AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO THE CREDIT AGREEMENT (this
"Amendment No. 1"), dated as of September 30, 1995, among OREGON STEEL
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XXXXX, INC., a Delaware corporation (the "Borrower"), the various
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financial institutions as are or may become parties hereto
(collectively, the "Lenders"), FIRST INTERSTATE BANK OF OREGON,
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N.A. ("First Interstate"), as administrative agent (the
----------------
"Administrative Agent"), for the Lenders, THE BANK OF NOVA SCOTIA
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("Scotiabank"), as syndication agent for the Lenders (the "Syndication
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Agent") and the First Interstate and Scotiabank as managing agents
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(the "Managing Agents"; the Managing Agents, the Administrative Agent
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and the Syndication Agent are collectively referred to as the
"Agents") for the Lenders.
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Agents are
parties to the Credit Agreement, dated as of December 14, 1994
(hereinafter referred to as the "Existing Credit Agreement"); and
-------------------------
WHEREAS, the Borrower has requested that certain amendments be
made to the Existing Credit Agreement; and
WHEREAS, the Lenders and Agents are willing to make certain
amendments to the Existing Credit Agreement on the terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1. CERTAIN DEFINITIONS. The following terms (whether
-------------------
or not underscored) when used in this Amendment No. 1 shall have the
following meanings:
"Amended Credit Agreement" shall mean the Existing Credit
------------------------
Agreement as amended by this Amendment No. 1.
"Amendment No. 1 Effective Date" shall have the meaning provided
------------------------------
in Section 6.1.
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SECTION 1.2. OTHER DEFINITIONS. Unless otherwise defined or the
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context otherwise requires, terms used herein (including in the
preamble and recitals hereto) have the meanings provided for in the
Existing Credit Agreement.
ARTICLE II
AMENDMENTS TO
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EXISTING CREDIT AGREEMENT
-------------------------
Effective on the Amendment No. 1 Effective Date, the Existing
Credit Agreement is amended in accordance with the terms of this
Article II; except as so amended, the Existing Credit Agreement shall
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continue to remain in all respects in full force and effect.
SECTION 2.1. AMENDMENTS TO SECTION 1.1.
--------------------------
2.1.1. The definition of "Change in Control" is hereby amended
to read in its entirety as follows:
"'Change in Control' means (i) the acquisition by
-----------------
any Person (other than the ESOP), or two or more
Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act
of 1934) of 20% or more of the outstanding shares of
voting stock of the Borrower, or (ii) the occurrence of
any event or condition that would require the Borrower
to repurchase or redeem any Permitted Subordinated
Indebtedness as a result of any 'change in control,'
'change of control' or similar circumstance under the
definitive documentation for any Permitted Subordinated
Indebtedness."
2.1.2. Clause (iii) of clause (x) of the definition of "Interest
Coverage Ratio" is hereby amended to read in its entirety as follows:
"(iii) interest expense during such period plus" and clause (y) of the
----
definition of "Interest Coverage Ratio" is hereby amended to read in
its entirety as follows: "(y) the Borrower and its Subsidiaries'
total interest expense (including capitalized interest) paid in cash
during such period."
2.1.3. The second sentence of the definition of "Applicable
Margin" is hereby amended by inserting the following immediately
before the end thereof:
"; provided, further, that if on or before March 31,
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1996 the Borrower shall not have received an aggregate of at
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least $50,000,000 of Net Equity Proceeds and/or Net Permitted
Subordinated Indebtedness Proceeds, then as of such date each
Applicable Margin set forth above shall increase by .25%, and if
on or before May 31, 1996, the Borrower shall not have received
(in addition to the above-mentioned $50,000,000) an aggregate of
at least $50,000,000 of additional Net Equity Proceeds and/or Net
Permitted Subordinated Indebtedness Proceeds, each Applicable
Margin set forth above shall increase by an additional .25%;
provided, further, that if, after the Applicable Margins shall
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have been increased by .25% as provided in the first clause of
the preceding proviso, the Borrower shall have thereafter
received an aggregate of at least $50,000,000 of Net Equity
Proceeds and/or Net Permitted Subordinated Indebtedness Proceeds,
the Applicable Margins shall thereupon be reduced by .25% and if
after the Applicable Margins shall have been increased by .25% as
provided in the second clause of the preceding proviso, the
Borrower shall have thereafter received (in addition to the
above-mentioned $50,000,000) an aggregate of at least $50,000,000
of additional Net Equity Proceeds and/or Net Permitted
Subordinated Indebtedness Proceeds, the Applicable Margins
shall thereupon be reduced by .25% (returning the Applicable
Margins to the levels set forth in the chart above).
2.1.4. There shall be added to Section 1.1 of the Existing
Credit Agreement new definitions, in appropriate alphabetical
sequence, reading in their entirety as follows:
"Net Permitted Subordinated Indebtedness Proceeds"
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means, with respect to any issuance by the Borrower of any
Permitted Subordinated Indebtedness, the gross consideration
received by or for the Borrower minus underwriting and
brokerage commissions, discounts and fees and other
professional fees and expenses relating to such issuance
that are payable by the Borrower.
"Permitted Subordinated Indebtedness" means unsecured
-----------------------------------
Indebtedness of the Borrower which is subordinated to the
monetary Obligations of the Borrower upon terms no less favorable
to the Lenders in any substantial respect than those set forth in
Exhibit M or upon such other terms as may be satisfactory to the
Managing Agents and the Required Lenders."
SECTION 2.2. AMENDMENT OF SECTION 3.1.3
--------------------------
The final sentence of Section 3.1.3 of the Existing Credit
Agreement is hereby amended to read in its entirety as follows:
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"If less than $200,000,000 of Term Loans are outstanding on
the Term Facility Commitment Termination Date (other than
pursuant to mandatory prepayments or mandatory commitment
reductions required under this Agreement), then all
scheduled payments shall be reduced pro rata."
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SECTION 2.3 AMENDMENT OF SECTION 3.1.5.
--------------------------
Section 3.1.5 of the Existing Credit Agreement is hereby amended
to read in its entirety as follows:
"SECTION 3.1.5 Net Equity Proceeds. Within five Business
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Days of the receipt by the Borrower of any Net Equity Proceeds,
the Borrower shall make a mandatory prepayment of the Loans in an
amount equal to 100% of such Net Equity Proceeds to be applied as
set forth in Section 3.2.2 or, if such prepayment would cause the
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Borrower to be liable for losses or expenses pursuant to the
terms of Section 4.4(a) hereof, the Borrower shall deliver such
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Net Equity Proceeds to the Administrative Agent to be held as
cash collateral pursuant to the terms of the Security Agreement
and to be applied by the Administrative Agent as set forth in
Section 3.2.2 to the payments of the Loans on the earliest dates
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such payment may be made without incurring losses or expenses
pursuant to Section 4.4(a). Notwithstanding the foregoing, no
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mandatory prepayment of the Loans shall be required to be made
from the first $75,000,000 of Net Equity Proceeds received by the
Borrower."
SECTION 2.4. ADDITION OF SECTION 3.1.9.
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There shall be added to the Existing Credit Agreement,
immediately after Section 3.1.8, a new Section reading in its entirety
as follows:
"SECTION 3.1.9. Net Permitted Subordinated Indebtedness
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Proceeds. Upon receipt by the Borrower of any Net Permitted
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Subordinated Indebtedness Proceeds, the Commitments shall
immediately be reduced and/or within five Business Days of the
receipt by the Borrower of such proceeds, the Borrower shall make
a mandatory prepayment of the Loans, in each case in the amounts
specified in the following sentence for application as set forth
in Section 3.2.3 or, if such a prepayment would cause the
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Borrower to be liable for losses or expenses pursuant to the
terms of Section 4.4(a) hereof, the Borrower shall deliver such
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Net Permitted Subordinated Indebtedness Proceeds to the
Administrative Agent to be held as cash collateral pursuant
to the terms of the Security Agreement and to be applied by
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the Administrative Agent as set forth in Section 3.2.3 to
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the payments of the Loans on the earliest dates such payment
may be made without incurring losses or expenses pursuant to
Section 4.4(a). The mandatory Commitment reductions and/or
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prepayment of the Loans described above shall be in an amount
equal to 40% of such Net Permitted Subordinated Indebtedness
Proceeds, so long as such proceeds do not exceed $75,000,000 in
the aggregate, and if such Net Permitted Subordinated
Indebtedness Proceeds exceed $75,000,000 in the aggregate, 100%
of all amounts in excess of $75,000,000 shall be applied to
reduce the Commitments and Loans; provided, however, if the
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amount of Net Equity
Proceeds received by the Borrower prior to the issuance of
any Permitted Subordinated Indebtedness exceeds $50,000,000, then
the $75,000,000 threshold previously described shall be increased
by one dollar for each dollar of Net Equity Proceeds in excess of
$50,000,000 received by the Borrower."
SECTION 2.5. ADDITION OF SECTION 3.2.3.
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There shall be added to the Existing Credit Agreement,
immediately after Section 3.2.2, a new Section reading in its entirety
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as follows:
"SECTION 3.2.3. Further Mandatory Commitment Reductions and
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Prepayments. Upon the Borrower's receipt of Net Permitted
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Subordinated Indebtedness Proceeds as described in Section 3.1.9,
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the Commitments shall be reduced and the Loans shall be repaid as
hereinafter provided. Such proceeds shall first reduce any
unused portion of the Term Loan Commitment and may, to the extent
thereof, be retained by the Borrower. After there exists no
unused Term Loan Commitment, all remaining proceeds shall be
applied to the scheduled repayments of Term Loans set forth in
Section 3.1.3 in inverse order of maturity. After all
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outstanding Term Loans have been repaid in full, if any proceeds
remain, the Revolving Loan Commitment Amount shall be reduced by
the aggregate amount of such proceeds (and the Borrower shall
make a prepayment of Revolving Loans in an amount equal to the
excess, if any, of the then outstanding Revolving Loans over the
Revolving Loan Commitment amount, as so reduced)."
SECTION 2.6. AMENDMENTS TO SECTION 7.2.2.
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Section 7.2.2 of the Existing Credit Agreement is hereby amended
(a) by adding the following clause immediately after clause (i)
thereof:
"(j) Permitted Subordinated Indebtedness;"
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and (b) by amending the proviso at the end of such Section to read in
its entirety as follows:
"provided, however, that no Indebtedness otherwise permitted by
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clauses (d), (e), (f), (g), (h), (i) or (j) shall be permitted
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if, after giving effect to the incurrence thereof, any Default
shall have occurred and be continuing."
SECTION 2.7. AMENDMENT TO SECTION 7.2.4(b).
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Section 7.2.4(b) of the Existing Credit Agreement is hereby
amended to read in its entirety as follows:
(b) Its Interest Coverage Ratio, tested on a rolling
four quarter basis, to be less than the specified ratio as of the end
of any of the following Fiscal Quarters:
Fiscal Quarter Minimum Interest Coverage Ratio
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September 30, 1995 1.25 to 1.0
December 31, 1995 1.20 to 1.0
March 31, 1996 1.45 to 1.0
June 30, 1996 1.50 to 1.0
September 30, 1996 1.75 to 1.0
December 31, 1996 2.00 to 1.0
March 31, 1997 2.25 to 1.0
June 30, 1997 2.50 to 1.0
September 30, 1997 2.75 to 1.0
December 31, 1997 3.00 to 1.0
March 31, 1998 3.00 to 1.0
June 30, 1998 3.25 to 1.0
September 30, 1998 3.25 to 1.0
December 31, 1998 3.50 to 1.0
March 31, 1999 3.50 to 1.0
June 30, 1999 3.75 to 1.0
September 30, 1999 3.75 to 1.0
December 31, 1999 4.00 to 1.0
SECTION 2.8. AMENDMENT TO SECTION 7.2.4(e).
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Section 7.2.4(e) of the Existing Credit Agreement is hereby
amended to read in its entirety as follows:
(e) Its Funded Debt to Capitalization Ratio at any time
to exceed the specified ratio in any of the following Fiscal
Quarters:
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Maximum Funded Debt to
Quarter Ending Capitalization Ratio
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September 30, 1995 .55 to 1.0
December 31, 1995 .58 to 1.0
March 31, 1996 .58 to 1.0
June 30, 1996 .50 to 1.0
September 30, 1996 .50 to 1.0
December 31, 1996 .50 to 1.0
March 31, 1997 .50 to 1.0
June 30, 1997 .50 to 1.0
September 30, 1997 .50 to 1.0
December 31, 1997 .50 to 1.0
March 31, 1998 .40 to 1.0
June 30, 1998 .40 to 1.0
September 30, 1998 .40 to 1.0
December 31, 1998 .40 to 1.0
March 31, 1999 .35 to 1.0
June 30, 1999 .35 to 1.0
September 30, 1999 .35 to 1.0
December 31, 1999 .35 to 1.0
SECTION 2.9. AMENDMENT TO SECTION 7.2.7.
--------------------------
Section 7.2.7 of the Existing Credit Agreement is hereby amended
to read in its entirety as follows:
SECTION 7.2.7 Capital Expenditures, etc. The Borrower will
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not, and will not permit any of its Subsidiaries to, make or
commit to make Capital Expenditures in any Fiscal Year, except
Capital Expenditures substantially as contemplated by the
Borrower's revised financial plan dated as of October 27, 1995
and which do not aggregate in excess of the amount set forth
below opposite such Fiscal Year:
Year Maximum Capital Expenditures
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1995 $187,500,000
1996 $ 86,250,000
1997 $ 65,000,000
1998 $ 30,000,000
1999 $ 25,000,000
provided, however, that
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(i) if a duly executed and delivered Compliance
Certificate demonstrates that the Funded Debt to
Capitalization Ratio is .50 to 1.0 or less as of the last
day of any Fiscal Quarter ending on or after December 31,
1995, then the maximum Capital Expenditures for the 1996
Fiscal Year shall be increased to $115,000,0000 and the
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maximum Capital Expenditures for the 1997 and 1999 Fiscal
Years shall be reduced to $40,000,000 and $20,000,000,
respectively;
(ii) to the extent Capital Expenditures are made or
committed to be made in any Fiscal year in an amount less
than the maximum amount permitted for such Fiscal year as
provided above, the Capital Expenditures which the Borrower
or its Subsidiaries may make or commit to make in the next
following Fiscal Year shall be increased by 100% of the
amount of the permitted Capital Expenditures not so made or
committed to be made in the immediately preceding Fiscal
Year (the "Carry-Forward Amount");
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(iii) if all or part of the Carry-Forward Amount is not
used in full in the immediately succeeding Fiscal Year, up
to 50% of such original Carry-Forward Amount may be
carried forward to the second immediately succeeding Fiscal
Year, but no further carry forward of such Carry-Forward
Amount to any other succeeding Fiscal Year shall be
permitted; and
(iv) no portion of any Carry-Forward Amount shall be
used in any Fiscal Year until the entire amount of the
Capital Expenditures permitted to be made or committed to be
made in such Fiscal Year as provided in the preceding
clauses (ii) and (iii) shall have been used.
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SECTION 2.10. ADDITION OF SECTION 7.2.14.
--------------------------
There shall be added to the Credit Agreement a new Section 7.2.14
reading in its entirety as follows:
"SECTION 7.2.14. Permitted Subordinated Indebtedness.
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The Borrower will not, and will not permit any of its
Subsidiaries to, (i) make any cash payments of interest on any
Permitted Subordinated Indebtedness or (ii) make any payment or
prepayment of, or redemption or acquisition for value of, any
Permitted Subordinated Indebtedness."
SECTION 2.11. AMENDMENT OF EXHIBIT L.
----------------------
Exhibit L to the Existing Credit Agreement is hereby amended and
restated in its entirety to read as set forth in Exhibit L to this
Amendment No. 1.
SECTION 2.12. ADDITION OF NEW EXHIBIT.
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There shall be added to the Existing Credit Agreement,
immediately after Exhibit L, a new Exhibit M in the form of
Exhibit M to this Amendment No. 1.
ARTICLE III
OTHER AGREEMENTS CONCERNING
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EXISTING CREDIT AGREEMENT
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SECTION 3.1. EXTENSION OF REVOLVING LOAN COMMITMENT
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TERMINATION DATE. The Borrower has requested the Lenders to extend
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the Revolving Loan Commitment Termination Date by one year. Subject
to the terms and conditions hereinafter set forth, the Lenders have
agreed to extend the date specified in clause (b) of the definition of
the term "Revolving Loan Commitment Termination Date" from December
31, 1997 to December 31, 1998; provided, however, such extension shall
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not be effective unless and until the Borrower has duly executed and
delivered a Compliance Certificate that demonstrates that the Funded
Debt to Capitalization Ratio is .50 to 1.00 or less as of the last day
of any Fiscal Quarter ending on December 31, 1995, March 31, 1996 or
June 30, 1996.
SECTION 3.2. RELEASE OF COLLATERAL. The Borrower has agreed to
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sell 3% of the shares of the common stock of New CF&I to a third party
for considerations identified in the Borrower's revised financial plan
dated as of October 27, 1995. Pursuant to the terms of the Pledge
Agreement and Section 10.1 of the Existing Credit Agreement, the
consent of the Required Lenders is required before such a sale may be
completed. By their execution of this Amendment No. 1, each of the
undersigned Lenders have evidenced their consent to the sale of 3% of
the common stock of New CF&I by the Borrower, substantially on the
terms described above; provided, that (i) such sale shall be completed
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on or before December 31, 1995 and (ii) the Term Loan Commitment shall
immediately be reduced upon the Borrower's receipt of the net proceeds
from such sale by $3,100,000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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In order to induce the Lenders to make the amendments provided
for in Article II and to extend the Revolving Loan Commitment
Termination Date as provided for in Article III, the Borrower hereby
(a) represents and warrants, that each of the representations and
warranties contained in the Existing Credit Agreement and in the other
Loan Documents is true and correct as of the date hereof as if made on
the date hereof (except, if any such representation and warranty
relates to an earlier date, such
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representation and warranty shall be true and correct in all material
respects as of such earlier date) and immediately after giving effect
to the provisions of this Amendment No. 1 no Default has occurred and
is continuing and (b) agrees that the incorrectness in any material
respect of any representation and warranty contained in the preceding
clause (a) shall constitute an immediate Event of Default. By its
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execution hereof, each Lender acknowledges receipt of the Borrower's
revised financial plan dated as of October 27, 1995, together with the
Borrower's monthly projections through December 31, 1996.
ARTICLE V
ACKNOWLEDGEMENT OF GUARANTORS
-----------------------------
By executing the acknowledgement to this Amendment No. 1, each
Guarantor of the Borrower hereby confirms and agrees that the Guaranty
and each Security Agreement to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that, on and after the Amendment No.
1 Effective Date, each reference therein to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement, shall mean and refer to the Existing Credit
Agreement after giving effect to this Amendment No. 1.
ARTICLE VI
CONDITIONS TO EFFECTIVENESS
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SECTION 6.1. EFFECTIVE DATE. This Amendment No. 1 shall become
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effective on the date (herein called the "Amendment No. 1 Effective
-------------------------
Date") when the conditions set forth in this Section 6.1 have been
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satisfied, such effectiveness to be retroactive to September 30, 1995.
SECTION 6.1.1. EXECUTION OF COUNTERPARTS. The Administrative
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Agent shall have received counterparts of this Amendment No. 1 duly
executed and delivered on behalf of the Borrower, the Guarantors, the
Lenders and the Agents.
SECTION 6.1.2. RESOLUTIONS AND LEGAL OPINION. The
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Administrative Agent shall have received (a) resolutions of the Board
of Directors of the Borrower authorizing the execution, delivery and
performance of Amendment No. 1 and (b) a satisfactory legal opinion
from Xxxxxxx Xxxxxxxxxx & Xxxxx (or other counsel satisfactory to the
Agents) as to the due authorization, execution, and delivery of this
Amendment No. 1 by, and good standing of, the Borrower and the
Guarantors and the
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enforceability of this Amendment No. 1 against the Borrower and the
Guarantors.
SECTION 6.1.3. Fees. The Agents shall have received, for and on
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behalf of the Lenders, payment in full of the fees provided for in the
fee letter, dated October 30, 1995, between the Borrower and the
Agents.
SECTION 6.1.4. LEGAL DETAILS, ETC. All documents executed or
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submitted pursuant hereto, and all legal matters incident thereto,
shall be satisfactory in form and substance to the Managing Agents and
their counsel.
SECTION 6.2. EXPIRATION. If all of the conditions set forth in
-----------
Section 6.1 hereof shall not have been satisfied on or prior to
-----------
November 15, 1995, the agreements of the parties contained in this
Amendment No. 1 shall, unless otherwise agreed by the Lenders,
terminate effective immediately on such date and without further
action.
ARTICLE VII
MISCELLANEOUS
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SECTION 7.1. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT
-----------------------------------------
AGREEMENT. This Amendment No. 1 is a Loan Document executed pursuant
---------
to the Existing Credit Agreement. Except as expressly amended or
waived hereby, all of the representations, warranties, terms,
covenants and conditions contained in the Existing Credit Agreement
and each other Loan Document shall remain unamended and in full force
and effect. The amendments set forth herein shall be limited
precisely as provided for herein and shall not be deemed to be a
waiver of, amendment of, consent to or modification of any other term
or provision of the Existing Credit Agreement or of any term or
provision of any other Loan Document or of any transaction or further
or future action on the part of the Borrower or any of its
Subsidiaries or which would require the consent of any of the Lenders
under the Existing Credit Agreement or any other Loan Document.
SECTION 7.2. COUNTERPARTS, ETC. This Amendment No. 1 may be
-----------------
executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 7.3. GOVERNING LAW; ENTIRE AGREEMENT. THIS
-------------------------------
AMENDMENT NO. 1 SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be executed by their respective officers hereunto duly
authorized as of the day and year first above
written.
OREGON STEEL XXXXX, INC.
By:
-----------------------------------
Title:
-----------------------------
FIRST INTERSTATE BANK OF OREGON,
N.A., as Administrative Agent and
Managing Agent
By:
-----------------------------------
Title:
-----------------------------
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XXX XXXX XX XXXX XXXXXX, as
Syndication Agent and Managing
Agent
By:
-----------------------------------
Title:
-----------------------------
LENDERS
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FIRST INTERSTATE BANK OF OREGON,
N.A.
By:
----------------------------------
Title:
----------------------------
THE BANK OF NOVA SCOTIA
By:
----------------------------------
Title:
----------------------------
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XXXXXXX XXXXXXXX (XXXXX), INC.
By:
----------------------------------
Title:
----------------------------
UNITED STATES NATIONAL BANK OF
OREGON
By:
----------------------------------
Title:
----------------------------
KEY BANK OF WASHINGTON
By:
----------------------------------
Title:
----------------------------
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NBD BANK, N.A.
By:
----------------------------------
Title:
----------------------------
THE BANK OF TOKYO, LTD., PORTLAND
BRANCH
By:
----------------------------------
Title:
----------------------------
PNC BANK, NATIONAL ASSOCIATION
By:
----------------------------------
Title:
----------------------------
THE BANK OF CALIFORNIA, N.A.
By:
----------------------------------
Title:
----------------------------
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NATIONSBANK OF TEXAS, N.A.
By:
----------------------------------
Title:
----------------------------
FUJI BANK, LIMITED
By:
----------------------------------
Title:
----------------------------
BANK OF AMERICA NT & SA
By:
----------------------------------
Title:
----------------------------
Acknowledged and Accepted:
NAPA PIPE CORPORATION
By:
---------------------------
Name:
Title:
OREGON STEEL XXXXX - XXXXXXX DIVISION, INC.
By:
---------------------------
Name:
Title:
CAMROSE PIPE CORPORATION
By:
---------------------------
Name:
Title:
NEW CF & I, INC.
By:
---------------------------
Name:
Title:
Exhibits available upon request.
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