EXHIBIT 10.2
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RELIANCE STEEL & ALUMINUM CO.
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENTS
Dated as of July 1, 2003
Re:
Note Purchase Agreements dated November 1, 1996
and
$22,000,000 7.08% Senior Notes, Series A, due January 2, 2004
$23,000,000 7.21% Senior Notes, Series B, due January 2, 2005
$20,000,000 7.31% Senior Notes, Series C, due January 2, 2007
and
$10,000,000 7.37% Senior Notes, Series D, due January 2, 2009
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AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENTS
Amendment No. 2 to Note Purchase Agreements dated as of July 1, 2003,
between RELIANCE STEEL & ALUMINUM CO., a California corporation (the "Company"),
and NATIONWIDE LIFE INSURANCE COMPANY, NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY, GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY, TRANSAMERICA OCCIDENTAL
LIFE INSURANCE COMPANY, TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY,
ALLSTATE LIFE INSURANCE COMPANY, MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
UNITED OF OMAHA LIFE INSURANCE COMPANY, COMPANION LIFE INSURANCE COMPANY,
METLIFE INVESTORS USA INSURANCE COMPANY and CUNA MUTUAL LIFE INSURANCE COMPANY
(each a "Purchaser" and, collectively, the "Purchasers").
RECITALS
A. Under and pursuant to the separate and several Note Purchase
Agreements dated November 1, 1996, as amended by that certain First Amendment
dated September 15, 1997 (as amended, the "Note Purchase Agreements"), between
the Company and each of the Purchasers, the Company has issued and sold to the
Purchasers (i) $22,000,000 aggregate principal amount of its 7.08% Senior Notes,
Series A, due January 2, 2004 (the "Series A Notes"), (ii) $23,000,000 aggregate
principal amount of its 7.21% Senior Notes, Series B, due January 2, 2005 (the
"Series B Notes"), (iii) $20,000,000 aggregate principal amount of its 7.31%
Senior Notes, Series C, due January 2, 2007 (the "Series C Notes") and (iv)
$10,000,000 aggregate principal amount of its 7.37% Senior Notes, Series D, due
January 2, 2009 (the "Series D Notes"). The Series A Notes, the Series B Notes,
the Series C Notes and the Series D Notes are herein collectively referred to as
the "Notes."
B. Under and pursuant to that certain Credit Agreement by and
among the Company and Bank of America, N.A., a national banking association (the
"Bank"), dated as of October 24, 2001 (as amended, the "Credit Agreement"), the
Bank has extended to the Company a revolving line of credit on the terms and
conditions provided therein. Under the terms of the Third Amendment to Credit
Agreement dated as of July __, 2003, the Bank has required the Company and the
Subsidiary Guarantors to grant the Collateral Agent (as defined in the
Intercreditor Agreement described in Section 1.1 below) a first priority lien in
all right, title and interest of the Company and the Subsidiary Guarantors in
the Collateral (as defined in the Intercreditor Agreement described in Section
1.1 below), whether now owned or hereafter acquired.
C. Under and pursuant to Sections 10.5 and 11 of the Note
Purchase Agreements, the grant of a lien by the Company or the Subsidiary
Guarantors on any of their assets or property in favor of the Bank or any other
creditor would be prohibited and would constitute an Event of Default. In
consideration for the Purchasers' consent to the granting of a lien with respect
to the Collateral and the other amendments provided herein, the Company and the
Subsidiary Guarantors have agreed to grant a first priority lien in the
Collateral in favor of the Collateral Agent for the ratable benefit of the Bank
and the other lenders under the Credit Agreement, the holders of certain other
senior notes of the Company and each of the Purchasers (the "Pari Passu Lien").
D. Under and pursuant to the Subsidiary Guaranty, the Subsidiary
Guarantors have unconditionally guaranteed the obligations of the Company in
connection with the issuance of the Notes. As a condition precedent to amending
the Note Purchase Agreements, the Purchasers have required the Subsidiary
Guarantors to acknowledge and consent to this Amendment No. 2 to the Note
Purchase Agreements and to pledge certain of their assets to the Collateral
Agent to secure the payment of the Notes and the performance by each of the
Subsidiary Guarantors of their obligations under the Subsidiary Guaranty and,
desiring to help secure financing for the Company which will result in direct or
indirect benefits to each of the Subsidiary Guarantors, the Subsidiary
Guarantors have agreed to acknowledge and consent to this Amendment No. 2 to
Note Purchase Agreements and to pledge certain of their assets pursuant to the
Security Agreement (as defined in Section 1.1 hereof).
E. The Pari Passu Lien shall be granted pursuant to the Security
Agreement, which is substantially in the form attached hereto as Exhibit A.
F. The terms pursuant to which the Purchasers, the Bank and
certain other senior creditors of the Company will share such Pari Passu Lien
shall be set forth in an Intercreditor Agreement substantially in the form
attached hereto as Exhibit B.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the Company and the Purchasers agree that the Note Purchase
Agreements are hereby amended in the following respects:
SECTION 1. AMENDMENTS TO NOTE PURCHASE AGREEMENTS.
Section 1.1. Section 1 of the Note Purchase Agreements is hereby
amended by adding two new paragraphs at the end thereof reading in their
entirety as set forth below:
As an inducement to you entering into Amendment No. 2 to Note
Purchase Agreements, the Company has executed and delivered or will
cause to be executed and delivered, or simultaneously with the
execution and delivery of Amendment No. 2 to Note Purchase Agreements
will execute and deliver, and the Notes, together with all other
Obligations (as defined in the Intercreditor Agreement described
below), will be secured by, the Security Agreement dated as of July 1,
2003 (the "Security Agreement") from the Company and each Material
Subsidiary to Bank of America, N.A., as Collateral Agent (the
"Collateral Agent"), pursuant to which the Company and each Material
Subsidiary shall grant a security interest (which shall be a pari
passu, first priority, perfected security interest, subject to Liens
permitted by Section 10.5) in the collateral defined therein to the
Collateral Agent for the benefit of the holders of the Notes, certain
other creditors of the Company and Bank of America, N.A. (the "Bank"),
which Security Agreement will be substantially in the form attached to
Amendment No. 2 to Note Purchase Agreements as Exhibit A.
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In addition, pursuant to that certain Intercreditor Agreement
dated as of July 1, 2003 (the "Intercreditor Agreement") among the
Company, the Bank, individually and as Collateral Agent, certain other
creditors of the Company and the holders of the Notes, which shall be
substantially in the form attached to Amendment No. 2 to Note Purchase
Agreements as Exhibit B, the Bank, such other creditors and the holders
of the Notes have agreed, among other things, to share in the manner
set forth therein the proceeds arising from the disposition of
Collateral subject to the Security Agreement.
Section 1.2. A new sentence is hereby added to the end of Section
8.2 of the Note Purchase Agreements reading in its entirety as set forth below:
If amounts are to be applied to the principal of the Notes pursuant to
the terms of the Intercreditor Agreement, such principal amount together with
interest owing thereon to the prepayment date pursuant to the Intercreditor
Agreement and the Make-Whole Amount, if any, with respect to such principal
amount of each Note shall be due and payable on such date.
Section 1.3. The definition of "Reinvestment Yield" in Section 8.6
of the Note Purchase Agreements is hereby amended by replacing all references to
"USD" with "PX-1" and all references to "duration" with "maturity".
Section 1.4. Section 9.6 of the Note Purchase Agreements is hereby
amended and restated to read in its entirety as set forth below:
Section 9.6. Security.
(a) Security Agreement. The Company will execute and
deliver to each holder of Notes, in connection with the closing of
Amendment No. 2 to Note Purchase Agreements dated as of July 1, 2003,
the Security Agreement. You hereby agree that the Security Agreement
shall be released upon your receipt of written evidence, in the form
attached hereto as Exhibit 9.6(a), that no other Debt of the Company
that was secured by the Security Agreement is supported by any Lien or
security agreement from the Company or any Material Subsidiary. In the
event that the Security Agreement is so released and other Debt of the
Company that was secured by the Security Agreement is thereafter
supported by any Lien or security agreement from the Company or any
Material Subsidiary, the Company (i) shall provide each holder of the
Notes with at least 30 days' prior written notice thereof, which notice
shall describe in reasonable detail such proposed other Lien or
security agreement and (ii) concurrent with the effectiveness of such
other Lien or security agreement, will execute and deliver to each
holder of Notes, a new security agreement in the form of the Security
Agreement granting a first priority pari passu Lien on the Collateral
(as defined in the Security Agreement) to the Agent for the benefit of
the holders of the Notes.
(b) Subsidiary Guaranties and Collateral. The Company
will cause each of its Material Subsidiaries existing as of the date of
the Closing to execute and deliver to each holder of Notes, at the
Closing (i) a subsidiary guaranty in the form attached hereto
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as Exhibit 9.6 (the "Subsidiary Guaranty") pursuant to which such
Material Subsidiary will unconditionally guarantee all obligations of
the Company under this Agreement, the Other Agreements, the Notes and
the other Security Documents and (ii) the Security Agreement pursuant
to which such Material Subsidiary will grant and maintain a first
priority pari passu security interest (subject to Liens permitted by
Section 10.5) in the Collateral (as defined in the Security Agreement)
to the Agent for the benefit of the holders of the Notes. The Company
will cause (a) each of its Restricted Subsidiaries that becomes a
Material Subsidiary at any time after the Closing and (b) each Material
Subsidiary that is acquired at any time after the Closing to execute
and deliver to each holder of Notes, within 10 Business Days after
becoming a Material Subsidiary (i) a supplement to the Subsidiary
Guaranty pursuant to which such Material Subsidiary will
unconditionally guarantee all obligations of the Company under this
Agreement, the Other Agreements, the Notes and the other Security
Documents and (ii) a supplement to the Security Agreement pursuant to
which such Material Subsidiary (y) will grant and maintain a first
priority pari passu security interest (subject to Liens permitted by
Section 10.5) in certain of its then owned or thereafter acquired
personal property to the Agent for the benefit of the holders of the
Notes and (z) will pledge its ownership of all of its shares of the
capital stock of any Restricted Subsidiary to the Agent for the benefit
of the holders of the Notes. The Company hereby agrees that,
notwithstanding Section 10.11 hereof, at all times when the Subsidiary
Guaranty or the Security Agreement is in effect (a) total net revenues
of the Company and its Material Subsidiaries for the period of the
immediately preceding four fiscal quarters shall be greater than or
equal to 80% of the consolidated total net revenues of the Company and
its Subsidiaries for such period and (b) total assets of the Company
and its Material Subsidiaries, as of the last day of the immediately
preceding fiscal quarter, shall be greater than or equal to 80% of
Consolidated Total Assets as of such date, in each case as reflected in
the most recent annual or quarterly financial statements of the Company
and its Subsidiaries.
Notwithstanding the foregoing, you hereby agree that the
Security Agreement shall be released upon your receipt of written
evidence, in the form attached hereto as Exhibit 9.6(a), that no other
Debt of the Company that was secured by the Security Agreement is
supported by any Lien or security agreement from the Company or any
Material Subsidiary. In the event that the Security Agreement is so
released and other Debt of the Company that was secured by the Security
Agreement is thereafter supported by any Lien or security agreement
from any Material Subsidiary, the Company (i) shall provide each holder
of the Notes with at least 30 days' prior written notice thereof, which
notice shall describe in reasonable detail such proposed other Lien or
security agreement and (ii) concurrent with the effectiveness of such
other Lien or security agreement, will cause each of its Material
Subsidiaries that executed and delivered a security agreement
supporting such other Debt to execute and deliver to each holder of
Notes, a new security agreement in the form of the Security Agreement
granting a first priority pari passu Lien on the Collateral (as defined
in the Security Agreement) to the Agent for the benefit of the holders
of the Notes.
Additionally, you hereby further agree that the Subsidiary
Guaranty shall be released upon your receipt of written evidence, in
the form attached hereto as
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Exhibit 9.6(a), that no other Debt of the Company is supported by any
Guaranty from any Material Subsidiary. In the event that the Subsidiary
Guaranty is so released and other Debt of the Company is thereafter
supported by any Guaranty from any Material Subsidiary, the Company (i)
shall provide each holder of the Notes with at least 30 days' prior
written notice thereof, which notice shall describe in reasonable
detail such proposed other Guaranty and (ii) concurrent with the
effectiveness of such other Guaranty, will cause each of its Material
Subsidiaries that executed and delivered a Guaranty supporting such
other Debt to execute and deliver to each holder of Notes, a new
Guaranty in the form of the Subsidiary Guaranty.
Section 1.5. A new Section 9.7 is hereby added to the Note
Purchase Agreements reading in its entirety as set forth below:
Section 9.7. Further Assurances. At the written request
of the Collateral Agent or any holder of Notes, the Company will, at no
expense to the Collateral Agent or any holder of Notes, do, execute,
acknowledge and deliver all and every further acts, deeds, conveyances,
transfers and assurances reasonably necessary or proper for (i) the
perfection and maintenance of the security interests and pledges being
provided for pursuant to the Security Documents, (ii) carrying out the
purposes of this Agreement, the Other Agreements, the Notes and each
Security Document and (iii) better assuring the rights of the holders
of the Notes under this Agreement, the Other Agreements, the Notes and
each Security Document.
Section 1.6. Section 10.1 of the Note Purchase Agreements is
hereby amended and restated to read in its entirety as set forth below:
Section 10.1. Consolidated Funded Debt. The Company will
not at any time permit Consolidated Funded Debt to exceed 60% of Total
Capitalization.
Section 1.7. Each reference in the Note Purchase Agreements to
"Section 10.1(c)" is hereby replaced with "Section 10.1".
Section 1.8. Section 10.4 of the Note Purchase Agreements is
hereby amended and restated to read in its entirety as set forth below:
Section 10.4. Minimum Consolidated Net Worth. The Company
will not, at any time, permit Consolidated Net Worth to be less than
the sum of (a) $500,000,000, plus (b) an aggregate amount equal to 25%
of its Consolidated Net Income (but, in each case, only if a positive
number) for each completed fiscal year beginning with the fiscal year
ended December 31, 2003.
Section 1.9. Subparagraph (g) of Section 10.5 of the Note Purchase
Agreements is hereby amended and restated to read in its entirety as set forth
below:
(g) Liens existing on the date of this Agreement and
securing the Debt of the Company and its Restricted Subsidiaries
referred to in Schedule 5.15 and Liens granted
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pursuant to this Agreement, the Other Agreements, the Credit Agreement
(so long as the Intercreditor Agreement shall remain in effect and each
Lender under the Credit Agreement is a party to the Intercreditor
Agreement) or the Security Documents;
Section 1.10. Subparagraph (b) of Section 10.8 of the Note Purchase
Agreements is hereby amended and restated to read in its entirety as set forth
below:
(b) if the Company is not the Successor Corporation, such
Successor Corporation shall have executed and delivered to each holder
of Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement, the Other
Agreements, the Security Documents and the Notes (pursuant to such
agreements and instruments as shall be reasonably satisfactory to the
Required Holders), and the Company shall have caused to be delivered to
each holder of Notes an opinion of nationally recognized independent
counsel, or other independent counsel reasonably satisfactory to the
Required Holders, to the effect that all agreements or instruments
effecting such assumption are enforceable in accordance with their
terms and comply with the terms hereof; and
Section 1.11. The last sentence of Section 10.8 of the Note
Purchase Agreements is hereby amended and restated to read in its entirety as
set forth below:
No such conveyance, transfer or lease of substantially all of the
assets of the Company shall have the effect of releasing the Company or
any Successor Corporation from its liability under this Agreement, the
Other Agreements, the Security Documents or the Notes.
Section 1.12. Subparagraph (c) of Section 11 of the Note Purchase
Agreements is hereby amended and restated to read in its entirety as set forth
below:
(c) the Company or any Subsidiary Guarantor defaults in
the performance of or compliance with any term contained in any
Security Agreement or the Company defaults in the performance of or
compliance with any term contained in Sections 10.1 through 10.10,
inclusive, hereof or any term contained in the Intercreditor Agreement;
or
Section 1.13. Subparagraph (e) of Section 11 of the Note Purchase
Agreements is hereby amended and restated to read in its entirety as set forth
below:
(e) any representation or warranty made in writing by or
on behalf of the Company or any Restricted Subsidiary or by any officer
of the Company or any Restricted Subsidiary in this Agreement, in any
Security Document or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or incorrect
in any material respect on the date as of which made; or
Section 1.14. Section 16 of the Note Purchase Agreements is hereby
amended and restated to read in its entirety as set forth below:
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SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
All representations and warranties contained herein, in
Amendment No. 2 to Note Purchase Agreements dated as of July 1, 2003 or
in any Security Document shall survive the execution and delivery of
this Agreement, the Notes and Amendment No. 2 to Note Purchase
Agreements dated as of July 1, 2003, the purchase or transfer by you of
any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you
or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the
Company or any Subsidiary Guarantor pursuant to this Agreement,
Amendment No. 2 to Note Purchase Agreements dated as of July 1, 2003 or
any Security Document shall be deemed representations and warranties of
the Company or such Subsidiary Guarantor under this Agreement. Subject
to the preceding sentence, this Agreement (as amended by Amendment No.
2 to Note Purchase Agreements dated as of July 1, 2003), the Security
Documents and the Notes embody the entire agreement and understanding
between you, the Company and the Subsidiary Guarantors supersede all
prior agreements and understandings relating to the subject matter
hereof.
Section 1.15. Subclause (iv) of clause (8) of the second sentence
of Section 20 of the Note Purchase Agreements is hereby amended and restated to
read in its entirety and a new third sentence is added to Section 20 as set
forth below:
(iv) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such delivery
and disclosure to be necessary or appropriate in the enforcement or for
the protection of the rights and remedies under your Notes, this
Agreement and the Security Documents. Any holder of a Note (and any
employee, representative or other agent of such holder) may disclose to
any and all Persons, without limitation of any kind, the tax treatment
and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the
taxpayer relating to such tax treatment and tax structure. The
authorization in the immediately preceding sentence is not intended to
permit, and does not permit, disclosure of any information not related
to the tax treatment or tax structure of the transaction, including,
for example, the identities of participants or potential participants
and any Confidential Information regarding the operations or finances
of the Company and its Subsidiaries.
Section 1.16. Schedule B to the Note Purchase Agreements is hereby
amended by adding thereto (in alphabetical order) a new definition of
"Consolidated Net Income" reading in its entirety as set forth below:
"Consolidated Net Income" means, with reference to any period,
the net income (or loss) of the Company and its Restricted Subsidiaries
for such period (taken as a cumulative whole), as determined in
accordance with GAAP, after eliminating all offsetting debits and
credits between the Company and its Restricted Subsidiaries and all
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other items required to be eliminated in the course of the preparation
of consolidated financial statements of the Company and its Restricted
Subsidiaries in accordance with GAAP.
Section 1.17. Schedule B to the Note Purchase Agreements is hereby
amended by adding thereto (in alphabetical order) a new definition of
"Intercreditor Agreement" reading in its entirety as set forth below:
"Intercreditor Agreement" is defined in Section 1.
Section 1.18. The definition of "Material Adverse Effect" set forth
in Schedule B to the Note Purchase Agreements is hereby amended and restated to
read in its entirety as set forth below:
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets or
properties of the Company and its Restricted Subsidiaries, taken as a
whole, or (b) the ability of the Company to perform its obligations
under this Agreement, the Other Agreements, any Security Document or
the Notes, or (c) the validity or enforceability of this Agreement, the
Other Agreements, any Security Document or the Notes.
Section 1.19. The definition of "Material Subsidiary" set forth in
Schedule B to the Note Purchase Agreements is hereby amended and restated to
read in its entirety as set forth below:
"Material Subsidiary" means, at any time, those Subsidiaries
listed on Schedule 5.4 and designated as Restricted Subsidiaries, and
any other Restricted Subsidiary having at such time either (a) total
net revenues for the period of the immediately preceding four fiscal
quarters equal to or greater than 10% of the consolidated total net
revenues of the Company and its Subsidiaries for such period or (b)
total assets, as of the last day of the immediately preceding fiscal
quarter, equal to or greater than 10% of the Consolidated Total Assets
as of such date, in each case as reflected in the most recent annual or
quarterly financial statements of the Company and its Subsidiaries, and
any other Subsidiary that is a guarantor or obligor in respect of the
Credit Agreement.
Section 1.20. Schedule B to the Note Purchase Agreements is hereby
amended by adding thereto (in alphabetical order) a new definition of "Security
Agreement" reading in its entirety as set forth below:
"Security Agreement" is defined in Section 1.
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Section 1.21. Schedule B to the Note Purchase Agreements is hereby
amended by adding thereto (in alphabetical order) a new definition of "Security
Documents" reading in its entirety as set forth below:
"Security Documents" means the Intercreditor Agreement, the
Subsidiary Guaranty, any supplement to the Subsidiary Guaranty
contemplated by Section 9.6(b), the Security Agreement, any supplement
to the Security Agreement contemplated by Section 9.6(b), and any other
agreement, document or instrument entered into by the Company and/or
any Restricted Subsidiary providing security for the Notes.
Section 1.22. Schedule 5.4 to the Note Purchase Agreements is
hereby amended and restated in its entirety as set forth in Schedule 5.4 hereto.
Section 1.23. References in the Note Purchase Agreements to
"Exhibit 9.6" are hereby amended to read "Exhibit 9.6(b)" and a new Exhibit
9.6(a) is hereby added to the Note Purchase Agreements reading in its entirety
as set forth in Exhibit 9.6(a) attached hereto.
SECTION 2. CONDITIONS TO EFFECTIVENESS.
This Amendment No. 2 to Note Purchase Agreements shall not be effective
until (i) the Company and the holders of 51% in aggregate principal amount of
the outstanding Notes shall have executed and delivered this Amendment No. 2 to
Note Purchase Agreements and each of the Subsidiary Guarantors has executed and
delivered its Consent hereto, (ii) each Purchaser shall have received from Kay
Rustand, Esq., General Counsel for the Company, her legal opinion with respect
to the Company and the Subsidiary Guarantors, dated the effective date of this
Amendment No. 2 to Note Purchase Agreements, in form and substance reasonably
satisfactory to each Purchaser and special counsel to the Purchasers, covering
the matters set forth in Exhibit C attached hereto, (iii) each Purchaser shall
have received from the Company a certificate dated the effective date of this
Amendment No. 2 to Note Purchase Agreements, signed by the Executive Vice
President and Chief Financial Officer of the Company, to the effect that the
representations and warranties of the Company set forth in Exhibit D attached
hereto are true and correct on and with respect to the effective date of this
Amendment No. 2 to Note Purchase Agreements, (iv) the Company shall have paid to
each Purchaser an amendment fee in an amount equal to 0.15% of the outstanding
principal amount of such Purchaser's Notes, (v) the Company shall have paid all
of the out-of-pocket expenses incurred by the Purchasers in connection with the
consummation of the transactions contemplated by this Amendment No. 2 to Note
Purchase Agreements, including, without limitation, the fees and disbursements
of Chapman and Cutler, special counsel to the Purchasers and (vi) the Company
shall have satisfied each of the following closing conditions:
1. Each of the Intercreditor Agreement (as described in
Section 1.1 hereof) and the Security Agreement (as described in Section
1.1 hereof) shall have been duly executed, acknowledged and delivered
by the respective parties thereto and shall be in full force and
effect.
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2. The Company and the Bank shall have entered into the
Third Amendment to the Credit Agreement and each Purchaser shall have
received a copy of the Credit Agreement, with all amendments thereto,
certified as true and correct by an authorized officer of the Company.
3. The Collateral Agent and each holder of the Notes
shall have received reasonably satisfactory evidence that the
Collateral is insured against fire and other casualties at replacement
cost, together with standard mortgage clauses naming the Collateral
Agent (for the benefit of the holders of the Notes) as mortgagee or
secured party. The Collateral Agent and each holder of the Notes shall
also have received reasonably satisfactory original certificates of
general public liability insurance, naming each holder of a Note as an
additional insured. All premiums on such policies shall be prepaid by
the Company.
4. All actions shall have been taken at the Company's
expense as are necessary and appropriate for the holders of the Notes
and the Bank to maintain a valid and perfected first priority lien and
security interest in and to the collateral detailed in the Security
Agreement, including, without limitation, the filing and recording of
such documents and Uniform Commercial Code financing statements as may
be necessary and appropriate, subject to Liens permitted by Section
10.5 of the Note Purchase Agreements.
5. All proceedings taken in connection with the
transactions contemplated by this Amendment No. 2 to Note Purchase
Agreements, and all documents necessary to the consummation thereof,
shall be reasonably satisfactory in form and substance to you and your
special counsel, and you shall have received a copy (executed or
certified as may be appropriate) of all legal documents or proceedings
taken in connection with the consummation of said transactions
(including, without limitation, approving resolutions duly adopted by
the respective Board of Directors of the Company and each Subsidiary
Guarantor and accompanied by a certificate by the Secretary or
Assistant Secretary of the Company and each Subsidiary Guarantor
stating that such resolutions are true and correct, have not been
altered or repealed and are in full force and effect).
6. As of the effective date of this Amendment No. 2 to
Note Purchase Agreements (after giving effect to the amendments
contemplated hereby), no Default or Event of Default shall have
occurred and be continuing.
SECTION 3. MISCELLANEOUS.
Section 3.1. This Amendment No. 2 to Note Purchase Agreements
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
Section 3.2. This Amendment No. 2 to Note Purchase Agreements may
be executed in any number of counterparts, each executed counterpart
constituting an original but all together only one agreement.
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Section 3.3. Except to the extent hereby amended, the Note
Purchase Agreements are in all respects hereby ratified, confirmed and approved.
Section 3.4. The capitalized terms used in this Amendment No. 2 to
Note Purchase Agreements shall have the respective meanings specified in the
Note Purchase Agreements unless otherwise herein defined or the context hereof
shall otherwise require.
Section 3.5. Any and all notices, requests, certificates and other
instruments, including the Notes, may refer to the "Note Purchase Agreement" or
the "Note Purchase Agreement dated November 1, 1996" without making specific
reference to this Amendment No. 2 to Note Purchase Agreements, but nevertheless
all such references shall be deemed to include this Amendment No. 2 to Note
Purchase Agreements unless the context shall otherwise require.
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Section 3.6. This Amendment No. 2 to Note Purchase Agreements and
all covenants herein contained shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto. All covenants made
by the Company herein shall survive the closing and the delivery of this
Amendment No. 2 to Note Purchase Agreements.
RELIANCE STEEL & ALUMINUM CO.
By
Its
The foregoing is hereby agreed
to as of the date first written above.
NATIONWIDE LIFE INSURANCE COMPANY
By
Its
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By
Its
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By
Its
By
Its
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TRANSAMERICA OCCIDENTAL LIFE INSURANCE
COMPANY
By
Its
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By
Its
ALLSTATE LIFE INSURANCE COMPANY
By
Name:
By
Name:
Authorized Signatories
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: David L. Babson & Company Inc., as
Investment Adviser
By
Its
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UNITED OF OMAHA LIFE INSURANCE COMPANY
By
Its
COMPANION LIFE INSURANCE COMPANY
By
Its
METLIFE INVESTORS USA INSURANCE
COMPANY
(formerly known as Security First
Life Insurance Company)
By: METROPOLITAN LIFE INSURANCE
COMPANY,
as Investment Advisor
By __________________________________
Its
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CUNA MUTUAL LIFE INSURANCE COMPANY
(formerly known as Century Life of
America)
By: members capital advisors, inc.,
Its Investment Advisor
By __________________________________
Its
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CONSENT TO AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENTS
The undersigned hereby acknowledges receipt of a counterpart original
of, and consents to, the foregoing Amendment No. 2 to Note Purchase Agreements
dated as of July 1, 2003 and the Security Agreement and the Intercreditor
Agreement described therein.
The undersigned hereby ratifies and confirms in all respects its
obligations under its Subsidiary Guaranty dated November 1, 1996 in favor of the
holders of the Notes.
This Consent to Amendment No. 2 to Note Purchase Agreements is
furnished for good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged by the undersigned, and the undersigned
understands and intends that the Purchasers will rely on the foregoing and that
the undersigned will be legally bound by the foregoing. This Consent to
Amendment No. 2 to Note Purchase Agreements shall inure to the benefit of the
Purchasers and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent to Amendment No. 2 to Note Purchase Agreements as of July __, 2003,
pursuant to proper authority duly granted.
[SUBSIDIARY GUARANTORS]
By
Its
FORM OF SECURITY AGREEMENT
EXHIBIT A
(to Amendment No. 2 to Note Purchase Agreements)
FORM OF INTERCREDITOR AGREEMENT
EXHIBIT B
(to Amendment No. 2 to Note Purchase Agreements)
DESCRIPTION OF OPINION OF COMPANY COUNSEL
The opinion of Kay Rustand, Esq., General Counsel for the Company, with
respect to the Company and each Subsidiary Guarantor, which is called for by
Section 2 of Amendment No. 2 to Note Purchase Agreements, shall be dated the
effective date of Amendment No. 2 to Note Purchase Agreements and addressed to
the Purchasers, shall be reasonably satisfactory in scope and form to the
Purchasers and shall be to the effect that:
(1) The Company is a corporation, duly incorporated,
legally existing and in good standing under the laws of the State of
California, has corporate power and authority and is duly authorized to
enter into and perform Amendment No. 2 to Note Purchase Agreements, the
Security Agreement and the Intercreditor Agreement;
(2) Each Subsidiary Guarantor is a corporation, duly
incorporated, legally existing and in good standing under the laws of
its jurisdiction of incorporation, has corporate power and authority
and is duly authorized to enter into and perform its obligations under
its Consent to Amendment No. 2 to Note Purchase Agreements dated as of
July 1, 2003 (each a "Consent"), the Subsidiary Guaranty and the
Security Agreement;
(3) Each of Amendment No. 2 to Note Purchase Agreements,
the Security Agreement and the Intercreditor Agreement has been duly
authorized, executed and delivered by the Company and constitutes the
legal, valid and binding contract and agreement of the Company
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(4) Each of the Consents, the Subsidiary Guaranty and the
Security Agreement has been duly authorized, executed and delivered by
each Subsidiary Guarantor and constitutes the legal, valid and binding
contract and agreement of each Subsidiary Guarantor enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally, and subject, as
to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(5) No approval, consent or withholding of objection on
the part of, or filing, registration or qualification with, any
governmental body, Federal, state or local, is necessary in connection
with the execution and delivery of Amendment No. 2 to Note Purchase
Agreements, the Security Agreement, the Intercreditor Agreement, the
Consents or the Subsidiary Guaranty;
(6) The execution, delivery and performance by the
Company of Amendment No. 2 to Note Purchase Agreements, the Security
Agreement and the Intercreditor Agreement does not conflict with or
result in any breach of any of the provisions of or constitute a
default under or result in the creation or imposition of any Lien
(other than the Lien created by the Security Agreement) upon any of the
property of the Company
EXHIBIT C
(to Amendment No. 2 to Note Purchase Agreements)
pursuant to the provisions of the Articles of Incorporation or By-laws
of the Company or any agreement or other instrument known to such
counsel to which the Company is a party or by which the Company may be
bound;
(7) The execution, delivery and performance by each
Subsidiary Guarantor of the Subsidiary Guaranty and the Security
Agreement does not conflict with or result in any breach of any of the
provisions of or constitute a default under or result in the creation
or imposition of any Lien (other than the Lien created by the Security
Agreement) upon any of the property of any Subsidiary Guarantor
pursuant to the provisions of the [Articles/Certificate] of
Incorporation or By-laws of any Subsidiary Guarantor or any agreement
or other instrument known to such counsel to which any Subsidiary
Guarantor is a party or by which any Subsidiary Guarantor may be bound;
and
(8) The Security Agreement and/or financing statements or
similar notices with respect thereto have been filed for record or
recorded in all public offices wherein such filing or recordation is
necessary to perfect the Lien in the Collateral (as defined in the
Intercreditor Agreement) as against creditors of and purchasers from
the Company, and each Subsidiary Guarantor. The Security Agreement
creates a perfected Lien in the Collateral in favor of Bank of America,
N.A., as Collateral Agent, for the benefit of the holders of the Notes,
subject only to the liens and encumbrances permitted thereby.
The opinion of Kay Rustand, Esq. shall cover such other matters
relating to Amendment No. 2 to Note Purchase Agreements, the Security Agreement
and the Intercreditor Agreement as the Purchasers may reasonably request,
including, without limitation, that such opinion may be relied upon by
subsequent holders of the Notes. With respect to matters of fact on which such
opinion is based, such counsel shall be entitled to rely on appropriate
certificates of public officials and officers of the Company and each Subsidiary
Guarantor.
C-2
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to each holder of any Note
that:
1. The Company is a corporation, duly organized, legally
existing, and in good standing under the laws of the State of
California, and is duly qualified as a foreign corporation and in good
standing in all other states wherein the nature of its business or its
assets make such qualification necessary.
2. The Company's execution and delivery of the Amendment
No. 2 to Note Purchase Agreements, the Security Agreement and the
Intercreditor Agreement and performance of its obligations hereunder
and thereunder: (a) are and will be within its corporate powers; (b)
are duly authorized by the Company's board of directors; (c) are not
and will not be in contravention of any law, statute, rule or
regulation, the terms of the Company's Articles of Incorporation or
bylaws, nor of any preferred stock provision, indenture, agreement or
undertaking to which the Company or any of its properties are bound;
(d) do not require any consent or approval (including governmental)
which has not been given; and (e) will not result in the imposition of
Liens, charges or encumbrances on any of its properties or assets,
except those in favor of the holders of the Notes and the Bank
hereunder.
3. The Amendment No. 2 to Note Purchase Agreements, the
Security Agreement and the Intercreditor Agreement, when duly executed
and delivered, will constitute the legal, valid and binding obligations
of the Company, enforceable in accordance with their respective terms.
4. All balance sheets, income statements and other
financial data which have been furnished to any holder of a Note by the
Company to induce such holder of a Note to enter into the Amendment No.
2 to Note Purchase Agreements do fairly represent the Company's
financial condition as of the dates for which the same are furnished.
All such financial statements, reports, papers and other data furnished
to any holder of a Note are accurate and correct in all material
respects and complete insofar as completeness may be necessary to give
such holder of a Note a true and accurate knowledge of the subject
matter. Since the date of such financial statements, no material
adverse change has occurred in the operations or condition, financial
or otherwise, of the Company, nor has the Company incurred since
December 31, 2002, any material liabilities or made any material
investment or guarantees, direct or contingent, in any single case or
in the aggregate.
5. The Company is the true and lawful owner of the
assets pledged pursuant to the terms of the Security Agreement.
6. All of the Company's representations and warranties
set forth in Section 5 of the Note Purchase Agreements are true and
correct on and as of the effective date hereof with the same effect as
though made and repeated by the Company as of the effective date
hereof.
EXHIBIT D
(to Amendment No. 2 to Note Purchase Agreements)
7. (a) Neither the Company nor any of its Subsidiaries
(i) is a blocked person described in Section 1 of Executive Order 13224
of the September 23, 2001 Blocking Property and Prohibiting Transaction
With Persons Who Commit and Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49049 (2001)) or (ii) engages in any dealings or
transactions, or is otherwise associated, with any such blocked person
and (b) the Company and its Subsidiaries are in compliance, in all
Material respects, with the USA Patriot Act of 2001 (signed into law
October 26, 2001).
D-2
NAMES AND OWNERSHIP OF
SUBSIDIARIES OF THE COMPANY
PERCENTAGE
NAME OF SUBSIDIARY(1) OWNED BY THE
AND JURISDICTION OF INCORPORATION CLASS OF CAPITAL STOCK COMPANY(2)
(3) Allegheny Steel Distributors, Inc., a Pennsylvania Common Stock 100%
corporation
(3) Aluminum and Stainless, Inc., a Louisiana corporation Common Stock 100%
(3) American Metals Corporation, a California corporation Common Stock 100%
(3) AMI Metals, Inc., a Tennessee corporation Common Stock 100%
(3) CCC Steel, Inc., a Delaware corporation Common Stock 100%
(3) Central Plains Steel Co., a Kansas corporation Common Stock 100%
(3) Chatham Steel Corporation, a Georgia corporation Common Stock 100%
(3) Durrett Sheppard Steel Co., Inc., a California Common Stock 100%
corporation
(3) Liebovich Bros., Inc., an Illinois corporation Common Stock 100%
(3) Lusk Metals, a California corporation Common Stock 100%
(3) Pacific Metal Company, an Oregon corporation Common Stock 100%
(3) PDM Steel Service Centers, Inc., a California Common Stock 100%
corporation
(3) Phoenix Corporation, a Georgia corporation Common Stock 100%
(3) RSAC Management Corp., a California corporation Common Stock 100%(4)
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(1) The Company owns certain shell corporations for the purpose of protecting
the names "Reliance Steel Company" in Nevada; "Reliance Metalcenters" in
Arizona, and Texas; and "Tube Service Co.," in California and a limited
liability company in California, Matco Metals West LLC, for purposes of
purchasing metals.
(2) The shares of all of the subsidiaries listed below (other than RSAC
Management Corp.) are owned by RSAC Management Corp., which is a
wholly-owned subsidiary of the Company.
(3) The above designated subsidiaries are Restricted Subsidiaries as defined in
the Note Purchase Agreement.
SCHEDULE 5.4
(to Amendment No. 2 to Note Purchase Agreements)
PERCENTAGE
NAME OF SUBSIDIARY(1) OWNED BY THE
AND JURISDICTION OF INCORPORATION CLASS OF CAPITAL STOCK COMPANY(2)
(3) Service Steel Aerospace Corp., a Delaware corporation Common Stock 100 %
(3) Siskin Steel & Supply Company, Inc., a Tennessee Voting Common Stock 100 %
corporation Non-voting Common Stock 100 %
(3) Toma Metals, Inc., a Pennsylvania corporation Common Stock 100 %
(3) Valex Corp., a California corporation Common Stock 97.4%
(3) Viking Materials, Inc., a Minnesota corporation Voting Common Stock 100 %
Non-voting Common Stock 100 %
PERCENTAGE
NAME OF AFFILIATE OWNED BY
AND JURISDICTION OF INCORPORATION EQUITY INTEREST THE COMPANY
American Steel, LLC, an Oregon limited liability company Membership Interests 50.5%
RESTRICTIONS
The Restricted Subsidiaries of the Company are guarantors of the
Company's primary credit facility with Bank of America, National Association, as
Administrative Agent and the Lenders listed therein, and, accordingly, are
subject to certain restrictions, none of which would prohibit any such
Restricted Subsidiary from paying dividends to the Company out of profits or
making any other similar distributions of profits to the Company.
When the Company merged MetalCenter, Inc. with and into the Company,
the Company became obligated on those Variable Rate Demand Industrial
Development Revenue Bonds, Series 1989 A, issued by MetalCenter, Inc., in favor
of Industrial Development Authority of the City of Santa Fe Springs, a public,
corporate instrumentality of the state of California, due July 1, 2014, with a
principal balance of $2.75 million as of December 31, 2002, which are secured by
a letter of credit issued by Bank of America, National Association, which
contain certain restrictions but do not prohibit the Company from paying
dividends out of profits or making any other similar distributions from profits.
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(4) RSAC Management Corp. provides certain administrative and financial services
to the subsidiaries, but is not a metals service center.
5.4-2
When the Company acquired Viking Materials, Inc., Viking Materials,
Inc. was obligated on those Variable Rate Demand Industrial Development Revenue
Bonds, Series 1999, issued by Viking Materials, Inc., in favor of the City of
Minneapolis, a public, corporate instrumentality in the state of Minnesota, due
March 1, 2009, with a principal balance of $2.25 million as of December 31,
2002, which are secured by a letter of credit issued by Bank of America,
National Association, which contain certain restrictions but do not prohibit
Viking Materials, Inc. from paying dividends out of profits or making any other
similar distributions from profits to the Company.
When the Company acquired an additional membership unit of American
Steel, L.L.C. effective May 1, 2002, the Company began consolidating the
financial results of American Steel, L.L.C, including its obligations under that
Credit Agreement dated as of May 1, 2002 in favor of Bank of America, National
Association, due June 30, 2004, with a principal balance of $21.43 million as of
December 31, 2002, which contains certain restrictions including a prohibition
limiting dividends that can be paid out of profits or other similar
distributions from profits to the Company and the minority owner of the
remainder of the joint venture as set forth in the Operating Agreement with
respect to American Steel, L.L.C., as amended.
OFFICERS AND DIRECTORS OF THE COMPANY
OFFICERS
NAME POSITION
David H. Hannah Chief Executive Officer
Gregg J. Mollins President and
Chief Operating Officer
Karla R. McDowell Executive Vice President and Chief Financial Officer
James P. MacBeth Senior Vice President, Carbon Steel Operations
William K. Sales, Jr. Senior Vice President, Non-Ferrous Operations
Donna Newton Vice President, Human Resources
Kay Rustand Vice President and General Counsel
Yvette M. Schiotis Secretary
5.4-3
DIRECTORS
Joe D. Crider
Thomas W. Gimbel
Douglas M. Hayes
Robert Henigson
David H. Hannah
Franklin R. Johnson
Gregg J. Mollins
William I. Rumer
Leslie A. Waite
5.4-4
FORM OF EVIDENCE WITH RESPECT TO RELEASE OF SECURITY AGREEMENT
EXHIBIT 9.6(a)
(to Amendment No. 2 to Note Purchase Agreements)