EXHIBIT 10.3
AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of September 26,
2003 ("Amendment No. 3"), is entered into by and among OREGON STEEL XXXXX, INC.,
a Delaware corporation ("OSM"), NEW CF&I, INC., a Delaware corporation ("New
CF&I"), CF&I STEEL, L.P. (dba Rocky Mountain Steel Xxxxx), a Delaware limited
partnership ("RMSM") and COLORADO AND WYOMING RAILWAY COMPANY, a Delaware
corporation ("CWR"; each of OSM, New CF&I, RMSM, and CWR a "Borrower" and
collectively, "Borrowers"), the financial institutions that are or may from time
to time become parties hereto, as Lenders, GMAC BUSINESS CREDIT LLC, as
Co-Managing Agent (in such capacity, the "Co-Managing Agent"), and TEXTRON
FINANCIAL CORPORATION, a Delaware corporation ("Textron"), as Agent for the
Lenders.
W I T N E S S E T H
WHEREAS, Textron, Co-Managing Agent, Lenders, and Borrowers have
entered into financing arrangements pursuant to which Textron, Co-Managing
Agent, and Lenders have made and may make loans and advances and provide other
financial accommodations to Borrowers as set forth in the Credit Agreement,
dated July 12, 2002, by and among Textron, Co-Managing Agent, Lenders, and
Borrowers and as amended by Amendment No. 1 and Amendment No. 2 (as the same now
exists and may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Agreement") and the agreements, documents
and instruments at any time executed and/or delivered in connection therewith or
related thereto (collectively, together with the Agreement, the "Loan
Documents"); and
WHEREAS, Borrowers, Textron, Co-Managing Agent and Lenders have agreed
to certain amendments to the Agreement as more particularly contained herein;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements and covenants set forth herein, and for other good and valuable
consideration, the adequacy and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions.
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1.1 Additional Definitions. As used herein, the following terms shall have
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the meanings given to them below and the Agreement shall be deemed and is hereby
amended to include, in addition and not in limitation, the following
definitions:
"Amendment No. 3 means this Amendment No. 3 to the Credit Agreement by
and among Borrowers, Textron, Co-Managing Agent, and Lenders, as the
same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced."
1.2 Interpretation. For purposes of this Amendment No. 3, all terms used
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herein, including but not limited to, those terms used and/or defined herein or
in the recitals hereto shall have the respective meanings assigned thereto in
the Agreement, as amended by this Amendment No. 3.
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2. Amendment to Agreement.
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2.1 Section 2.1.2(i) of the Agreement is amended by replacing "$15,000,000"
with "$20,000,000."
2.2 Section 10.7 of the Agreement is amended by making the following changes
to the first sentence of (a): (a) deleting the "and" before the "(vii)";
(b)deleting the period after the word "purposes" in section (vii); and (c)
adding the following wording to the end of the first sentence: "; and (viii)
Debt (including the Suretyship Liability and issuance of a Letter of Credit) of
OSM to guaranty and secure the obligations of Camrose Pipe Corporation to
Portland Tube Facility, L.L.C. regarding the tubular steel manufacturing
facility located in Oregon."
2.3 Section 10.9 of the Agreement is amended by deleting it and replacing it
with the following:
"10.9 Operating Leases. No Borrower shall, nor shall any Borrower cause
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or permit any other Credit Party to, permit the aggregate annual amount
of all rental payments consisting of base rent and percentage rent
under Operating Leases scheduled to be made by the Credit Parties to
exceed $6,000,000 in the aggregate for any one Fiscal Year."
2.4 Section 10.12 of the Agreement is amended by (a) deleting the "and"
before "(c)" and substituting a semicolon; (b) deleting the period after
"needs"; and (c) adding the following wording after "needs": "; (d) to
facilitate the transaction specified in Section 10.7(v)."
2.5 Section 10.19 is amended to permit Camrose Pipe Corporation and OSM to
engage in the tubular steel manufacturing business.
2.6 Section 10.20 of the Agreement is amended by: (a) deleting the period
after the words "credit judgment"; and (b) adding the following wording after
"credit judgment": "; (i) the Investment to facilitate the transaction specified
in Section 10.7(v)."
3. Amendment Fee. In order to induce the Required Lenders to enter into this
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Amendment No. 3, Borrowers agree to pay to Agent, for the benefit of Required
Lenders, an amendment fee in the amount of $25,000.00. The amendment fee shall
be earned by and payable to Required Lenders upon the execution of this
Amendment No. 3.
4. Representations, Warranties and Covenants. In addition to the continuing
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representations, warranties and covenants heretofore or hereafter made by
Borrowers to Textron, Co-Managing Agent and Lenders pursuant to the Agreement
and the other Loan Documents, Borrowers each hereby represent, warrant and
covenant with Textron, Co-Managing Agent, and Lenders that this Amendment No. 3
has been duly executed and delivered by Borrowers and is in full force and
effect as of the date of this Amendment No. 3 and the agreements and obligations
of Borrowers contained herein constitute legal, valid and binding obligations of
Borrowers enforceable against Borrowers in accordance with their respective
terms.
5. Conditions Precedent. The effectiveness of the amendments contained herein
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shall be subject to, Textron, in its capacity as Agent for the Lenders, having
received, in form and substance reasonably satisfactory to Textron, counterparts
of this Amendment No. 3, duly
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authorized, executed and delivered by Borrowers, Textron, Co-Managing Agent, and
the Required Lenders.
6. Provisions of General Application.
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6.1 Effect of this Amendment. Except as modified pursuant hereto, no other
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changes or modifications to the Agreement are intended or implied and in all
other respects the Agreement is hereby specifically ratified, restated and
confirmed by all parties hereto as of the effective date hereof. To the extent
of conflict between the terms of this Amendment No. 3 and the Agreement, the
terms of this Amendment No. 3 shall control. The Agreement and this Amendment
No. 3 shall be read and construed as one agreement.
6.2 Further Assurances. The parties hereto shall execute and deliver such
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additional documents and take such additional action as may be reasonably
necessary or desirable to effectuate the provisions and purposes of this
Amendment No. 3.
6.3 Governing Law. The rights and obligations hereunder of each of the
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parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York, but excluding any principles of
conflicts of law or other rule of law that would result in the application of
the law of any jurisdiction other than the laws of the State of New York.
6.4 Binding Effect. This Amendment No. 3 shall be binding upon and inure to
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the benefit of each of the parties hereto and their respective successors and
assigns.
6.5 Survival of Representations and Warranties. All representations and
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warranties made in this Amendment No. 3 or any other document furnished in
connection with this Amendment No. 3 shall survive the execution and delivery of
this Amendment No. 3 and the other documents, and no investigation by Agent or
any Lender shall affect the representations and warranties or the right of Agent
or any Lender to rely upon them.
6.6 Counterparts. This Amendment No. 3 may be executed in any number of
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counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No. 3, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be
duly executed and delivered by their authorized officers as of the date and year
first above written.
BORROWERS:
OREGON STEEL XXXXX, INC.
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
NEW CF&I, INC.
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
CF&I STEEL, L.P. (DBA ROCKY MOUNTAIN STEEL XXXXX)
By: New CF&I, Inc., General Partner
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
COLORADO AND WYOMING RAILWAY COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President & CEO
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REQUIRED LENDERS:
TEXTRON FINANCIAL CORPORATION, as
Agent and as a Lender
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
GMAC BUSINESS CREDIT LLC, as
Co-Managing Agent and as a Lender
By: Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ORIX FINANCIAL SERVICES, INC., as
a Lender
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: Vice President
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ACKNOWLEDGEMENT OF SUBSIDIARY GUARANTORS
The undersigned, each a guarantor of Borrowers referred to in the
foregoing Amendment No. 3, hereby acknowledge that each has received a copy of
this Amendment No. 3 and each consents thereto, and each of the undersigned
hereby ratifies and confirms the Subsidiary Guaranty Agreement executed by it as
of July 12, 2002, and that this Acknowledgement shall be deemed dated as of the
effective date of this Amendment No. 3, as first set forth above.
OREGON STEEL XXXXX PROCESSING, INC.
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
OSM GLASSIFICATION, INC.
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
OSM DISTRIBUTION, INC.
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
OREGON STEEL DE GUAYANA, INC.
By: /s/ L. Xxx Xxxxx
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Name: L. Xxx Xxxxx
Title: Vice President
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