THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
BETWEEN
NUF CORPORATION
AS LENDER
AND
NATIONAL STEEL CORPORATION
AS BORROWER
DATED AS OF AUGUST 2, 1995
This Third Amendment to the Amended and Restated Loan Agreement (the "Third
Amendment") is dated as of August 2, 1995 and entered into by and between NUF
Corporation, a Delaware Corporation ("NUF") and National Steel Corporation, a
Delaware Corporation ("NSC").
RECITALS
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WHEREAS, NUF, as Lender, and NSC, as Borrower, have entered into a Loan
Agreement dated as of December 27, 1990, which Loan Agreement was amended and
restated on July 31, 1991, February 18, 1992 and October 30, 1992, and which
Loan Agreement was further modified by the First Amendment, dated February 1,
1993 and by the Second Amendment, dated May 19, 1993 (the Loan Agreement, as
amended, the "Amended and Restated Loan Agreement");
WHEREAS, through funds obtained from The Export-Import Bank of Japan (the
"Exim Bank") pursuant to a Loan Agreement dated February 28,1992, between the
Exim Bank and NUF (the "Exim Loans") and pursuant to the terms of the Amended
and Restated Loan Agreement, NUF has made several tranches of loans to NSC in
the aggregate principal amount equal to $200,000,000 in connection with the
financing of the construction and operation of the No. 5 Coke Battery (the "Exim
Bank Funded Loans");
WHEREAS, currently, NSC has funds not immediately necessary for its
operations or capital improvements;
WHEREAS, NSC desires to prepay on August 7, 1995 (the "Prepayment Date")
$138,663,082.28, which corresponds to the sum of the outstanding principal
amounts of (i) a tranche of the Exim Bank Funded Loans disbursed on March 5,
1992 (the "March Tranche"), the outstanding principal amount (not taking into
account any payment to be made on the Prepayment Date pursuant to this Third
Amendment) of which will be $112,664,620.12 on the Prepayment Date, and (ii)
another tranche of the Exim Bank Funded Loans disbursed on June 5, 1992 (the
"June Tranche"), the outstanding principal amount (not taking into account any
payment to be made on the Prepayment Date pursuant to this Third Amendment) of
which will be $25,998,462.16 on the Prepayment Date;
WHEREAS, the payment schedule of the Exim Bank Funded Loans is included as
Attachment 3 to the Amended and Restated Loan Agreement; and
WHEREAS, the parties wish to enter into this Third Amendment to further
amend the Amended and Restated Loan Agreement, to permit NSC to prepay the March
and June Tranches.
NOW THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
I. DEFINED TERMS
Capitalized terms used and not otherwise defined herein shall have the
meanings specified in the Amended and Restated Loan Agreement.
II. AMENDMENTS TO THE AMENDED AND RESTATED LOAN AGREEMENT
Section 3.A. and Subsection 5.A.(iii) of the Amended and Restated Loan
Agreement are hereby amended by adding the following at the end of Subsection
5.A. (iii):
Notwithstanding anything to the contrary in Section 3.A. above and this
Subsection 5.A.(iii), interest and principal with respect to the Exim Bank
Funded Loans shall be repaid in accordance with the Amended and Restated
Attachment 3, which is attached as Annex I to the Third Amendment to the
Loan Agreement, dated as of August 2, 1995, and entered into by and between
the Lender and the Borrower.
III. NSC'S REPRESENTATIONS AND WARRANTIES
A. NSC hereby represents and warrants to NUF that the following statements
are true, correct and complete as of the date hereof:
1. NSC has all requisite corporate power and authority to enter into this
Third Amendment and to carry out the transactions contemplated by, and
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perform its obligations under, the Amended and Restated Agreement as amended by
this Third Amendment (the "Amended Agreement").
2. The execution and delivery by NSC of this Third Amendment and the
performance by NSC of the Amended Agreement do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to NSC,
the Certificate of Incorporation or Bylaws of NSC or any order, judgment or
decree of any court or other agency of government binding on NSC, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contractual obligation of NSC, (iii) result in or
require the creation or imposition of any lien upon any of the properties or
assets of NSC, or (iv) require any approval of stockholders or any approval or
consent of any person under any contractual obligation of NSC.
3. The execution and delivery by NSC of this Third Amendment and the
performance by NSC of the Amended Agreement do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
4. This Third Agreement and the Amended Agreement have been duly executed
and delivered by NSC and are the legally valid and binding obligations of NSC,
enforceable against NSC in accordance with their respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
B. The representations and warranties of NSC contained in the Amended and
Restated Loan Agreement are true, correct and complete in all material respects
on and as of the date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
C. No event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Third Amendment that would
constitute an Event of Default under the Amended and Restated Loan Agreement.
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D. It shall constitute an Event of Default under the Amended Agreement if
any representation or warranty made by NSC in this Third Amendment shall prove
to have been false in any material respects when made.
IV. MISCELLANEOUS.
A. The obligation of NSC to perform the terms of this Third Amendment shall
be unconditional and irrevocable and NSC shall repay the Exim Bank Funded Loans
strictly in accordance with the Amended and Restated Attachment 3 under all
circumstances, including, without limitation, failure of NSC to meet any of the
representations or warranties made in this Third Agreement.
B. The execution, delivery and performance of this Third Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of NUF under the
Amended and Restated Loan Agreement.
C. This Third Amendment shall be effective immediately upon execution.
D. This Third Amendment shall be governed by, and shall be construed and
enforced in accordance with, the internal laws of the state of New York, without
regard to its conflicts of laws principles.
E. This Third Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
NUF CORPORATION
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: President
NATIONAL STEEL CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Assistant Treasurer
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