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Exhibit 10.8
AMENDMENT NO. 2 TO TERM LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO TERM LOAN AGREEMENT (this "Amendment") is
entered into as of August 24, 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 Amendment shall have the meanings ascribed to them in the Loan Agreement
(as hereinafter defined).
W I T N E S S E T H:
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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 desires to enter into a Product Sales Agreement
with Ferrostaal Incorporated;
WHEREAS, the parties to each of the Loan Agreement desire to amend the
Loan Agreement as herein set forth to permit the Borrower to enter into such
Product Sales Agreement with Ferrostaal Incorporated;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
AMENDMENTS TO THE LOAN AGREEMENT
SECTION 1.01. AMENDMENTS TO THE LOAN AGREEMENT. Subject to the
satisfaction of the conditions precedent set forth in Article II hereof, the
Loan Agreement is hereby amended as follows:
(a) New Definitions. The following definitions are hereby
inserted in Section 1.1 of the Loan Agreement in their appropriate
alphabetical order:
"Ferrostaal Agreement" means that certain Product Sales
Agreement, dated as of August 2, 2001, between the Borrower and Ferrostaal, as
amended from time to time on terms acceptable to the Agent.
"Ferrostaal" means Ferrostaal Incorporated, a Delaware
corporation, and any successor thereto or assignee thereof acceptable to the
Agent.
(b) Amendment to Section 7.5 Section 7.5 of the Loan
Agreement is hereby amended by (a) deleting the word "and" at the end of
clause (vi) thereof, (b) deleting the "." at the end of clause (vii) and
replacing it with "; and" and (c) adding a new clause (viii) to read as
follows: "(viii) any sale of inventory pursuant to the Ferrostaal Agreement."
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ARTICLE II
CONDITIONS PRECEDENT TO AMENDMENT
The amendments to the Loan Agreement 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 Amendment duly executed by the Agent, the Requisite Lenders, the
Borrower, and the conditions to amendments 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 Amendment, no event has
occurred and is continuing which constitutes a Default or an Event of Default.
SECTION 2.03. The Agent shall have received from the Borrower a
certified copy of the Ferrostaal Agreement.
SECTION 2.04. The Agent shall be satisfied that all conditions
to effectiveness set forth in Amendment No. 3 to the Credit Agreement dated as
of January 3, 2001 among the Borrower, Citicorp USA, Inc., as agent, and the
financial institutions party thereto is effective shall have been satisfied or
waived.
SECTION 2.05. The Agent shall have received such documents from
the Borrower as the Agent shall request in writing.
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 Amendment have been authorized by all
necessary limited liability company action and the Loan Agreement as amended
by this Amendment, constitutes the legal, valid and binding obligations 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 Amendment nor the consummation of the transactions
contemplated hereby does or shall
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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 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
Amendment, no Default or Event of 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) Except as specifically amended above, 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 Amendment
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. Upon the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and be a reference to the Loan
Agreement as amended hereby.
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 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 Amendment.
SECTION 4.03. RELEASE. In further consideration of the Lenders'
execution of this Amendment, the Borrower hereby releases each of the Agent,
the Government Guarantor and each Lender and 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
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prior to the date hereof (including, without limitation, any actions or
inactions which Releasees may have taken or omitted to take prior to the date
hereof).
SECTION 4.04. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.05. HEADINGS. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purposes.
SECTION 4.06. COUNTERPARTS. This Amendment 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 Amendment 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 Treasury
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AGENT AND LENDER:
CITICORP USA, INC.,
as Agent and Term A Lender
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
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Title: Vice President
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LENDERS:
CITICORP NORTH AMERICA, INC.
as Term B Lender
By: /s/ C. XXXXXXX XXXX, XX.
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Name: C. Xxxxxxx Xxxx, Xx.
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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 Amendment No. 2]
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GOVERNMENT GUARANTOR:
Approved and consented to the foregoing Amendment No. 2
as of this 24 day of August, 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 Amendment No. 2]
