1
AMENDMENT AND WAIVER
THIS AMENDMENT AND WAIVER (this "Agreement"), dated as of June 10,1998, by
and among IRON 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 Mellon Bank, N.A., as
Issuing Bank entered into a Credit Agreement, dated as of December 31, 1997,
(the "Credit Agreement") pursuant to which the Lenders have agreed to extend
credit to the Borrower;
WHEREAS, the Borrower has requested to the Lenders to make certain
amendments to the Credit Agreement and to waive certain conditions of lending
under the Credit Agreement and the Required Lenders are willing to do so to the
extent provided herein;
WHEREAS, capitalized terms not otherwise defined herein shall have the
meanings assigned thereto in the Credit 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. It is the intention of the Required Lenders that
the lenders to SDI be permitted to retain the security interest granted by SDI
in the shares of the Borrower which are owned by SDI. Accordingly, (i) the
definition of the term "Change of Control" appearing in Section 1.01 of the
Credit Agreement is hereby amended by deleting the phrase "in effect only prior
to the Closing Date," appearing therein and inserting in lieu thereof the phrase
"in effect prior to and after the Closing Date," and (ii) section 4.01(c)(viii)
of the Credit Agreement is hereby amended by deleting the words "and any
security interest in the stock of IDI" appearing therein. Further, the Borrower
will obtain its electric power through SDI's utility contract and, accordingly,
the Credit Agreement is amended by deleting Section 4.02(k) thereof.
Section 2. Additional Amendments. (a) Section 1.01 of the Credit Agreement
is amended by adding thereto, in appropriate alphabetical sequence, the
following definition:
"Lease" shall mean the Lease, dated as of June 10, 1998, from SDI to IDI,
recorded in the office of the recorder of DeKalb County, Indiana.
(b) Section 1.01 of the Credit Agreement is amended by adding as an
additional sentence at the end of the definition of the term "Loan
Parties" the following:
The terms "Loan Party" and "Loan Parties" shall also include, with
respect to the Mortgage, SDI.
(c) Section 1.01 of the Credit Agreement is amended by inserting in the
definition of the term "Project Agreement", immediately after the
words "the SDI Offtake Agreement," appearing therein, the words "the
Lease,".
(d) Section 4.01(a) of the Credit Agreement is amended by inserting,
immediately after the words "all of the other Loan Documents"
appearing therein and before the comma following such words, the
phrase "(other than the Letter of Credit Agreement, the delivery of
which shall be a condition to the issuance of the first Letter of
Credit hereunder)".
(e) Section 4.01(c)(i) of the Credit Agreement is amended to read in
its entirety as follows:
(i) Executed copies of the Lease and executed copies of one or
more Mortgages, duly executed on behalf of the Borrower and
SDI, in substantially the form of Exhibit J hereto
(collectively, as amended, modified or
2
supplemented from time to time, the "Mortgage", it being
understood that references herein to the mortgagee under the
Mortgage shall mean either or both of the Borrower and SDI, as
the context may require).
(f) Section 5.01(a) of the Credit Agreement is amended by:
(i) inserting in the first sentence thereof, after the phrase
"within 90 days" appearing therein, the phrase "(160 days in
the case of the fiscal year ended December 31, 1997)"; and
(ii) inserting in the second sentence thereof, after the words
"Such financial statements", appearing at the beginning
thereof, the phrase "(commencing with the statements for the
fiscal year ending December 31, 1998)".
(g) Section 5.01(b) of the Credit Agreement is amended by inserting in
the first sentence thereof, after the phrase "within 60 days"
appearing therein, the phrase "(70 days in the case of the fiscal
quarter ended March 31, 1997)".
(h) Section 5.01(c) of the Credit Agreement is amended by deleting the
phrase "within 30 days after the close of each month" and
substituting therefore the phrase "within 30 days (40 days in the
case of April of 1998) after the close of each month (commencing
with April of 1998)".
(i) Section 5.01(d) of the Credit Agreement is amended by inserting,
after the words "Each set of financial statements delivered pursuant
to Section 5.01 (a) hereof" the phrase "(commencing with the
statements for the fiscal year ending December 31,1998)".
(j) Section 7.01(p) of the Credit Agreement is amended by inserting
therein, immediately after the words "of its obligations under", the
words "the Lease,".
(k) Schedule 3.26 to the Credit Agreement is hereby amended to read as
set forth on Schedule 3.026 attached to this Agreement.
(l) Exhibit J to the Credit Agreement is hereby amended to read in its
entirety as set forth on Exhibit J attached hereto.
Section 3. Limited Waiver of Section 4.02(i). Section 4.02(i) of the
Credit Agreement provides, as a condition of lending with respect to Loans made
during the Term Loan Commitment Period, that each Future Project Agreement
described on Schedule 3.27 to the Credit Agreement as being expected prior to
the initial Term Loans shall have been executed and delivered and the Borrower
shall have complied with the conditions of section 5.15 of the Credit Agreement
with respect thereto. The Borrower confirms that it has advised the Lenders and
the Agent that the Borrower has determined that it is not necessary or desirable
that execution of a limestone supply agreement, a baghouse dust disposal
agreement or a slag processing agreement (each of which is also described on
Schedule 3.27) be accomplished until a later date. Accordingly, the Required
Lenders hereby waive the condition of lending in Section 4.02(i) solely with
respect to each of such three agreements, but only until such time as the
Borrower believes that it is necessary or desirable to enter into such agreement
in order to comply with Section 5.14 of the Credit Agreement, relating to
construction of the Project.
Section 4. Limited Waiver of Section 4.01(b)(i)(c). Section 4.01(b)(i)(c)
of the Credit Agreement provides, as a condition of lending with respect
to the initial Loans or Letter of Credit under the Credit Agreement, that the
Agent shall have received Consents to Assignment of Contracts, in substantially
the form of Exhibit N to the Credit Agreement, with respect to the contracts
listed on Schedule 4.01(b) to the Credit Agreement. The Borrower has advised
the Lenders that, while such Consents with respect to a majority of such
contracts have been received and delivered to the Agent, such Consents with
respect to several of such contracts are still the subject of negotiation
because the respective other parties to such contracts have objected to one or
more provisions of such Exhibit N. Accordingly, the Required Lenders hereby
waive the condition of lending in Section 4.01(b)(i)(c) with respect to the
Loans to be made on the Closing Date, provided, however, that, and the Borrower
agrees that, the condition set forth in Section 4.01(b)(i)(c) shall be a
condition to the making of any Loans (and the issuance of Letters of Credit) on
or after June 30, 1998 and to any Loans (or Letters of Credit) which would cause
the aggregate principal amount of Loans and Letters of Credit outstanding under
the Credit Agreement to exceed $15,000,000.
Section 5. Limited Waiver of Section 4.01(v) and Section 4.02(a).
Section 4.01(v) of the Credit Agreement provides as a condition of the initial
Loans under the Credit Agreement that the Borrower shall have received a
commitment for the Utility Loan and at least $650,00 in proceeds thereof shall
have been advanced. Section 4.02(a) makes the receipt of such $650,000 a
condition to subsequent
3
Loans. The Borrower confirms that it has advised that while such a commitment
has been received, such commitment is subject to public utility commission
approval and no such proceeds will be advanced by the Closing Date. Accordingly,
subject to receipt by the Agent on or before the Closing Date of a written
agreement from SDI, in form satisfactory to the Agent, to the effect that SDI
will, if the Utility Loan is not funded, make advances up to an aggregate amount
of $6,500,00 at such times as advances from SDI to be subordinated to the Loans
under the Credit Agreement in a manner reasonably satisfactory to the Agent, and
subject to receipt by the Borrower of a $650,00 loan from SDI (which loan may be
repaid with the proceeds of the Utility Loan), the Required Lenders hereby waive
the condition of Section 4.01(v). So long as SDI continues to honor such
agreement, the Required Lenders hereby waive the condition of Section 4.02(a)
with respect to $650,000 in proceeds of Utility Loan. For purposes of Section
6.03 of the Credit Agreement, Indebtedness of the Borrower to SDI incurred
pursuant to such agreement with SDI shall be deemed to be Indebtedness incurred
pursuant to the Utility Loan.
Section 6. Authorization to Agent with Respect to Utility Loan. The
Lenders hereby authorize the Agent to release from the Lien of the Security
Documents the personal property (described on Schedule 1.01F hereto) which will
be collateral for the Utility Loan or, to the extent consistent with the
documentation for the Utility Loan, to enter into a subordination agreement
subordinating the Lien of the Security Documents in such property to the Lien
securing the Utility Loan.
Section 7. Direction to Agent. The Required Lenders hereby direct the
Agent to execute and deliver this Agreement.
Section 8. Miscellaneous. (a) This Agreement shall become effective upon
execution and delivery hereof by the Required Lenders, the Borrowers and the
Agent.
(b) The Credit Agreement, as amended or modified 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
thereof, all references to the "Agreement" in the Credit Agreement
and in the other Loan Documents shall be deemed to be references to
the Credit Agreement as amended by this Agreement.
(c) 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.
(d) 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.
4
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
Iron Dynamics, Inc.
By: /s/
----------------------------------
Tracy Shellabarger
Secretary
Mellon Bank, N.A., as Lender,
As issuing Bank and as Agent
By: /s/
----------------------------------
John K. Walsh
Vice President
Kreditanstalt fur Wiederaufbau
By: /s/
----------------------------------
Norbert Vay
Vice President
By: /s/
----------------------------------
Vera Voelkel
Senior Project Manager
Comerica Bank
By: /s/ undecipherable
----------------------------------
National City Bank, Indiana
By: /s/ undecipherable
----------------------------------
Fort Wayne National Bank
By: /s/
----------------------------------
Gerald Witt
Senior Vice President
LaSalle National Bank
By: /s/ undecipherable
----------------------------------