-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WTds+bikFHBI5/3ZUTvmOBPeHXXNPNtHSfDjbgeV0EqlUi2aq2POIkB/CYkWIisw 7WIKZomfEauRwssksYh46A== 0000950172-99-001327.txt : 20000211 0000950172-99-001327.hdr.sgml : 20000211 ACCESSION NUMBER: 0000950172-99-001327 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19990929 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990930 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIRMINGHAM STEEL CORP CENTRAL INDEX KEY: 0000779334 STANDARD INDUSTRIAL CLASSIFICATION: STEEL WORKS, BLAST FURNACES ROLLING MILLS (COKE OVENS) [3312] IRS NUMBER: 133213634 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-09820 FILM NUMBER: 99720745 BUSINESS ADDRESS: STREET 1: 1000 URBAN CENTER DRIVE STREET 2: SUITE 300 CITY: BIRMINGHAM STATE: AL ZIP: 35242 BUSINESS PHONE: 2059701200 MAIL ADDRESS: STREET 1: P.O. BOX 1208 CITY: BIRMINGHAM STATE: AL ZIP: 35201-1208 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 September 29, 1999 --------------------------------- (Date of earliest event reported) Birmingham Steel Corporation ------------------------------------------------------ (Exact Name of Registrant as Specified in its charter) Delaware 1-9820 13-3213634 --------------------- -------------------- ------------------ (State or Jurisdiction (Commission File No.) (IRS Employer of Incorporation) Identification No.) 1000 Urban Center Drive, Suite 300, Birmingham, Alabama 35242-2516 ------------------------------------------------------------------------ (Address of principal executive offices, including zip code) (205) 970-1200 ---------------------------------------------------- (Registrant's telephone number, including area code) Not Applicable ------------------------------------------------------------- (Former name or former address, if changed since last report) Item 5. Other Events. On September 29, 1999, Birmingham Steel Corporation (the "Company") announced that it reached an agreement in principle with its existing bank lenders to provide continued revolver financing in the amount of up to $235 million through December 28, 1999 subject to the execution of definitive documentation and various terms and conditions. Separately, the Company announced on the same day that it had filed for a statutory 15-day extension for the filing of its 1999 Annual Report on Form 10-K. The Company expects that its Form 10-K will be filed on or before October 13, 1999. A copy of the press release issued by the Company, along with a copy of the Company's credit facility and all amendments thereto, are attached hereto as exhibits and are incorporated herein by reference. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. (c) Exhibits. Exhibit No. Description ----------- ----------- 10.1 Credit Agreement dated March 17, 1997 (the "Credit Agreement") (incorporated by reference to Exhibit 10.1 to Form 10-Q for quarter ended March 31, 1997). 10.2 First Amendment to Credit Agreement dated June 23, 1998. 10.3 Second Amendment to Credit Agreement dated September 30, 1998 (incorporated by reference to Exhibit 10.1 to Form 10-Q for quarter ended December 31, 1998). 10.4 Third Amendment to Credit Agreement dated July 27, 1999. 10.5 Fourth Amendment to Credit Agreement dated September 28, 1999. 99.1 Press Release issued by the Company on September 29, 1999. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. BIRMINGHAM STEEL CORPORATION By: /s/ Kevin E. Walsh ---------------------------------- Name: Kevin E. Walsh Title: Executive Vice President and Chief Financial Officer Dated: September 30, 1999 EXHIBIT INDEX Exhibit No. Description ----------- ----------- 10.1 Credit Agreement dated March 17, 1997 (the "Credit Agreement") (incorporated by reference to Exhibit 10.1 to Form 10-Q for quarter ended March 31, 1997). 10.2 First Amendment to Credit Agreement dated June 23, 1998. 10.3 Second Amendment to Credit Agreement dated September 30, 1998 (incorporated by reference to Exhibit 10.1 to Form 10-Q for quarter ended December 31, 1998). 10.4 Third Amendment to Credit Agreement dated July 27, 1999. 10.5 Fourth Amendment to Credit Agreement dated September 28, 1999. 99.1 Press Release issued by the Company on September 29, 1999. EX-10 2 EXHIBIT 10.2 - FIRST AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.2 FIRST AMENDMENT TO CREDIT AGREEMENT This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of June 23, 1998 by and among BIRMINGHAM STEEL CORPORATION (the "Borrower"), each of the financial institutions a party hereto (the "Lenders"), and NATIONSBANK, N.A., sucessor to NationsBank, N.A. (South), as Agent (the "Agent"). WHEREAS, the Borrower, the Lenders and the Agent have entered into that certain Credit Agreement dated as of March 17, 1997 (the "Credit Agreement"); WHEREAS, the Borrower, the Lenders and the Agent desire to amend certain provisions of the Credit Agreement on the terms and conditions contained herein; and NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows: Section 1. Specific Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows: (a) The Credit Agreement is amended by deleting from the definition of the term "Consolidated Net Income" contained in Section 1.1 the word "and" appearing immediately before clause (g) of such definition and adding to the end of such definition the following: "and (h) pre-operating/start-up costs as would be set forth on an income statement of the Borrower and its Restricted Subsidiaries for such period prepared in accordance with GAAP" (b) The Credit Agreement is amended by deleting clause (ii) from Section 12.5.(d) in its entirety and substituting in its place the following: (ii) any partial assignment shall be in an amount at least equal to $5,000,000 and after giving effect to such assignment the assigning Lender retains a Commitment, or if the Commitments have been terminated, holds Notes having an aggregate outstanding principal balance, of at least $5,000,000; Section 2. Representations. The Borrower represents and warrants to the Agent and the Lenders that: (a) Authorization. The Borrower has the right and power, and has taken all necessary action to authorize it, to execute and deliver this Amendment and to perform its obligations hereunder and under the Credit Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity. (b) Compliance with Laws, etc. The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of this Amendment and the Credit Agreement, as amended by this Amendment, in accordance with their respective terms and the borrowings hereunder do not and will not, by the passage of time, the giving of notice, or otherwise: (i) require any Governmental Approval or violate any Applicable Law relating to the Borrower or any Subsidiary; (ii) conflict with, result in a breach of or constitute a default under the certificate of incorporation or the bylaws of the Borrower, or any indenture, agreement or other instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any Subsidiary. (c) No Default. No Default or Event of Default has occurred and is continuing as of the date hereof nor will exist immediately after giving effect to this Amendment. Section 3. Reaffirmation of Representations. The Borrower hereby repeats and reaffirms all representations and warranties made by the Borrower to the Agent and the Lenders in the Credit Agreement and the other Loan Documents to which it is a party on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Amendment in full. Section 4. Certain References. Each reference to the Credit Agreement in any of the Loan Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment. Section 5. Expenses. The Borrower shall reimburse the Agent and each Lender upon demand for all costs and expenses (including attorneys' fees) incurred by the Agent or such Lender in connection with the preparation, negotiation and execution of this Amendment and the other agreements and documents executed and delivered in connection herewith. Section 6. Effectiveness. Upon receipt by the Agent of a counterpart of this Amendment duly executed by the Borrower and the Requisite Lenders, this Amendment shall be deemed effective as of the Effective Date. Section 7. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE. Section 9. Effect. Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only, unless otherwise specifically stated herein. Section 10. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns. Section 11. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Credit Agreement. [Signatures on Next Page] [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF JUNE 23, 1998 WITH BIRMINGHAM STEEL CORPORATION] IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Credit Agreement to be executed as of the date first above written. THE BORROWER: BIRMINGHAM STEEL CORPORATION By:______________________________ Name:_______________________ Title:______________________ THE AGENT AND THE LENDERS: NATIONSBANK, N.A., successor to NationsBank, N.A. (South), as Agent and as a Lender By:______________________________ Name:_______________________ Title:______________________ PNC BANK, NATIONAL ASSOCIATION, as Co-Agent and as a Lender By:______________________________ Name:_______________________ Title:______________________ THE BANK OF NOVA SCOTIA, as Co-Agent as a Lender By:______________________________ Name:_______________________ Title:______________________ [Signatures continue on the following page] [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF JUNE 23, 1998 WITH BIRMINGHAM STEEL CORPORATION] BANK OF AMERICA NT&SA, successor of Bank of America Illinois By:______________________________ Name:_______________________ Title:______________________ THE BANK OF TOKYO - MITSUBISHI, LTD ATLANTA AGENCY By:______________________________ Name:_______________________ Title:______________________ CIBC INC. By:______________________________ Name:_______________________ Title:______________________ AMSOUTH BANK By:______________________________ Name:_______________________ Title:______________________ DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CAYMAN ISLAND BRANCH By:______________________________ Name:_______________________ Title:______________________ [Signatures continue on the following page] [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF JUNE 23, 1998 WITH BIRMINGHAM STEEL CORPORATION] LTCB TRUST COMPANY By:______________________________ Name:_______________________ Title:______________________ THE FIRST NATIONAL BANK OF CHICAGO By:______________________________ Name:_______________________ Title:______________________ FIRST AMERICAN NATIONAL BANK By:______________________________ Name:_______________________ Title:______________________ THE SANWA BANK, LIMITED By:______________________________ Name:_______________________ Title:______________________ [Signatures continue on the following page] [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF JUNE 23, 1998 WITH BIRMINGHAM STEEL CORPORATION] UNION BANK OF SWITZERLAND, NEW YORK BRANCH By:______________________________ Name:_______________________ Title:______________________ By:______________________________ Name:_______________________ Title:______________________ EX-10 3 EXHIBIT 10.4 - THIRD AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.4 THIRD AMENDMENT TO CREDIT AGREEMENT THIS THIRD AMENDMENT TO CREDIT AGREEMENT dated as of July 27, 1999 (this "Agreement"), by and among BIRMINGHAM STEEL CORPORATION (the "Borrower"), each of the financial institutions party hereto, and BANK OF AMERICA, N.A. successor to NationsBank, N.A. (South), as Agent (the "Agent"). WHEREAS, the Borrower, the Lenders and the Agent have entered into that certain Credit Agreement dated as of March 17, 1997, as amended as of June 23, 1998 and as of September 30, 1998 (as so amended, the "Credit Agreement"); WHEREAS, the Borrower has advised the Agent, the Lenders and the Swingline Lender that the Borrower may not be able to make certain certifications regarding the Borrower's compliance with Section 9.1.(b) of the Credit Agreement with respect to the Four-Quarter Period ended June 30, 1999; and WHEREAS, while the Borrower is in the process of compiling and evaluating its final financial data for such Four-Quarter Period, the Borrower desires that the Agent, the Lenders and the Swingline Lender continue to make Revolving Loans and Swingline Loans to the Borrower, as applicable, and to issue Letters of Credit for the account of the Borrower, pursuant to the Credit Agreement, subject to the terms and conditions of this Agreement; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by all of the parties hereto, all of the parties hereto agree as follows: Section 1. Agreement Regarding Certain Conditions Precedent to Credit Events and Continuations. Subject to the terms and conditions of this Agreement, the Agent, the Lenders and the Swingline Lender each agrees that the condition precedent imposed under Section 5.2. of the Credit Agreement to the occurrence of any Credit Event that no Default or Event of Default shall have occurred and be continuing and that the representations and warranties made or deemed made by the Borrower in the Loan Documents be true and correct, as well as the condition precedent to a Continuation or Conversion of a Loan that no Default or Event of Default shall have occurred and be continuing as imposed under Sections 2.9. and 2.10. respectively, shall be suspended during the Applicable Period (as defined below) solely to the extent such conditions cannot be satisfied because of the existence of the following: (a) the issue concerning the Borrower's compliance with Section 9.1.(b) of the Credit Agreement for the Four-Quarter Period ended June 30, 1999; (b) any issue concerning the Borrower's compliance with interest coverage ratios contained in the following agreements: (i) those certain Note Purchase Agreements dated as of September 1, 1993 executed by the Borrower in favor of the purchasers of the Borrower's 7.28% Senior Notes due December 15, 2005 in the aggregate amount of $130,000,000 and (ii) those certain Note Purchase Agreements dated as of September 15, 1995 executed by the Borrower in favor of the purchasers of the Borrower's (x) 6.96% Series A Senior Notes due December 15, 2002 in the aggregate amount of $76,000,000; (y) 7.07% Series B Senior Notes due December 15, 2005 in the aggregate amount of $14,000,000; and (z) 7.17% Series C Senior Notes due December 15, 2005 in the aggregate amount of $60,000,000; and (c) any issue concerning the Borrower's or a Restricted Subsidiary's compliance with interest coverage ratios in the following agreements: (i) that certain Reimbursement Agreement dated as of September 1, 1995, as amended, among the Borrower, American Steel and Wire Corporation and Bank of America, N.A., successor to Bank of America Illinois, (ii) that certain Reimbursement Agreement dated as of August 15, 1995, as amended, between the Borrower and PNC Bank, National Association, successor to PNC Bank, Kentucky, Inc., and (iii) that certain Reimbursement Agreement dated as of October 1, 1996, as amended, between the Borrower and PNC Bank, National Association, successor to PNC Bank, Kentucky, Inc. Section 2. Duration of Applicable Period. The agreement of the Agent, the Lenders and the Swingline Lender contained in the immediately preceding Section shall remain in effect during the period (the "Applicable Period") from the date this Agreement first becomes effective to the first to occur of the following: (a) September 30, 1999 and (b) the date on which the Agent shall have received from Lenders comprising the Requisite Lenders written notice that such Lenders have elected to terminate their agreement contained in the immediately preceding Section. The Borrower acknowledges and agrees that each Lender may make such an election in such Lender's sole and absolute discretion. The Agent shall give prompt notice to the Borrower of the receipt of any such notice from Lenders comprising the Requisite Lenders but the Agent's failure to do so shall not have any effect on the validity or effectiveness of any such election or termination of such agreement. In addition, the Applicable Period shall also terminate without any such election or notice or any other action by the Agent, the Lenders, the Swingline Lender or any other Person upon the occurrence of any Event of Default specified in Section 10.1.(e) or (f) of the Credit Agreement. Section 3. Limitation on Outstandings. During the Applicable Period and notwithstanding any term of the Credit Agreement or any other Loan Document, the Borrower agrees that at no time shall it permit the aggregate principal amount of all outstanding Revolving Loans, together with the aggregate principal amount of all outstanding Bid Rate Loans, the aggregate principal amount of all outstanding Swingline Loans and the aggregate amount of all Letter of Credit Liabilities (all such amounts collectively referred to as the "Outstanding Credit"), to exceed $235,000,000. If at any time the Outstanding Credit exceeds $235,000,000, the Borrower shall immediately pay to the Agent for the account of the Lenders, or the Swingline Lender, as the case may be, the amount of such excess. Section 4. Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows: (a) The Credit Agreement is amended by deleting from Section 1.1 the definitions of the terms "Applicable Facility Fee" and "Applicable Margin" in their entirety and substituting in their places the following: "APPLICABLE FACILITY FEE" means one-half of one percent (0.50%). "APPLICABLE MARGIN" means two percent (2.0%). (b) The Credit Agreement is amended by deleting the first sentence of Section 2.5.(b) in its entirety and substituting in its place the following: Accrued interest on each Loan shall be payable (i) in the case of all Loans (including Swingline Loans), monthly on the last day of each calendar month, (ii) in the case of a LIBOR Loan or a Bid Rate Loan, on the last day of each Interest Period therefor, (iii) in the case of any LIBOR Loan, upon the payment, prepayment or Continuation thereof or the Conversion of such Loan to a Loan of another Type (but only on the principal amount so paid, prepaid or Converted) and (iv) in the case of any Loan, upon the payment or prepayment thereof in full. The amendments contained in this Section shall become effective upon the effectiveness of this Agreement and shall be deemed to have prospective application only. The termination of the Applicable Period shall have no effect whatsoever on the effectiveness of such amendments. Section 5. Representations and Warranties of the Borrower. To induce the Agent, the Lenders and the Swingline Lender to enter into this Agreement, the Borrower represents and warrants to each of them as follows as of the date hereof: (a) No Default or Event of Default has occurred and is continuing; provided, however, no representation or warranty is made in this subsection solely to the extent such representation or warranty cannot be made because of the existence of any of the issues referred to in Section 1(a) through (c) above; (b) The representations and warranties made or deemed made by the Borrower in the Loan Documents to which it is a party, are true and correct with the same force and effect as if made on and as of the date hereof except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties were true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Credit Agreement; provided, however, no representation or warranty is made in this subsection solely to the extent such representation or warranty cannot be made because of the existence of any of the issues referred to in Section 1(a) through (c) above; (c) The Borrower has the right and power, and has taken all necessary action to authorize it, to execute, deliver and perform this Agreement, and to perform the Credit Agreement as amended by this Agreement, in accordance with their respective terms. This Agreement has been duly executed and delivered by the duly authorized officers of the Borrower and each of this Agreement and the Credit Agreement as amended by this Agreement is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity; and (d) The execution and delivery of this Agreement, and the performance of each of this Agreement and the Credit Agreement as amended by this Agreement, in accordance with its respective terms, do not and will not, by the passage of time, the giving of notice, or otherwise: (i) require any Governmental Approval or violate any Applicable Law relating to the Borrower or any Subsidiary; (ii) conflict with, result in a breach of or constitute a default under the certificate of incorporation or the bylaws of the Borrower, or any indenture, agreement or other instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any Subsidiary. Section 6. No Third Party Beneficiaries. Except for the Borrower, the Lenders, the Swingline Lender and the Agent, no Person is intended to be a beneficiary of this Agreement and no other Person shall be authorized to rely upon the contents of this Agreement. Section 7. No Waiver. The parties hereto confirm and agree that none of the following is, nor shall any of the following be deemed or construed in any way to be, a waiver of any Default or Event of Default under the Agreement or any of the other Loan Documents: (a) the existence of this Agreement; (b) the amendments effected pursuant to Section 4 above; or (c) the Agent, any Lender or the Swingline Lender permitting any Credit Event to occur after the effectiveness of this Agreement. In addition, each Lender confirms its continuing obligations (i) to the Agent under Section 2.3.(j) regarding drawings on Letters of Credit honored by the Agent and not reimbursed by the Borrower and (ii) to the Swingline Lender under Section 2.4.(e) of the Credit Agreement to pay to the Swingline Lender such Lender's Commitment Percentage of Swingline Loans as provided in such Section. Section 8. Effectiveness. This Agreement shall become effective only upon its execution and delivery by the Borrower, the Requisite Lenders, the Swingline Lender and the Agent, and shall be deemed to be effective as of the date first written above. Section 9. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia. Section 10. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall constitute an original, but all of which taken together shall be one and the same instrument. Section 11. Defined Terms. Terms not otherwise defined in this Agreement which are defined in the Credit Agreement are used herewith with the respective meanings given them in the Credit Agreement. [Signatures on Following Page] IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Credit Agreement to be executed as of the date first above written. THE BORROWER: BIRMINGHAM STEEL CORPORATION By:______________________________ Name:_______________________ Title:______________________ THE AGENT AND THE LENDERS: BANK OF AMERICA, N.A., successor to NationsBank, N.A. (South), as Agent, as a Lender and as Swingline Lender By:______________________________ Name:_______________________ Title:______________________ PNC BANK, NATIONAL ASSOCIATION, as Co-Agent and as a Lender By:______________________________ Name:_______________________ Title:______________________ THE BANK OF NOVA SCOTIA, as Co-Agent and as a Lender By:______________________________ Name:_______________________ Title:______________________ [Signatures continued on the following page] [SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT DATED AS OF JULY 27, 1999 WITH BIRMINGHAM STEEL CORPORATION] THE BANK OF TOKYO - MITSUBISHI, LTD ATLANTA AGENCY By:______________________________ Name:_______________________ Title:______________________ CIBC INC. By:______________________________ Name:_______________________ Title:______________________ AMSOUTH BANK By:______________________________ Name:_______________________ Title:______________________ DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CAYMAN ISLAND BRANCH By:______________________________ Name:_______________________ Title:______________________ GENERAL ELECTRIC CAPITAL CORPORATION By:______________________________ Name:_______________________ Title:______________________ [Signatures continue on the following page] [SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT DATED AS OF JULY 27, 1999 WITH BIRMINGHAM STEEL CORPORATION] THE FIRST NATIONAL BANK OF CHICAGO By:______________________________ Name:_______________________ Title:______________________ FIRST AMERICAN NATIONAL BANK By:______________________________ Name:_______________________ Title:______________________ THE SANWA BANK, LIMITED By:______________________________ Name:_______________________ Title:______________________ UNION BANK OF SWITZERLAND, NEW YORK BRANCH By:______________________________ Name:_______________________ Title:______________________ By:______________________________ Name:_______________________ Title:______________________ EX-10 4 EXHIBIT 10.5 - FOURTH AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.5 FOURTH AMENDMENT TO CREDIT AGREEMENT THIS FOURTH AMENDMENT TO CREDIT AGREEMENT dated as of September 28, 1999 (this "Agreement"), by and among BIRMINGHAM STEEL CORPORATION (the "Borrower"), each of the financial institutions party hereto, and BANK OF AMERICA, N.A., successor to NationsBank, N.A. (South), as Agent (the "Agent"). WHEREAS, the Borrower, the Lenders and the Agent have entered into that certain Credit Agreement dated as of March 17, 1997, as amended as of June 23, 1998, as of September 30, 1998 and as of July 27, 1999 (as so amended, the "Credit Agreement"); and WHEREAS, to induce the Agent, the Lenders and the Swingline Lender to forbear from exercising their rights and remedies under the Credit Agreement in respect of the matters referred to below, the Borrower is willing to agree as provided in this Agreement; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by all of the parties hereto, all of the parties hereto agree as follows: Section 1. Agreement to Forbear. Subject to the terms and conditions of this Agreement, the Agent, the Lenders and the Swingline Lender each agrees that during the Applicable Period (as defined below) it will not, solely by reason of the existence of the following Default and Events of Default (collectively, the "Existing Defaults"), exercise any right or remedy available to the Lender under or in respect of the Credit Agreement or the other Loan Documents: (a) the Events of Default resulting from the Borrower's failure to comply with subsections (a), (b) and (c) of Section 9.1.(b) of the Credit Agreement for the Four-Quarter Period ended June 30, 1999; (b) the Default resulting from the Borrower's failure to deliver to the Lenders the annual audited financial statements required to be delivered to them under Section 8.2. of the Credit Agreement within 90 days following the end of the Borrower's fiscal year ending June 30, 1999; (c) any Event of Default under Section 10.1.(c) resulting from a misrepresentation by the Borrower under Section 6.1.(k): (i) regarding the financial statements referred to therein, solely to the extent resulting from the Borrower's restatement of such financial statements to the extent permitted to do so in accordance with Accounting Principles Board Opinion No. 30 ("APB 30") and (ii) that there has been no material adverse change in the financial condition, operations, or business of the Borrower and its consolidated Subsidiaries taken as a whole since June 30, 1996; and (d) any Event of Default under Section 10.1.(d)(iii) of the Credit Agreement to the extent resulting solely from the following: (i) the Borrower's failure to comply with interest coverage ratios and minimum net worth covenants contained in: (A) those certain Note Purchase Agreements dated as of September 1, 1993, as amended and in effect immediately prior to the date hereof (collectively, the "1993 Note Purchase Agreements") executed by the Borrower in favor of the purchasers of the Borrower's 7.28% Senior Notes due December 15, 2005 in the aggregate amount of $130,000,000 and (B) those certain Note Purchase Agreements dated as of September 15, 1995, as amended and in effect immediately prior to the date hereof (the "1995 Note Purchase Agreements", together with the 1993 Note Purchase Agreements, the "Note Agreements") executed by the Borrower in favor of the purchasers of the Borrower's (x) 6.96% Series A Senior Notes due December 15, 2002 in the aggregate amount of $76,000,000; (y) 7.07% Series B Senior Notes due December 15, 2005 in the aggregate amount of $14,000,000; and (z) 7.17% Series C Senior Notes due December 15, 2005 in the aggregate amount of $60,000,000; (ii) the Borrower's failure to deliver, as and when required under Section 9.1(b) of the Note Purchase Agreements, the annual financial statements for the Borrower's fiscal year ending June 30, 1999, the related opinion of its accountants, and the certificates referred to in such Section; or (iii) the failure of the Borrower or American Steel & Wire Corporation ("American") to: (A) comply with the interest coverage ratio and minimum net worth covenant contained in that certain Reimbursement Agreement dated as of September 1, 1995, as amended and in effect immediately prior to the date hereof (the "American Wire Reimbursement Agreement"), among the Borrower, American and Bank of America, N.A., successor to Bank of America Illinois; (B) deliver, as and when required under Section 5.9(b) of the American Wire Reimbursement Agreement, the annual financial statements for the Borrower's fiscal year ending June 30, 1999; (C) comply with the interest coverage ratio and minimum net worth covenant contained in that certain Reimbursement Agreement dated as of August 15, 1995, as amended and in effect immediately prior to the date hereof (the "1995 PNC Reimbursement Agreement"), between the Borrower and PNC Bank, National Association, successor to PNC Bank, Kentucky, Inc.; (D) deliver, as and when required under Section 5.9(b) of the 1995 PNC Reimbursement Agreement, the annual financial statements for the Borrower's fiscal year ending June 30, 1999; (E) comply with the interest coverage ratio and minimum net worth covenant contained in that certain Reimbursement Agreement dated as of October 1, 1996, as amended and in effect immediately prior to the date hereof (the "1996 PNC Reimbursement Agreement"), between the Borrower and PNC Bank, National Association, successor to PNC Bank, Kentucky, Inc.; or (F) deliver, as and when required under Section 5.9(b) of the 1996 PNC Reimbursement Agreement, the annual financial statements for the Borrower's fiscal year ending June 30, 1999; or (iv) the occurrence of a default under any agreement governing any Material Debt of the Borrower or any Subsidiary to the extent resulting solely from the facts, circumstances and events described in subsections (a) though (d) of this Section 1. The Borrower acknowledges that the agreement of the Agent, the Lenders and the Swingline Lender contained in this Section: (x) is expressly limited as described above and applies only with respect to the Existing Defaults; (y) will terminate immediately upon any Person exercising any right or remedy available to it as a result of the failure of the Borrower (or American, as applicable) to comply with any of the terms of such agreements and (z) will not apply with respect to any of such agreements unless and until the Borrower shall have delivered to the Requisite Lenders, evidence satisfactory to them, that the other parties to such agreement have either waived or agreed to forbear from exercising all rights and remedies to the extent permitted to do so by the failure of the Borrower (and American, as applicable) to comply with the provisions referred to above of such agreement or by virtue of the existence of any of the Existing Defaults. Section 2. Duration of Applicable Period. The agreement of the Agent, the Lenders and the Swingline Lender contained in the immediately preceding Section shall remain in effect during the period (the "Applicable Period") from the date this Agreement first becomes effective to the first to occur of the following: (a) December 28, 1999 and (b) the Borrower shall fail to deliver to the Lenders the financial statements and opinion of accountants as and when required under Section 6 of this Agreement. In addition, the Applicable Period shall also terminate without any such election or notice or any other action by the Agent, the Lenders, the Swingline Lender or any other Person upon the occurrence of any Event of Default specified in Section 10.1.(e) or (f) of the Credit Agreement or any other Default or Event of Default other than the Existing Defaults. Section 3. Limitation on Outstandings. During the Applicable Period and notwithstanding any term of the Credit Agreement or any other Loan Document, the Borrower agrees that at no time shall it permit the aggregate principal amount of all outstanding Revolving Loans, together with the aggregate principal amount of all outstanding Bid Rate Loans, the aggregate principal amount of all outstanding Swingline Loans and the aggregate amount of all Letter of Credit Liabilities (all such amounts collectively referred to as the "Outstanding Credit"), to exceed $235,000,000. If at any time the Outstanding Credit exceeds $235,000,000, the Borrower shall immediately pay to the Agent for the account of the Lenders, or the Swingline Lender, as the case may be, the amount of such excess. Section 4. Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows: (a) Section 1.1 of the Credit Agreement is amended by adding the definitions of the following terms thereto in the appropriate alphabetical order: "AVAILABLE CASH" means the aggregate amount of all available cash, cash equivalents and other funds on deposit in, held in or credited, to any deposit account, savings account, investment account or other similar account maintained by the Borrower or any Restricted Subsidiary with any financial institution or any other Person. "OUTSTANDING CREDIT" has the meaning given that term in Section 2.8.(b)(i). (b) The Credit Agreement is amended by deleting Section 2.8.(b) in its entirety and substituting in its place the following: (b) Mandatory. (i) Outstandings in Excess of Commitments. If at any time the aggregate principal amount of all outstanding Revolving Loans, together with the aggregate amount of all Letter of Credit Liabilities, the aggregate principal amount of all outstanding Swingline Loans and the aggregate principal amount of all outstanding Bid Rate Loans (all such amounts collectively referred to as the ("Outstanding Credit"), exceeds the aggregate amount of the Commitments in effect at such time, the Borrower shall immediately pay to the Agent for the accounts of the Lenders the amount of such excess. (ii) Excess Available Cash. If at any time the aggregate amount of Available Cash shall exceed $5,000,000, then the Borrower shall immediately pay to the Agent for the account of the Lenders, or the Swingline Lender, as the case may be, the amount of such excess. (iii) Application of Mandatory Prepayments. Any payment received by the Agent as a result of the immediately preceding clauses (i) or (ii), shall be applied first to pay all amounts of principal outstanding on the Swingline Loans and then to pay all amounts of principal outstanding on the other Loans and any Reimbursement Obligations pro rata in accordance with Section 3.2. Subject to the immediately following clause (iv), if the Borrower is required to pay any outstanding LIBOR Loans by reason of this subsection (b) prior to the end of the applicable Interest Period therefor, the Borrower shall pay all amounts due under Section 4.4. (iv) Investment of Certain Payments. With respect to any payment received by the Agent as a result of the immediately preceding clause (ii), if (x) in the judgment of the Agent such payment was received late enough in the day that the application of such payment would not be practicable on such day or (y) the amount of such payment exceeds the amount of outstanding Swingline Loans and other Loans which can be prepaid without any amounts being payable under Section 4.4, then the Agent shall invest such payment, in the case of clause (x), or such excess, in the case of clause (y), in such cash equivalents or other investments as the Agent shall determine in its sole discretion until the Agent has determined that the application of such payment (or excess) is practicable or will not result in any amounts being payable under Section 4.4. All such investments shall be held in the name of, and be under the sole dominion and control of, the Agent. (c) The Credit Agreement is amended by deleting Exhibit B thereto and substituting in its place Exhibit B attached hereto. (d) The Credit Agreement is amended by deleting Exhibit E thereto and substituting in its place Exhibit E attached hereto. The amendments contained in this Section shall become effective upon the effectiveness of this Agreement and shall be deemed to have prospective application only. Upon the termination of the Applicable Period such amendments shall be deemed to be null and void. Section 5. Delivery of Weekly Cash Budget. No later than 5:00 p.m. on October 5, 1999, the Borrower agrees to deliver to the Agent a budget setting forth for each calendar week from the date hereof through and including the last week of the month of October 1999, the projected cash needs of the Borrower for each such week, such budget to be in form and detail satisfactory to the Requisite Lenders. Section 6. Extension of Time for Delivery of Audited Financial Statements. The Borrower agrees to deliver to each Lender no later than 5:00 p.m., October 13, 1999, the following: (a) the financial statements required to be delivered under Section 8.2. of the Credit Agreement for the Borrower's fiscal year ended June 30, 1999, including all required certifications, and accompanied by an unqualified opinion of the Borrower's current independent certified public accountants containing no explanatory paragraphs regarding the Borrower's or the Subsidiaries' status as a going concern and (b) the Compliance Certificate, and the related letter from the Borrower's independent accountants, both required under Section 8.3. of the Credit Agreement to be delivered with such financial statements. Section 7. Termination of Applicable Period under Third Amendment. Upon, and simultaneously with, the effectiveness of this Agreement, the Applicable Period (as defined in the Third Amendment) shall be terminated. Section 8. Representations and Warranties of the Borrower. To induce the Agent, the Lenders and the Swingline Lender to enter into this Agreement, the Borrower represents and warrants to each of them as follows as of the date hereof: (a) Except for the Existing Defaults, no Default or Event of Default has occurred and is continuing; (b) The representations and warranties made or deemed made by the Borrower in the Loan Documents to which it is a party, are true and correct with the same force and effect as if made on and as of the date hereof except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties were true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Credit Agreement; provided, however, no representation or warranty is made in this subsection solely to the extent such representation or warranty cannot be made because of the existence of the Existing Defaults; (c) The Borrower has the right and power, and has taken all necessary action to authorize it, to execute, deliver and perform this Agreement, and to perform the Credit Agreement as amended by this Agreement, in accordance with their respective terms. This Agreement has been duly executed and delivered by the duly authorized officers of the Borrower and each of this Agreement and the Credit Agreement as amended by this Agreement is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity; and (d) The execution and delivery of this Agreement, and the performance of each of this Agreement and the Credit Agreement as amended by this Agreement, in accordance with its respective terms, do not and will not, by the passage of time, the giving of notice, or otherwise: (i) require any Governmental Approval or violate any Applicable Law relating to the Borrower or any Subsidiary; (ii) conflict with, result in a breach of or constitute a default under the certificate of incorporation or the bylaws of the Borrower, or any indenture, agreement or other instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any Subsidiary. Section 9. No Third Party Beneficiaries. Except for the Borrower, the Lenders, the Swingline Lender and the Agent, no Person is intended to be a beneficiary of this Agreement and no other Person shall be authorized to rely upon the contents of this Agreement. Section 10. No Waiver. The parties hereto confirm and agree that none of the following is, nor shall any of the following be deemed or construed in any way to be, a waiver of any Default or Event of Default under the Agreement or any of the other Loan Documents, including without limitation, any of the Existing Defaults: (a) the existence of this Agreement and the agreement of the Lenders, the Agent and the Swingline Lender to forbear as provided herein; (b) the amendments effected pursuant to Section 4 above; or (c) the Agent, any Lender or the Swingline Lender permitting any Credit Event to occur after the effectiveness of this Agreement. In addition, each Lender confirms its continuing obligations (i) to the Agent under Section 2.3.(j) regarding drawings on Letters of Credit honored by the Agent and not reimbursed by the Borrower and (ii) to the Swingline Lender under Section 2.4.(e) of the Credit Agreement to pay to the Swingline Lender such Lender's Commitment Percentage of Swingline Loans as provided in such Section. Section 11. Effectiveness. This Agreement shall become effective only upon its execution and delivery by the Borrower, the Requisite Lenders, the Swingline Lender and the Agent, and shall be deemed to be effective as of the date first written above. Section 12. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia. Section 13. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall constitute an original, but all of which taken together shall be one and the same instrument. Section 14. Severability. If any provision of this Agreement shall be determined to be invalid, then only such provision shall be invalid and all other provisions of this Agreement shall remain effective and binding. Section 15. Defined Terms. Terms not otherwise defined in this Agreement which are defined in the Credit Agreement are used herewith with the respective meanings given them in the Credit Agreement. [Signatures on Following Page] IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to Credit Agreement to be executed as of the date first above written. THE BORROWER: BIRMINGHAM STEEL CORPORATION By:_________________________________ Name:__________________________ Title:_________________________ THE AGENT AND THE LENDERS: BANK OF AMERICA, N.A., successor to NationsBank, N.A.(South), as Agent, as a Lender and as Swingline Lender By:_________________________________ Name:__________________________ Title:_________________________ PNC BANK, NATIONAL ASSOCIATION, as Co-Agent and as a Lender By:_________________________________ Name:__________________________ Title:_________________________ THE BANK OF NOVA SCOTIA, as Co-Agent and as a Lender By:_________________________________ Name:__________________________ Title:_________________________ [Signatures continued on the following page] [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT DATED AS OF SEPTEMBER 28, 1999 WITH BIRMINGHAM STEEL CORPORATION] THE BANK OF TOKYO - MITSUBISHI, LTD ATLANTA AGENCY By:_________________________________ Name:__________________________ Title:_________________________ CIBC INC. By:_________________________________ Name:__________________________ Title:_________________________ AMSOUTH BANK By:_________________________________ Name:__________________________ Title:_________________________ DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CAYMAN ISLAND BRANCH By:_________________________________ Name:__________________________ Title:_________________________ By:_________________________________ Name:__________________________ Title:_________________________ [Signatures continue on the following page] [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT DATED AS OF SEPTEMBER 28, 1999 WITH BIRMINGHAM STEEL CORPORATION] GENERAL ELECTRIC CAPITAL CORPORATION By:_________________________________ Name:__________________________ Title:_________________________ BANK ONE, N.A., successor to The First National Bank of Chicago By:_________________________________ Name:__________________________ Title:_________________________ FIRST AMERICAN NATIONAL BANK By:_________________________________ Name:__________________________ Title:_________________________ THE SANWA BANK, LIMITED By:_________________________________ Name:__________________________ Title:_________________________ [Signatures continue on the following page] [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT DATED AS OF SEPTEMBER 28, 1999 WITH BIRMINGHAM STEEL CORPORATION] UBS AG, SAMFORD BRANCH, successor to Union Bank of Switzerland, New York Branch By:_________________________________ Name:__________________________ Title:_________________________ By:_________________________________ Name:__________________________ Title:_________________________ EX-99 5 EXHIBIT 99.1 - PRESS RELEASE EXHIBIT 99.1 BIRMINGHAM STEEL CORPORATION POST OFFICE BOX 1208 BIRMINGHAM, AL 35201 PHONE (205) 970-1200 CONTACT: J. DANIEL GARRETT VICE PRESIDENT-FINANCE & CONTROL (205)970-1213 BIRMINGHAM STEEL REACHES INTERIM $235 MILLION FINANCING ACCORD EXTENSION FILED FOR FILING OF FORM 10-K ANNUAL REPORT BIRMINGHAM, Ala., Sept. 29, 1999 -- Birmingham Steel Corporation (NYSE: BIR) today announced that it reached an agreement in principle with its existing bank lenders to provide continued revolver financing in an amount up to $235 million through December 28, 1999, subject to the execution of definitive documentation and various terms and conditions. Separately, the Company announced today that it has filed for a statutory 15-day extension for the filing of its 1999 Annual Report on Form 10-K. The Company expects that its Form 10-K will be filed on or before October 13, 1999. As of September 28, 1999, there was approximately $216 million outstanding under the Company's revolver and $280 million outstanding under the senior note indentures. On August 18, 1999, the Company announced a strategic restructuring which includes, among other things, the sale of the Company's Special Bar Quality division and its 50% ownership interest in American Iron Reduction, LLC. Following the announcement of the restructure, on September 15, 1999, the Company announced FY99 earnings of $1.19 per share (excluding start-up expenses) from its Core Operations (Kanakee and Joliet, Illinois; Birmingham, Alabama; Jackson, Mississippi; Seattle, Washington; Cartersville, Georgia; and its various scrap operations exclusive of Pacific Coast Recycling). In connection with the strategic reorganization, the Company also announced for FY99 after-tax charges of $191.3 million primarily related to discontinued operations. The Company said that modifications to certain of its principal debt agreements on a longer term basis are required as a result of the 1999 operating losses attributable to the SBQ division as well as the Company's recent decision to pursue the restructuring. The Company confirmed that negotiations are continuing with its principal creditors including its bank lenders and senior noteholders on these matters. The Company said that its Form 10-K could not be filed yesterday without unreasonable effort or expense in the absence of an extension because the Company's audited financial statements for 1999 should reflect the longer-term modifications being sought from its principal lenders. The interim financing accord announced today provides continued financing through December 28, 1999 on a daily basis under the revolving credit facility up to an aggregate balance of $235 million to bridge the Company's financing requirements pending the completion of the longer-term financing arrangements. Among the requirements under the interim financing agreement is that the Company receive an unqualified opinion of its independent auditors with no explanatory paragraphs by October 13, 1999, which condition can be waived by a majority of the lenders under the revolver facility. Following execution, the interim financing agreement will also be filed with the Securities and Exchange Commission. Except for historical information, the matters described in this press release are forward-looking statements within the meaning of the safe-harbor provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are subject to risks and uncertainties that may cause actual results to differ materially, including economic conditions, market demand factors, equipment breakdowns or failures, Birmingham Steel's success in implementing the restructuring plan, the successful outcome of the continuing negotiations on longer-term modifications to the Company's principal debt agreements and the continued cooperation and forbearance of the Company's major creditor constituencies in the interim, the Company's continued compliance with its interim financing arrangements and its principal debt agreements as and when modified, as well as other risks described from time to time in the Company's periodic and special filings with the Securities and Exchange Commission. Any forward-looking statements contained in this document speak only as of the date hereof, and the Company disclaims any intent or obligation to update such forward-looking statements. -END- -----END PRIVACY-ENHANCED MESSAGE-----