SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.01b
Execution Copy
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of April 19, 2005 (this “Amendment”), is among STEEL DYNAMICS, INC. (the “Borrower”), the Lenders (as defined below) signatories hereto, GENERAL ELECTRIC CAPITAL CORPORATION, as administrative agent (in such capacity, the “Administrative Agent”) and collateral agent for the Lenders, HARRIS TRUST AND SAVINGS BANK and NATIONAL CITY BANK, as documentation agents, and MORGAN STANLEY SENIOR FUNDING, INC., as lead arranger (in such capacity, the “Lead 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”), General Electric Capital Corporation, as Collateral Agent and Administrative Agent, Harris Trust and Savings Bank and National City Bank, as Documentation Agents, and Morgan Stanley Senior Funding, Inc., as Lead Arranger and Syndication Agent, are parties to the Credit Agreement, dated as of June 30, 2004 (as supplemented or otherwise modified prior to the date hereof, including as amended by the First Amendment dated as of October 26, 2004, 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 (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.
“Lead Arranger” is defined in the preamble.
“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 V. Article V of the Existing Credit Agreement is hereby amended in accordance with this Subpart 2.1. |
| SUBPART 2.1.1. Section 5.02(g)(iii) is hereby amended by substituting for the amount “$175,000,000” where it appears therein the amount “$275,000,000”. |
| SUBPART 2.1.2. Section 5.04(c) is hereby amended, commencing with the second fiscal quarter of the Borrower’s 2005 Fiscal Year, by substituting for the ratio “1.50:1.00” where it appears therein the ratio “1.10:1.00”. |
| 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 Lead 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. Consent. The Administrative Agent and the Lead Arranger shall have received counterparts of a consent substantially in the form of Schedule I to this Amendment, duly executed by each of the Loan Parties (other than the Borrower). |
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| SUBPART 3.1.3. Amendment Fee. The Administrative Agent shall have received, for the account of each Lender which shall have executed this Amendment before 5:00 p.m. (New York time) on April 19, 2005, an amendment fee in an aggregate amount equal to 0.125% of the aggregate amount of each such Lender’s Commitments. |
| SUBPART 3.1.4. Expenses. The Borrower shall have paid all expenses (including the fees and expenses of Shearman & Sterling LLP) incurred in connection with the preparation, negotiation and execution of this Amendment and foregoing matters relating to the Credit Agreement from and after the closing thereof to the extent invoiced. |
| SUBPART 3.1.5. Legal Details, etc. All documents executed or submitted pursuant hereto shall be satisfactory in form and substance to the Administrative Agent and the Lead Arranger and Shearman & Sterling LLP as counsel. The Administrative Agent, the Lead Arranger and counsel shall have received all information and such counterpart originals or such certified or other copies of such materials as the Administrative Agent, the Lead 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 Lead 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 Lead Arranger (including reasonable fees and out-of-pocket expenses of Shearman & Sterling LLP) 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. 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 4.3. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. |
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| SUBPART 4.4. 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 4.5. 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 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), provided that (i) Schedules 4.01(a) and 4.01(b) to the Credit Agreement shall be deemed to have been amended to delete the references to Iron Dynamics, Inc. and Dynamic Bar Products, LLC therein (since such subsidiaries have been merged into the Borrower) and (ii) Schedule 4.01(p) to the Credit Agreement shall be deemed to have been amended to delete item 9 thereto (since New Millennium Building System, LLC Retirement and Profit Sharing Plan has been combined into the Borrower’s analogous Plan) and (b) no Default has occurred and is continuing. |
| SUBPART 4.6. Modifications to this Amendment. This Amendment can not be amended, waived or otherwise modified except by an instrument in writing signed by the Borrower and the Required Lenders. |
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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/ Gary E. Heasley | |
| Name: Gary E. Heasley | ||
| Title: Vice President & CFO | ||
| GENERAL ELECTRIC CAPITAL CORPORATION, | ||
| as Administrative Agent and Collateral Agent and as a Lender | ||
| By | /s/ John Dale | |
| Name: John Dale | ||
| Title: Duly Authorized Signatory |
| MORGAN STANLEY SENIOR FUNDING, INC., | ||
| as Lead Arranger and Syndication Agent and as a Lender | ||
| By | /s/ Daniel Twenge | |
| Name: Daniel Twenge | ||
| Title: Vice President / Morgan Stanley Bank |
| HARRIS TRUST AND SAVINGS BANK, | ||
| as Documentation Agent and as a Lender | ||
| By | /s/ Thad Rasche | |
| Name: Thad D. Rasche | ||
| Title: Vice President |
| NATIONAL CITY BANK, | ||
| as Documentation Agent and as a Lender | ||
| By | /s/ Mark A. Minnick | |
| Name: Mark A. Minnick | ||
| Title: Senior Vice President |
| Bank of America, N.A. | ||
| By | /s/ David McCauley_ | |
| Name: David McCauley | ||
| Title: Vice President | ||
| Citicorp North America, Inc. | ||
| By | /s/ Cornelius P. Mahon_ | |
| Name: Cornelius P. Mahon | ||
| Title: Vice President | ||
| Bank One, a Division of JPMorgan Chase Bank, N.A. | ||
| By | /s/ Morgan Boudler | |
| Name: Morgan Boudler | ||
| Title: First Vice President | ||
| Wells Fargo Bank, N.A. | ||
| By | /s/ Paul A. O’Mara | |
| Name: Paul A. O’Mara | ||
| Title: Senior Vice President | ||
| UBS Loan Finance LLC, as Lender | ||
| By | /s/ Wilfred V. Saint | |
| Name: Wilfred V. Saint | ||
| Title: Director | ||
| By | /s/ Richard L. Tavrow | |
| Name: Richard L. Tavrow | ||
| Title: Director | ||
| PNC Bank, National Association | ||
| By | /s/ David B. Gookin | |
| Name: David B. Gookin | ||
| Title: Senior Vice President |
| The Northern Trust Company | ||
| By | /s/ Mark E. Taylor | |
| Name: Mark E. Taylor | ||
| Title: Vice President | ||
| Fifth Third Bank (Central Indiana) | ||
| By | /s/ David O’Neal | |
| Name: David O’Neal | ||
| Title: Vice President |
SCHEDULE I TO SECOND AMENDMENT
CONSENT
| Dated as of April 19, 2005 |
Each of the undersigned, as Guarantor under the Subsidiary Guaranty and Grantor under the Security Agreement, for the benefit of the Administrative Agent and the benefit of the Lenders parties to the Credit Agreement referred to in the foregoing Second Amendment, hereby consents to such Second Amendment and hereby confirms and agrees that (a) notwithstanding the effectiveness of such Second Amendment, each of the Subsidiary Guaranty and Security Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Subsidiary Guaranty and Security Agreement to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as amended by such Second Amendment, and (b) the Collateral Documents to which such Grantor is a party and all of the Collateral described therein do, and shall continue to, secure the payment of all of the Secured Obligations (in each case, as defined therein).
| SDI INVESTMENT COMPANY | ||
| By | /s/ Theresa E. Wagler | |
| Name: Theresa E. Wagler | ||
| Title: President | ||
| NEW MILLENNIUM BUILDING SYSTEMS, LLC | ||
| By: | Steel Dynamics, Inc., its sole member | |
| By: | /s/ Theresa E. Wagler | |
| Name: Theresa E. Wagler | ||
| Title: Assistant Secretary | ||
| STEEL DYNAMICS SALES NORTH AMERICA, INC. | ||
| By: | /s/ Gary E. Heasley | |
| Name: Gary E. Heasley | ||
| Title: Secretary & CFO | ||
