse of time or the giving of notice, or both; and
(e) that the incurrence of an additional $20,000,000 of
Indebtedness pursuant to the Agreement by the Borrower will not result
in a Default or Event of Default under the Agreement.
6. Conditions. This Amendment Agreement shall become effective upon the
Borrower delivering to the Administrative Agent the following:
(a) ten (10) counterparts of this Amendment Agreement duly
executed by the Borrower, the Administrative Agent and the Lenders and
consented to by each of the Subsidiaries;
(b) to those Lenders increasing their 364 Day Commitments,
duly authorized and executed 364 Day Notes in the amount of their
respective 364 Day Commitment;
(c) an opinion of counsel for the Borrower and its
Subsidiaries in form and content acceptable to the Administrative
Agent;
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(d) resolutions of the Boards of Directors of the Borrower and
its Subsidiaries authorizing the transactions contemplated by this
Amendment Agreement;
(e) receipt by the Administrative Agent on behalf of itself
and the Lenders of all fees and expenses due in connection with this
Amendment Agreement; and
(f) such other certificates, instruments and documents as the
Administrative Agent shall reasonably request.
7. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions,
representation or warranty, express or implied, not herein set forth shall
bind any party hereto, and no one of them has relied on any such promise,
condition, representation or warranty. Each of the parties hereto acknowledges
that, except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, in the manner provided in the Agreement,
specifying such change, modification, waiver or cancellation of such terms or
conditions, or of any proceeding or succeeding breach thereof.
8. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain
in full force and effect according to their respective terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
AMERISTEEL CORPORATION
WITNESS:
/s/ Amy Krovocheck
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By: /s/ George D. Beck
--------------------------------
Name: George D. Beck
/s/ Carmen Matos Title: Assistant Treasurer
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GUARANTORS:
AMERISTEEL FINANCE, INC.
/s/ Judy Bryant By: /s/ Tom Rose
--------------------- ----------------------------------
Name: Tom Rose
--------------------- Title: President
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BANK OF AMERICA, N.A,
as Administrative Agent
By: /s/ Bianca Hemmen
--------------------------------
Name: Bianca Hemmen
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender
By: /s/ Bianca Hemmen
--------------------------------
Name: Bianca Hemmen
Title: Managing Director
SUNTRUST BANK, TAMPA BAY
By: /s/ W. David Wisdom
--------------------------------
Name: W. David Wisdom
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Jorge A. Gonzalez
--------------------------------
Name: Jorge A. Gonzalez
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Lynn Koncz
--------------------------------
Name: Lynn Koncz
Title: Vice President
AMSOUTH BANK
By: /s/ Scott M. Jacobsen
--------------------------------
Name: Scott M. Jacobsen
Title: City President
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SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ Leslie Dunbar
--------------------------------
Name: Leslie Dunbar
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Roger N. Arsham
--------------------------------
Name: Roger N. Arsham
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ William R. McCamey
--------------------------------
Name: William R. McCamey
Title: Vice President
EXHIBIT A
Applicable Commitment Percentages
Applicable
364 Day Commitment
Lender Commitment Percentage
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Bank of America, N.A. $15,714,285.72 17.46031747%
SunTrust Bank, Tampa Bay 15,500,000.00 17.22222222%
First Union National Bank 11,500,000.00 12.77777778%
PNC Bank, National Association 10,928,571.43 12.14285714%
AmSouth Bank 10,928,571.43 12.14285714%
SouthTrust Bank, National Association 7,714,285.71 8.57142857%
LaSalle Bank National Association 10,000,000.00 11.11111111%
Wachovia Bank, N.A. 7,714,285.71 8.57142857%
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$ 90,000,000.00 100%
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