EXHIBIT 10.43
FIRST AMENDED AND RESTATED FORBEARANCE AGREEMENT
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Dated as of September 12, 2001
Via Facsimile and Overnight Delivery
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Sheffield Steel Corporation
220 N. Jefferson
Sand Springs, Oklahoma 74063
Attn: Mr. James P. Nolan
Re: $30,000,000.00 Receivables and Financing Agreement dated as
of January 16, 1992 between and among Sheffield Steel
Corporation, f/k/a HMK Industries of Oklahoma, Inc., by merger
to Sheffield Steel Corporation-Sand Springs and Sheffield
Steel Corporation-Joliet and Bank of America, N.A., by merger
as successor in interest to NationsBank of Georgia, N.A., (the
"Lender"), as amended by that certain First Amendment To
Receivable And Inventory Financing Agreement dated as of
August 13, 1993, as amended by that certain Agreement And
Second Amendment To Financing Agreement dated as of November
1, 1993, as amended by that certain Third Amendment To
Receivable And Inventory Financing Agreement dated as of
December 12, 1994, as amended by that certain Fourth Amendment
To Receivable And Inventory Financing Agreement dated as
October 30, 1995, as amended by that certain Fifth Amendment
To Receivable And Inventory Financing Agreement dated as of
April 19, 1996, as amended by that certain Sixth Amendment To
Financing Receivable And Inventory Agreement dated as of
December 1, 1997, as amended by that certain Seventh Amendment
To Amended And Restated Receivable And Inventory Financing
Agreement dated as of December 1, 1997, as amended by that
certain Eighth Amendment To Amended And Restated Receivable
And Inventory Financing Agreement dated as of April 13, 1999,
as amended by that certain Ninth Amendment To Receivable And
Inventory Financing Agreement dated as of July 31, 1999, as
amended by that certain Tenth Amendment To Receivable And
Mr. James P. Nolan
September 12, 2001
Page 2
Inventory Financing Agreement dated as of April 29, 2000, as
amended by that certain Eleventh Amendment And Waiver To
Receivable And Inventory Financing Agreement dated as of
February 28, 2001, and as amended by that certain Twelfth
Amendment To Receivable And Inventory Financing Agreement
dated as of September 1, 2001 (as in effect on the date hereof
and as may be hereafter amended or modified, and collectively
referred to herein, as the "Financing Agreement").
Dear Mr. Nolan:
Capitalized terms used in this letter and not otherwise defined or
limited herein shall have the meanings attributed to such terms in the Financing
Agreement. Reference to "Sections" shall be deemed to refer to the corresponding
sections of the Financing Agreement. Reference to "Loan Documents" shall be
deemed to refer to agreements, amendments and supplements to documents executed
in connection with or related to the Financing Agreement, including without
limitation mortgage and security agreements, guaranty agreements, pledge
agreements, opinions, financing statements and fixture filings, and other like
or similar documentation.
As a result of the recent performance of Sheffield Steel Corporation
(together with any of its subsidiaries that is a party to the Financing
Agreement as amended, collectively the "Borrower") and other developments,
circumstances exist, and have existed since June 1, 2001, that have resulted in
defaults under the Financing Agreement as follows:
(1) The Borrower's violation of the covenants contained in
Sections 4.2(i) through (iii) of the Financing Agreement;
(2) The Borrower's violation of the covenants contained in Section
8.7, 8.10, 8.11, and 8.13 of the Financing Agreement; and
(3) The Borrower's violation of the covenants contained in
Section 6.01 of the Indenture dated as of December 1, 1997
between Sheffield Steel Corporation and State Street Bank and
Trust Company, Trustee (the "Indenture") as defined as an
Event of Default in the Financing Agreement.
As a result of the Borrower's failure to perform its obligations under
the Financing Agreement and the Loan Documents and other defaults as indicated
above (the "Specified Events of Default"), an Event of Default has occurred and
is currently continuing under the express terms of the Financing Agreement and
the Indenture. Other Events of Default also may exist and may be continuing.
Mr. James P. Nolan
September 12, 2001
Page 3
The Borrower has requested that the Lender further forbear from the
exercise of its rights and remedies available under the Financing Agreement and
the Loan Documents as a result of the occurrence of the Specified Events of
Default. The Borrower has also requested that the Lender continue to provide
funding to the Borrower under the terms of the Financing Agreement beyond the
amount currently outstanding under the Financing Agreement.
The Lender is willing to grant such further forbearance and to continue
to make funds available to the Borrower, but only upon the terms and subject to
both the conditions and limitations set forth herein and the terms and
conditions of the Twelfth Amendment To Receivable And Inventory Financing
Agreement dated as of September 1, 2001 (the "Twelfth Amendment").
This amended and restated forbearance agreement (sometimes hereafter
referred to as this "First Amended Agreement" or "First Amended Letter
Agreement") is to advise you that for the period beginning as of August 31, 2001
and ending at 11:59 p.m., Atlanta time, on September 30, 2001 (hereinafter
referred to as the "Forbearance Period"), the Lender, without waiving, curing or
ceasing the continuance of the Specified Events of Default, hereby agrees to
forbear further from the exercise of its rights and remedies available under the
Financing Agreement and the Loan Documents on account of the Specified Events of
Default and to continue to provide funding to the Borrower in accordance with
the terms of this First Amended Letter Agreement; provided, however, that the
forbearance and continued advance of funds pursuant to the Financing Agreement
shall be effective only with respect to specifically enumerated Specified Events
of Default and shall automatically terminate and cease to be of force and
effect, and the Lender may exercise all of the respective rights and remedies as
may be available under the Financing Agreement and the Loan Documents and under
applicable law, upon or after the occurrence of any of the following events
(individually a "Forbearance Default" and, collectively, the "Forbearance
Defaults"):
1. The Borrower terminates the retention of the currently employed
financial advisor and the concurrent failure to engage another financial advisor
reasonably acceptable to the Lender prior to the end of the Forbearance Period;
2. The Borrower, on the days and in the formats currently being
provided to the Lender, shall fail to provide to the Lender revised weekly cash
flow projections for a forward looking sixteen week period, such projections to
include without limitation the impact of extended supplier payment terms, actual
or proposed cost reductions and proceeds of proposed asset dispositions;
3. [Intentionally deleted];
4. The Borrower makes any payments during the term of this First
Amended Agreement on account of the First Mortgage Notes or the Indenture; and
Mr. James P. Nolan
September 12, 2001
Page 4
5. Any additional defaults other than the Specified Events of Default
arise under the Financing Agreement, the Loan Documents and/or the Indenture.
The Borrower acknowledges that the Lender, as the result of a recently
conducted field examination, implemented a reserve in the amount of
approximately $1,000,000 as provided for in Section 2.1 of the Financing
Agreement (the "Reserve"). The Lender has released one-half of the Reserve prior
to the date of this First Amended Letter Agreement. The Borrower understands,
acknowledges and agrees that the remaining $500,000 of the Reserve shall be
reinstated as follows:
1. $100,000 on August 31, 2001; plus
2. $200,000 on September 15, 2001; plus
3. $200,000 on September 30, 2001.
In the event of an additional Default or Events of Default hereafter,
the Lender reserves the right to reinstate the entire Reserve in its absolute
discretion, without notice to Borrower.
The Borrower understands and acknowledges that there are no further
borrowings and Advances available under the Financing Agreement other than the
borrowings and Advances which may be made available in accordance with the terms
of this First Amended Agreement. To obtain such additional borrowings and
Advances, the Borrower understands, acknowledges and agrees to the modifications
made to the Financing Agreement pursuant to the Twelfth Amendment, a copy of
which is attached hereto as Exhibit A.
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The Borrower further understands, acknowledges and agrees that the
termination fee as provided for in Section 2.6 of the Financing Agreement shall
be reduced to the amount of $150,000 (the "Reduced Termination Fee") if, on or
before September 30, 2001, the Lender receives payment, in cash, of all
Obligations due and otherwise owing to the Lender under the Financing Agreement
plus the Reduced Termination Fee. In the event the Lender does not receive such
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payment in full in cash on or before September 30, 2001, the Borrower
understands, acknowledges and agrees that a forbearance fee of $50,000 shall be
due and payable and fully earned as of September 30, 2001.
The undertakings of the Lender and the Forbearance Period provided for
herein shall not become effective unless and until the Borrower has returned a
counterpart of this letter, duly executed by their appropriate representatives,
to the Lender prior to 5:00 p.m. Atlanta time on September 11, 2001. Upon such
timely return, then the terms and conditions set forth herein and the Twelfth
Amendment shall be deemed effective and operative as of September 1, 2001.
Mr. James P. Nolan
September 12, 2001
Page 5
During the Forbearance Period and provided no Forbearance Default
exists, and further provided that the terms and conditions of this First Amended
Letter Agreement are satisfied, the Lender agrees that it will not accelerate
the indebtedness owed to the Lender under the Financing Agreement or otherwise
exercise its rights and remedies as a result of the Specified Events of Default
outlined herein. Additionally, and subject to the Borrower's abiding by the
terms of this First Amended Letter Agreement and the non-occurrence of any
Forbearance Default, the Lender will continue to make funding available to the
Borrower pursuant to the terms and conditions contained in this First Amended
Letter Agreement.
The Borrower and the Lender hereby agree that the decision by the
Lender to grant the forbearance and to continue funding the Borrower as outlined
herein is not and shall not be deemed to constitute an undertaking by the Lender
to forbear or refrain at any time from halting Loans to, or use of cash
collateral in favor of, the Borrower and from exercising any and all rights and
remedies available to it under the Financing Agreement or any of the Loan
Documents or under applicable law upon the occurrence of any Forbearance Default
or the failure to comply with any terms of this First Amended Letter Agreement.
Additionally, notwithstanding the agreement of the Lender to enter into this
First Amended Letter Agreement, the Lender hereby advises the Borrower that,
except to the extent of the Lender's forbearance expressly referenced herein
through the Forbearance Period specified in this First Amended Letter Agreement,
the Lender requires strict compliance with all of the terms and conditions of
the Financing Agreement and each of the Loan Documents; provided, however, that
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the Lender, shall not be required to issue any notices otherwise required by the
Financing Agreement or the Loan Documents with respect to the Specified Events
of Default during the term of this First Amended Agreement.
This First Amended Letter Agreement shall constitute an amendment to
the letter agreement executed by the parties on or about July 26, 2001 (the
"Forbearance Agreement"). To the extent the provisions of the Forbearance
Agreement are inconsistent with the terms and provisions of this First Amended
Letter Agreement, the terms and conditions of this First Amended Letter
Agreement shall prevail.
The Borrower further acknowledges and agrees that: (i) the Specified
Events of Default have occurred and are continuing, and shall not be deemed to
have been waived, cured or eliminated, in whole or in part, by this First
Amended Letter Agreement, and the Lender expressly reserves all rights with
respect to the Specified Events of Default, subject only to the terms in this
First Amended Letter Agreement; (ii) the Borrower ratifies and reaffirms all of
the terms and conditions of the Financing Agreement and the Loan Documents,
including its liability for the Obligations as defined therein; (iii) the
parties have not entered into a mutual disregard of the terms and provision of
the Financing Agreement or the Loan Documents, or engaged in any course of
dealing in variance with the terms and provisions of the Financing Agreement or
the Loan
Mr. James P. Nolan
September 12, 2001
Page 6
Documents, within the meaning of any applicable law of the State of Georgia, or
otherwise; (iv) as of August 31, 2001, principal in the amount of $26,008,163.05
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(inclusive of $3,405,853.00 in issued and outstanding letters of credit), plus
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accrued interest and applicable fees and expenses were due and owing by the
Borrower under the Financing Agreement.
The Borrower acknowledges and agrees, upon the request of the Lender,
(i) to promptly cure, or cause to be cured, defects in the execution and
delivery of the Loan Documents (including this First Amended Agreement),
resulting from any act or failure to act by the Borrower, or any employee or
officer thereof, and (ii) at its expense, respectively, to promptly execute and
deliver to the Lender, or cause to be executed and delivered to the Lender, all
such other and further documents, agreements, and instruments in compliance with
or accomplishment of the covenants and agreements of the Borrower in the Loan
Documents, including this First Amended Agreement, or to correct any omissions
in the Loan Documents, or more fully to state the obligations set out therein or
in any of the Loan Documents, or to obtain any consents, all as may be necessary
or appropriate in connection therewith as may be requested by the Lender.
This First Amended Letter Agreement, taken together with the Financing
Agreement and all of the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto and such First Amended Letter Agreement
may not be amended or modified and the Forbearance Period extended unless agreed
to in writing executed by all parties signatory to this First Amended Letter
Agreement or as may otherwise be provided for under the terms of the Financing
Agreement and the other Loan Documents. This First Amended Letter Agreement, and
any amendments, waivers, consents or supplements hereto may be executed in
multiple counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. Time is of the essence for performing all matters set
forth in this First Amended Letter Agreement.
Very truly yours,
BANK OF AMERICA, N.A.
By: /s/ John P. Holloway
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Name: John P. Holloway
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Title: Senior Vice President
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
BORROWER:
Read, consented and agreed to
this 12th day of September, 2001
SHEFFIELD STEEL CORPORATION
By: /s/ Stephen R. Johnson
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Name: Stephen R. Johnson
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Title: Chief Financial Officer
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WADDELL'S REBAR FABRICATORS, INC.
By: /s/ Stephen R. Johnson
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Name: Stephen R. Johnson
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Title: Chief Financial Officer
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WELLINGTON INDUSTRIES, INC.
By: /s/ Stephen R. Johnson
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Name: Stephen R. Johnson
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Title: Chief Financial Officer
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