FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT (this "Forbearance Agreement") is entered
into as of November 15, 2001 among GENEVA STEEL LLC, a Delaware limited
liability company ("Borrower"), each Lender signatory hereto (each, together
with its successors and permitted assigns, a "Lender"), and CITICORP USA, INC.,
acting as agent for itself and the other Lenders (in such capacity, "Agent").
Unless otherwise specified herein, all capitalized terms used in this
Forbearance Agreement shall have the meanings ascribed to them in the Loan
Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders are party to a Term
Loan Agreement dated as of January 3, 2001 (as amended, supplemented, restated
or otherwise modified from time to time, the "Loan Agreement");
WHEREAS, the Borrower has informed the Agent of its intention to
temporarily shut down the majority of its operations and the operations of its
Subsidiaries and to continue to sell certain of their inventories and to collect
their receivables in an orderly manner during such temporary shutdown period;
WHEREAS, the Agent has determined that there has occurred a material
adverse change in the value of the security interests or in the business,
operations, assets, liabilities (contingent or otherwise) or financial condition
of the Borrower since January 2, 2001;
WHEREAS, the Agent has determined that such a shutdown of the Borrower's
and its Subsidiaries' operations constitutes a Default and/or an Event of
Default under the Loan Agreement;
WHEREAS, the Borrower believes that the best method for the preservation
of the value of the assets of the Borrower and its Subsidiaries is to continue
to sell certain of their inventories and to collect their receivables in
conjunction with continued limited funding in accordance with a Budget (as
defined below) made under the Credit Agreement, dated as of January 3, 2001, as
amended, among the Borrower, the lenders and issuers party thereto and Citicorp,
as agent for the lenders (as amended, the "Credit Agreement");
WHEREAS, in light of the foregoing, the Borrower has requested that the
Agent and the Lenders forbear from exercising the remedies available to them
under the Loan Agreement until the close of business on December 21, 2001 while
the Borrower and its Subsidiaries operate in accordance with the Budget and
apply the proceeds of the collateral securing the Credit Agreement to the
outstandings thereunder (including the cash collateralization of letters of
credit);
WHEREAS, the Agent and the Lenders are willing to agree, and the
Government Guarantor is willing to consent, to such forbearance on the terms set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
FORBEARANCE
SECTION 1.01. FORBEARANCE.
(a) Standstill. From the Effective Date (as defined below)
until the close of business on December 21, 2001 (the "Standstill Period"), and
subject to the satisfaction of the conditions set forth herein, the Agent and
the Lenders agree to refrain from (i) accelerating the Obligations under the
Loan Agreement and (ii) exercising any other rights or remedies available to
them pursuant to the Loan Agreement.
(b) Termination of Standstill. Notwithstanding the
foregoing, the Standstill Period shall automatically and immediately terminate
without necessity or requirement of any notice or any other action and, upon
such termination, the Agent and each Lender may take any action granted or
available to it under law or contract (including, without limitation,
acceleration of the Obligations, foreclosure on the Collateral and exercise of
set-off rights), upon the occurrence of any of the following events:
(i) The occurrence of any Default or Event of
Default under Loan Agreement other than a Specified Default (as defined below).
(ii) The Borrower and its Subsidiaries shall not at
any time operate their businesses in accordance with the budget prepared by the
Borrower and attached hereto as Exhibit A (the "Budget").
(iii) The Agent shall not have received within 10 days
of the date hereof an opinion of the General Counsel for the Government
Guarantor in form and substance reasonably satisfactory to Agent that this
Forbearance Agreement does not conflict with the Emergency Steel Loan Guarantee
Act of 1999, Pub. L. Xx. 000-00, 00 XXX Part 400, the U.S. Government Guarantee,
and that the execution, delivery and performance of this Forbearance Agreement
does not affect the effectiveness or the enforceability of the U.S. Government
Guarantee.
(iv) Any event identified in Section 1.10(b) of the
Forbearance Agreement of even date herewith in respect of the Credit Agreement
(the "Credit Agreement Forbearance") regardless of whether the occurrence of
such event is waived under the Credit Agreement Forbearance.
(v) The commencement by the Borrower or any of its
Subsidiaries, or any creditor of the Borrower or any of its Subsidiaries, or any
other Person of any legal, judicial, administrative or arbitration proceeding in
any court or other tribunal to challenge any Lender's secured claims with
respect to the Obligations.
(vi) The commencement of any voluntary proceeding, or
the filing of any voluntary petition, by the Borrower or any of its Subsidiaries
under title 11, United States Code (the "Bankruptcy Code") or any similar law
for the protection of creditors and debtors.
(vii) The commencement of any involuntary proceeding,
or the filing of any involuntary petition, by any creditor of the Borrower or
any of its Subsidiaries, or any
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other Person, under the Bankruptcy Code or any similar law for the protection of
creditors and debtors, and such proceeding or petition shall not be dismissed
within 30 days of the commencement or filing thereof.
(c) Definition of Specified Default. For purposes of this
Forbearance Agreement, "Specified Default" means any Default which occurs under
any of (A) clause (d) of Section 8.1 of the Loan Agreement to the extent that
such Default occurs as a result of non-compliance with Section 6.3, clause (a)
of Section 6.8 or Section 7.5 of the Loan Agreement (to the extent such
non-compliance with Section 7.5 relates to the sale of inventory not in the
ordinary course of business which is made in accordance with the Budget), (B)
clauses (e) and (f) of Section 8.1 the Loan Agreement as a result of the
non-payment of trade payables (but not any other Indebtedness) by the Borrower
after the Effective Date, or (C) Section 1.4 of that certain Deed of Trust,
Security Agreement, Assignment of Rents and Fixture Filing dated January 3,
2001, in the case of each of (A), (B) and (C) above, which occurs in connection
with the shutdown of the majority of the operations of the Borrower and its
Subsidiaries and as a result of the sale of certain of their inventories and the
collection of their receivables in accordance with the Budget.
ARTICLE II
CONDITIONS PRECEDENT TO FORBEARANCE AGREEMENT
The forbearance set forth in Article I hereof shall become effective on
the date (the "Effective Date") that each of the following conditions precedent
are or shall be contemporaneously satisfied:
SECTION 2.01. The Agent shall have received counterparts of this
Forbearance Agreement duly executed by the Agent, the Requisite Lenders, the
Borrower, and the conditions to amendments and modifications set forth in
Section 5.5 of the U.S. Government Guarantee shall be satisfied.
SECTION 2.02. The Agent shall have received, dated the date of
receipt thereof by the Agent, in form and substance satisfactory to the Agent, a
certificate signed by a duly authorized officer of the Borrower stating that:
(a) The representations and warranties contained in Article
III hereof are correct on and as of the date of such certificate as though made
on and as of such date, and
(b) After giving effect to this Forbearance Agreement, no
event has occurred and is continuing which constitutes a Default or an Event of
Default, other than a Specified Default.
SECTION 2.03. The "Effective Date" under and as defined in the
Credit Agreement Forbearance shall have occurred.
SECTION 2.04. Borrower shall have paid and reimbursed the Agent
and the Lenders for all outstanding and unpaid fees, costs and expenses,
including fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP and Weil,
Gotshal & Xxxxxx LLP.
SECTION 2.05. Each of the Agent and the Government Guarantor
shall have received such documents from the Borrower as the Agent shall request
in writing.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants to the Agent and the Lenders that:
SECTION 3.01. AUTHORIZATION. The execution, delivery and
performance by the Borrower of this Forbearance Agreement have been authorized
by all necessary limited liability company action, and this Forbearance
Agreement constitutes the legal, valid and binding obligation of the Borrower
enforceable against it in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors'
rights and the application of general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law).
SECTION 3.02. NO CONFLICT. Neither the execution, delivery and
performance of this Forbearance Agreement nor the consummation of the
transactions contemplated hereby does or shall contravene, result in a breach
of, or violate (a) any provision of the Borrower's certificate of formation or
agreement of limited liability company, (b) any law or regulation, or any order
or decree of any court or government agency or instrumentality, or (c) any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which the Borrower or any of its Subsidiaries is a party or by which the
Borrower or any of its Subsidiaries or any of their property is bound.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES IN THE LOAN
AGREEMENT. The representations and warranties set forth in Article IV of the
Loan Agreement (other than the representations and warranties set forth in
Section 4.5 of the Loan Agreement) and in each other Loan Document are true and
correct in all material respects on and as of the Effective Date with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate only to an earlier date.
SECTION 3.04. NO DEFAULT. After giving effect to this
Forbearance Agreement, no Default or Event of Default other than any Specified
Default has occurred and is continuing under the Loan Agreement.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. REFERENCE TO AND EFFECT UPON THE LOAN AGREEMENT;
NO WAIVER.
(a) The Loan Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Forbearance Agreement shall not operate as a waiver of any Default or Event of
Default or any right, power, privilege or remedy of the Agent or any Lender
under the Loan Agreement or any Loan Document, or constitute a waiver of any
provision of the Loan Agreement or any Loan Document.
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SECTION 4.02. COSTS AND EXPENSES. As provided in Section 10.3 of
the Loan Agreement, the Borrower agrees to reimburse the Agent and the Lenders
and the Government Guarantor for all reasonable fees, costs and expenses,
including the reasonable fees, costs and expenses of counsel or other advisors
for advice, assistance, or other representation in connection with this
Forbearance Agreement.
SECTION 4.03. RELEASE. In further consideration of the Lenders'
execution of this Forbearance Agreement, the Borrower hereby releases each of
the Agent, the Government Guarantor and each Lender and each of their respective
affiliates, officers, employees, directors, agents and attorneys (collectively,
the "Releasees") from any and all claims, demands, liabilities,
responsibilities, disputes, causes of action (whether at law or equity) and
obligations of every kind or nature whatsoever, whether liquidated or
unliquidated, known or unknown, matured or unmatured, fixed or contingent that
the Borrower may have against the Releasees which arise from or in any way
relate to the Obligations, any Collateral, any Loan Document, any documents,
agreements, dealings or other matters in connection with or relating to any of
the Loan Documents, and any third parties liable in whole or in part for the
Obligations, in each case to the extent arising (x) on or prior to the date
hereof or (y) out of, or relating to, actions, dealings or matters occurring on
or prior to the date hereof (including, without limitation, any actions or
inactions which any of the Releasees may have taken or omitted to take prior to
the date hereof).
SECTION 4.04. GOVERNING LAW. THIS FORBEARANCE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.05. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
Any legal action or proceeding with respect to this Forbearance Agreement or any
other Loan Document may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York, and, by
execution and delivery of this Forbearance Agreement, the Borrower hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, which any of them may now
or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
SECTION 4.06. WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS AND
THE BORROWER IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS FORBEARANCE AGREEMENT.
SECTION 4.07. HEADINGS. Section headings in this Forbearance
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Forbearance Agreement for any other purposes.
SECTION 4.08. COUNTERPARTS. This Forbearance Agreement may be
executed in any number of counterparts and by facsimile, each of which
counterparts when so executed shall be deemed an original, but all such
counterparts shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Forbearance
Agreement to be executed and delivered by their proper and duly authorized
officers as of the date set forth above.
BORROWER:
GENEVA STEEL LLC
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Vice President of Finance and Treasurer
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AGENT AND LENDER:
CITICORP USA, INC.,
as Agent and Term A Lender
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Managing Director
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LENDERS:
CITICORP NORTH AMERICA, INC.
as Term B Lender
By: /s/ XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx
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Title: Managing Director
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CITICORP NORTH AMERICA, INC.
as Term C Lender
By:
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Name:
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Title:
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[Signature Page to Forbearance Agreement]
GOVERNMENT GUARANTOR:
Approved and consented to the foregoing Forbearance Agreement
as of this 15th of November, 2001
EMERGENCY STEEL LOAN GUARANTY BOARD,
as Government Guarantor
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Secretary to the Board
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[Government Guarantor Consent Page to Forbearance Agreement]
