EXHIBIT 4.22
TENTH AMENDMENT TO RECEIVABLE AND
INVENTORY FINANCING AGREEMENT
THIS TENTH AMENDMENT TO RECEIVABLE AND INVENTORY FINANCING AGREEMENT (this
"Amendment") is made and entered into as of the 29th day of April, 2000, among
SHEFFIELD STEEL CORPORATION, a Delaware corporation, f/k/a HMK INDUSTRIES OF
OKLAHOMA, INC., successor by merger to SHEFFIELD STEEL CORPORATION-SAND SPRINGS,
f/k/a SHEFFIELD STEEL CORPORATION and SHEFFIELD STEEL CORPORATION - JOLIET
("Sheffield"), WADDELL'S REBAR FABRICATORS, INC., a Missouri corporation
("Waddell"), WELLINGTON INDUSTRIES, INC., an Oklahoma corporation ("Wellington";
Sheffield, Waddell and Wellington are sometimes referred to individually as a
"Company" and collectively as the "Companies"), and BANK OF AMERICA, N.A., a
national banking association, formerly NationsBank, N.A., also formerly known as
NationsBank, N.A. (South) and also formerly known as NationsBank of Georgia,
N.A. (the "Lender").
W I T N E S S E T H :
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WHEREAS, the Companies and the Lender are parties to that certain Receivable
and Inventory Financing Agreement, dated as of January 16, 1992 (hereinafter, as
previously amended, the "Agreement"), pursuant to which the Lender agreed to
provide certain financial accommodations on the terms and conditions stated
therein; and
WHEREAS, the Companies and the Lender desire to amend the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise
expressly defined herein shall have the respective meanings given to such terms
in the Agreement.
2. AMENDMENTS TO AGREEMENT. The Agreement is amended as follows:
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(a) Add the following new definitions of "Default" and "Fixed Charge
Effective Quarter" in appropriate alphabetical order in SECTION 1.1:
"Default" shall mean any event or condition which, with the giving of
notice or passage of time or both, would constitute an Event of Default.
"Fixed Charge Effective Quarter" shall mean the earlier of (a) the
first fiscal quarter of the Companies in which Availability initially falls
below $9,000,000, and (b) the first fiscal quarter of the Companies in
which Availability initially falls below $10,000,000 (but is at least
$9,000,000); provided, however, that the Fixed Charge Effective Quarter
shall not occur when Availability falls below $10,000,000 but remains at
least $9,000,000 so long as Availability averages at least $10,000,000 for
the thirty-day period beginning on the date that Availability first fell
below $10,000,000 (for example, if, on July 20, 2000, Availability were
$9,500,000, and averaged $9,800,000 for the thirty-day period from and
including July 20, 2000 through and including August 18, 2000, the Fixed
Charge Effective Quarter would be the fiscal quarter ending July 31, 2000);
provided, further, that the Fixed Charge Effective Quarter shall not be
prevented from occurring by means of the previous proviso with respect to
average Availability more than once in any two consecutive fiscal quarter
period of the Companies or more than twice in any fiscal year of the
Companies.
(b) Delete the definitions of "Applicable Margin" and "Fixed Charge
Coverage Ratio" from SECTION 1.1 and replace them with the following:
"Applicable Margin" shall mean, as to Prime Rate Loans, 0%, and as to
Eurodollar Rate Loans, 2.75%, in each case as adjusted in accordance with
the pricing matrix set forth on ANNEX I attached hereto (commencing July 1,
2000) based upon the average Availability for the previous
month. For purposes of calculating Availability in connection with the
determination of the Applicable Margin, the Lender shall average the
Availability as of each Banking Day (based upon the most recent borrowing
base certificate delivered to the Lender and the amount of Loans
outstanding for each Banking Day) for the one-month period most recently
ended. Adjustments to the Applicable Margin shall be effective as of the
first day of each calendar month (commencing July 1, 2000). In the event
the Companies fail to timely provide the borrowing base certificate
referred to above, and without prejudice to any additional rights under
SECTION 11, the maximum Applicable Margin shall apply to all Eurodollar
Rate Loans and Prime Rate Loans until the first day of the calendar month
after the Lender's receipt of such borrowing base certificate, unless the
Lender has agreed to extend the time for delivery of such borrowing base
certificate.
"Fixed Charge Coverage Ratio" shall mean, as of the date of
determination, in each case on a consolidated basis for the Companies and
their consolidated Subsidiaries, the ratio of (a) EBITDA, minus the sum of
(i) dividends, repurchases and other distributions with respect to the
capital stock of Sheffield, plus (ii) taxes paid in cash, plus (iii)
Unfunded Capital Expenditures, in each case for the twelve fiscal month
period most recently ended, to (b) Interest Expense, plus payments made or
scheduled to be made on long term debt and Capitalized Lease Obligations,
in each case for the twelve fiscal month period most recently ended;
provided, however, (w) for the Fixed Charge Effective Quarter, such ratio
shall be calculated for the Fixed Charge Effective Quarter only; (x) for
the first full fiscal quarter following the Fixed Charge Effective Quarter,
such ratio shall be calculated for the two fiscal quarter period then
ending; (y) for the second full fiscal quarter following the Fixed Charge
Effective Quarter, such ratio shall be calculated for the three fiscal
quarter period then ending; and (z) for the third full fiscal quarter
following the Fixed Charge Effective Quarter, such ratio shall be
calculated for the four fiscal quarter period then ending.
(c) Delete SECTION 2.2(d) and replace it with the following:
(d) Certain Fees. As additional consideration for the credit facility
established in Section 2.1 hereof, the Companies agree to pay to the Lender
a facility fee payable on the first day of each month equal to 0.5% per
annum of (i) the average unused portion of the facility during the prior
month, less (ii) $10,000,000; provided, from and after the date on which
the amount of Obligations outstanding first exceeds $30,000,000, such
facility fee will be equal to 0.5% per annum of the average unused portion
of the facility during the prior month. As compensation for delays in the
collection and clearance of checks, each month the Lender will charge the
Companies' account with respect to each remittance received against
Receivables during the month for an amount equal to interest on the amount
of such remittance at the Prime Rate Basis then in effect for the period
beginning with the day following the day of receipt of such remittance and
ending at the end of the second Banking Day following the day of such
receipt. In the event of termination of this Agreement by either party
hereto, the Lender's entitlement to this charge shall continue so long as
any obligations hereunder are outstanding. The Companies agree to pay to
the Lender a fee of $3,500 for each field examination or similar inspection
of the Collateral and/or the Companies' books and records conducted by or
on behalf of the Lender; provided, however, that so long as no Default or
Event of Default exists, the Companies shall not be liable for more than
$7,000 with respect to such field examinations and inspections per calendar
year (it being understood that the Lender may conduct additional field
examinations and inspections at its own expense and, if a Default or Event
of Default exists, at the Companies' expense).
(d) Delete the first sentence of SECTION 2.6 and replace it with the
following:
2.6 EFFECTIVE DATE AND TERMINATION. This Agreement shall be
effective on January 16, 1992 and shall continue in full force and effect
until July 31, 2003, and from year to year thereafter unless terminated on
any such anniversary date by either the Lender or Sheffield, on behalf of
the Companies, giving to the other not less than sixty (60) days' prior
written notice.
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(e) Delete SECTION 8.13 and replace it with the following:
8.13 MINIMUM FIXED CHARGE COVERAGE RATIO. From and after the end of
the Fixed Charge Effective Quarter, the Companies and their consolidated
Subsidiaries shall maintain a Fixed Charge Coverage Ratio of at least 1.0
to 1, measured as of (a) the end of the Fixed Charge Effective Quarter,
calculated for such Fixed Charge Effective Quarter only, (b) the end of the
first full fiscal quarter following the Fixed Charge Effective Quarter,
calculated only for the two fiscal quarter period then ending, (c) the end
of the second full fiscal quarter following the Fixed Charge Effective
Quarter, calculated only for the three fiscal quarter period then ending,
(d) the end of the third full fiscal quarter following the Fixed Charge
Effective Quarter, calculated for the four fiscal quarter period then
ending, and (e) as of the end of each fiscal month thereafter, calculated
for the twelve fiscal month period ending on such date.
(f) Delete SECTION 9.16 and replace it with the following:
9.16 MINIMUM AVAILABILITY. The Companies shall not permit Availability
to be less than $5,000,000 at any time; provided, however, that the
Companies shall not be required to comply with this Section 9.16 until the
first date that Availability falls below $10,000,000. If (a) Availability
falls below $10,000,000 but remains greater than $9,000,000 on any date (a
"Trigger Date"), (b) for the period of thirty consecutive days from and
including the Trigger Date, Availability averages at least $10,000,000, and
(c) on the last day of such period of thirty consecutive days described in
clause (b) above, Availability is greater than $10,000,000, the minimum
Availability covenant set forth in this Section 9.16 shall not apply from
and after the end of such period of thirty consecutive days; provided,
however, that this sentence shall not prevent the application of the
minimum Availability covenant set forth in this Section 9.16 more than once
in any two consecutive fiscal quarter period of the Companies or more than
twice in any fiscal year of the Companies. If Availability falls below
$9,000,000 at any time, the Companies shall not have the opportunity to
avoid the application of this Section 9.16 as described in the previous
sentence.
(g) Delete SECTION 9.18 and replace it with the following:
9.18 CAPITAL EXPENDITURES. From and after the date on which
Availability first becomes less than $10,000,000, the Companies shall not
make or incur Capital Expenditures, in the aggregate, for the then current
fiscal year in excess of (i) $8,000,000, multiplied by (ii) the number of
fiscal months remaining in such fiscal year, and (iii) divided by twelve.
From and after such fiscal year, the Companies shall not make or incur
Capital Expenditures in excess of $8,000,000 in the aggregate in any fiscal
year thereafter.
(h) Add the following new SECTION 9.19:
9.19 MERGER; SUBSIDIARY; ETC.
(a) No Obligor will merge into or consolidate with any other Person;
provided, however, that the Obligors may acquire other Persons so long as
(i) no Default or Event of Default exists before or after giving effect to
such acquisition; (ii) the Companies are in pro forma compliance with the
financial covenants set forth in this Agreement; (iii) the purchase price
(including, without limitation, cash, securities and all other forms of
indebtedness and all liabilities assumed by any Company) of any such
acquisition does not exceed $3,000,000; (iv) such acquisition does not
cause the aggregate purchase price (including, without limitation, cash,
securities and all other forms of indebtedness and all liabilities assumed
by any Company) of all such acquisitions consummated after April 29, 2000
to exceed $7,000,000; (v) the Person being acquired is in the same or
similar business as the Obligors; and (vi) in any such acquisition
involving a merger, one or more Companies shall be the surviving entity in
such merger.
(b) No Obligor will form or acquire any Subsidiary, except in
connection with an acquisition that is permitted under clause (a) above.
(c) No Obligor shall issue any share of capital stock; provided,
however, that Waddell and Wellington may issue shares of capital stock to
Sheffield.
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(i) Delete the existing ANNEX I and replace it with the following:
ANNEX I
Performance Pricing Matrix
--------------------------
Prime Rate Eurodollar
Availability Margin Rate Margin
- ------------------------------------------------------------------
Greater than $20,000,000 0.00% 2.50%
- ------------------------------------------------------------------
$10,000,000 or greater, 0.00% 2.75%
but equal to or less
than $20,000,000
- ------------------------------------------------------------------
Less than $10,000,000 0.50% 3.25%
==================================================================
3. BORROWING BASE CERTIFICATE. The Companies shall deliver to the Lender
a borrowing base certificate setting forth the amount of Loans available to be
borrowed in accordance with Section 2.1 of the Agreement, as amended by this
Amendment, together with such other information as the Lender may reasonably
request, for each week by the third Banking Day of the following week.
4. RESTATEMENT OF REPRESENTATIONS AND WARRANTIES. The Companies hereby
reaffirm each and every representation and warranty heretofore made or deemed to
be made by them under or in connection with the execution and delivery of the
Agreement and the documents executed in connection therewith (including, without
limitation, those representations and warranties set forth in Section 7 of the
Agreement) as fully as though such representations and warranties had been made
on the date hereof and with specific reference to this Amendment.
5. NO DEFAULT. To induce the Lender to enter into this Amendment, each
Company hereby, as of the date hereof, and after giving effect to the terms
hereof, (i) represents and warrants that there exists no Default or Event of
Default, and (ii) agrees that there exists no right of offset, defense,
counterclaim, claim or objection in favor of any Company as against the Lender
arising out of or with respect to any of the Obligations.
6. EFFECT OF AMENDMENT. Except as expressly set forth herein, the
Agreement and documents executed in connection therewith shall be and remain in
full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of the Companies to the Lender and each Company hereby
restates, ratifies and reaffirms each and every term and condition set forth in
the Agreement and documents executed in connection therewith effective as of the
date hereof.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
8. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
9. SECTION REFERENCES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
10. COSTS, EXPENSES, TAXES AND FEES. The Companies agree to pay, on the
date hereof, a fee of $25,000 for the structuring and approval of this Amendment
(which fee shall be fully earned on such date and shall not be subject to refund
or rebate), and on demand all costs and expenses of the Lender in connection
with the preparation, execution, delivery and enforcement of this Amendment and
any other transactions contemplated hereby, including, without
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limitation, the fees and out-of-pocket expenses of legal counsel to the Lender.
Such fees are fees for services and are not, nor shall they be deemed to be,
interest or a charge for the use of money.
11. FURTHER ASSURANCES. Each Company agrees to take such further action
as the Lender shall reasonably request in connection herewith to evidence the
amendments herein contained to the Agreement.
12. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
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IN WITNESS WHEREOF, the Companies and the Lender have caused this Amendment
to be duly executed as of the date first above written.
SHEFFIELD STEEL CORPORATION, F/K/A HMK INDUSTRIES OF
OKLAHOMA, INC., SUCCESSOR BY MERGER TO SHEFFIELD STEEL
CORPORATION-SAND SPRINGS, F/K/A SHEFFIELD STEEL
CORPORATION and
SHEFFIELD STEEL CORPORATION - JOLIET
By: /s/ Stephen R. Johnson Vice President and CFO
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(Title)
Attest: /s/ Debbie Avey
----------------
WADDELL'S REBAR FABRICATORS, INC.
By: /s/ Stephen R. Johnson Vice President and CFO
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(Title)
Attest: /s/ Debbie Avey
----------------
WELLINGTON INDUSTRIES, INC.
By: /s/ Stephen R. Johnson Vice President and CFO
----------------------------------------------
(Title)
Attest: /s/ Debbie Avey
----------------
BANK OF AMERICA, N.A., F/K/A NATIONSBANK, N.A., F/K/A
NATIONSBANK, N.A. (SOUTH), F/K/A NATIONSBANK OF
GEORGIA, N.A.
By: /s/ Stuart A. Hall Vice President
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