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EXHIBIT 10.20(d)
THIRD MODIFICATION AGREEMENT
BY THIS THIRD MODIFICATION AGREEMENT (the "Agreement"), made and entered
into as of the 21st day of August, 2000, XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, whose address is 000 Xxxx Xxxxxxxxxx, Xxxxxxx,
Xxxxxxx 00000 (hereinafter called "Lender"), and XXXXXX STEEL COMPANY, a
Delaware corporation, whose address is 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx
00000 (hereinafter called "Borrower"), in consideration of the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby confirm and agree as
follows:
SECTION 1. RECITALS.
1.1 Borrower and Lender, as Lender, Arranger, Administrative Agent, Issuing
Bank and Swing Line Lender, entered into a Credit Agreement dated June 30, 1998
(the "Credit Agreement"), which provided for, among other things, (a) a
revolving line of credit (the "RLC") in the amount of $25,000,000.00, evidenced
by a Revolving Promissory Note dated June 30, 1998, executed by the Borrower
(the "RLC Note"), and (b) a revolving line of credit (the "Swing Line" and with
the RLC, the "Loans") in the amount of $5,000,000.00, evidenced by a Revolving
Promissory Line dated June 30, 1998, executed by the Company (the "Swing Line
Note" and with the RLC Note the "Notes"), all upon the terms and conditions
contained therein. The Credit Agreement was subsequently amended by that
Modification Agreement dated as of March 10, 1999 and by that Second
Modification Agreement dated as of March 28, 2000 (together, the
"Modification"). All undefined capitalized terms used herein shall have the
meaning given them in the Credit Agreement. The Credit Agreement, the Notes and
all other agreements, documents and instruments relating to the Loans, as
modified by the Modification, are referred to as the Loan Documents.
1.2 Borrower and Lender desire to modify the Loan Documents as set forth
herein.
SECTION 2. LOAN AGREEMENT.
2.1 The following definitions in Section 1.1 of the Credit Agreement are
hereby amended to read as follows:
"Commitment" means, subject to Section 2.4, $15,000,000. The
respective Pro Rata Shares of the Lenders with respect to the Commitment as
of the Closing Date are set forth in Schedule 1.1.
"Maturity Date" means July 1, 2002.
2.2 Schedule 1.1 of the Credit Agreement is hereby amended to read as
attached hereto.
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SECTION 3. OTHER MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.
3.1 All references to the Credit Agreement in the Loan Documents are hereby
amended to refer to the Credit Agreement as hereby amended.
3.2 Borrower acknowledges that the indebtedness evidenced by the Notes is
just and owing, that the balance thereof is correctly shown in the records of
Lender as of the date hereof, and Borrower agrees to pay the indebtedness
evidenced by the Notes according to the terms thereof, as herein modified.
3.3 Borrower hereby reaffirms to Lender each of the representations,
warranties, covenants and agreements of Borrower set forth in the Notes and the
Credit Agreement, with the same force and effect as if each were separately
stated herein and made as of the date hereof.
3.4 Borrower hereby ratifies, reaffirms, acknowledges, and agrees that the
Notes and the Credit Agreement, represent valid, enforceable and collectible
obligations of Borrower, and that there are no existing claims, defenses,
personal or otherwise, or rights of setoff whatsoever with respect to any of
these documents or instruments. In addition, Borrower hereby expressly waives,
releases and absolutely and forever discharges Lender and its present and former
shareholders, directors, officers, employees and agents, and their separate and
respective heirs, personal representatives, successors and assigns, from any and
all liabilities, claims, demands, damages, action and causes of action, of which
Borrower has, or may reasonably be expected to have knowledge, that Borrower may
now have, or has had prior to the date hereof, or that may hereafter arise with
respect to acts, omissions or events occurring prior to the date hereof and,
without limiting the generality of the foregoing, from any and all liabilities,
claims, demands, damages, actions and causes of action, known or unknown,
contingent or matured, arising out of, or in any way connected with, the Loans.
Borrower further acknowledges and represents that no event has occurred and no
condition exists that, after notice or lapse of time, or both, would constitute
default under this Agreement, the Notes or the Credit Agreement.
3.5 All terms, conditions and provisions of the Notes and the Credit
Agreement are continued in full force and effect and shall remain unaffected and
unchanged except as specifically amended hereby. The Notes and the Credit
Agreement, as amended hereby, are hereby ratified and reaffirmed by Borrower,
and Borrower specifically acknowledges the validity and enforceability thereof.
SECTION 4. GENERAL.
4.1 This Agreement in no way acts as a release or relinquishment of those
rights securing payment of the Loans. Such rights are hereby ratified,
confirmed, renewed and extended by Borrower in all respects.
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4.2 The modifications contained herein shall not be binding upon Lender
until Lender shall have received all of the following:
(a) An original of this Agreement fully executed by the Borrower.
(b) An original Consent and Agreement of Guarantors executed by each
Guarantor.
(c) Such resolutions or authorizations and such other documents as Lender
may require relating to the existence and good standing of the
Borrower and each Subsidiary and the authority of any person executing
this Agreement or other documents on behalf of the Borrower and each
Subsidiary.
4.3 Borrower shall execute and deliver such additional documents and do
such other acts as Lender may reasonably require to fully implement the
intent of this Agreement.
4.4 Borrower shall pay all costs and expenses, including, but not limited
to, reasonable attorneys' fees incurred by Lender in connection herewith,
whether or not all of the conditions described in Paragraph 4.2 above are
satisfied. Lender, at its option,but without any obligation to do so, may
advance funds to pay any such costs and expenses that are the obligation of
the Borrower, and all such funds advanced shall bear interest at the
highest rate provided in the RLC Note and shall be due and payable upon
demand.
4.5 Notwithstanding anything to the contrary contained herein or in any
other instrument executed by Borrower or Lender, or in any other action or
conduct undertaken by Borrower or Lender on or before the date hereof, the
agreements, covenants and provisions contained herein shall constitute the
only evidence of Lender's consent to modify the terms and provisions of the
Credit Agreement. Accordingly, no express or implied consent to any further
modifications involving any of the matters set forth in this Agreement or
otherwise shall be inferred or implied by Lender's execution of this
Agreement. Further, Lender's execution of this Agreement shall not
constitute a waiver (either express or implied) of the requirement that any
further modification of the Loans or of the Notes or the Credit Agreement,
shall require the express written approval of Lender; no such approval
(either express or implied) has been given as of the date hereof.
4.6 Time is hereby declared to be of the essence hereof of the Loans, of
the Notes and of the Credit Agreement, and Lender requires, and Borrower
agrees to, strict performance of each and every covenant, condition,
provision and agreement hereof, of the Notes and the Credit Agreement.
4.7 This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their heirs, personal representatives,
successors and assigns.
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4.8 This Agreement is made for the sole protection and benefit of the
parties hereto, and no other person or entity shall have any right of
action hereon.
4.9 This Agreement shall be governed by and construed according to the laws
of the State of Arizona.
IN WITNESS WHEREOF, these presents are executed as of the date indicated
above.
XXXXXX STEEL COMPANY,
A Delaware corporation
By: /s/Xxxxxxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Its: Vice President & CFO
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COMPANY
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Its: Vice President
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LENDER
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SCHEDULE 1.1
LENDERS AND PRO RATA SHARES
Name Commitment Pro Rata Share
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Xxxxx Fargo Bank, National Association $15,000,000 100.0%
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