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EXHIBIT 10.3
[Execution Copy]
AMENDMENT NO. 1 TO TERM LOAN AGREEMENT
AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO TERM LOAN AGREEMENT (this "Amendment") is
entered into as of April 30, 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 and the Agent are party to the Security Agreement
dated as of January 3, 2001 (as amended, supplemented, restated or otherwise
modified from time to time, the "Security Agreement");
WHEREAS, the parties to each of the Loan Agreement and the Security
Agreement desire to amend the Loan Agreement and the Security Agreement as
herein set forth;
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
AND THE SECURITY 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) Amendment to Section 2.3. Section 2.3 is hereby amended and
restated in its entirety to read as follows:
SECTION 2.3. REPAYMENT OF TERM LOANS. The Borrower shall repay
the Term Loans, ratably in respect of each Tranche, at the dates and in the
amounts set forth below:
April 30, 2001 $366,666.67
May 31, 2001 $366,666.67
June 30, 2001 $366,666.67
July 31, 2001 $91,666.67
August 31, 2001 $91,666.67
September 30, 2001 $91,666.67
October 31, 2001 $91,666.67
November 30, 2001 $91,666.67
December 31, 2001 $91,666.67
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January 31, 2002 $91,666.67
February 28, 2002 $91,666.67
March 31, 2002 $91,666.67
April 30, 2002 $91,666.67
May 31, 2002 $91,666.67
June 30, 2002 $91,666.67
July 31, 2002 $183,333.33
August 31, 2002 $183,333.33
September 30, 2002 $183,333.33
October 31, 2002 $183,333.33
November 30, 2002 $183,333.33
December 31, 2002 $183,333.33
January 31, 2003 $183,333.33
February 31, 2003 $183,333.33
March 31, 2003 $183,333.33
April 30, 2003 $183,333.33
May 31, 2003 $183,333.33
June 30, 2003 $183,333.33
July 31, 2003 $275,000.00
August 31, 2003 $275,000.00
September 30, 2003 $275,000.00
October 31, 2003 $275,000.00
November 30, 2003 $275,000.00
December 31, 2003 $275,000.00
January 31, 2004 $275,000.00
February 31, 2004 $275,000.00
March 31, 2004 $275,000.00
April 30, 2004 $275,000.00
May 31, 2004 $275,000.00
June 30, 2004 $275,000.00
July 31, 2004 $366,666.67
August 31, 2004 $366,666.67
September 30, 2004 $366,666.67
December 31, 2004 $366,666.67
January 31, 2005 $366,666.67
February 31, 2005 $366,666.67
March 31, 2005 $366,666.67
April 30, 2005 $366,666.67
May 31, 2005 $366,666.67
June 30, 2005 $366,666.67
July 31, 2005 $366,666.67
August 31, 2005 $366,666.67
September 30, 2005 $97,166,666.66 or, if less, the
entire unpaid principal amount
of the Term Loans
Notwithstanding anything herein to the contrary, the Borrower shall
repay the entire unpaid principal amount of the Term Loans on the Term Loan
Maturity Date.
(b) Amendment to Article VI. Article VI is hereby amended by
adding a new Section 6.16 immediately following the text of Section 6.15 as
follows:
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SECTION 6.16. CASH INTEREST EXPENSE. The Borrower shall
maintain the equivalent value of Cash Interest Expense for a two
month period in a Cash Collateral Account maintained with the Agent
for the benefit of the Lenders.
SECTION 1.02. AMENDMENT TO THE SECURITY AGREEMENT. Subject to the
satisfaction of the conditions precedent set forth in Article II hereof, the
Security Agreement is hereby amended as follows:
(a) Amendment to Section 2.1. Section 2.1 is hereby amended by
deleting the reference "(i)" appearing immediately prior to the text "all
General Intangibles" and inserting a new reference "(i)" immediately prior to
the text "Equipment or".
ARTICLE II
CONDITIONS PRECEDENT TO AMENDMENT
The amendments to the Loan Agreement and the Security 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 on
the Effective Date of this Amendment such fees as are set forth in a Fee Letter
dated as of the date hereof between the Agent and the Borrower.
SECTION 2.04. The Agent shall be satisfied that all conditions to
effectiveness set forth in Amendment No. 2 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:
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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 and the
Security Agreement, as amended by this Amendment, are 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 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
AND THE SECURITY AGREEMENT. The representations and warranties set forth in (a)
Article IV of the Loan Agreement, (b) Article III of the Security Agreement and,
(c) 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 each of the
Loan Agreement and the Security Agreement.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. REFERENCE TO AND EFFECT UPON THE LOAN AGREEMENT AND
THE SECURITY AGREEMENT; NO WAIVER
(a) Except as specifically amended above, the Loan Agreement, the
Security 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,
the Security Agreement or any Loan Document, or constitute a waiver of any
provision of the Loan Agreement, the Security Agreement or any Loan Document.
Upon the effectiveness of this Amendment, each reference in either of the Loan
Agreement or the Security Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and be a reference to the Loan
Agreement or the Security Agreement as respectively 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,
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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 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/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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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/ C. XXXXXXX XXXX
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Name: C. Xxxxxxx Xxxx
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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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[Government Guarantor Consent Page to Amendment No. 1]
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GOVERNMENT GUARANTOR:
Approved and consented to the foregoing Amendment No. 1
as of this 30th day of April, 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. 1]
