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Exhibit 10.1b
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of March 4, 1996, by and among STEEL DYNAMICS, INC., an Indiana corporation
(the "Borrower"), the lenders listed on the signature pages hereof and MELLON
BANK, N.A., a national banking association, as agent for the Lenders under the
Credit Agreement referred to below (the "Agent") .
RECITALS:
WHEREAS the Borrower, certain lenders (the "Lenders") , the Agent,
Mellon Bank, N.A., as Issuing Bank, and Kreditanstalt fur Wiederaufbau, Bank
One, Indianapolis, National Association and NBD Bank, N.A., as Co-Agents,
entered into a Credit Agreement, dated as of June 30, 1994, as amended as of
January 6, 1995, May 22, 1995, June 15, 1995 and November 20, 1995 (as so
amended, the "Original Agreement"), pursuant to which the Lenders have extended
credit to the Borrower to fund the construction and operation of a 1.2 million
ton thin slab cast mini-mill in Xxxxxx, Indiana;
WHEREAS, the Borrower wishes to borrow, as term loans, an additional
$150,000,000 to be used to fund the construction and operation of a cold rolling
and coating steel processing facility to be constructed adjacent to the existing
project facilities of the Borrower;
WHEREAS, the Borrower and the Required Lenders (as defined in the
Original Agreement) desire to amend the Original Agreement to affect the changes
described above and to make certain other changes therein;
WHEREAS, Banque Nationale de Paris is to become a party to the
Original Agreement, as amended hereby, as a Senior Co-Agent and a Lender;
WHEREAS, upon the effectiveness of this Amendment, Kreditanstalt fur
Wiederaufbau, Banque Nationale de Paris and Comerica Bank shall be designated
Senior Co-Agents, and Bank One Indianapolis, National Association, NBD Bank,
N.A., The Industrial Bank of Japan, Limited, and Bank Austria Aktiengesellschaft
shall be designated Co-Agents (for purposes of the Original Agreement, as
amended hereby, the term "Co-Agents" shall refer to both the Senior Co-Agents
and the Co-Agents);
WHEREAS, immediately prior to the signing by the Lenders of this
Amendment, Dai-Ichi Kangyo Bank, Ltd., shall have assigned all its rights and
interests as a Lender to one or more other Lenders, and shall no longer be a
Lender party to the Original Agreement, as amended hereby;
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WHEREAS, in connection with the changes to be made pursuant to
this Amendment, the Borrower proposes to amend the Subordinated Debt Purchase
Agreement to make conforming changes in such document;
WHEREAS, the Borrower has advised the Agent and the Lenders, with
respect to the Stockholders Agreement among the stockholders of the Borrower's
parent, Steel Dynamics Holdings, Inc. ("Holdings") (which Stockholders Agreement
is referred to in Section 6.14 of the Original Agreement and is herein referred
to as the "Stockholders Agreement"), in connection with the sale by Holdings of
shares of its Class A Common Stock to Preussag Xxxxx XX ("Preussag"), the
Stockholders Agreement is proposed to be amended by a Stockholders Joinder
Agreement and Amendment No. 2 to Stockholders Agreement (the "Preussag
Amendment"), which will provide in substance that (i) Preussag will become a
party to the Stockholders Agreement and will be bound by and have the benefit of
all the terms thereof, (ii) the shares of Class A Common Stock of Holdings
issued to Preussag and any shares of equity securities issued with respect to
such shares of Class A Common Stock by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization (collectively the "Preussag Shares") shall
be "Stockholders Shares" under and as defined in the Stockholders Agreement, and
(iii) one representative designated by the holders of a majority of the Preussag
Shares shall be elected to the Board of Directors of Holdings and may be removed
only by such holders;
WHEREAS, the Borrower proposes to grant to its customer, Affiliated
Metals Company, a surface drainage easement over a portion of the Project Site
(the "Easement"), and has asked that the Lenders subordinate the lien of the
Mortgage to the Easement; and
WHEREAS, capitalized terms not otherwise defined herein shall have
the meanings assigned thereto in the Original Agreement .
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby agree as follows:
Section 1. Amendments to Original Agreement. The Original Agreement
is hereby amended as follows:
(a) Articles I, II, III, IV, V, VI, VII and IX of the Original
Agreement are hereby amended in their entirety to read as set forth on Annex 1
hereto.
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(b) The Original Agreement is hereby amended by adding the following
Schedules, which shall read as set forth on Annex 2 hereto:
Schedule Subject Matter
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1.01B-1996 Phase II Project Agreements
1.01C-1996 Phase II Project Budget
1.01D-1996 List of Specifications (Phase II)
3.15-1996 Ownership and Control as of Fifth
Amendment
3.31-1996 Phase II Project Compliance With Laws;
Permits
4.05(d)-1996 Certain Phase II Project Agreements
(c) The Original Agreement is hereby amended by adding the following
Exhibit, which shall read as set forth on Annex 3 hereto:
Exhibit Title
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B-4-1996 Form of Tranche D Note
Section 2. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders as follows:
(a) The representations and warranties set forth in the Original
Agreement are true and correct on and as of the date hereof as if made on and as
of the date hereof (except for any representation or warranty which was
expressly limited to an earlier date, in which case such representations and
warranties shall be true and correct on and as of such earlier date), and that
no Event of Default or Potential Default has occurred and is continuing or
exists on and as of the date hereof.
(b) The execution, delivery and performance of this Amendment has
been duly authorized by all necessary action on the part of the Borrower, has
been duly authorized by all necessary governmental approvals, if any, and does
not and will not contravene or conflict with any provision of law or of the
organizational instruments of the Borrower or of any agreement or instrument
binding on it.
(c) This Amendment is the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect affecting
the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
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Section 3. Inclusion of Banque National de Paris. By executing and
delivering this Amendment, Banque National de Paris agrees to become a Senior
Co-Agent and a Lender under, and to be bound by the terms and provisions of, the
Original Agreement, as amended by this Amendment.
Section 4. Consent to Amendment of Subordinated Debt Purchase
Agreement. Notwithstanding the restrictions of Section 6.14 of the Original
Agreement, by executing and delivering this Amendment, the Required Lenders
hereby consent to the Borrower's entering into Consent and Amendment No. 1 to
the Subordinated Debt Purchase Agreement in substantially the form provided by
the Borrower to the Lenders prior to the execution of this Amendment, with such
changes therein as shall be satisfactory to the Agent.
Section 5. Preussag Amendment. By executing and delivering this
Amendment, the Required Lenders hereby waive the application to the Preussag
Amendment of the covenant set forth in Section 6.14 of the Original Agreement
(which covenant limits certain modifications of the Stockholders Agreement) .
This waiver is being made solely for the purpose of permitting the Preussag
Amendment to be consummated. The waiver set forth herein shall be limited
precisely as provided for herein and shall not be deemed to be a waiver of,
amendment to, consent to or modification of any other term or provision of the
Original Agreement or any other Loan Document or instrument referred to therein.
Neither the fact that Borrower has requested this waiver nor the fact that the
Required Lenders and the Agent have agreed to this waiver shall entitle the
Borrower to expect the Required Lenders and/or the Agent to agree in the future
to enter into any similar waivers of any provision of the Original Agreement.
Section 6. Consent to Easement. By executing and delivering this
Amendment, the Required Lenders hereby consent to the granting of the Easement,
as the same is more fully described on Annex 4 hereto, and further direct the
Agent to execute and deliver a mortgage subordination instrument to effect
subordination of the Mortgage to the Easement.
Section 7. Miscellaneous. (a) This Amendment shall become effective
upon (i) execution and delivery hereof by all of the Lenders, the Borrower and
the Agent and (ii) the payment by the Borrower to the Agent for the respective
accounts of the Lenders of the amendment fees previously agreed to, provided
that Sections 5 and 6 hereof shall become effective upon execution and delivery
hereof by the Required Lenders, the Borrower and the Agent. The execution below
by the Lenders shall constitute a direction to the Agent to execute this
Amendment. The fees described in the first sentence of this Section 7(a) shall
be due and payable on the day after this Amendment is signed by the Lenders.
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(b) The Original Agreement, as amended by this Amendment, is in all
respects ratified, approved and confirmed and shall, as so amended, remain in
full force and effect. From and after the date hereof, all references to the
"Agreement" in the Original Agreement and in the other Loan Documents shall be
deemed to be references to the Original Agreement as amended by this Amendment .
(c) This Amendment shall be deemed to be a contract under the laws
of the State of New York and for all purposes shall be governed by and construed
and enforced in accordance with the laws of said State.
(d) This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Amendment as of the date first
above written.
STEEL DYNAMICS INC.
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
MELLON BANK, N.A., as Lender and
as Agent
By /s/ XXXXX X. XXXXXXX
-------------------------------------
Title: Vice President
Tranche D
Committed Amount: $10,000,000
Tranche D
Commitment
Percentage: 6.6666666666666666%
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KREDITANSTALT FUR WIEDERAUFBAU
as Senior Co-Agent
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
Tranche D
Committed Amount: $50,000,000
Tranche D
Commitment
Percentage: 33.3333333333333333%
BANQUE NATIONALE DE PARIS
as Senior Co-Agent
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
Tranche D
Committed Amount: $20,000,000
Tranche D
Commitment
Percentage: 13.3333333333333333%
COMERICA BANK
as Senior Co-Agent
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
Tranche D
Committed Amount: $20,000,000
Tranche D
Commitment
Percentage: 13.3333333333333333%
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BANK ONE INDIANAPOLIS, NATIONAL
ASSOCIATION
as Co-Agent
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
Tranche D
Committed Amount: $10,000,000
Tranche D
Commitment
Percentage: 6.6666666666666666%
NBD BANK
as Co-Agent
By /s/ [SIG ILLEGIBLE]
-------------------------------------
Title: Vice President
Tranche D
Committed Amount: -0-
Tranche D
Commitment
Percentage: -0-
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
as Co-Agent
By /s/ Xxxxxx Xxxx
-------------------------------------
Title: Senior Vice President
Tranche D
Committed Amount: $5,000,000
Tranche D
Commitment
Percentage: 3.3333333333333333%
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BANK AUSTRIA AKTIENGESELLSCHAFT
as Co-Agent
By /s/ J. Xxxxxxx Xxxx
------------------------------------
Title: Vice President
By /s/ Xxxxxxx Xxxx
------------------------------------
Title: Assistant Vice President
Tranche D
Committed Amount: $15,000,000
Tranche D
Commitment
Percentage: 10%
COMMERZBANK AKTIENGELSELLSCHAFT
By /s/ X. Xxxxxx
-----------------------------------
Title: Assistant Treasurer
By /s/ X. X. Xxxxxxxx
-----------------------------------
Title: Vice President
Tranche D
Committed Amount: -0-
Tranche D
Commitment
Percentage: -0-
FORT XXXXX NATIONAL BANK
By /s/ Signature Illegible
------------------------------------
Title: Senior Vice President
Tranche D
Committed Amount: $5,000,000
Tranche D
Commitment
Percentage: 3.3333333333333333%
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Signature Illegible
------------------------------------
Title: Vice President
By /s/ Signature Illegible
------------------------------------
Title:
Tranche D
Committed Amount: $10,000,000
Tranche D
Commitment
Percentage: 6.6666666666666666%
DEUTSCHE BANK AG, CHIGAGO AND/OR
CAYMAN ISLANDS BRANCHES
By /s/ Xxxxxx Xxxxxx
------------------------------------
Title: Associate
By /s/ Xxxxx Xxxxxx
------------------------------------
Title: Assistant Vice President
Xxxxxxx X
Xxxxxxxxx Xxxxxx: -0-
Xxxxxxx X
Commitment
Percentage: -0-
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NATIONAL CITY BANK, INDIANA
By /s/ Xxxxxx K. Xxxx
---------------------------------
Title: Vice President
Tranche D
Committed Amount: $5,000,000
Tranche D
Commitment
Percentage: 3.3333333333333333%
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SUMITOMO CORPORATION
By /s/ S. Ozawa
---------------------------------------
Title: S. Ozawa, Deputy General Manager
Energy, Chemical & Metal Project Dept.
Tranche D
Committed Amount: -0-
Tranche D
Commitment
Percentage: -0-
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