1
Exhibit 10.1d
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 18, 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, November 20, 1995, March 4, 1996 and May 20,
1996 (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 and a cold rolling and coating steel
processing facility in Xxxxxx, Indiana;
WHEREAS, Steel Dynamics Holdings, Inc. ("Holdings"), an Indiana
corporation and the indirect parent of the Borrower, and the Borrower currently
contemplate an initial public offering of equity securities of either Holdings
or the Borrower (in either case, the "IPO") , and desire to use a portion of the
Net Cash Proceeds from the IPO to prepay the Indebtedness incurred pursuant to
the Subordinated Notes;
WHEREAS, Holdings and the Borrower desire to merge Steel Dynamics Sales
Corp., Inc., an Indiana corporation and the direct parent of the Borrower, with
and into the Borrower (the "Salesco Merger");
WHEREAS, Holdings and the Borrower desire to merge Holdings with and into
the Borrower (the "Holdings Merger");
WHEREAS, as contemplated by Section 6.05(i) of the Original Agreement, the
Borrower intends to enter the business of manufacturing scrap substitute and to
construct one or more facilities for such purpose, such business to be conducted
by formation of Iron Dynamics, Inc., an Indiana corporation ("IDI"), as a
wholly-owned Subsidiary of the Borrower;
WHEREAS, the Borrower intends that the construction and start-up of such
scrap substitute business will be funded in part by proceeds of the private
placement sale (unrelated to the IPO)
2
of up to $25,000,000 of its equity securities to one or more investors as
permitted under Section 6.05(i) of the Original Agreement as amended hereby;
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, 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. Initial Amendments to Original Agreement. Upon the
effectiveness of the Salesco Merger, the following amendments (the "Initial
Amendments") to the Original Agreement shall be made:
(1) The Original Agreement is hereby amended by replacing each of the
phrases "the Borrower and Salesco", "Salesco, the Borrower", "the Borrower or
Salesco", "Salesco and the Borrower" and "the Borrower, Salesco", wherever any
of such phrases appears in the Original Agreement, with the words "the
Borrower".
(2) The Original Agreement is hereby amended by replacing the words
"Salesco and Holdings", "Holdings and Salesco", "Salesco/Holdings", "each of
Holdings and Salesco" and "either Holdings or Salesco" with the word "Holdings"
throughout the Original Agreement.
(3) The Original Agreement is hereby amended by replacing the phrase
"Borrower's and Salesco's", wherever it appears in the Original Agreement, with
the word "Borrower's".
(4) The Original Agreement is hereby amended by replacing the phrase
"Salesco's and Holdings'", wherever it appears in the Original Agreement, with
the word "Holdings'".
(5) Section 1.01 of the Original is hereby amended by adding, in the
appropriate alphabetical order, the following defined terms:
"IDI" shall mean Iron Dynamics, Inc., an Indiana corporation, all of
the capital stock of which will be owned by the Borrower if it is
organized.
"IDI Guaranty" shall mean that certain Guaranty and Suretyship
Agreement, substantially in the form of Exhibit R
-2-
3
hereto, to be dated on or about the date of organization of IDI, to be
executed and delivered by IDI in favor of the Agent if IDI is organized.
"IDI Security Agreement" shall mean that certain Security Agreement,
substantially in form and substance satisfactory to the Agent and its
counsel, to be dated on or about the date of organization of IDI, to be
executed and delivered by IDI in favor of the Agent if IDI is organized.
"IPO" shall mean the underwritten initial public offering of
Holdings' equity securities.
"Salesco Merger" shall mean the merger of Salesco with and into the
Borrower.
"Seventh Amendment" shall mean the Seventh Amendment to Credit
Agreement, dated as of September 18, 1996, among the Borrower, the
Lenders, the Issuing Bank, the Agent and the Co-Agents.
(6) Section 1.01 of the Original Agreement is hereby amended by amending
and restating the defined terms "Change of Control", "Holdings", "Phase I
Project Acceptance", "Phase I Project Acceptance Date", "Salesco", "Security
Documents" and "Subordinated Guarantee" to read, respectively, as follows:
"Change of Control" shall mean that at any time (A) either Xxxx or
General Electric Capital Corporation, a New York corporation ("GECC"),
shall fail to retain voting securities which provide a minimum of 50% of
the voting power Xxxx or GECC, as the case may be, held pursuant to its
original equity investment in Holdings as described on Schedule 3.15
hereto, (B) the Control Group shall fail to satisfy the Control Tests for
any reason (voluntarily or involuntarily), (C) any Person or group of
Persons (as defined in the Securities Exchange Act of 1934, as amended)
not a member of the Control Group shall own more than 20% of the voting
capital stock of Holdings or more than 20% of the equity securities of
Holdings, or (D) Holdings shall fail to own all of the equity securities
of the Borrower.
As used herein, the term "Control Group" at any time shall mean the
following Persons: (a) Xxxx, (b) GECC, (c) Xxxxx Xxxxx and the Designated
Managers, (d) Heavy Metal, L.C., a Virginia limited liability company, (e)
Keylock Investments Limited, an Irish non-resident corporation, and
Mazelina Anstalt, a Liechenstein business trust and (f) Preussag. As used
herein, the "Control Tests" are deemed satisfied at a given time if and
only if at such time:
(x) The members of the Control Group in the aggregate own
(beneficially and of record) and have the
-3-
4
right to vote at least 51% of the shares of voting capital stock of
Holdings; and
(y) The members of the Control Group in the aggregate own
(beneficially and of record) at least 51% of the equity securities
of all classes of Holdings.
"Holdings" shall mean Steel Dynamics Holdings, Inc., an Indiana
corporation which owns all of the capital stock of the Borrower.
"Phase I Project Acceptance" shall mean the issuance by Borrower to
the Agent of a certificate, in the form of Schedule I to the Seventh
Amendment, following the completion, in accordance with the SMS Documents,
of the Final Acceptance Test referred to in Section 14.3 of the SMS
Documents (assuming (contrary to fact) that the modifications set forth on
Schedule II to such Seventh Amendment had been made to the SMS Documents)
for all portions of the Phase I Project supplied by SMS, in which Test
such portion of the Phase I Project met the guaranteed performance
specified in the SMS Documents (assuming (contrary to fact) that the
modifications set forth on Schedule II to such Seventh Amendment had been
made to the SMS Documents).
"Phase I Project Acceptance Date" shall mean the earliest date which
(i) is not less than five days after the date on which the Borrower has
issued to the Agent, with a copy to the Phase I Project Monitor, the
certificate referred to in the definition of the phrase "Phase I Project
Acceptance" and (ii) is a date on which the Phase I Project Monitor shall
not have provided to the Agent written notice that it has received such
certificate and that it disagrees with one or more of the statements in
such certificate.
"Salesco" shall mean Steel Dynamics Sales Corp., Inc., an Indiana
corporation, which prior to the Salesco Merger owned all the capital stock
of Borrower, and was in turn a wholly-owned subsidiary of Holdings.
"Security Documents" shall mean the Security Agreement, the Holdings
Security Agreement, the IDI Guaranty, the IDI Security Agreement, the
Mortgage, the Holdings Guaranty, the Assignment of Contracts (and each
assignment of contract entered into pursuant to Section 5.15 hereof),
together with the Consents to Assignment of Contracts (and each consent to
assignment of contract delivered pursuant to Section 5.15 hereof) and any
other agreements or instruments from time to time to time granting or
purporting to grant the Agent a Lien in any property for the benefit of
the Lenders to secure the Obligations, or constituting a Guaranty
Equivalent for the Obligations.
-4-
5
"Subordinated Guarantee" shall mean the Subordinated Guarantee,
dated as of June 30, 1994, as amended, issued by Holdings for the benefit
of the holders of the Subordinated Notes, it being understood that
references herein to the agreements governing the Subordinated Notes shall
include, without limitation, the Subordinated Guarantee.
(7) Section 1.01 of the Original Agreement is hereby amended by deleting,
in the definition of the term "Designated Initial Phase II Equity Proceeds", the
figure "$15,000,000" and inserting in lieu thereof the figure "$25,000,000".
(8) Section 1.01 of the Original Agreement is hereby amended by deleting
the following defined term: "Salesco Security Agreement".
(9) Section 2.03(c)(i) of the Original Agreement is hereby amended by
attending at the end thereof the following sentence:
If Tranche C Loans have not been made prior to consummation of the IPO,
upon receipt by the Borrower or Holdings of Net Cash Proceeds of the IPO
in excess of $100,000,000, the Tranche C Loan Commitments shall terminate
automatically.
(10) Section 2.10(e) of the Original Agreement is hereby amended by
replacing the phrase in parentheses with the following:
(other than the Designated Initial Phase II Equity Securities, the equity
securities described in Schedule 3.15 hereto, any equity securities issued
pursuant to the IPO and any equity securities issued in accordance with
all of the terms and conditions of Section 6.05(i) hereof)
(11) Section 3.13 of the Original Agreement is hereby amended in its
entirety to read as follows:
3.13. Subsidiaries. Except as otherwise specifically permitted by
this Agreement, the Borrower has no Subsidiaries other than, if IDI is
organized, IDI, and Holdings has no Subsidiaries except for the Borrower
and, if IDI is organized, IDI.
(12) Section 3.15 of the Original Agreement is hereby amended in its
entirety to read as follows:
3.15. Ownership and Control. Schedule 3.15 hereof states as of the
date hereof, Schedule 3.15-1996 hereto states as of the date of the Fifth
Amendment, and Schedule 3.15A-1996 hereto states as of the date of the
Seventh Amendment, the authorized capitalization of each Loan Party, the
number of shares of each class of capital stock issued and outstanding of
each Loan Party and the number and
-5-
6
percentage of outstanding shares of each such class of capital stock and
the names of the record owners of such shares and, to the Borrower's
knowledge, the beneficial owners of such shares. The outstanding shares of
capital stock of each Loan Party have been duly authorized and validly
issued and are, except as designated on such Schedule 3.15, Schedule
3.15-1996, or Schedule 3.15A-1996, fully paid and nonassessable. There are
no options, warrants, calls, subscriptions, conversion rights, exchange
rights, preemptive rights or other rights, agreements or arrangements
(contingent or otherwise) which may in any circumstances now or hereafter
obligate any Loan Party to issue any shares of its capital stock or any
other securities, except for matters set forth in such Schedule 3.15,
Schedule 3.15-1996, or Schedule 3.15A-1996, and except for matters which
are permitted by the terms hereof and notice of which is provided by the
Borrower to the Agent. Schedule 3.15 hereof describes as of the date
hereof, Schedule 3.15-1996 hereto describes as of the date of the Fifth
Amendment, and Schedule 3.15A-1996 hereto states as of the date of the
Seventh Amendment, all options, rights, purchase agreements, buy-sell
agreements, restrictions on transfer, pledges, proxies, voting trusts,
powers of attorney, voting agreements and other agreements, instruments or
arrangements to which any Loan Party is a party or is subject or bound, or
to which any record or beneficial owner of capital stock of any Loan Party
is a party or is subject or bound, which pertain to any shares of capital
stock (now or hereafter outstanding) of any Loan Party, including any
matter which may affect beneficial or record ownership thereof or
transferability thereof or voting rights with respect thereto.
(13) Section 6.03(c) of the Original Agreement is hereby amended by
deleting the words "to Salesco as contemplated by Exhibit CC or to".
(14) Section 6.03(i) of the Original Agreement is hereby amended by
deleting "; and" from the end thereof and inserting in ".".
(15) Section 6.03(j) of the Original Agreement is hereby deleted.
(16) Section 6.05(f) of the Original Agreement is hereby amended in its
entirety to read as follows:
(f) Holdings' investment in the Borrower, as described on Schedule 6.05;
-6-
7
(17) Section 6.05(h) of the Original Agreement is hereby amended in
its entirety to read as follows:
(h) Loans and advances of the Borrower to Holdings permitted by
Section 6.03(i); and
(18) Section 6.05(i) of the Original Agreement is hereby amended in
its entirety to read as follows:
(i) An investment in IDI and/or in equipment to be owned by the
Borrower which is related to processing product that is intended to be
manufactured by IDI in an aggregate amount not exceeding $25,000,000 and
funded solely with the Net Cash Proceeds of the issuance by Holdings after
September 1, 1996 (other than in the IPO) of equity securities, but only
upon execution and delivery by IDI to the Agent of the IDI Guaranty and
the IDI Security Agreement.
(19) Section 6.06(a) of the Original Agreement is hereby amended by
deleting the words "Salesco the full amount of which is (and may be) used by
Salesco to pay a dividend in cash to" from the fourth and fifth lines thereof.
(20) Section 6.10(d) of the Original Agreement is hereby amended in
its entirety to read as follows: "[Intentionally omitted]".
(21) Section 6.12(c) of the Original Agreement is hereby amended in
its entirety to read as follows:
(c) The transactions between the Borrower and IDI described on
Exhibit CC hereto;
(22) Section 6.13 of the Original Agreement is hereby amended by
adding thereto, immediate before the period at the end thereof, the following:
, and (z) the costs, not to exceed the Net Cash Proceeds of the issuance
of equity securities of Holdings after September 1, 1996 (other than in
the IPO) remaining after the prepayment, if any, required by Section
2.10(e) hereof, of the construction of one or more scrap substitute
manufacturing facilities owned by the Borrower or IDI (but not by both)
(23) Section 6.15 of the Original Agreement is hereby amended by
replacing the period at the end of subparagraph (b) thereof with the following:
"; and", and by adding the following subparagraph (c) thereto:
(c) The Borrower may, out of the Net Cash Proceeds of the IPO, (i)
prepay in full the principal amount of the Indebtedness of the Borrower
incurred pursuant to the
-7-
8
Subordinated Notes, together with accrued interest thereon and premium
required to be paid thereon or (ii) prepay in part such Indebtedness
incurred pursuant to the Subordinated Notes, so long as an amount of such
Net Cash Proceeds equal to the principal amount of the Subordinated Notes
outstanding after such prepayment is used to prepay principal of Term
Loans.
(24) Section 6.18 of the Original Agreement is hereby amended in its
entirety to read as follows:
6.18. Maintenance of Business. The Borrower shall not change its
primary line of business from that of either constructing, owning and
operating a steel mini-mill or constructing, owning and operating a steel
mini-mill and one or more scrap substitute manufacturing facilities, shall
not permit Holdings to change it sole line of business from owning all the
capital stock of the Borrower and shall not permit IDI, if it is
organized, to change its primary line of business from that of
constructing, owning and operating one or more scrap substitute
manufacturing facilities.
(25) Section 6.19 of the Original Agreement is hereby amended in its
entirety to read as follows:
6.19. Subsidiaries. The Borrower shall not organize, incorporate,
acquire or otherwise suffer to exist any Subsidiaries, except IDI (if IDI
is organized), and Holdings shall not organize, incorporate, acquire or
otherwise suffer to exist any Subsidiaries except the Borrower and
Subsidiaries of the Borrower.
(26) Exhibit CC to the Original Agreement is hereby amended and
restated in its entirety to read as set forth on Annex 1 hereto.
(26) Exhibit DD to the Original Agreement is hereby deleted.
Section 2. Additional Amendments to the Original Agreement. Upon the
effectiveness of the Holdings Merger, the following amendments (the "Additional
Amendments") to the Original Agreement shall be made:
(1) The Original Agreement is hereby amended by replacing each of
the phrases "Holdings", "the Borrower, Holdings", "Holdings, the Borrower",
"Holdings and the Borrower", "the Borrower and Holdings", "Holdings or the
Borrower" and "the Borrower or Holdings", wherever any of such phrases appears
in the Original Agreement, with the words "the Borrower".
-8-
9
(2) The Original Agreement is hereby amended by replacing the word
"Holdings'", wherever such word appears in the Original Agreement, with the
words "the Borrower's".
(3) Section 1.01 of the Original Agreement is hereby amended by
adding, in the appropriate alphabetical order, the following defined term:
"Holdings Merger" shall mean the merger of Holdings with and into
the Borrower.
(4) Section 1.01 of the Original Agreement is hereby amended by
amending and restating the defined terms "Additional Common Equity", "Borrower
Group", "Change of Control", "IPO", "Loan Documents" and "Security Documents" to
read, respectively, as follows:
"Additional Common Equity" shall mean common stock of Holdings (or
of the Borrower if the Holdings Merger is completed) issued for cash after
December 1, 1995.
"Borrower Group" shall mean the group consisting of the Borrower and
any of its consolidated Subsidiaries permitted hereunder.
"Change of Control" shall mean that at any time (A) either Xxxx or
General Electric Capital Corporation, a New York corporation ("GECC"),
shall fail to retain voting securities which provide a minimum of 50% of
the voting power Xxxx or GECC, as the case may be, held pursuant to its
original equity investment in the Borrower as described on Schedule
3.15A-1996 hereto, (B) the Control Group shall fail to satisfy the Control
Tests for any reason (voluntarily or involuntarily), or (C) any Person or
group of Persons (as defined in the Securities Exchange Act of 1934, as
amended) not a member of the Control Group shall own more than 20% of the
voting capital stock of the Borrower or more than 20% of the equity
securities of the Borrower.
As used herein, the term "Control Group" at any time shall mean the
following Persons: (a) Xxxx, (b) GECC, (c) Xxxxx Xxxxx and the Designated
Managers, (d) Heavy Metal, L.C., a Virginia limited liability company, (e)
Keylock Investments Limited, an Irish non-resident corporation, and
Mazelina Anstalt, a Liechenstein business trust and (f) Preussag. As used
herein, the "Control Tests" are deemed satisfied at a given time if and
only if at such time:
(x) The members of the Control Group in the aggregate own
(beneficially and of record) and have the right to vote at least 51%
of the shares of voting capital stock of the Borrower; and
-9-
10
(y) The members of the Control Group in the aggregate own
(beneficially and of record) at least 51% of the equity securities
of all classes of the Borrower.
"Holdings" shall mean Steel Dynamics Holdings, Inc., an Indiana
corporation which prior to the Salesco Merger owned all the capital stock
of Salesco and prior to the Holdings Merger owned all the capital stock of
the Borrower.
"IPO" shall mean the underwritten initial public offering of the
Borrower's equity securities.
"Loan Documents" shall mean this Agreement, the Notes, the Agreement
Among Secured Lenders, the Transfer Supplements, the Interest Rate
Protection Agreements, the Letters of Credit, the Continuing Letter of
Credit Agreement, the Letter of Credit Applications (and any other
agreements or documents pursuant to which any Letter of Credit may be
issued or amended), each Subsidiary Guaranty, the Security Documents, the
Currency Hedge Agreements, the Fifth Amendment Documents and all other
agreements and instruments extending, renewing, refinancing or refunding
any indebtedness, obligation or liability arising under any of the
foregoing, in each case as the same may be amended, modified or
supplemented from time to time hereafter.
"Security Documents" shall mean the Security Agreement, the IDI
Security Agreement, the IDI Guaranty, the Mortgage, the Assignment of
Contracts (and each assignment of contract entered into pursuant to
Section 5.15 hereof), together with the Consents to Assignment of
Contracts (and each consent to assignment of contract delivered pursuant
to Section 5.15 hereof) and any other agreements or instruments from time
to time to time granting or purporting to grant the Agent a Lien in any
property for the benefit of the Lenders to secure the Obligations, or
constituting a Guaranty Equivalent for the Obligations.
(5) Section 1.01 of the Original Agreement is hereby amended by
deleting the following defined term: "Holdings Security Agreement".
(6) Section 3.13 of the Original Agreement is hereby amended in its
entirety to read as follows:
3.13. Subsidiaries. Except as otherwise specifically permitted by
this Agreement, the Borrower has no Subsidiaries other than, if IDI is
organized, IDI.
(7) Section 4.05(s) of the Original Agreement is hereby amended in
its entirety to read as follows: " [Intentionally omitted] ".
-10-
11
(8) Section 5.01(i)(ii) of the Original Agreement is hereby amended
by deleting the phrase "their respective stockholders" and replacing it with the
phrase "its stockholders".
(9) Section 6.03(i) of the Original Agreement is hereby amended in
its entirety to read as follows: "[Intentionally omitted]".
(10) Section 6.04(e) of the Original Agreement is hereby amended in
its entirety to read as follows: "Any Subsidiary Guaranty".
(11) Section 6.04(f) of the Original Agreement is hereby amended in
its entirety to read as follows: "[Intentionally omitted]".
(12) Section 6.05(f) of the Original Agreement is hereby amended in
its entirety to read as follows: "[Intentionally omitted]".
(13) Section 6.05(h) of the Original Agreement is hereby amended in
its entirety to read as follows: "[Intentionally omitted]".
(14) Section 6.06(a) of the Original Agreement is hereby amended in
its entirety to read as follows:
(a) The Borrower may, if no Event of Default or Potential Default
exists or is continuing or would result from the making of the purchase
described hereinafter, pay up to $5,500,000 in cash to repurchase stock of
the Borrower from any of the individuals employed by the Borrower listed
on Schedule 6.06 hereof, provided that a minimum aggregate equity interest
in the Borrower of 7.5% shall be owned by the remaining members of the
Borrower's management;
(15) Section 6.14 of the Original Agreement is hereby amended in its
entirety to read as follows:
6.14. Limitations on Modification of Certain Agreements and
Instruments. The Borrower shall not amend, modify or supplement, or suffer
any amendment, modification or supplement to, the Subordinated Debt
Purchase Agreement or any of the agreements governing the Subordinated
Notes (except as specifically permitted by Section 6.15(b)), the
Stockholders' Agreement among the stockholders of Steel Dynamics Holdings,
Inc. or its certificate of incorporation or by-laws (or similar
constituent documents) except that the Borrower may, without the consent
of the Required Lenders, amend or modify the sections of its certificate
of incorporation or bylaws or Stockholders' Agreement listed on Schedule
6.14 hereto and may amend or modify the Stockholders' Agreement to permit
the addition of new
-11-
12
stockholders whose rights thereunder are not greater than the rights of
the original stockholders, and except that the Borrower may amend or
modify Section 10.5 of the Subordinated Debt Purchase Agreement in order
to permit the investment in Qualitech Steel Corporation which is permitted
by Section 6.05(a) of this Agreement and in order to make amendments to
the Subordinated Debt Purchase Agreement which correspond to the
amendments hereto made by the Fifth Amendment, and except that the
Stockholders Agreement may be amended to reflect the Holdings Merger and
the fact that following the Holdings Merger the parties to such
Stockholders Agreement shall no longer own equity securities of Steel
Dynamics Holdings, Inc., but rather shall own equity securities of the
Borrower.
(16) Section 6.18 of the Original Agreement is hereby amended in its
entirety to read as follows:
6.18. Maintenance of Business. The Borrower shall not change its
primary line of business from that of either constructing, owning and
operating a steel mini-mill or constructing, owning and operating a steel
mini-mill and one or more scrap substitute manufacturing facilities, shall
not permit IDI, if it is organized, to change its primary line of business
from that of constructing, owning and operating one or more scrap
substitute manufacturing facilities.
(17) Section 6.19 of the Original Agreement is hereby amended in its
entirety to read as follows:
6.19. Subsidiaries. The Borrower shall not organize, incorporate,
acquire or otherwise suffer to exist any Subsidiaries, except IDI (if IDI
is organized).
(18) The Original Agreement is hereby amended by adding a new
Schedule 3.15A-1996 thereto, in the form attached as Annex 2 hereto.
Section 3. 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
-12-
13
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).
Section 4. Instructions to Agent. If the Salesco Merger and the
Holdings Merger are completed simultaneously, the Required Lenders hereby
instruct the Agent to release, upon such completion, the shares of Salesco and
of Borrower (the "Pledged Shares") held as collateral pursuant to the Pledge and
Security Agreements of each of Holdings and Salesco, each dated as of June 30,
1994. If the Holdings Merger is not completed, the Required Lenders hereby
instruct the Agent to release, upon completion of the Salesco Merger, the
Pledged Shares in return for replacement certificates representing the shares of
the Borrower held by Holdings.
Section 5. 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 a Consent and Amendment to the
Subordinated Debt Purchase Agreement, in form satisfactory to the Agent, the
only substance of which is to amend provisions of such Purchase Agreement which
correspond to provisions of the Original Agreement amended hereby in a manner
corresponding to the amendments made herein.
Section 6. Miscellaneous. (a) The Initial Amendments shall become
effective upon (i) execution and delivery hereof by the Required Lenders, the
Borrower and the Agent and (ii) the consummation of the Salesco Merger. The
Additional Amendments shall become effective upon (i) execution and delivery
hereof by all of the Lenders, the Borrower and the Agent and (ii) the
consummation of the Holdings Merger. The execution below by the Required Lenders
shall constitute a direction to the Agent to execute this Amendment and shall
constitute consent of the Required Lenders to the Salesco Merger. The execution
below by all of the Lenders shall constitute consent of the Lenders to the
Holdings Merger.
(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
-13-
14
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/ [Signature Illegible]
-------------------------------------
Title: Vice President
MELLON BANK, N.A., as Lender and
as Agent
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
KREDITANSTALT FUR WIEDERAUFBAU
as Senior Co-Agent
By /s/ [Signature Illegible]
-------------------------------------
Title: Vice President
By /s/ [Signature Illegible]
-------------------------------------
Title: Senior Project Manager
BANQUE NATIONALE DE PARIS
as Senior Co-Agent
By /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Title: Vice President
-14-
15
COMERICA BANK
as Senior Co-Agent
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
Name: Xxxxxxx X. Xxxxxxx
BANK ONE INDIANAPOLIS, NATIONAL ASSOCIATION
as Co-Agent
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: Vice President
NBD BANK, N.A.
as Co-Agent
By /s/ [Signature Illegible]
---------------------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
as Co-Agent
By /s/ Jun Wantanabe
---------------------------------------
Title : Senior Vice President
-15-
16
BANK AUSTRIA AKTIENGESELLSCHAFT
as Co-Agent
By /s/ J. Xxxxxxx Xxxx
-------------------------------------------
Title: Vice President, BANK AUSTRIA
By /s/ Xxxxxx X. Xxxxxxxx, III
-------------------------------------------
Title: Asst. Vice President, BANK AUSTRIA
COMMERZBANK AKTIENGELSELLSCHAFT
By /s/ Xxxx-Xxxxx Xxxxxxxx
-------------------------------------------
Title : Vice President
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------------
Title: Assistant Vice President
FORT XXXXX NATIONAL BANK
By /s/ Xxxxxx Xxxxx
-------------------------------------------
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH
By /s/ [Siganture Illegible]
-------------------------------------------
Title: Vice President
By /s/ [Signature Illegible]
-------------------------------------------
Title: Vice President
-16-
17
DEUTSCHE BANK AG, CHICAGO AND/OR
CAYMAN ISLANDS BRANCHES
By /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Title: Vice President
By /s/ Xxxx Xxxxxxxx
-------------------------------------------
Title: Associate
NATIONAL CITY BANK, INDIANA
By /s/ [Signature Illegible]
-------------------------------------------
Title: Vice President
-17-
18
ANNEX 1
EXHIBIT CC
Holdings Line of Business
The business of Steel Dynamics Holdings, Inc. is to be the ownership of
all of the issued and outstanding capital stock of the Borrower.
IDI Line of Business
The business of Iron Dynamics, Inc., if it is organized, is to construct,
own and operate one or more scrap substitute manufacturing facilities.
Transactions between IDI and the Borrower
Until such time as IDI incurs Indebtedness (as to which incurrence the
Credit Agreement requires the approval of the Required Lenders), the Borrower
may provide overhead, accounting services and management services to IDI without
cash compensation therefor.
19
ANNEX 2
SCHEDULE 3.15A-1996
[information regarding equity security ownership of the Borrower
by Control Group to be provided]
20
SCHEDULE I
STEEL DYNAMICS, INC.
Final Acceptance Certificate
The undersigned, who is __________ of Steel Dynamics, Inc. (the
"Borrower"), hereby certifies as follows:
1. The Final Acceptance Test referred to in Section 14.3 of the SMS
Documents (assuming (contrary to fact) that the modifications set forth on
Schedule II to such Seventh Amendment had been made to the SMS Documents) has
been completed for all portions of the Phase I Project supplied by SMS, in which
Test such portion of the Phase I Project met the guaranteed performance
specified in the SMS Documents (assuming (contrary to fact) that the
modifications set forth on Schedule II to such Seventh Amendment had been made
to the SMS Documents).
2. Capitalized undefined terms used herein shall have the meanings
assigned them in that certain Credit Agreement dated as of June 30,1994, between
the Borrower, Mellon Bank, N.A., as Agent and the lenders parties thereto from
time to time, as the same may be amended or modified.
WITNESS THE DUE execution hereof as of the _____ day of ____________,
1996.
___________________________________
Name:
Title:
21
SCHEDULE II
The modifications referred to in the definition of the term "Phase I Project
Acceptance" are the modifications set forth under the heading "SDI Request" in
each of items 1 through 7 of the Memo, dated September 10, 1996, from X. X.
Xxxxx of X. X. Xxxxxxxxx Co., Inc. to A. R. Xxxx of The Xxxxxxx Company, a copy
of which Memo is attached to and forms a part of this Schedule II.
