EXHIBIT 10.1B
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 16,
2002 (this "Amendment"), is among STEEL DYNAMICS, INC. (the "Borrower"), the
Lenders (as defined below) signatories hereto, JPMORGAN CHASE BANK, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent, and
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Arranger and Syndication Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions and other
Persons (such capitalized term and other capitalized terms used in these
recitals to have the meanings set forth or defined by reference in Part I below)
from time to time parties thereto (collectively, the "Lenders"), JPMorgan Chase
Bank, as Collateral Agent, the Administrative Agent, General Electric Capital
Corporation, as Documentation Agent, and Xxxxxx Xxxxxxx Senior Funding, Inc., as
Arranger and Syndication Agent, are parties to the Credit Agreement, dated as of
March 26, 2002, as amended by the First Amendment to Credit Agreement, dated as
of August 6, 2002, and as waived by Letter Waiver, dated as of October 6, 2002
(such Credit Agreement, as so amended and waived, the "Existing Credit
Agreement");
WHEREAS, the Borrower has requested that the Lenders amend the
Existing Credit Agreement as set forth below; and
WHEREAS, the Lenders have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Existing Credit Agreement in
certain respects as set forth below (the Existing Credit Agreement, as so
amended or otherwise modified by this Amendment, being referred to as the
"Credit Agreement");
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or
not underscored) when used in this Amendment shall have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Second Amendment Effective Date" is defined in Subpart 3.1.
"Lenders" is defined in the first recital.
SUBPART 1.2. Other Definitions. Terms for which meanings are
provided in the Existing Credit Agreement are, unless otherwise defined herein
or the context otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part; except as so amended or otherwise modified by this Amendment,
the Existing Credit Agreement and the Loan Documents shall continue in full
force and effect in accordance with their terms.
SUBPART 2.1. Amendment to Article I. Article I of the Existing
Credit Agreement is hereby amended in accordance with Subpart 2.1.1.
SUBPART 2.1.1. Section 1.01 of the Existing Credit Agreement
is hereby amended by inserting the following new definitions therein in
the appropriate alphabetical order:
"Second Amendment" means the Second Amendment, dated as of
December 16, 2002, to this Agreement among the Borrower, the
Administrative Agent, Xxxxxx Xxxxxxx Senior Funding, Inc. and the
Lenders parties thereto.
"Second Amendment Effective Date" is defined in Subpart 3.1 of
the Second Amendment.
SUBPART 2.2. Amendment to Article V. Article V of the Existing
Credit Agreement is hereby amended in accordance with Subpart 2.2.1.
SUBPART 2.2.1. Section 5.02(b)(i) of the Existing Credit
Agreement is hereby amended by adding at the end thereof new clauses (E)
and (F) to read as follows:
"(E) up to an additional $100,000,000 principal amount of
Senior Notes at any time outstanding; and
(F) up to $150,000,000 principal amount of unsecured
convertible notes (convertible into common stock of the Borrower)
with a maturity and redemption for all of such principal amount at
least six months after the final maturity date of the Term B
Advances (with the Borrower hereby agreeing not to prepay, redeem,
repurchase or otherwise acquire any of such notes prior to the day
which is six months after the final maturity date of the Term B
Advances) with covenants and defaults no more restrictive on the
Borrower than those
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contained in the Senior Notes, and if issued as subordinated debt,
with subordination provisions reasonably satisfactory to the
Arranger and the Administrative Agent."
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effectiveness. This Amendment and the amendments
contained herein shall become effective on the date (the "Second Amendment
Effective Date") when each of the conditions set forth in this Part shall have
been fulfilled to the satisfaction of the Administrative Agent.
SUBPART 3.1.1. Execution of Counterparts. The
Administrative Agent and the Arranger shall have received counterparts of
this Amendment, duly executed and delivered on behalf of the Borrower, the
Administrative Agent and the Required Lenders.
SUBPART 3.1.2. Expenses. The Borrower shall have paid
all expenses (including the fees and expenses of Shearman & Sterling)
incurred in connection with the preparation, negotiation and execution of
this Amendment and matters relating to the Credit Agreement from and after
the closing thereof to the extent invoiced.
SUBPART 3.1.3. Legal Details, etc. All documents
executed or submitted pursuant hereto shall be satisfactory in form and
substance to the Administrative Agent and the Arranger and Shearman &
Sterling as counsel. The Administrative Agent, the Arranger and counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials as the Administrative Agent,
the Arranger or counsel may reasonably request, and all legal matters
incident to the transactions contemplated by this Amendment shall be
satisfactory to the Administrative Agent, the Arranger and counsel.
PART IV
MISCELLANEOUS; REPRESENTATIONS AND COVENANTS
SUBPART 4.1. Continuing Effectiveness, etc. As amended hereby, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. After the Second Amendment Effective Date, all
references in the Credit Agreement and each other Loan Document to the
"Agreement" or "Credit Agreement", as applicable, shall refer to the Existing
Credit Agreement, after giving effect to this Amendment, and this Amendment
shall be a Loan Document for all purposes. The Borrower hereby confirms its
obligations under Section 8.04 of the Credit Agreement to pay all fees and
expenses of the Administrative Agent and the Arranger (including reasonable fees
and out-of-pocket expenses of Shearman & Sterling) in connection with this
Amendment and other ongoing administration of the Credit Agreement as provided
in Section 8.04 of the Credit Agreement since the last invoice it received.
SUBPART 4.2. Mandatory Prepayments. The Borrower hereby confirms its
obligations under Section 2.06(b)(iii) of the Credit Agreement to prepay an
aggregate principal amount of Advances equal to 75% of the amount of Net Cash
Proceeds from the incurrence or
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issuance by the Borrower of any Debt described in Sections 5.02(b)(i)(E) and (F)
of the Credit Agreement.
SUBPART 4.3. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same Amendment.
SUBPART 4.4. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART 4.5. Successors and Assigns. This Amendment shall be binding
upon the Borrower, the Lenders and the Agents and their respective successors
and assigns, and shall inure to their successors and assigns.
SUBPART 4.6. Representations and Warranties. In order to induce the
Lenders to execute and deliver this Amendment, the Borrower represents and
warrants to the Agents, the Lenders and the Issuing Bank that, after giving
effect to the terms of this Amendment, the following statements are true and
correct: (a) the representations and warranties set forth in Article IV of the
Existing Credit Agreement and in the other Loan Documents are true and correct
on the Second Amendment Effective Date as if made on the Second Amendment
Effective Date and after giving effect to the Second Amendment (unless stated to
relate solely to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date) and (b) no Default has occurred and is continuing.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective authorized officers as of the day
and year first above written.
STEEL DYNAMICS, INC.
By: /s/ XXXXXXX XXXXXX
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Title: ASSISTANT SECRETARY
LENDERS:
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral
Agent and as a Lender
By: /s/ XXXXX X. XXXXXX
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Title: MANAGING DIRECTOR
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Arranger and Syndication Agent and as
a Lender
By: /s/ XXXX X. XXXXXXXXX
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Title: VICE PRESIDENT
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent and as a Lender
By: /s/ ILLEGIBLE
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Title: DULY AUTHORIZED SIGNATORY
