-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WugICBP9Rbt1Ju/1PyKDJmizslsn3PjlTDOYvK8aCm3K/jT2ZAa7Iw48TITPaQFZ d+QsEx7e8ePQpYSOqUJbCg== 0000950123-02-000940.txt : 20020414 0000950123-02-000940.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950123-02-000940 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20020128 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020205 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STEEL DYNAMICS INC CENTRAL INDEX KEY: 0001022671 STANDARD INDUSTRIAL CLASSIFICATION: STEEL WORKS, BLAST FURNACES ROLLING MILLS (COKE OVENS) [3312] IRS NUMBER: 351929476 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-21719 FILM NUMBER: 02527541 BUSINESS ADDRESS: STREET 1: 7030 POINTE INVERNESS WAY STREET 2: SUITE 310 CITY: FORT WAYNE STATE: IN ZIP: 46804 BUSINESS PHONE: 2194593553 MAIL ADDRESS: STREET 1: 7030 POINTE INVERNERSS WAY STREET 2: SUITE 310 CITY: FORT WAYNE STATE: IN ZIP: 46804 8-K 1 y57190e8-k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (date of earliest event reported): January 28, 2002 STEEL DYNAMICS, INC. (Exact name of registrant as specified in its charter) Indiana 0-21719 35-1929476 (State or other jurisdiction of (Commission File (IRS Employer Identification incorporation or organization) Number) No.) 6714 Pointe Inverness Way, Suite 200, Fort Wayne, Indiana 46804 (Address of principal executive officers) (Zip Code) Registrant's telephone number, including area code: 260-459-3553 (Former name or former address, if changed since last report) Not Applicable ITEM 5. OTHER EVENTS. On January 28, 2002, we and our subsidiary Iron Dynamics entered into an agreement (the "Settlement Agreement") with the lenders under Iron Dynamics' credit agreement to retire Iron Dynamics debt to these institutions. As of that date, the aggregate outstanding principal balance under that credit agreement was $58,986,841. The material terms of our Settlement Agreement may be summarized as follows: (a) We agreed to pay the Iron Dynamics lenders the sum of $15 million in cash on February 1, 2002, which we have already done. (b) We agreed to issue to the Iron Dynamics lenders an aggregate of $22 million of our common stock, in three separate installments on March 1, March 15 and March 29, 2002. We will determine the exact number of shares to be delivered on each of the three issuance dates by dividing $7,333,334 by the closing price of our stock on the Nasdaq National Market on the second business day prior to each of the three issuance dates. We also granted the lenders registration rights with respect to this common stock under a registration rights agreement, which requires us to have in place an effective registration statement covering the shares, as issued, and affords the lenders certain other resale rights. (c) If we restart the Iron Dynamics facility before January 28, 2007, we agreed to make certain additional payments ("Additional Payments") to the Iron Dynamics lenders, if the operations at the re-started facility generate positive EBITDA (as defined in the Settlement Agreement). Within 30 days after the end of any fiscal year in which the facility generates positive EBITDA, we would pay Additional Payments in an amount equal to 50% of (i) such positive EBITDA, minus (ii) any income tax liability as a result of such positive EBITDA. We will not be required to pay more than $21,986,841 in Additional Payments in the aggregate. If we do not re-start the Iron Dynamics facility before January 28, 2007, our obligation to make these contingent Additional Payments will terminate. (d) We guaranteed certain payments under the Iron Dynamics' credit facility. The $15 million payment by us on February 1, 2002, however, constituted a direct credit against and fully discharged our obligations under this guaranty. (e) Compliance with the payment obligations described in paragraphs (a) and (b) above will constitute full and final settlement of (i) all of Iron Dynamics' obligations under the Iron Dynamics' credit agreement and (ii) all of our obligations under our guarantees of Iron Dynamics' obligations under the Iron Dynamics credit agreement, including the guarantee described in paragraph (d) above, and the Iron Dynamics credit agreement will terminate. In addition, we entered into an amendment and limited waiver to our existing Amended and Restated Credit Agreement, dated as of June 30, 1997 (the "Secured Credit Agreement"), and an amendment and limited waiver to our Unsecured Credit Agreement dated as of May 5, 2000 (the "Unsecured Credit Agreement"), pursuant to which our lenders agreed, among other things, to waive our compliance with the leverage ratio covenant contained in those credit agreements from December 31, 2001 through but not including March 31, 2002, which may be extended through April 30, 2002, upon the satisfaction of certain conditions. Without such waivers, we would have been in default under our Secured Credit Agreement and our Unsecured Credit Agreements. In connection with the amendments and waivers we have agreed to pay an aggregate waiver fee of $2,125,000. The Settlement Agreement, the Registration Rights Agreement, the Guaranty and Suretyship Agreement, the Fifth Amendment to our (Secured) Credit Agreement and the Third Amendment to our (Unsecured) Credit Agreement are annexed as Exhibits 2.1, 4.1, 10.1b(9), 10.1a(5) and 10.1c(3), respectively, to this Form 8-K, and the foregoing description of the terms, conditions, qualifications, rights and obligations described by these agreements is qualified in its entirety by reference to such exhibits. 1 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) EXHIBITS. *2.1 Agreement (Settlement Agreement), dated as of January 28, 2002, by and among Iron Dynamics, Inc., Steel Dynamics, Inc., various signatory lender banks, and Mellon Bank, N.A. as Agent for the Iron Dynamics lenders *4.1 Registration Rights Agreement, dated as of January 28, 2002, among Steel Dynamics, Inc., various financial institutions which are to receive Steel Dynamics common stock under the Settlement Agreement referred to in Exhibit 10.41, and Mellon Bank, N.A., as Agent *10.1a(5) Fifth Amendment, dated as of December 31, 2001, to Steel Dynamics, Inc. Amended and Restated Credit Agreement, dated as of June 30, 1997 *10.1b(9) Guaranty and Suretyship Agreement, dated as of January 28, 2002, executed by Steel Dynamics, Inc. in favor of various Iron Dynamics lenders under the Iron Dynamics December 31, 1997 Credit Agreement *10.1c(2) Second Amendment, dated as of July 20, 2001, to the Steel Dynamics Unsecured Credit Agreement, dated as of May 5, 2000, by and among Steel Dynamics, Inc., the lenders listed as parties, and Mellon Bank, N.A., as Agent *10.1c(3) Third Amendment, dated as of December 31, 2001, to the Steel Dynamics Unsecured Credit Agreement, dated as of May 5, 2000, by and among Steel Dynamics, Inc., the lenders listed as parties, and Mellon Bank, N.A., as Agent - -------------------- *Filed herewith SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereto duly authorized. STEEL DYNAMICS, INC. Date: February ____, 2002 By: /s/ Tracy L. Shellabarger ----------------------------- Tracy L. Shellabarger Title: Secretary 2 INDEX TO EXHIBITS Exhibit Description - ------- ----------- *2.1 Agreement (Settlement Agreement), dated as of January 28, 2002, by and among Iron Dynamics, Inc., Steel Dynamics, Inc., various signatory lender banks, and Mellon Bank, N.A. as Agent for the Iron Dynamics lenders *4.1 Registration Rights Agreement, dated as of January 28, 2002, among Steel Dynamics, Inc., various financial institutions which are to receive Steel Dynamics common stock under the Settlement Agreement referred to in Exhibit 10.41, and Mellon Bank, N.A., as Agent *10.1a(5) Fifth Amendment, dated as of December 31, 2001, to Steel Dynamics, Inc. Amended and Restated Credit Agreement, dated as of June 30, 1997 *10.1b(9) Guaranty and Suretyship Agreement, dated as of January 28, 2002, executed by Steel Dynamics, Inc. in favor of various Iron Dynamics lenders under the Iron Dynamics December 31, 1997 Credit Agreement *10.1c(2) Second Amendment, dated as of July 20, 2001, to the Steel Dynamics Unsecured Credit Agreement, dated as of May 5, 2000, by and among Steel Dynamics, Inc., the lenders listed as parties, and Mellon Bank, N.A., as Agent *10.1c(3) Third Amendment, dated as of December 31, 2001, to the Steel Dynamics Unsecured Credit Agreement, dated as of May 5, 2000, by and among Steel Dynamics, Inc., the lenders listed as parties, and Mellon Bank, N.A., as Agent - -------------------- *Filed herewith 3 EX-2.1 3 y57190ex2-1.txt AGREEMENT (SETTLEMENT AGREEMENT) Exhibit 2.1 AGREEMENT THIS AGREEMENT is made and entered into as of the 28th day of January, 2002 (the "Effective Date"), by and among IRON DYNAMICS, INC., an Indiana corporation ("IDI"), STEEL DYNAMICS, INC., an Indiana corporation ("SDI"), the lender banks who are parties to this Agreement (the "IDI Lenders") and MELLON BANK, N. A., as Agent for the IDI Lenders under the IDI Credit Agreement referred to below (the "Agent"), under the following circumstances: A. IDI, the IDI Lenders and the Agent are parties to that certain Credit Agreement dated as of December 31, 1997, as amended by the Amendment and Waiver, dated as of June 10, 1998, the Second Amendment to Credit Agreement, dated as of March 15, 1999, the Third Amendment and Waiver to Credit Agreement, dated as of June 30, 1999, the Fourth Amendment to Credit Agreement, dated as of December 21, 1999, the Fifth Amendment and Waiver to Credit Agreement, dated as of March 29, 2000, the Sixth Amendment to Credit Agreement, dated as of November 30, 2000, the Seventh Amendment to Credit Agreement, dated as of March 15, 2001 and the Eighth Amendment to Credit Agreement dated as of July 20, 2001 (as so amended, the "IDI Credit Agreement"), pursuant to which the IDI Lenders have extended credit to IDI. B. SDI as borrower, the IDI Lenders together with certain other lender banks not parties to this Agreement (collectively the "SDI Lenders") and Mellon Bank, N.A. as agent for the IDI Lenders are parties to that certain Credit Agreement (Amended and Restated), dated as of June 30, 1994 and amended and restated as of June 30, 1997 (as so amended and restated, and as further amended by the First, Second, Third and Fourth Amendments thereto dated as of May 4, 1998, March 1, 2000, March 15, 2001 and July 20, 2001, respectively, the "SDI Credit Agreement"), pursuant to which the SDI Lenders have extended credit to SDI. C. SDI as borrower, Kreditanstalt Fur Wiederaufbau and GE Capital CFE, Inc. as lenders (collectively the "SDI Unsecured Lenders") and Mellon Bank, N.A., as agent for the SDI Unsecured Lenders are parties to that certain Credit Agreement dated as of May 5, 2000, as amended as of March 15, 2001, as modified by the Consent and Agreement dated as of July 10, 2001, and as further amended by a Second Amendment dated as of July 20, 2001 (as so amended the "SDI Unsecured Credit Agreement"), pursuant to which the SDI Unsecured Lenders have extended credit to SDI. D. Effective December 31, 2001, SDI was in violation of the leverage ratio covenant contained in the SDI Credit Agreement and in the SDI Unsecured Credit Agreement, and SDI has requested the SDI Lenders (including the IDI Lenders), the SDI Unsecured Lenders and the Agent to execute and deliver a Fifth Amendment to Credit Agreement and Limited Waiver ("Fifth Amendment and Waiver") and a Third Amendment to Unsecured Credit Agreement and Limited Waiver ("Third Amendment and Waiver"), respectively (the Fifth Amendment and Waiver and the Third Amendment and Waiver are collectively referred to herein as the "Waivers") in the forms attached hereto as Exhibit "A" and Exhibit "B." E. The IDI Lenders and the SDI Unsecured Lenders have agreed to execute and deliver the Waivers subject to, and in consideration of the performance by IDI and SDI of the agreements set forth in this Agreement. NOW, THEREFORE, in consideration of the covenants and promises herein, the parties agree as follows: 1. SDI, the IDI Lenders and the Agent agree to execute and deliver the Fifth Amendment and Waiver on the Effective Date, and SDI, the SDI Unsecured Lenders and the Agent agree to execute and deliver the Third Amendment and Waiver on said Effective Date. 2. SDI agrees to execute and deliver to the IDI Lenders a Guaranty and Suretyship Agreement in the form attached hereto as Exhibit "C" (the "2002 Guaranty") on the Effective Date. 3. SDI shall pay, or shall cause IDI to pay, to the IDI Lenders the sum of Fifteen Million Dollars ($15,000,000) in cash on February 1, 2002, such amount to be applied ratably to the outstanding principal balance of Loans under the IDI Credit Agreement. With respect to the 2002 Guaranty, the Guaranty and Suretyship Agreement dated as of July 20, 2001 and the Guaranty and Suretyship Agreement dated as of March 15, 2001 (collectively the "SDI Guaranties"), in each case made by SDI in favor of the IDI Lenders, the $15 million payment made pursuant to the immediately preceding sentence shall be deemed to apply to installments of Loans under the IDI Credit Agreement so as to reduce the liability of SDI under the SDI Guaranties in an aggregate amount of $15 million. 4. SDI shall deliver to the IDI Lenders on a pro rata basis determined in accordance with each IDI Lender's proportionate share of the total Commitments under the IDI Credit Agreement, SDI common stock which shall be covered by an effective "resale shelf" registration statement to be filed by SDI on SEC Form S-3, at the times, in the amounts and subject to the following provisions: a. On each of March 1, 2002, March 15, 2002 and March 29, 2002, SDI will issue to the IDI Lenders the number of shares of its common stock determined by dividing the closing price of SDI stock on the NASDAQ National Market on the second business day prior to each of said three issue dates, into $7,333,334, and rounding up to the next whole number of shares. b. SDI will maintain the effectiveness of the registration statement for the maximum period of time permitted by SEC Rule 415 (a)(2), namely two years from and after the initial effective date of the registration statement in March, 2002, subject to earlier termination if and when all of the shares issued to the IDI Lenders have been sold; provided, however, that in the event that, at any time during the effectiveness of the shelf registration statement, SDI shall have elected to register 2 a primary equity offering of its own, as contemplated by Paragraph 4d, SDI shall be entitled, upon not less than 10-days written notice to the IDI Lenders, to discontinue the effectiveness of the shelf registration statement and to require the IDI Lenders to discontinue any sales of SDI shares pursuant to the shelf registration statement, for such period, if any, as may be required in order to enable SDI to lawfully effect such transaction (but such period shall in no event be longer than 90 days or commence prior to June 15, 2002), following which the effectiveness of the registration statement shall be reinstated and the IDI Lenders shall be entitled to resume their sales pursuant thereto. It shall be SDI's responsibility to notify the IDI Lenders when, if at all, such sales must be discontinued and when they may be resumed consistent with the foregoing limitations. c. Each IDI Lender may sell any or all of the SDI shares it receives pursuant to subparagraph 4a above, provided, however, that during the period commencing on March 1, 2002 and ending on May 31, 2002 (the "Restriction Period"), the IDI Lenders shall not sell, in aggregate, more than 30,000 shares on any single trading day ("trading day" being defined to mean any day the NASDAQ national market is open for business), excluding any exempt private off the market transactions. d. If SDI should elect to register a primary equity offering of its own, SDI will afford to those IDI Lenders wishing to avail themselves of the opportunity, "piggyback" registration rights to sell a portion or all of their remaining SDI shares in connection with such offering, it being understood that such opportunity shall be elective with each IDI Lender. Following such offering, any IDI Lender having remaining SDI shares shall be entitled to resume selling such shares pursuant the shelf registration statement in the manner contemplated in Paragraph 4b. e. Each IDI Lender agrees to notify SDI in writing, following each sale by such IDI Lender of SDI shares, of the number of shares so sold and the date of each such sale. f. In connection with the issuance of the SDI shares described in Paragraph 4a and the "resale shelf" registration statement to be effected by SDI in connection therewith, SDI shall deliver or cause to be delivered to the IDI Lenders, dated concurrently with the delivery of the SDI shares and the effectiveness of the registration statement, addressed to each IDI Lender, a legal opinion in substantially the form attached hereto as Exhibit "D". g. The IDI Lenders, the Agent and SDI each agree to execute and deliver a registration rights agreement (the "Registration Rights Agreement") in the form attached hereto as Exhibit "E" not later than February 28, 2002. 5. In the event that SDI should determine at some future date, in its sole discretion, to re-start the IDI facility (whether as a subsidiary corporation of SDI or as an operating division of 3 SDI) and in the further event that operations at the IDI facility generate positive EBITDA ("IDI EBITDA") (as defined below) in any fiscal year, then within 30 days after the end of such fiscal year, SDI shall pay to the IDI Lenders, pro rata in accordance with the calculation contemplated by Paragraph 4, an amount equal to 50% of (i) such IDI EBITDA, minus (ii) any accrued income tax liability of SDI as a result of such IDI EBITDA (herein "Additional Bank Payments"), and such Additional Bank Payments shall continue until such time as the IDI Lenders shall have received an aggregate dollar amount equal to $21,986,841. The transfer price to be paid by SDI to IDI for the product produced at the IDI facility shall be set quarterly in an amount equal to the 6-week average price for pig iron (RN Steel-Making Grade) as published in the most recent issue of Ryan's Notes, a bi-weekly publication of ferrous and non-ferrous news and prices. For purposes of this Paragraph 5, the term "IDI EBITDA" means in any fiscal year of IDI (or in any fiscal year of SDI should IDI become an operating division of SDI rather than remaining a subsidiary of SDI), IDI's earnings before interest, taxes, depreciation and amortization, determined in accordance with generally accepted accounting principles, consistently applied, calculated, and certified to the IDI Lenders by, an officer of SDI. IDI EBITDA shall not be affected by any "extraordinary items" (as that term is defined by GAAP) of gain or loss, nor shall IDI EBITDA be affected by the gain or loss from the sale of assets not in the ordinary course of business that does not constitute an "extraordinary item" of gain or loss as defined by GAAP. It is further understood and agreed that for purposes of determining IDI EBITDA, any costs incurred by SDI on behalf of IDI for the services described in Schedule 1 to that certain Administration Agreement between SDI and IDI dated as of June 10, 1998 ("Administration Agreement"), will be allocated to IDI on the basis of the actual costs of such services, without markup, consistent with the past practice of SDI and IDI prior to the date hereof under the Administration Agreement. If SDI does re-start the IDI facility, the IDI Lenders shall have the right to examine IDI's books and records at any reasonable time during normal business hours, having first given SDI at least 48 hours advance notice, and the IDI Lenders shall have the right, at their own expense, to cause outside consultants or auditors selected by the IDI Lenders to examine and/or audit such books and records at any reasonable time during normal business hours having first given SDI 7 days advance notice. In addition, if SDI re-starts the IDI facility, SDI agrees to provide to the IDI Lenders from and after the date of such re-start, and for so long thereafter as the IDI facility remains in operation, quarterly internally prepared consolidating statements of income, cash flows and changes in stockholders' equity of IDI for such fiscal quarter and for the period from the beginning of the fiscal year to the end of such fiscal quarter and internally prepared consolidating balance sheets of IDI as of the close of such fiscal quarter, and notes to each, in each case which would be required to be included in a Form 10-Q quarterly report if IDI were required to file such a report under the Securities Exchange Act of 1934, all in reasonable detail, setting forth in comparative form the corresponding figures for the same periods or as of the same date during the preceding fiscal year (except for the balance sheet, which shall set forth in comparative form the corresponding balance sheet as of the prior fiscal year end). Such financial statements shall be certified by an officer of SDI as presenting fairly in all material respects the financial position of IDI as of the end of such fiscal quarter and the results of operations and cash flows and changes in stockholders' equity for such fiscal year, in conformity with GAAP, subject to normal and recurring year-end adjustments. 4 SDI agrees that the IDI facility shall continue to be owned at all times by IDI as a subsidiary of SDI or by SDI, in which case the IDI facility shall be an operating division of SDI. If SDI does not re-start and operate the IDI facility (whether as a subsidiary corporation to SDI or as an operating division of SDI) within five (5) years from the Effective Date, then on the fifth anniversary of the Effective Date, SDI's obligations to make Additional Bank Payments under this Paragraph 5 shall terminate, and SDI and IDI shall have no further obligations under this Agreement. 6. Following the payment referenced in Paragraph 3 above, IDI shall no longer be obligated to make its regularly scheduled revolving loan principal installment of $421,052.63 on February 28, 2002. IDI agrees to continue making monthly interest payments on the outstanding principal amount due under the IDI Credit Agreement (as reduced by the payments contemplated in Paragraphs 3 and 4 above) through March 29, 2002. From and after March 29, 2002, upon compliance by SDI and IDI with all other obligations to be performed by them on or prior to such date under Paragraphs 1, 2, 3, 4a, 4b, 4f and 4g, no further interest payments shall be made to the IDI Lenders. The payments referenced in Paragraphs 3 and 4 above shall constitute full and final settlement of (i) all of IDI's obligations and liabilities to the IDI Lenders under the IDI Credit Agreement, and (ii) all of SDI's obligations to the IDI Lenders under any existing guaranties of the IDI Indebtedness, including, without limitation, the Amended Guaranty referred to in Paragraph 2 above, subject only to SDI's obligation to make Additional Bank Payments as contemplated in Paragraph 5 above. Upon the issuance by SDI of the final installment of its shares to the IDI Lenders on March 29, 2002 as contemplated in Paragraph 4a, and compliance by SDI and IDI with all other obligations to be performed by them on or prior to such date under Paragraphs 1, 2, 3, 4b, 4f and 4g, the IDI Credit Agreement and all related security agreements, and all SDI Guaranties will terminate, all security interests held by the Agent for the benefit of the IDI Lenders will be released, and all promissory notes executed by IDI in favor of the IDI Lenders pursuant to the IDI Credit Agreement will be returned to IDI marked paid in full. 7. SDI agrees that all of its obligations under this Agreement shall be permitted obligations under any subsequent credit agreement to which it may be a party in connection with the refinancing of SDI's bank debt currently held by the SDI Lenders and the SDI Unsecured Lenders, respectively. SDI and IDI also agree that they will not enter into any agreement that would prohibit SDI or IDI from performing its obligations hereunder. 8. Each of the Agent and the IDI Lenders agrees to keep confidential any information relating to IDI or to IDI operations received by it pursuant to or in connection with this Agreement which is (a) trade information which the Agent and the IDI Lenders reasonably expect that IDI would want to keep confidential, (b) technical information with respect to the equipment or operations of the IDI facility, (c) information contained in any contracts to which IDI is a party and which have been provided to the IDI Lenders, (d) financial or environmental information or (e) information which is clearly marked "CONFIDENTIAL"; provided, however, that this Paragraph 8 shall not be construed to prevent the Agent or any IDI Lender from disclosing such information (i) to any Affiliate (as that term is defined in the IDI Credit 5 Agreement) or advisor that shall agree to be bound by this obligation of confidentiality, (ii) upon the order of any court or administrative agency of competent jurisdiction, (iii) upon the request or demand of any regulatory agency or authority having jurisdiction over the Agent or such IDI Lender (whether or not such request or demand has the force of law), (iv) that has been publicly disclosed, other than from a breach of this provision by the Agent or any IDI Lender, (v) that has been obtained from any person that is neither a party to this Agreement nor an Affiliate of any such party or (vi) as expressly contemplated by this Agreement. SDI and IDI acknowledge that representatives of the IDI Lenders may visit the IDI facility and collect information relating to IDI operations, subject to the terms of this Paragraph 8. 9. No amendment to or waiver of any provision of this Agreement shall in any event be effective unless in a writing manually signed by SDI, IDI, the Agent and all of the IDI Lenders. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 10. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, provided however that SDI may not assign or delegate its obligations hereunder or duties hereunder without the written consent of all of the IDI Lenders (which, in the case of a business combination involving SDI, shall not be unreasonably withheld). 11. SDI agrees that the costs and expenses of the IDI Lenders and the Agent (including reasonable attorneys' fees) incurred by them in connection with the negotiation, execution, delivery, and performance of this Agreement through the date of release of security interests in IDI assets as contemplated in Paragraph 6 shall be deemed to be costs and expenses of the Agent and the IDI Lenders reimbursable under the SDI Credit Agreement and shall be reimbursed accordingly. 12. This Agreement 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. 13. This Agreement 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. 6 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. IRON DYNAMICS, INC. By /s/ Keith E. Busse ------------------------------------ Title: President & Chief Executive Officer STEEL DYNAMICS, INC. By /s/ Keith E. Busse ------------------------------------ Title: President & Chief Executive Officer MELLON BANK, N.A., as Agent By /s/ Roger N. Stanier ------------------------------------ Title: Duly Authorized Signitory GE CAPITAL CFE, INC. By /s/ Michael Smith ------------------------------------ Title: Vice President KREDITANSTALT FUR WIEDERAUFBAU By /s/ Illegible ------------------------------------ Title: By /s/ Illegible ------------------------------------ Title: 7 COMERICA BANK By /s/ James B. Haeffner ------------------------------------ Title: First Vice President NATIONAL CITY BANK, INDIANA By /s/ Larry Mayers ------------------------------------ Title: Senior Vice President LASALLE BANK NATIONAL ASSOCIATION By /s/ James Thompson ------------------------------------ Title: Group Senior Vice President 8 EX-4.1 4 y57190ex4-1.txt REGISTRATION RIGHTS AGREEMENT Exhibit 4.1 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated as of ______________, 2002 (this "Agreement"), among STEEL DYNAMICS, INC., an Indiana corporation (the "Company"), the financial institutions who are parties to this Agreement (the "Lenders"), and Mellon Bank, N.A., as Agent for the Lenders. WHEREAS, the parties hereto have entered into an Agreement, dated as January 28, 2002 (the "Settlement Agreement"), which requires that this Agreement be entered into; and WHEREAS, capitalized terms used herein without definition are defined in Section 10. NOW, THEREFORE, the parties hereto, in consideration of the [Settlement Agreement], and intending to be legally bound hereby, agree as follows. 1. Shelf Registration. The Company shall effect the registration under the Securities Act of the Registrable Securities by the filing, as promptly as practicable after the date hereof, of a registration statement on Form S-3 or another form appropriate to permit the disposition by each Lender or its designee (in accordance with each Lender's intended method or methods of disposition ) consistent with such registration) of the Registrable Securities (the "Shelf Registration Statement") and by causing the Shelf Registration Statement to become effective with respect to particular Registrable Securities not later than the date of delivery thereof under the [Settlement Agreement ] and shall cause the Shelf Registration Statement to remain effective as provided in Section 3 until the earlier of two years from its effective date or until all Registrable Securities have been sold. Each Lender shall promptly provide to the Company such information concerning its intended methods of distribution and such other information concerning such Lender as shall be necessary for inclusion in such registration statement. The Company will pay all Registration Expenses in connection with any registration under this Section 1; provided that any seller thereunder shall pay all Registration Expenses to the extent required to be paid by such seller under applicable law. Until the later to occur of June 15, 2002 and the date which is 105 days after the effective date of the Shelf Registration Statement, the Company shall not initiate a registration of any of its securities for its own account. Thereafter, subject to the rights of holders of Registrable Securities under Section 2, (a) if the Board determines in its good faith judgment, after consultation with a firm of nationally recognized underwriters, that there will be an adverse effect on a then contemplated public offering of the Company's equity securities, the Company may, on not less than 10 days' written notice to the holders of the Registrable Securities, require such holders to cease making sales under the Shelf Registration Statement during a period not exceeding ninety days in length, such period to end not later than the thirtieth day following the effective date of the registration statement relating to the Company's public offering, provided that at all times the Company is in good faith using all reasonable efforts to cause such registration statement to become effective or to maintain such registration statement's effectiveness. 2. Incidental Registrations. If the Company at any time proposes to register any of its equity securities under the Securities Act (other than pursuant to Section 1 or a registration on Form S-4 or S-8 or any successor form), and the registration form to be used may be used for the registration of Registrable Securities, it will give prompt written notice to all holders of Registrable Securities of its intention to do so. Upon the written request of any such holder made within 15 days after the receipt of any such notice (which request shall specify the number of Registrable Securities intended to be disposed of by such holder and the intended method or methods of disposition thereof), the Company will effect the registration under the Securities Act of all such Registrable Securities in accordance with such intended method or methods of disposition, provided that if, at any time after giving written notice of its intention to register any equity securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such equity securities, the Company may, at its election, give written notice of such determination to each holder of Registrable Securities and, thereupon, shall not be obligated to register any Registrable Securities in connection with such registration (but shall nevertheless pay the Registration Expenses in connection therewith), without prejudice, however, to the obligations of the Company to maintain the effectiveness of, and the rights of the holders of the Registrable Securities to effect sales under, the Shelf Registration Statement. 3. Registration Procedures. Whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 1 and 2, the Company will promptly: (a) prepare and file with the Commission a registration statement with respect to such Registrable Securities, make all required filings with the NASD and cause such registration statement to become effective as promptly as practicable thereafter; (b) prepare and promptly file with the Commission such amendments and post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith, and such reports under the Exchange Act to be incorporated by reference therein, as may be necessary to keep such registration statement effective for so long as is required to comply with the provisions of the Securities Act and to complete the disposition of all securities covered by such registration statement in accordance with the intended method or methods of disposition thereof, and in the case of the Shelf Registration Statement for the period required by Section 1 hereof; (c) furnish to counsel selected by the Agent (whether or not the Agent is participating as a selling stockholder) and each seller of Registrable Securities copies of all documents proposed to be filed with the Commission in connection with such registration (or in the case of the initial filing of a registration statement with the Commission, within five business days of such initial filing), which documents will be subject to the review of such counsel and each seller, and the Company shall not file any amendment or post-effective amendments or supplement to such registration statement or the prospectus used in connection therewith to which any such seller shall have reasonably objected in writing within two days of receipt of such registration statement, prospectus, amendment or supplement on the grounds that such document does not comply (explaining why) in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder; -2- (d) furnish to each seller of Registrable Securities, without charge, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and documents filed therewith) and such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller in accordance with the intended method or methods of disposition thereof; (e) use its best efforts to register or qualify such Registrable Securities covered by such registration statement under the securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be necessary or advisable to enable such seller to consummate the disposition of such Registrable Securities in such jurisdictions in accordance with the intended method or methods of disposition thereof, provided that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, subject itself to taxation in any jurisdiction wherein it is not so subject, or take any action which would subject it to general service of process in any jurisdiction wherein it is not so subject; (f) use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities in accordance with the intended method or methods of disposition thereof; (g) furnish to any seller of Registrable Securities who requests in writing a signed counterpart, addressed to the seller, of an opinion of counsel for the Company experienced in securities law matters, dated the effective date of the registration statement (and, if such registration includes an underwritten public offering, the date of the closing under the underwriting agreement), covering such matters as are customarily covered in opinions of issuer's counsel delivered in connection with non- underwritten resales of securities registered under Form S-3 or other comparable form or, if applicable, to the underwriters in an underwritten public offering of securities and such other matters as the Agent may reasonably request; (h) notify each seller of any Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event or existence of any fact as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and, as promptly as is practicable, prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such -3- prospectus, or prepare and file under the Exchange Act a report to be incorporated by reference in the prospectus, as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; (i) otherwise comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement of the Company (in form complying with the provisions of Rule 158 under the Securities Act) covering the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date of the registration statement; (j) notify each seller of any Registrable Securities covered by such registration statement (i) when the prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission for amendments or supplements to such registration statement or to amend or to supplement such prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for that purpose and (iv) of the suspension of the qualification of such securities for offering or sale in any jurisdiction, or of the institution of any proceedings for any of such purposes; (k) use every reasonable effort to obtain the lifting of any stop order that might be issued suspending the effectiveness of such registration statement at the earliest possible moment; (l) take all actions necessary to (i) (A) to list such Registrable Securities on any securities exchange on which the equity securities of the Company are then listed or (B) if no such equity securities are then listed, to secure designation of such securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ authorization for such Registrable Securities, and, without limiting the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD, and (ii) to provide a transfer agent and registrar for such Registrable Securities not later than the effective date of such registration statement; (m) enter into such agreements and take such other actions as the sellers of Registrable Securities or the underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities; and (n) take all other steps necessary to effect the registration of such Registrable Securities contemplated hereby. The Company may require each seller of any Registrable Securities as to which any registration is being effected to execute customary powers-of-attorney, custody agreements and other customary agreements appropriate to facilitate the offering and to furnish to the Company -4- such information regarding such seller, its ownership of Registrable Securities and the disposition of such Registrable Securities as the Company may from time to time reasonably request in writing and as shall be required by law in connection therewith. Each such holder agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not materially misleading. The Company agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which refers to (in a capacity as a selling stockholder) any seller of any Registrable Securities covered thereby by name, or otherwise identifies such seller as the holder of any Registrable Securities, without the consent of such seller, such consent not to be unreasonably withheld, unless such disclosure is required by law. Each holder of Registrable Securities agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(h), such holder will promptly discontinue such holder's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(h). If so directed by the Company, each holder of Registrable Securities will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, in such holder's possession of the prospectus covering such Registrable Securities at the time of receipt of such notice. In the event that the Company shall give any such notice, the period mentioned in Section 1 (if applicable) and Section 3(b) during which the effectiveness of the registration statement must be maintained by the Company shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 3(h). 4. Underwritten Offerings. 4.1. Underwriting Agreement. If requested by the underwriters for any underwritten offering by holders of Registrable Securities pursuant to Section 1 or Section 2, the Company shall enter into an underwriting agreement with the underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the Agent and to the underwriters and to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in agreements of this type, including, without limitation, indemnities to the effect and to the extent provided in Section 9. The holders of Registrable Securities to be distributed by such underwriters shall be parties to such underwriting agreement and may, at their option, require that any or all of the representations and warranties by, and the agreements on the part of, the Company to and for the benefit of such underwriters be made to and for the benefit of such holders of Registrable Securities and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall also be conditions precedent to the obligations of such holders of Registrable Securities. No underwriting agreement (or other agreement in connection with such offering) shall require any holder of Registrable Securities (i) to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such holder, the ownership of such holder's Registrable Securities, such -5- holder's intended method or methods of disposition, such other customary representations, warranties and agreements with respect to such holder and such holder's securities as requested by the underwriters, and any other representation required by law or (ii) to furnish any indemnity to any Person including the underwriters, their directors and officers and each Person, if any, who controls (within Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriters which is broader than the indemnity furnished by such holder in Section 9.2. 4.2. Selection of Underwriters. If the Company at any time proposes to register any of its securities under the Securities Act for sale for its own account pursuant to an underwritten offering, the Company will have the right to select the managing underwriter (which shall be of nationally recognized standing) to administer the offering. 5. Notice of Sales. Each holder of Registrable Securities shall notify the Company in writing within 10 days after any sale or other disposition by it of Registrable Securities, whether or not pursuant to a registration statement hereunder, of the date of such sale or disposition, the number of shares sold or disposed of and the method of sale or disposition. 6. Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, the Company will give the holders of such Registrable Securities and their underwriters, if any, and their respective counsel and accountants the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and will give each of them such access to the financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have issued audit reports on its financial statements as shall be reasonably requested by such holders in connection with such registration statement. 7. [Intentionally omitted.] 8. Rule 144 etc. During the period the Company is required to maintain the effectiveness of the Shelf Registration Statement hereunder, the Company will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder, and will take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such rule may be amended from time to time, or (b) any successor rule or regulation. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such requirements. 9. Indemnification. 9.1. Indemnification by the Company. In the event of any registration of any Registrable Securities pursuant to this Agreement, the Company will indemnify and hold harmless (a) the seller of such Registrable Securities, (b) the directors, officers, partners, employees, agents and Affiliates of such seller, (c) each Person who participates as an underwriter in the offering or sale -6- of such securities and (d) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such seller, partner or underwriter against any and all losses, claims, damages or liabilities (or actions or proceedings in respect thereof), joint or several, directly or indirectly based upon or arising out of (i) any untrue statement or alleged untrue statement of a fact contained or incorporated by reference in any registration statement under which such Registrable Securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein or used in connection with the offering of securities covered thereby, or any amendment or supplement thereto, or (ii) any omission or alleged omission to state a fact required to be stated or incorporated by reference therein or necessary to make the statements contained or incorporated by reference therein not misleading; and the Company will reimburse each such indemnified party for any legal or any other expenses reasonably incurred by them in connection with investigating, preparing, pursuing or defending any such loss, claim, damage, liability, action or proceeding, except insofar as any such loss, claim, damage, liability, action, proceeding or expense arises out of or is based upon an untrue statement or omission made or incorporated by reference in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such seller expressly for use in the preparation thereof, it being agreed that, except for issues pertaining to a specific seller (in which case this limitation shall not apply), such reimbursement will be limited, as to legal or accounting fees, to the costs and expenses of a single law firm and/or a single accounting firm for all the sellers. Such indemnity shall remain in full force and effect, regardless of any investigation made by such indemnified party and shall survive the transfer of such Registrable Securities by such seller. The indemnity agreement contained in this Section 9.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld). 9.2. Indemnification by the Sellers. Each seller of Registrable Securities included in any registration statement filed pursuant to Section 1 or 2 shall indemnify and hold harmless, severally, not jointly, in the same manner and to the same extent as set forth in Section 9.1, the Company, its directors and officers and each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company with respect to any statement or alleged statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such seller expressly for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling Person and shall survive the transfer of such Registrable Securities by such seller. The indemnity agreement contained in this Section 9.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such seller (which consent shall not be unreasonably withheld). The Company and the holders of Registrable Securities hereby acknowledge and agree that for all purposes of this Agreement the only information furnished or to be furnished to the Company -7- for use in any such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such holder and its Affiliates, (b) the name and address of such holder and (c) other information with respect to such holder as required by law. The indemnity provided by each seller of Registrable Securities under this Section 9.2 shall be limited in amount to the net amount of proceeds actually received by such seller from the sale of Registrable Securities pursuant to such registration statement. 9.3. Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding paragraphs of this Section 9, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action or proceeding, provided that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 9, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party will be entitled to participate therein and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof except for the reasonable fees and expenses of any counsel retained by such indemnified party to monitor such action or proceeding, subject only to the limitation on the number of counsel described in Section 9.1. Notwithstanding the foregoing, if such indemnified party and the indemnifying party reasonably determine, based upon advice of their respective independent counsel, that a conflict of interest may exist between the indemnified party and the indemnifying party with respect to such action and that it is advisable for such indemnified party to be represented by separate counsel, such indemnified party may retain other counsel, reasonably satisfactory to the indemnifying party, to represent such indemnified party, and the indemnifying party shall pay all reasonable fees and expenses of such counsel. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of such indemnified party, which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. 9.4. Other Indemnification. Indemnification similar to that specified in the preceding paragraphs of this Section 9 (with appropriate modifications) shall be given by the Company and each seller of Registrable Securities with respect to any required registration (other than under the Securities Act) or other qualification of such Registrable Securities under any federal or state law or regulation of any governmental authority. 9.5. Indemnification Payments. Any indemnification required to be made by an indemnifying party pursuant to this Section 9 shall be made by periodic payments to the indemnified party during the course of the action or proceeding, as and when bills are received by such indemnifying party with respect to an indemnifiable loss, claim, damage, liability or expense incurred by such indemnified party. -8- 9.6. Other Remedies. If for any reason the foregoing indemnity is unavailable, or is insufficient to hold harmless an indemnified party, other than by reason of the exceptions provided therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities, actions, proceedings or expenses in such proportion as is appropriate to reflect the relative benefits to and faults of the indemnifying party on the one hand and the indemnified party on the other in connection with the offering of Registrable Securities (taking into account the portion of the proceeds of the offering realized by each such party) and the statements or omissions or alleged statements or omissions which resulted in such loss, claim, damage, liability, action, proceeding or expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statements or omissions. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. No party shall be liable for contribution under this Section 9.6 except to the extent and under such circumstances as such party would have been liable to indemnify under this Section 9 if such indemnification were enforceable under applicable law. 10. Definitions. For purposes of this Agreement, the following terms shall have the following respective meanings: "Affiliate": A Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. "Agent" shall mean Mellon Bank, N. A. or the financial institution which shall have been designated by the Majority Holders as the Agent for the Lenders hereunder by written notice to the Company. "Board": The Board of Directors of the Company. "Common Stock": The Company's Common Stock, par value $.01 per share. "Commission": The Securities and Exchange Commission. "Exchange Act": The Securities Exchange Act of 1934, as amended, or any successor federal statute, and the rules and regulations thereunder which shall be in effect at the time. "Majority Stockholders": Any holder or holders of at least 50% of the Registrable Securities then outstanding. "NASD": National Association of Securities Dealers, Inc. "NASDAQ": The Nasdaq National Market. -9- "Person": An individual, corporation, partnership, joint venture, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Registrable Securities": The shares of Common Stock (or any successor class of common stock) beneficially owned (within the meaning of Section 13d-3 of the Exchange Act) by the Lenders (or any other Person made a party hereto pursuant to Section 11.1) which are to be or shall have been delivered to the Lenders or their designees pursuant to the [Settlement Agreement]. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (ii) they shall have been sold to the public pursuant to Rule 144 under the Securities Act, (iii) they shall have been otherwise transferred and subsequent disposition of them shall not require registration or qualification of them under the Securities Act of or any similar state law then in force or (iv) they shall have ceased to be outstanding. "Registration Expenses": All expenses incident to the Company's performance of or compliance with Section 1 and Section 2, including, without limitation, (i) registration, filing and NASD fees, (ii) fees and expenses of complying with securities or blue sky laws, (iii) fees and expenses associated with listing securities on an exchange or NASDAQ, (iv) word processing, duplicating and printing expenses, (v) messenger and delivery expenses, (vi) fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of any special audits or "cold comfort" letters, (vii) reasonable fees and disbursements of any one counsel retained by the sellers of Registrable Securities, which counsel shall be designated by the Agent, and (viii) any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions and transfer taxes, if any. "Securities Act": The Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations thereunder which shall be in effect at the time. 11. Miscellaneous. 11.1. Successors, Assigns and Transferees. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, provided that the Company may not delegate or assign it obligations and duties hereunder without the written consent of each of the Lenders which at the time is, or is an Affiliate of, a holder of Registrable Securities. In addition, and provided that an express assignment and an express agreement of the assignee to be bound by this Agreement shall have been made, and a copy thereof shall have been delivered to the Company, the provisions of this Agreement which are for the benefit of a holder of Registrable Securities shall be for the benefit of and enforceable by any subsequent holder of any Registrable Securities. -10- 11.2. Amendment and Modification. This Agreement may be amended, modified or supplemented by the Company only with the written consent of the Majority Stockholders and of each Lender which, at the time in question is, or is an Affiliate of, a holder of Registrable Securities. 11.3. Governing Law. This Agreement and the rights and obligations of the parties hereunder and the persons subject hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York, without giving effect to the choice of law principles thereof. 11.4. Invalidity of Provision. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. 11.5. Notices. All notices, requests, demands, letters, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) mailed, certified or registered mail with postage prepaid, (c) sent by next-day or overnight mail or delivery or (d) sent by fax as follows: (i) If to the Company, to it at: Steel Dynamics, Inc. 6714 Pointe Inverness Way, Suite 200 Fort Wayne, Indiana 46804 Attention: Tracy L. Shellabarger, CFO. (ii) If to the Agent, to it at: Attention:. (iii) If to any holder of Registrable Securities, to the address of such holder as set forth in the books and records of the Company or to such other person or address as any party shall specify by notice in writing to the Company. All such notices, requests, demands, letters, waivers and other communications shall be deemed to have been received (w) if by personal delivery on the day after such delivery, (x) if by certified or registered mail, on the fifth business day after the mailing thereof, (y) if by next-day or overnight mail or delivery, on the day delivered or (z) if by fax, on the next day following the day on which such fax was sent, provided that a copy is also sent by certified or registered mail. 11.6. Headings; Execution in Counterparts. The headings and captions contained herein are for convenience and shall not control or affect the meaning or construction of any provision hereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and which together shall constitute one and the same instrument. 11.7. Injunctive Relief. Each of the parties recognizes and agrees that money damages may be insufficient and, therefore, in the event of a breach of any provision of this Agreement the aggrieved party may elect to institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance or to enjoin the continuing breach of this Agreement. -11- Such remedies shall, however, be cumulative and not exclusive, and shall be in addition to any other remedy which such party may have. 11.11. Entire Agreement. This Agreement, together with the [Settlement] Agreement, is intended by the parties hereto as a final expression of their agreement and intended to be a complete and exclusive statement of their agreement and understanding in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 11.12. Term. This Agreement shall be effective as of the date hereof and shall continue in effect thereafter until the date when the Company is no longer required to maintain the effectiveness of the Shelf Registration Statement under Sections 1, 3(b) and 3(h) hereof, provided that the obligations of the parties under Section 9 hereof shall survive any termination of this Agreement. IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have executed and delivered this Registration Rights Agreement as of the date first above written. STEEL DYNAMICS, INC. By ------------------------------------ Title: MELLON BANK, N.A., as Agent By ------------------------------------ Title: GE CAPITAL CFE, INC. By ------------------------------------ Title: -12- KREDITANSTALT FUR WIEDERAUFBAU By ------------------------------------ Title: By ------------------------------------ Title: COMERICA BANK By ------------------------------------ Title: NATIONAL CITY BANK, INDIANA By ------------------------------------ Title: LASALLE BANK NATIONAL ASSOCIATION By ------------------------------------ Title: -13- EX-10.1A.5 5 y57190ex10-1a_5.txt 5TH AMENDMENT TO AMENDED & RESTATED CREDIT AGREEMT Exhibit 10.1a(5) FIFTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER This Fifth Amendment to Credit Agreement and Limited Waiver, dated as of December 31, 2001 (this "Amendment and Waiver"), by and among STEEL DYNAMICS, INC., an Indiana corporation (the "Borrower"), the lenders executing this Amendment and Waiver on the signatures pages hereof and MELLON BANK, N. A., as Agent for the Lenders under the Credit Agreement (Amended and Restated) referred to below (the "Agent"). Introductory Statements: A. Reference is made to the Credit Agreement (Amended and Restated), dated as of June 30, 1994, as amended and restated as of June 30, 1997 (as amended to date, the "Credit Agreement"), by and among the Borrower, the Lenders listed on the signature pages hereof (collectively, the "Lenders") and the Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement. B. The Borrower has advised the Lenders and the Agent that the Borrower is in violation of Section 6.01(a) of the Credit Agreement in that the Borrower's Leverage Ratio for the period of four consecutive fiscal quarters ending December 31, 2001 exceeds 5.0 to 1 (such violation, the "Identified Violation"). C. The Borrower has also advised the Lenders and the Agent that the Borrower may, as of March 31, 2002, be in violation of Section 6.01(a) of the Credit Agreement in that the Borrower's Leverage Ratio for the period of four consecutive fiscal quarters ending March 31, 2002 may exceed 4.0 to 1 (such violation, the "Identified March Violation"). D. The Borrower has requested that, for the period from December 31, 2001 to, but not including, March 31, 2002 (the "Waiver Period"), the Required Lenders waive (i) compliance with Section 6.01(a) of the Credit Agreement for the period of four consecutive fiscal quarters ending December 31, 2001, (ii) satisfaction of the conditions of lending under Section 4.02(d) of the Credit Agreement to the extent, and only to the extent, that such conditions of lending fail to be satisfied as a result of, and as a result solely of, the Identified Violation and (iii) satisfaction of the conditions to conversion or renewal of Interest Rate Options under Section 2.07(a) of the Credit Agreement to the extent, and only to the extent, that such conditions to conversion or renewal fail to be satisfied as a result of, and as a result solely of, the Identified Violation. E. The Borrower has advised the Lenders that it is considering arranging for the refinancing the Loans and the Specified Unsecured Bank Debt. The Borrower has requested that if, and only if, on March 31, 2002, the Borrower shall have theretofore received commitments from financial institutions to provide financing on terms satisfactory to the Borrower in an aggregate amount sufficient to pay the Loans and the Specified Unsecured Bank Debt in full and the Borrower and such financial institutions shall be in process of finalizing the documentation for such refinancing, and the Borrower shall have provided to the Lenders a certificate to both such effects, then the Waiver Period shall be extended to end on April 30, 2002 (or, if earlier, the date on which such commitments terminate or on which the process of finalizing documentation for such refinancing ceases) and the Identified March Violation, as well as the Identified Violation, shall be covered by the waiver referred to in the immediately preceding paragraph. F. The Borrower and the Required Lenders desire to make certain amendments to the Credit Agreement. Section 1. Waiver. The Required Lenders hereby waive, for the Waiver Period only, (i) compliance with Section 6.01(a) of the Credit Agreement for the period of four consecutive fiscal quarters ending December 31, 2001, (ii) satisfaction of the conditions of lending under Section 4.02(d) of the Credit Agreement to the extent, and only to the extent, that such conditions of lending fail to be satisfied as a result of, and as a result solely of, the Identified Violation and (iii) satisfaction of the conditions to conversion or renewal of Interest Rate Options under Section 2.07(a) of the Credit Agreement to the extent, and only to the extent, that such conditions to conversion or renewal fail to be satisfied as a result of, and as a result solely of, the Identified Violation. Section 2. Extended Waiver. The effectiveness of the waiver granted by the Required Lenders in the next succeeding sentence is subject to satisfaction of the condition that on March 31, 2002, the Borrower shall have theretofore received commitments from financial institutions to provide financing on terms satisfactory to the Borrower in an aggregate amount sufficient to pay the Loans and the Specified Unsecured Bank Debt in full and the Borrower and such financial institutions shall be in process of finalizing the documentation for such financing and the Borrower shall have provided to the Lenders a certificate to both such effects. Subject to satisfaction of the condition set forth in the immediately preceding sentence, the Required Lenders hereby waive, for the Waiver Extension Period only, (i) compliance with Section 6.01(a) of the Credit Agreement for the period of four consecutive fiscal quarters ending December 31, 2001 and for the period of four consecutive fiscal quarters ending March 31, 2002, (ii) satisfaction of the conditions of lending under Section 4.02(d) of the Credit Agreement to the extent, and only to the extent, that such conditions of lending fail to be satisfied as a result of, and as a result solely of, the Identified Violation and/or the Identified March Violation and (iii) satisfaction of the conditions to conversion or renewal of Interest Rate Options under Section 2.07(a) of the Credit Agreement to the extent, and only to the extent, that such conditions to conversion or renewal fail to be satisfied as a result of, and as a result solely of, the Identified Violation and/or the Identified March Violation. As used herein, the term Waiver Extension Period means the period commencing on March 31, 2002 and ending on the earlier to occur of (i) April 30, 2002 and (ii) the date on which the commitments referred to in the first sentence of this Section 2 terminate or on which the process of finalizing documentation for the financing referred to in the first sentence of this Section 2 ceases. Section 3. Amendments. 3.1. The Credit Agreement is hereby amended by adding thereto, as a new Section 6.19 thereof, the following: 6.19. Maintenance of Cash with Lenders. The Borrower shall not permit any of its cash to be held or maintained other than in one or more deposit accounts each of which is maintained by the Borrower with a Lender. The Borrower confirms that under the Security Agreement the Borrower is required to maintain perfection of the security interest of the Agent, for the benefit of the Lenders, in the Borrower's Cash Equivalent Investments. 3.2. Section 6.03 of the Credit Agreement, entitled "Indebtedness" is hereby amended by deleting the figure "$95,000,000" appearing at the end of clause (i) thereof and inserting in lieu thereof the figure "$125,000,000". 3.3. Section 6.04 of the Credit Agreement, entitled "Guaranties, Indemnities, etc." is hereby amended by deleting the figure "$14,035,819" appearing in clause (h) thereof and inserting in lieu thereof the figure "$23,970,030" and by adding, immediately before the period at the end of such clause (h), the phrase "and such guaranty shall be subject to reduction -2- as contemplated by paragraph 3 of the Agreement attached as Exhibit A to the Fifth Amendment to this Agreement". 3.4. Section 6.05 of the Credit Agreement, entitled "Loans, Advances and Investments", is hereby amended by deleting the figure "$95,000,0000" appearing in clause (g) thereof and inserting in lieu thereof the figure "$125,000,000". 3.5. Section 6.10 of the Credit Agreement, entitled "Dispositions of Properties", is hereby amended by inserting at the end thereof, after paragraph (f) thereof, the following sentence: It is understood that the issuance by the Borrower of its treasury shares of common stock pursuant to the Agreement attached as Exhibit A to the Fifth Amendment to this Agreement shall be deemed not to violate this Section 6.10. 3.6. Section 6.12 of the Credit Agreement, entitled "Dealings with Affiliates", is hereby amended by inserting at the end thereof, after paragraph (e) thereof, the following sentence: It is understood that the execution, delivery and performance by the Borrower of the Agreement attached as Exhibit A to the Fifth Amendment to this Agreement shall be deemed not to violate this Section 6.12. 3.7. Section 3.15 of the Credit Agreement, entitled "Ownership and Control", is hereby amended by adding thereto, immediately before the period at the end of the third sentence thereof, the following clause: "and except for performance by the Borrower of the Agreement attached as Exhibit A to the Fifth Amendment to this Agreement". Section 4. Miscellaneous. 4.1 This Amendment and Waiver shall become effective as of December 31, 2001 upon (i) the execution and delivery hereof by the Required Lenders and the Borrower (ii) the execution and delivery by the Borrower and the lenders under the credit agreement governing the Specified Unsecured Bank Debt of a waiver and amendment substantially similar hereto and (iii) the payment by the Borrower to the Agent, for the respective accounts of Lenders which shall have indicated their consent to this Amendment and Waiver in writing to the Agent on or before the date of execution and delivery hereof by the Required Lenders and the Borrower of a waiver fee in the amount of 50 basis points times the aggregate amount of the Commitments of each such Lender. By its acceptance hereof, the Borrower agrees to pay such fee to each Lender which shall have indicated its consent to this Waiver in writing to the Agent on or before January 29, 2002. 4.2. The waiver granted by this Amendment and Waiver is limited to the terms expressly provided herein. No implied waivers shall be inferred by the execution of this Waiver and the exercise of any right or privilege under this Waiver shall not affect any right, remedy, power or privilege of the Lenders or the Agent provided under the Credit Agreement. By its acceptance hereof the Borrower expressly ratifies and confirms the provisions of the Credit Agreement and the Credit Agreement (as amended by Section 3 hereof) remains in full force and effect among the parties thereto. 4.3 This Amendment and Waiver 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. -3- 4.4 By their execution and delivery hereof, the Required Lenders hereby authorize and direct the Agent to execute and deliver this Amendment and Waiver. 4.5 THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. IN WITNESS WHEREOF, the parties have executed this consent as if the date first above written. MELLON BANK, N.A., as Agent By /s/ Roger N. Stanier ------------------------------------ Title: Vice President GE CAPITAL CFE, INC. By /s/ Michael Smith ------------------------------------ Title: Duly Authorized Signitory KREDITANSTALT FUR WIEDERAUFBAU By /s/ Illegible ------------------------------------ Title: By /s/ Illegible ------------------------------------ Title: COMERICA BANK By /s/ James B. Haeffner ------------------------------------ Title: First Vice President -4- THE INDUSTRIAL BANK OF JAPAN, LIMITED By /s/ Walter R. Wolff ------------------------------------ Title: Joint General Manager and Group Head BANK ONE, INDIANA By ------------------------------------ Title: WACHOVIA BANK, N. A. By /s/ Brad White ------------------------------------ Title: Vice President BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. By ------------------------------------ Title: By ------------------------------------ Title: NATIONAL CITY BANK OF INDIANA By /s/ Larry Mayers ------------------------------------ Title: Senior Vice President -5- LASALLE BANK NATIONAL ASSOCIATION By /s/ James Thompson ------------------------------------ Title: Group Senior Vice President THE CHASE MANHATTAN BANK By /s/ James H. Ramage ------------------------------------ Title: Managing Director HARRIS TRUST AND SAVINGS BANK By /s/ Thad D. Rasche ------------------------------------ Title: Vice President WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH By /s/ Donald F. Wolf ------------------------------------ Title: Director By /s/ Elisabeth R. Wilds ------------------------------------ Title: Associate Director SUNTRUST BANK By ------------------------------------ Title: -6- NORTHERN TRUST COMPANY By /s/ Mark E. Taylor ------------------------------------ Title: Vice President FIRST UNION NATIONAL BANK By /s/ Eric Tan ------------------------------------ Title: Vice President THE HUNTINGTON NATIONAL BANK By /s/ Angela Cecil ------------------------------------ Title: Vice President STEEL DYNAMICS, INC. By /s/ Keith E. Busse ------------------------------------ Title: President -7- EX-10.1B.9 6 y57190ex10-1b_9.txt GUARANTY AND SURETYSHIP AGREEMENT Exhibit 10.1b(9) GUARANTY AND SURETYSHIP AGREEMENT THIS AGREEMENT, dated as of January 28, 2001, made by STEEL DYNAMICS, INC., an Indiana corporation, in favor of the Lenders (the "Lenders") and the Agent (the "Agent") under the Credit Agreement referred to below. RECITALS: A. Iron Dynamics, Inc., an Indiana corporation and a wholly owned Subsidiary of the Guarantor (the "Borrower"), is party to a Credit Agreement, dated as of December 31, 1997, as amended by the First through Eighth Amendments thereto (the "Credit Agreement") among the lenders party thereto and Mellon Bank, N.A., as Issuing Bank and as Agent. The Guarantor, as owner of all of the outstanding shares of stock of the Borrower, will derive substantial direct and indirect benefit from the execution and delivery by the Lenders of an Agreement (the "Settlement Agreement"), dated on or about the date hereof, with respect to the Credit Agreement and of certain other documentation in connection with the Guarantor's credit facilities. B. It is a condition precedent to the execution and delivery by the Lenders and the Agent of the Settlement Agreement that the Guarantor execute and deliver this Agreement. This Agreement is made by the Guarantor among other things to induce the Lenders to enter into such Settlement Amendment. C. The Guarantor further acknowledges that it has, independently and without reliance upon any Lender, the Agent or any representation by or other information from any Lender or the Agent, made its own credit analysis and decision to enter into this Agreement. NOW, THEREFORE, in consideration of the premises, and intending to be legally bound, the Guarantor hereby agrees as follows: ARTICLE I Definitions 1.1. DEFINITIONS. (a) GENERAL. Capitalized terms not otherwise defined herein shall have the meanings given in the Credit Agreement. In addition to the other terms defined elsewhere in this Agreement, as used herein the following terms shall have the following meanings: "Guaranteed Obligations" shall mean the obligations of the Borrower to pay the principal amount of the Term Loans and the principal amount of Revolving Credit Loans to the Lenders when due in accordance with the terms of the Credit Agreement, whether at maturity, by mandatory prepayment, by acceleration or otherwise. "IDI Covered Term Loan Principal Installments" shall mean the two installments of principal of the Term Loans under the Credit Agreement, each in an original aggregate amount of $4,125,000, the scheduled installment maturity date of one of which is November 30, 2002 and the scheduled installment maturity date of the other of which is May 30, 2003, and "IDI Covered Term Loan Principal Installment" shall mean one of them. "IDI Covered Revolving Credit Loan Principal Installments" shall mean the four installments of principal of the Revolving Credit Loans under the Credit Agreement, each in the aggregate amount of $421,052.63, the original respective scheduled installment maturity dates of which are August 31, 2002, November 30, 2002, February 28, 2003 and May 30, 2003. "Maximum Revolving Credit Loan Guaranty Amount" shall mean (x) One Million Six Hundred Eighty-four Thousand Two Hundred Ten Dollars ($1,684,210) minus (y) the sum of the principal amounts of each of the IDI Covered Revolving Credit Loan Principal Installments which the Borrower shall have paid when due (at the original scheduled installment maturity or by earlier acceleration). "Maximum Term Loan Guaranty Amount" shall mean (i) Eight Million Two Hundred Fifty Thousand Dollars ($8,250,000) if the Borrower shall fail to pay both of the IDI Covered Term Loan Principal Installments when due (at the original scheduled installment maturity or by earlier acceleration), (ii) Four Million One Hundred Twenty-Five Thousand Dollars ($4,125,000) if the Borrower shall fail to pay one of the IDI Covered Term Loan Principal Installments when due but shall pay the other IDI Covered Principal Installment when due (at the original scheduled installment maturity or by earlier acceleration), or (iii) zero ($0) if the Borrower shall pay both of the IDI Covered Term Loan Principal Installments when due (at the original scheduled installment maturity or by acceleration or otherwise). "Maximum Guaranty Amount" shall mean the sum of the Maximum Revolving Credit Loan Guaranty Amount plus the Maximum Term Loan Guaranty Amount. ARTICLE II GUARANTY AND SURETYSHIP 2.1. GUARANTY AND SURETYSHIP. The Guarantor hereby absolutely, unconditionally and irrevocably guarantees and becomes surety for the full and punctual payment and performance of the Guaranteed Obligations as and when such payment or performance shall become due (at scheduled maturity, by mandatory prepayment, by acceleration or otherwise) in accordance with the terms of the Loan Documents; provided, however, that the obligations of the Guarantor hereunder shall not in any event exceed the Maximum Guaranty Amount. This Agreement is an agreement of suretyship as well as of guaranty, is a guarantee of payment and performance and not merely of collectibility, and is in no way conditioned upon any attempt to collect from or proceed against the Borrower or any other Person or any other event or circumstance. The obligations of the Guarantor under this Agreement are direct and primary obligations of the Guarantor and are independent of the Guaranteed Obligations, and a separate action or actions may be brought against the Guarantor regardless of whether action is brought against the Borrower or any other Person or whether the Borrower or any other Person is joined in any such action or actions. -2- 2.2 OBLIGATIONS ABSOLUTE. The Guarantor agrees that, to the fullest extent permitted by law, but subject to the limitation of the Guarantor's obligations hereunder to the Maximum Guaranty Amount, the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting the Guaranteed Obligations, any of the terms of the Loan Documents or the rights of the Lenders, the Agent or any other Person with respect thereto. To the fullest extent permitted by law, the obligations of the Guarantor under this Agreement shall be absolute, unconditional and irrevocable, irrespective of any of the following: (a) any lack of legality, validity, enforceability or allowability (in a bankruptcy, insolvency, reorganization, dissolution or similar proceeding, or otherwise), or any avoidance or subordination, in whole or in part, of any Loan Document or any of the Guaranteed Obligations; (b) any increase, decrease or change in the amount, nature, type or purpose of any of the Guaranteed Obligations (whether or not contemplated by the Loan Documents as presently constituted); any change in the time, manner, method or place of payment or performance of, or in any other term of, any of the Guaranteed Obligations; any execution or delivery of any additional Loan Documents; or any amendment to, or refinancing or refunding of, any Loan Document or any of the Guaranteed Obligations; (c) any impairment by any Lender, the Agent or any other Person of any recourse of the Guarantor against the Borrower or any other Person; any failure to assert any breach of or default under any Loan Document or any of the Guaranteed Obligations; any extensions of credit in excess of the amount committed under or contemplated by the Loan Documents, or in circumstances in which any condition to such extensions of credit has not been satisfied; any other exercise or non-exercise, or any other failure, omission, breach, default, delay or wrongful action in connection with any exercise or non-exercise, of any right or remedy against the Borrower or any other Person under or in connection with any Loan Document or any of the Guaranteed Obligations; any refusal of payment or performance of any of the Guaranteed Obligations, whether or not with any reservation of rights against the Guarantor; or any application of collections (including collections resulting from realization upon any direct or indirect security for the Guaranteed Obligations) to other obligations, if any, not entitled to the benefits of this Agreement, in preference to Guaranteed Obligations entitled to the benefits of this Agreement, or if any collections are applied to Guaranteed Obligations, any application to particular Guaranteed Obligations; (d) any taking, exchange, amendment, termination, subordination, release, loss or impairment of, or any failure to protect, perfect, or preserve the value of, or any enforcement of, realization upon, or exercise of rights or remedies under or in connection with, or any failure, omission, breach, default, delay or wrongful action by any Lender, the Agent or any other Person in connection with the enforcement of, realization upon, or exercise of rights or remedies under or in connection with, or any other action or inaction by any Lender, the Agent or any other Person in respect of, any direct or indirect security -3- for any of the Guaranteed Obligations. As used in this Agreement, "direct or indirect security" for the Guaranteed Obligations, and similar phrases, includes any collateral security, guaranty, suretyship, letter of credit, capital maintenance agreement, put option, subordination agreement or other right or arrangement of any nature providing direct or indirect assurance of payment or performance of any of the Guaranteed Obligations, made by or on behalf of any Person; (e) any merger, consolidation, liquidation, dissolution, winding-up, charter revocation or forfeiture, or other change in, restructuring or termination of the corporate or partnership structure or existence of, the Borrower or any other Person; any bankruptcy, insolvency, reorganization, dissolution or similar proceeding with respect to the Borrower or any other Person; or any action taken or election made by any Lender (including any election under Section 1111(b)(2) of the United States Bankruptcy Code), the Agent, the Borrower or any other Person in connection with any such proceeding; (f) any defense, setoff or counterclaim (including any defense of failure of consideration, breach of warranty, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, lender liability, accord and satisfaction or usury, and excluding only the defense of full, strict and indefeasible payment and performance), which may at any time be available to the Borrower or any other Person with respect to any Loan Document or any of the Guaranteed Obligations; or any discharge by operation of law or release of the Borrower or any other Person from the performance or observance of any Loan Document or any of the Guaranteed Obligations; or (g) any other event or circumstance, whether similar or dissimilar to the foregoing, and whether known or unknown, which might otherwise constitute a defense available to, or limit the liability of, the Borrower, the Guarantor, a guarantor or a surety, excepting only full, strict and indefeasible payment and performance of the Guaranteed Obligations. 2.3. WAIVERS, ETC. To the fullest extent permitted by law, the Guarantor hereby waives any defense to or limitation on its obligations under this Agreement arising out of or based on any event or circumstance referred to in Section 2.2. Without limitation, to the fullest extent permitted by law, the Guarantor waives each of the following: (a) all notices, disclosures and demands of any nature which otherwise might be required from time to time to preserve intact any rights against the Guarantor, including (i) any notice of any event or circumstance described in Section 2.2, (ii) any notice required by any law, regulation or order now or hereafter in effect in any jurisdiction, (iii) any notice of nonpayment, nonperformance, dishonor, or protest under any Loan Document or any of the Guaranteed Obligations, (iv) any notice of the incurrence of any Guaranteed Obligation, (v) any notice of any default or any failure on the part of the Borrower or any other Person to comply with any Loan Document or any of the Guaranteed Obligations or any direct or indirect security for any of the Guaranteed Obligations, and (vi) any notice of any information pertaining to the business, operations, condition (financial or otherwise) or prospects of the Borrower or any other Person; -4- (b) any right to any marshalling of assets, to the filing of any claim against the Borrower or any other Person in the event of any bankruptcy, insolvency, reorganization, dissolution or similar proceeding, or to the exercise against the Borrower or any other Person of any other right or remedy under or in connection with any Loan Document or any of the Guaranteed Obligations or any direct or indirect security for any of the Guaranteed Obligations; any requirement of promptness or diligence on the part of any Lender, the Agent or any other Person; any requirement to exhaust any remedies under or in connection with, or to mitigate the damages resulting from default under, any Loan Document or any of the Guaranteed Obligations or any direct or indirect security for any of the Guaranteed Obligations; and any requirement of acceptance of this Agreement, and any requirement that the Guarantor receive notice of such acceptance; and (c) any defense or other right arising by reason of any law now or hereafter in effect in any jurisdiction pertaining to election of remedies (including anti-deficiency laws, "one action" laws or similar laws), or by reason of any election of remedies or other action or inaction by any Lender or the Agent (including commencement or completion of any judicial proceeding or nonjudicial sale or other action in respect of collateral security for any of the Guaranteed Obligations), which results in denial or impairment of the right of the Lenders or the Agent to seek a deficiency against the Borrower or any other Person, or which otherwise discharges or impairs any of the Guaranteed Obligations or any recourse of the Guarantor against the Borrower or any other Person. 2.4. REINSTATEMENT. This Agreement shall continue to be effective, or be automatically reinstated, as the case may be, subject in either case to the limitation of the Guarantor's obligations hereunder to the Maximum Guaranty Amount, if payment of any of the Guaranteed Obligations is avoided, rescinded or must otherwise be returned by any Lender or the Agent for any reason, all as though such payment had not been made (it being understood that, in such case, for purposes of the definitions of the terms "Maximum Revolving Credit Loan Guaranty Amount" and "Maximum Term Loan Guaranty Amount" in Section 1.1 hereof, such payment so avoided, rescinded or otherwise returned shall be deemed to have not been made). 2.5. NO STAY. Without limitation of any other provision of this Agreement, if any acceleration of the time for payment or performance of any Guaranteed Obligation, or any condition to any such acceleration, shall at any time be stayed, enjoined or prevented for any reason (including stay or injunction resulting from the pendency against the Borrower or any other Person of a bankruptcy, insolvency, reorganization, dissolution or similar proceeding), the Guarantor agrees that, for purposes of this Agreement and its obligations hereunder, such Guaranteed Obligation shall be deemed to have been accelerated, and such condition to acceleration shall be deemed to have been met. 2.6. PAYMENTS. All payments to be made by the Guarantor pursuant to this Agreement shall be made at the times and in the manner prescribed for payments in the Credit Agreement and the Notes, without setoff, counterclaim, withholding or other deduction of any nature. -5- 2.7. SUBROGATION, ETC. The Guarantor hereby irrevocably waives and releases any and all rights it now has or hereafter may have (known and unknown, whether arising by operation of law, by agreement or otherwise) against the Borrower or any other Person arising from the existence, payment, performance or enforcement of any of the obligations of the Guarantor under or in connection with this Agreement or any other Loan Document, including any and all rights of subrogation, reimbursement, exoneration, contribution or indemnity, and any and all other rights that would result in the Guarantor being deemed a "creditor" under the United States Bankruptcy Code of the Borrower or any other Person. 2.8. CONTINUING AGREEMENT. This Agreement is a continuing guaranty and shall continue in full force and effect until (i) all Guaranteed Obligations have been paid in full (subject to reinstatement in accordance with Section 2.4), (ii) indefeasible payment in full by the Guarantor hereunder of the Maximum Guaranty Amount or (iii) termination hereof as provided in the Settlement Agreement, whichever is earliest to occur. 2.9. OTHER GUARANTIES. This Agreement is in addition to, and does not replace, substitute for or modify, the Guaranty and Suretyship Agreement, dated as of March 15, 2001, or the Guaranty and Suretyship Agreement, dated as of July 20, 2001, in each case made by the Guarantor in favor of the Lenders. ARTICLE III REPRESENTATIONS AND WARRANTIES The Guarantor hereby represents and warrants to the Lenders and the Agent as follows: 3.1. Each of the representations and warranties with respect to the Guarantor (as a Loan Party) and with respect to this Guaranty and Suretyship Agreement (as a Loan Document) made in Section 3.01, 3.02, 3.03, 3.04, 3.05, 3.11 and 3.17 of the Credit Agreement is true and correct on and as of the date hereof as if made on and as of such date. ARTICLE IV MISCELLANEOUS 4.1. AMENDMENTS, ETC. No amendment to or waiver of any provision of this Agreement, and no consent to any departure by the Guarantor herefrom, shall in any event be effective unless in a writing manually signed by or on behalf of the Agent with the consent and approval of the requisite number of Lenders. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 4.2. NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or failure of any Lender or the Agent in exercising any right or remedy under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies of the Lenders and the Agent under this Agreement are cumulative and not exclusive of -6- any other rights or remedies available hereunder, under any other agreement, at law, or otherwise. 4.3. NOTICES. Except to the extent, if any, otherwise expressly provided herein, all notices and other communications (collectively, "notices") under this Agreement shall be in writing (including facsimile transmission) and shall be sent by first-class mail, by nationally-recognized overnight courier, by personal delivery, or by facsimile transmission, in all cases with charges prepaid. All notices shall be sent, if to the Guarantor, to its address specified on the signature page hereof, or if to the Lenders or the Agent at the applicable respective addresses for notices under the Credit Agreement, or, in any case, to such other address as shall have been designated by the applicable party by notice to the other party hereto. Any properly given notice shall be effective when received, except that properly given notices to the Guarantor shall be effective at the following time, if earlier: if given by telephone, when telephoned; if by first-class mail, three Business Days after deposit in the mail; if by overnight courier, one Business Day after pickup by such courier; and if by facsimile transmission, upon transmission. The Lenders and the Agent may rely on any notice (whether or not made in a manner contemplated by this Agreement) purportedly made by or on behalf of the Guarantor, and neither any Lender nor the Agent shall have any duty to verify the identity or authority of the Person giving such notice. 4.4. EXPENSES. The Guarantor agrees to pay upon demand all reasonable expenses (including reasonable fees and expenses of counsel) which the Lenders or the Agent may incur from time to time arising from or relating to the administration of, or exercise, enforcement or preservation of rights or remedies under, this Agreement. 4.5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements. 4.6. SURVIVAL. All representations and warranties of the Guarantor contained in or made in connection with this Agreement shall survive, and shall not be waived by, the execution and delivery of this Agreement, any investigation by or knowledge of the Lender, any extension of credit, or any other event or circumstance whatever. 4.7. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all such counterparts shall constitute but one and the same agreement. 4.8. SETOFF. In the event that any obligation of the Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, each Lender shall have the right from time to time, without notice to the Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of such Lender to the Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by the Guarantor with such Lender. To the fullest extent permitted by law, such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to the Guarantor is -7- absolute or contingent, matured or unmatured (it being agreed that such Lender may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoff or banker's lien available to any Lender under this Section 5.8, at law or otherwise. The Guarantor hereby agrees that, to the fullest extent permitted by law, any affiliate of any Lender, and any holder of a participation in any obligation of the Guarantor under this Agreement, shall have the same rights of setoff as such Lender as provided in this Section 5.8 (regardless of whether such affiliate or participant otherwise would be deemed a creditor of the Guarantor). 4.9. CONSTRUCTION. In this Agreement, unless the context otherwise clearly requires, references to the plural include the singular, the singular the plural, and the part the whole; the neuter case includes the masculine and feminine cases; and "or" is not exclusive. In this Agreement, "include," "includes," "including" and similar terms are not limiting; [and] "hereof," "herein," "hereunder" and similar terms refer to this Agreement as a whole and not to any particular provision; and "expenses," "costs," "out-of-pocket expenses" and similar terms include the charges of in-house counsel, auditors and other professionals of the relevant Person to the extent that such charges are routinely identified and charged under such Person's cost accounting system. Section and other headings in this Agreement, and any table of contents herein, are for reference purposes only and shall not affect the interpretation of this Agreement in any respect. Section and other references in this Agreement are to this Agreement unless otherwise specified. This Agreement has been fully negotiated between the applicable parties, each party having the benefit of legal counsel, and accordingly neither any doctrine of construction of guaranties or suretyships in favor of the guarantor or surety, nor any doctrine of construction of ambiguities against the party controlling the drafting, shall apply to this Agreement. 4.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of and be enforceable by the Lenders, the Agent and their respective successors and assigns (it being understood that the Guarantor shall have no right to assign, transfer or delegate its obligations or duties hereunder). Without limitation of the foregoing, any Lender (and any successive assignee or transferee) from time to time may, in accordance with the Credit Agreement, assign or otherwise transfer all or any portion of its rights or obligations under the Loan Documents (including all or any portion of any commitment to extend credit), or any Guaranteed Obligations, to any other Person, and such Guaranteed Obligations (including any Guaranteed Obligations resulting from extension of credit by such other Person under or in connection with the Loan Documents) shall be and remain Guaranteed Obligations entitled to the benefit of this Agreement, and to the extent of its interest in such Guaranteed Obligations such other Person shall be vested with all the benefits in respect thereof granted to such Lender in this Agreement or otherwise. 4.11. CERTAIN LEGAL MATTERS. -8- (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUSIVE OF CHOICE OF LAW PRINCIPLES. (b) SUBMISSION TO JURISDICTION AND VENUE; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL; ETC. TO THE FULLEST EXTENT PERMITTED BY LAW, THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY: (I) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN CONNECTION WITH ANY OF THE FOREGOING (COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA OR NEW YORK, NEW YORK, SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND AGREES NOT TO BRING ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO BRING ANY RELATED LITIGATION IN ANY OTHER FORUM); (II) ACKNOWLEDGES THAT SUCH COURTS WILL BE THE MOST CONVENIENT FORUM FOR ANY RELATED LITIGATION, WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT; (III) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO IT AT THE ADDRESS FOR NOTICES DESCRIBED IN THIS AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND (IV) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION. (c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NO CLAIM MAY BE MADE BY THE GUARANTOR AGAINST THE LENDER OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF THE LENDER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN CONNECTION WITH ANY OF THE FOREGOING (WHETHER BASED ON BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY); AND THE GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST. THIS PARAGRAPH (C) SHALL NOT LIMIT ANY RIGHTS OF THE GUARANTOR ARISING SOLELY OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THAT IT UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT. -9- IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly executed and delivered as of the date first above written. STEEL DYNAMICS, INC. By ------------------------------------ Name: ------------------------------------ Title: ------------------------------------ Address for Notices: Steel Dynamics, Inc. 6714 Pointe Inverness Suite 200 Fort Wayne, Indiana 46804 Attn: Chief Financial Officer Telephone: 260-459-3553 Fax: 260-969-3590 -10- EX-10.1C.2 7 y57190ex10-1c_2.txt 2ND AMENDMENT TO UNSECURED CREDIT AGREEMENT Exhibit 10.1c(2) SECOND AMENDMENT TO CREDIT AGREEMENT THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of July 20, 2001, 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 Agent, and certain Arrangers entered into a Credit Agreement, dated as of May 5, 2000 (as amended as of March 15, 2001, and as modified by the Consent and Agreement dated as of July 10, 2001, the "Original Agreement"), pursuant to which the Lenders have agreed to extend credit to the Borrower; WHEREAS, the Borrower and the Required Lenders (as defined in the Original Agreement) desire to amend the Original Agreement to make certain 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. Amendments. (a) Section 6.04(g) of the Original Agreement is hereby amended by deleting the figure "$8,250,000" appearing therein and inserting in lieu thereof the figure "$14,035,819". (b) Section 6.05(g) of the Original Agreement is hereby amended by deleting the figure "$105,000,000" appearing therein and inserting in lieu thereof the figure "$125,000,000". (c) Section 6.03(i) of the Original Agreement is hereby amended by deleting the figure "$75,000,000" appearing therein and inserting in lieu thereof the figure "$95,000,000". Section 2. Directions to Agent. By execution of this Amendment, the Required Lenders hereby direct the Agent to execute and deliver this Amendment. Section 3. Miscellaneous. (a) This Amendment shall become effective upon execution and delivery hereof by the Required Lenders, the Borrower and the Agent (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. -2- 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 ------------------------------------ Title: MELLON BANK, N.A., as Lender and as Agent By ------------------------------------ Title: KREDITANSTALT FUR WIEDERAUFBAU By ------------------------------------ Title: By ------------------------------------ Title: -3- EX-10.1C.3 8 y57190ex10-1c_3.txt 3RD AMENDMENT TO UNSECURED CREDIT AGREEMENT Exhibit 10.1c(3) THIRD AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER This Third Amendment to Credit Agreement and Limited Waiver, dated as of December 31, 2001 (this "Amendment and Waiver"), by and among STEEL DYNAMICS, INC., an Indiana corporation (the "Borrower"), the lenders executing this Amendment and Waiver on the signatures pages hereof and MELLON BANK, N. A., as Agent for the Lenders under the Credit Agreement referred to below (the "Agent"). Introductory Statements: A. Reference is made to the Credit Agreement, dated as of May 5, 2000, (as amended to date, the "Credit Agreement"), by and among the Borrower, the Lenders listed on the signature pages hereof (collectively, the "Lenders") and the Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement. B. The Borrower has advised the Lenders and the Agent that the Borrower is in violation of Section 6.01(a) of the Credit Agreement in that the Borrower's Leverage Ratio for the period of four consecutive fiscal quarters ending December 31, 2001 exceeds 5.0 to 1 (such violation, the "Identified Violation"). C. The Borrower has also advised the Lenders and the Agent that the Borrower may, as of March 31, 2002, be in violation of Section 6.01(a) of the Credit Agreement in that the Borrower's Leverage Ratio for the period of four consecutive fiscal quarters ending March 31, 2002 may exceed 4.0 to 1 (such violation, the "Identified March Violation"). D. The Borrower has requested that, for the period from December 31, 2001 to, but not including, March 31, 2002 (the "Waiver Period"), the Required Lenders waive (i) compliance with Section 6.01(a) of the Credit Agreement for the period of four consecutive fiscal quarters ending December 31, 2001, (ii) satisfaction of the conditions of lending under Section 4.02(d) of the Credit Agreement to the extent, and only to the extent, that such conditions of lending fail to be satisfied as a result of, and as a result solely of, the Identified Violation and (iii) satisfaction of the conditions to conversion or renewal of Interest Rate Options under Section 2.07(a) of the Credit Agreement to the extent, and only to the extent, that such conditions to conversion or renewal fail to be satisfied as a result of, and as a result solely of, the Identified Violation. E. The Borrower has advised the Lenders that it is considering arranging for the refinancing the Loans and the loans under the Existing Credit Agreement, as amended. The Borrower has requested that if, and only if, on March 31, 2002, the Borrower shall have theretofore received commitments from financial institutions to provide financing on terms satisfactory to the Borrower in an aggregate amount sufficient to pay the Loans and the loans under the Existing Credit Agreement, as amended, in full and the Borrower and such financial institutions shall be in process of finalizing the documentation for such refinancing, and the Borrower shall have provided to the Lenders a certificate to both such effects, then the Waiver Period shall be extended to end on April 30, 2002 (or, if earlier, the date on which such commitments terminate or on which the process of finalizing documentation for such refinancing ceases) and the Identified March Violation, as well as the Identified Violation, shall be covered by the waiver referred to in the immediately preceding paragraph. F. The Borrower and the Required Lenders desire to make certain amendments to the Credit Agreement. Section 1. Waiver. The Required Lenders hereby waive, for the Waiver Period only, (i) compliance with Section 6.01(a) of the Credit Agreement for the period of four consecutive fiscal quarters ending December 31, 2001, (ii) satisfaction of the conditions of lending under Section 4.02(d) of the Credit Agreement to the extent, and only to the extent, that such conditions of lending fail to be satisfied as a result of, and as a result solely of, the Identified Violation and (iii) satisfaction of the conditions to conversion or renewal of Interest Rate Options under Section 2.07(a) of the Credit Agreement to the extent, and only to the extent, that such conditions to conversion or renewal fail to be satisfied as a result of, and as a result solely of, the Identified Violation. Section 2. Extended Waiver. The effectiveness of the waiver granted by the Required Lenders in the next succeeding sentence is subject to satisfaction of the condition that on March 31, 2002, the Borrower shall have theretofore received commitments from financial institutions to provide financing on terms satisfactory to the Borrower in an aggregate amount sufficient to pay the Loans and the loans under the Existing Credit Agreement, as amended, in full and the Borrower and such financial institutions shall be in process of finalizing the documentation for such financing and the Borrower shall have provided to the Lenders a certificate to both such effects. Subject to satisfaction of the condition set forth in the immediately preceding sentence, the Required Lenders hereby waive, for the Waiver Extension Period only, (i) compliance with Section 6.01(a) of the Credit Agreement for the period of four consecutive fiscal quarters ending December 31, 2001 and for the period of four consecutive fiscal quarters ending March 31, 2002, (ii) satisfaction of the conditions of lending under Section 4.02(d) of the Credit Agreement to the extent, and only to the extent, that such conditions of lending fail to be satisfied as a result of, and as a result solely of, the Identified Violation and/or the Identified March Violation and (iii) satisfaction of the conditions to conversion or renewal of Interest Rate Options under Section 2.07(a) of the Credit Agreement to the extent, and only to the extent, that such conditions to conversion or renewal fail to be satisfied as a result of, and as a result solely of, the Identified Violation and/or the Identified March Violation. As used herein, the term Waiver Extension Period means the period commencing on March 31, 2002 and ending on the earlier to occur of (i) April 30, 2002 and (ii) the date on which the commitments referred to in the first sentence of this Section 2 terminate or on which the process of finalizing documentation for the financing referred to in the first sentence of this Section 2 ceases. Section 3. Amendments. 3.1. The Credit Agreement is hereby amended by adding thereto, as a new Section 6.19 thereof, the following: 6.19. Maintenance of Cash with Lenders. The Borrower shall not permit any of its cash to be held or maintained other than in one or more deposit accounts each of which is maintained by the Borrower with a lender under the Existing Credit Agreement, as amended. 3.2. Section 6.03 of the Credit Agreement, entitled "Indebtedness" is hereby amended by deleting the figure "$95,000,000" appearing at the end of clause (i) thereof and inserting in lieu thereof the figure "$125,000,000". 3.3. Section 6.04 of the Credit Agreement, entitled "Guaranties, Indemnities, etc." is hereby amended by deleting the figure "$14,035,819" appearing in clause (g) thereof and inserting in lieu thereof the figure "$23,970,030" and by adding, immediately before the period at the end of such clause (h), the phrase "and such guaranty shall be subject to reduction as contemplated by paragraph 3 of the Agreement attached as Exhibit A to the Third Amendment to this Agreement". -2- 3.4. [Intentionally omitted] 3.5. Section 6.10 of the Credit Agreement, entitled "Dispositions of Properties", is hereby amended by inserting at the end thereof, after paragraph (f) thereof, the following sentence: It is understood that the issuance by the Borrower of its treasury shares of common stock pursuant to the Agreement attached as Exhibit A to the Third Amendment to this Agreement shall be deemed not to violate this Section 6.10. 3.6. Section 6.12 of the Credit Agreement, entitled "Dealings with Affiliates", is hereby amended by inserting at the end thereof, after paragraph (e) thereof, the following sentence: It is understood that the execution, delivery and performance by the Borrower of the Agreement attached as Exhibit A to the Third Amendment to this Agreement shall be deemed not to violate this Section 6.12. 3.7. Section 3.15 of the Credit Agreement, entitled "Ownership and Control", is hereby amended by adding thereto, immediately before the period at the end of the third sentence thereof, the following clause: "and except for performance by the Borrower of the Agreement attached as Exhibit A to the Third Amendment to this Agreement". Section 4. Miscellaneous. 4.1 This Amendment and Waiver shall become effective as of December 31, 2001 upon (i) the execution and delivery hereof by the Required Lenders and the Borrower (ii) the execution and delivery by the Borrower and the lenders under the Existing Credit Agreement, as amended, of a waiver and amendment substantially similar hereto and (iii) the payment by the Borrower to the Agent, for the respective accounts of Lenders which shall have indicated their consent to this Amendment and Waiver in writing to the Agent on or before the date of execution and delivery hereof by the Required Lenders and the Borrower of a waiver fee in the amount of 50 basis points times the aggregate amount of the Commitments of each such Lender. By its acceptance hereof, the Borrower agrees to pay such fee to each Lender which shall have indicated its consent to this Waiver in writing to the Agent on or before January 29, 2002. 4.2. The waiver granted by this Amendment and Waiver is limited to the terms expressly provided herein. No implied waivers shall be inferred by the execution of this Waiver and the exercise of any right or privilege under this Waiver shall not affect any right, remedy, power or privilege of the Lenders or the Agent provided under the Credit Agreement. By its acceptance hereof the Borrower expressly ratifies and confirms the provisions of the Credit Agreement and the Credit Agreement (as amended by Section 3 hereof) remains in full force and effect among the parties thereto. 4.3 This Amendment and Waiver 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. 4.4 By their execution and delivery hereof, the Required Lenders hereby authorize and direct the Agent to execute and deliver this Amendment and Waiver. -3- 4.5 THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. IN WITNESS WHEREOF, the parties have executed this consent as if the date first above written. MELLON BANK, N.A., as Agent By /s/ Roger N. Stanier ------------------------------------ Title: Vice President GE CAPITAL CFE, INC. By /s/ Michael Smith ------------------------------------ Title: Duly Authorized Signatory KREDITANSTALT FUR WIEDERAUFBAU By /s/ Illegible ------------------------------------ Title: By /s/ Illegible ------------------------------------ Title: STEEL DYNAMICS, INC. By /s/ Keith E. Busse ------------------------------------ Title: President & Chief Executive Officer -4- -----END PRIVACY-ENHANCED MESSAGE-----