Execution Copy
EXHIBIT
10.1
WAIVER AND AMENDMENT NO. 6 TO CREDIT AGREEMENT
This Waiver and
Amendment No. 6 (this “ Amendment ”) to the
Credit Agreement, dated as of February 7, 2006 (as heretofore
amended, supplemented or otherwise modified, the “ Credit
Agreement ”), and entered into by and among RATHGIBSON,
INC., a Delaware corporation (“ Borrower ”);
RGCH HOLDINGS CORP., a Delaware corporation (“
Holdings ”), as one of the guarantors; GREENVILLE TUBE
COMPANY, a Delaware corporation (“ Greenville Tube
”), as one of the guarantors; the financial institutions who
are or hereafter become parties to the Credit Agreement as Lenders
(as hereinafter defined) and GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation (in its individual capacity “ GE
Capital ”), as agent (in such capacity, the “
Agent ”), is dated as of May 4, 2009 and entered into
by and among Borrower, the other Credit Parties signatory hereto,
the Lenders signatory hereto and Agent.
R
E C
I T A L S :
WHEREAS, the Borrower
has advised the Agent and Lenders that certain Events of Default
may have occurred under the Credit Agreement, as set forth on
Exhibit A to this Amendment (the “ Specified
Defaults ”); and
WHEREAS, the Borrower
has requested that the Lenders waive the Specified Defaults and
agree to amend the Credit Agreement as set forth below;
and
WHEREAS, Agent and the
Lenders whose signatures appear below are willing to agree to such
requests and enter into this Amendment upon the terms and
conditions provided herein.
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and
covenants herein contained, and subject to the terms and conditions
hereof the Credit Parties, the Lenders whose signatures appear
below and Agent agree as follows:
Section
1.
DEFINITIONS
1.1
Defined
Terms .
Unless otherwise provided all capitalized terms used herein
shall have the meanings ascribed thereto in the Credit
Agreement.
Section
2.
AMENDMENT AND
WAIVER
2.1
Amendments . Effective as of the
Effective Date (as defined below), the Credit Agreement is hereby
amended as follows:
(a)
Section
5.9 of the
Credit Agreement is amended and restated in its entirety as
follows:
“The Borrower and
each of its Subsidiaries is Solvent.”
(b)
Section
6.1(j) of the
Credit Agreement is amended and restated in its entirety as
follows:
“(j)
The Borrower or any of
its Subsidiaries that is a Credit Party ceases to be Solvent, fail
to pay its debts as they become due or admits in writing its
present or prospective inability to pay its debts as they become
due;”
2.2
Waiver
.
(a)
Effective as of the
Effective Date, Required Lenders hereby waive the Specified
Defaults, which shall no longer be Defaults or Events of
Default.
(b)
Anything herein to the
contrary notwithstanding, (i) Required Lenders’ waiver
contained in Section 2.2(a) is subject to the satisfaction
of the conditions set forth in Section 3 hereof and (ii)
such waiver only applies to the specific matters referred to in
Section 2.2(a) and shall not be applicable to any other
circumstance, including, without limitation, any other
Default.
Section
3.
CONDITIONS TO
EFFECTIVENESS
The amendments
contained in Section 2.1 shall become effective on the date
(the “ Effective Date ”) that the following
conditions have been satisfied in full or waived by the Requisite
Lenders:
(a)
Agent shall have
received one or more counterparts of this Amendment executed and
delivered by the Credit Parties, the Requisite Lenders and
Agent.
(b)
After giving effect to
this Amendment, there shall be no continuing Default or Event of
Default and the representations and warranties of the Credit
Parties contained in the Loan Documents shall be true and correct
in all material respects as of the Effective Date or such other
specific date as of which any such representation or warranty is by
its terms made.
Section
4.
LIMITATION ON
SCOPE
Except as expressly
amended hereby, the Loan Documents shall remain in full force and
effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided
for herein and shall not be deemed to be waivers of, amendments of,
consents to or modifications of any term or provision of the Loan
Documents or any other document or instrument referred to therein
or of any transaction or further or future action on the part of
any Credit Party requiring the consent of Agent or Lenders except
to the extent specifically provided for
