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EXHIBIT 10.1
[Execution Copy]
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is entered
into as of March 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 meaning ascribed to them in the Credit Agreement (as hereinafter
defined).
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent, the Issuer and the Lenders are party
to a Credit Agreement dated as of January 3, 2001 (as amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement"), and
WHEREAS, the parties to the Credit Agreement desire to amend the Credit
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
AMENDMENT TO THE CREDIT AGREEMENT
SECTION 1.01. AMENDMENT TO THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions precedent set forth in Article II
hereof, the Credit Agreement shall be amended by deleting in its
entirety Section 7.12 of the Credit Agreement and inserting the
following new Section 7.12 in its place:
SECTION 7.12 INTEREST RATE CONTRACTS. The Borrower shall, no
later than December 31, 2001, enter into an Interest Rate Contract or
Contracts, on terms and with counterparties satisfactory to the Agent,
to provide protection against interest rates exceeding 8.8% per annum
on Indebtedness bearing floating interest rates for a period of four
years with respect to a notional amount of at least $50,000,000 or such
greater amount up to $75,000,000 as the Agent may require in its sole
discretion by written notice not later than December 1, 2001.
ARTICLE II
CONDITIONS PRECEDENT TO AMENDMENT
The amendment to the Credit Agreement set forth in Article I hereof
shall become effective on the date that each of the following conditions
precedent are satisfied:
SECTION 2.01. The Agent shall have received counterparts of
this Amendment duly executed by the Agent, the Requisite Lenders and
the Borrower.
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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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants to the Agent and the Lenders that:
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 Credit
Agreement, as amended by this Amendment is a legal, valid and binding
obligation of the Borrower enforceable against it with its terms,
except as the enforcement thereof may be subject to (a) the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and (b) 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 Credit
Agreement. The representations and warranties set forth in Article IV
of the Credit Agreement and in each other Loan Document are true and
correct in all material respects on and as of the date hereof, 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 the Credit Agreement.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Reference to and Effect Upon the Credit
Agreement; No Waiver
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
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(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 Credit Agreement or any Loan Document, or constitute a
waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to this "this
Agreement", "hereunder", "hereof", "herein" or words of similar import
shall mean and be a reference to the Credit Agreement as amended
hereby.
Section 4.02. Costs and Expenses. As provided in Section 11.3
of the Credit Agreement, the Borrower agrees to reimburse the Agent and
the Lenders for all reasonable fees, costs and expenses, including the
reasonable fees, costs and expenses of counsel or other advisors for
advice, assistance, or other representation in connection with this
Amendment.
Section 4.03. Releases. In further consideration of the
Lenders' execution of this Amendment, the Borrower and hereby releases
each of the Agent, each Lender and the Issuer 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 nature whatsoever, whether
liquidated or unliquidated, known or unknown, matured or unmatured,
fixed or contingent that the Borrower may have against Releasees which
arise from or relate to the Obligations, any Collateral, any Loan
Document, any documents, agreements, dealings or other matters in
connection with 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 LAW 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 counterpart
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 a Lender
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
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Title: Vice President
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LENDERS:
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
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Title: Vice President
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IBJ WHITEHALL BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
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Title: Vice President
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XXXXXX FINANCIAL, INC., as a Lender
By:
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Name:
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Title:
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[Signature Page to Amendment No. 1]
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GMAC BUSINESS CREDIT, LLC, as a Lender
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
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Title: Director
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[Signature Page to Amendment No. 1]
