Exhibit 10.28
INTERNATIONAL STEEL GROUP INC.
FIFTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
This FIFTH AMENDMENT TO CREDIT AND GUARANTY AGREEMENT, dated
as of June 21, 2004 (this "AMENDMENT"), is entered into by and among
INTERNATIONAL STEEL GROUP INC., a Delaware corporation (the "COMPANY"), ISG
ACQUISITION INC., ISG CLEVELAND INC., ISG HENNEPIN INC., ISG INDIANA HARBOR
INC., ISG WARREN INC., ISG RIVERDALE INC., ISG PLATE LLC (F/K/A ISG PLATE INC.),
ISG PIEDMONT LLC (F/K/A ISG PIEDMONT INC.), ISG BURNS HARBOR LLC (F/K/A ISG
BURNS HARBOR INC.), ISG SPARROWS POINT LLC (F/K/A ISG SPARROWS POINT INC.), ISG
STEELTON LLC (F/K/A ISG STEELTON INC.), and ISG LACKAWANNA LLC (F/K/A ISG
LACKAWANNA INC.) (each a "BORROWER" and collectively, the "BORROWERS"), the
CREDIT SUPPORT PARTIES listed on the signature pages hereto, the Lenders listed
on the signature pages hereto, UBS AG, STAMFORD BRANCH, as Administrative Agent
(together with its permitted successors in such capacity, "ADMINISTRATIVE
AGENT"), GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent (in such
capacity, "SYNDICATION AGENT"), THE CIT GROUP/BUSINESS CREDIT, INC., as
Collateral Agent (together with its permitted successor in such capacity,
"COLLATERAL AGENT"), FLEET CAPITAL CORPORATION, as Co-Documentation Agent and
LASALLE BANK NATIONAL ASSOCIATION, as Co-Documentation Agent, and is made with
reference to that certain Credit and Guaranty Agreement, dated as of May 7, 2003
(as amended through the date hereof, the "CREDIT AGREEMENT"). Capitalized terms
used herein not otherwise defined herein or otherwise amended hereby shall have
the meanings ascribed thereto in the Credit Agreement.
RECITALS:
WHEREAS, the Company and the Borrowers have requested that the
Lenders agree to make amendments to certain provisions of the Credit Agreement
in connection with the Company's proposed purchase of substantially all of the
assets of Georgetown Steel Company LLC, pursuant to that certain Asset Purchase
Agreement dated as of May 3, 2004 and as amended through the date hereof;
WHEREAS, the Lenders have agreed to amend certain provisions
of the Credit Agreement, in each case in the manner, and on the terms and
conditions, provided for herein.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT
Upon satisfaction of the conditions set forth in Section III herein,
the Credit Agreement shall be amended as follows in this Section I:
A. AMENDMENTS TO SECTION 1: DEFINITIONS
(i) The definitions of "CONSOLIDATED CAPITAL
EXPENDITURES" and "PERMITTED ACQUISITION" in Section 1.1 of the Credit
Agreement are hereby amended and restated in their entirety to read as
follows:
"'CONSOLIDATED CAPITAL EXPENDITURES' means, for any
period, the aggregate of all expenditures of the Company and its
Subsidiaries during such period determined on a consolidated basis
that, in accordance with GAAP, are or should be included in "purchase
of property and equipment" or similar items reflected in the
consolidated statement of cash flows of the Company and its
Subsidiaries (other than any expenditures of the Company and its
Subsidiaries in connection with the Weirton Acquisition and the
Georgetown Acquisition); provided, that payments in respect of the
lease between ISG Burns Harbor Inc., as lessee, and DTE Burns Harbor,
L.L.C., as lessor, of the No.1 coke battery located at ISG Burns Harbor
Inc.'s steel-making plant in the town of Burns Harbor, Indiana shall
not be deemed to be Consolidated Capital Expenditures hereunder."
"'PERMITTED ACQUISITION' means any acquisition by the
Company or any of its wholly-owned Subsidiaries, whether by purchase,
merger or otherwise, of all or substantially all of the assets of, all
of the Capital Stock of, or a business line or unit or a division of,
any Person; provided,
(a) immediately prior to, and after giving
effect thereto, no Default or Event of Default shall have occurred and
be continuing or would result therefrom;
(b) all transactions in connection therewith
shall be consummated, in all material respects, in accordance with all
applicable laws and in conformity with all applicable Governmental
Authorizations;
(c) in the case of the acquisition of Capital
Stock, all of the Capital Stock (except for any such Securities in the
nature of directors' qualifying shares required pursuant to applicable
law) acquired or otherwise issued by such Person or any newly formed
Subsidiary of the Company in connection with such acquisition shall be
owned 100% by the Company and/or one or more Guarantor Subsidiaries
thereof, and the Company shall have taken, or caused to be taken, as of
the date such Person becomes a Subsidiary of the Company, each of the
actions set forth in Sections 5.10, as applicable;
(d) the Company and its Subsidiaries shall be in
compliance with the financial covenants set forth in Section 6.8 on a
pro forma basis after giving effect to such acquisition as of the last
day of the Fiscal Quarter most recently ended, for which
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financial statements have been delivered pursuant to Section 5.1(b) or
Section 5.1(c) (as determined in accordance with Section 6.8(f));
provided, that with respect to the Weirton Acquisition, the Company
shall only be required to demonstrate pro forma compliance with the
financial covenants set forth in Section 6.8 in accordance with the
modified pro forma compliance statements delivered to the
Administrative Agent and the Lenders on the Third Amendment Effective
Date; provided further, that with respect to the Georgetown
Acquisition, the Company shall not be required to demonstrate pro forma
compliance with the financial covenants set forth in Section 6.8 after
giving effect to such acquisition;
(e) the Company shall have delivered to
Administrative Agent at least fifteen (15) Business Days prior to such
proposed acquisition, a Compliance Certificate evidencing compliance
with Section 6.8 as required under clause (d) above, together with all
relevant financial information with respect to such acquired assets,
including, without limitation, the aggregate consideration for such
acquisition and any other information required to demonstrate
compliance with Section 6.8; and
(f) any Person or assets or division as acquired
in accordance herewith (y) shall be in substantially the same business
or lines of business in which the Company and/or its Subsidiaries are
engaged in as of the Closing Date or that are related or complimentary
thereto (other than the coal mine business) and (z) shall have
generated positive cash flow for the four quarter period most recently
ended prior to the date of such acquisition.
Notwithstanding any of the foregoing to the contrary, it is understood
and agreed that the Company shall not be required to comply with the
requirements set forth in clauses (e) and (f)(z) above with respect to
the Weirton Acquisition and the Georgetown Acquisition."
(ii) Section 1.1 of the Credit Agreement is
hereby further amended by adding the following definitions in proper
alphabetical sequence:
"'FIFTH AMENDMENT' means that certain Fifth Amendment
and Limited Waiver to Credit and Guaranty Agreement dated as of June [
], 2004, among the Company, Borrowers, Administrative Agent,
Syndication Agent, Collateral Agent, Documentation Agent and the
financial institutions and the Credit Support Parties listed on the
signature pages thereto."
"'FIFTH AMENDMENT EFFECTIVE DATE' means the Fifth
Amendment Effective Date, as defined in the Fifth Amendment."
"'GEORGETOWN ACQUISITION' means ISG Georgetown's
purchase of substantially all of the assets of Georgetown Steel Company
LLC."
"'ISG GEORGETOWN' means ISG Georgetown Inc., a
Delaware corporation."
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B. AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS
(i) Section 5 of the Credit Agreement is hereby
amended by deleting Section 5.10(a) in its entirety and replacing it
with the following:
"(a) Domestic Subsidiaries. In the event that any
Person becomes a Domestic Subsidiary of the Company (other than a
Specified Subsidiary), the Company shall (i) promptly cause such
Domestic Subsidiary to become a Guarantor hereunder and a Grantor under
the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, and
(ii) take all such actions and execute and deliver, or cause to be
executed and delivered, all such documents, instruments, agreements,
and certificates as are similar to those described in Sections 3.1(b),
3.1(h), 3.1(j) and 3.1(m); provided that, if any such Person becomes a
material operating Subsidiary of the Company, it shall become a
"Borrower" hereunder, pursuant to the execution and delivery of a
joinder agreement in form and substance reasonably acceptable to each
Agent, directly by as well as complying with (ii) above; provided,
further, that notwithstanding any of the foregoing to the contrary, any
Subsidiaries acquired or created in connection with the Weirton
Acquisition and the Georgetown Acquisition (including ISG Weirton and
ISG Georgetown) shall only be required to become Guarantors hereunder
and shall upon the acquisition or creation of such Subsidiaries (or
promptly thereafter) cause each such Subsidiary to become a Guarantor
hereunder and a Grantor under the Pledge and Security Agreement by
executing and delivering to the Administrative Agent and Collateral
Agent a Counterpart Agreement."
(ii) Section 5 of the Credit Agreement is hereby
further amended to add the following paragraph at the conclusion of
Section 5.15:
"Notwithstanding any of the foregoing to the
contrary, none of the Company, ISG Weirton, ISG Georgetown nor any
other Subsidiary of the Company shall be required to comply with the
requirements set forth in this Section 5.15 in connection with either
the Weirton Acquisition or the Georgetown Acquisition."
SECTION II. CONDITIONS PRECEDENT TO EFFECTIVENESS
The amendments set forth in Section I hereof shall be
effective on and as of the date hereof (the "FIFTH AMENDMENT EFFECTIVE DATE")
upon the satisfaction, or waiver by the Requisite Lenders, on or after the date
hereof, of the following conditions:
(i) The Company, the Borrowers, the other Credit
Parties and the Requisite Lenders shall have indicated their consent by
the execution and delivery of the signature pages hereof to the
Administrative Agent.
(ii) The Administrative Agent shall have received
a certificate from the Company, certifying that as of the Fifth
Amendment Effective Date, the representations and warranties contained
in Section III herein and in the other Credit Documents are true
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and correct in all material respects on and as of the Fifth Amendment
Effective Date to the same extent as though made on and as of the Fifth
Amendment Effective Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties are true and correct in all material
respects on and as of such earlier date.
(iii) The Administrative Agent shall have received
a certificate from the Company, certifying that as of the Fifth
Amendment Effective Date (after giving effect to the amendments
contained herein), no event shall have occurred and be continuing that
would constitute an Event of Default or a Default.
(iv) The Administrative Agent and Lenders shall
have received such other documents and information regarding Credit
Parties and the Credit Agreement as the Administrative Agent or Lenders
may have reasonably requested prior to the date hereof.
SECTION III. REPRESENTATIONS AND WARRANTIES
A. CORPORATE POWER AND AUTHORITY. Each Credit Party has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
this Amendment.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment has been duly authorized by all necessary corporate or
partnership (as applicable) action on the part of each Credit Party.
C. BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Credit Party and constitutes a legal, valid and binding
obligation of each Credit Party enforceable against each Credit Party in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally and except as enforceability may be
limited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
D. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
DOCUMENTS. The representations and warranties contained in the Credit Documents
are and will be true and correct in all material respects on and as of the Fifth
Amendment Effective Date (after giving effect to the amendments and waivers
contained herein) to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true and correct in all material
respects on and as of such earlier date .
E. ABSENCE OF DEFAULT. No event has occurred and is continuing
(after giving effect to the amendments and waivers contained herein) or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default.
SECTION IV. ACKNOWLEDGMENT AND CONSENT
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Each of the Company, each wholly-owned Domestic Subsidiary of
the Company (other than the Borrowers and the Specified Subsidiaries) and ISG
Real Estate Inc. has (i) guaranteed the Obligations and (ii) (other than ISG
Real Estate Inc.) created Liens in favor of Lenders on the Collateral to secure
the Obligations subject to the terms and provisions of the Credit Agreement.
Each of the Company, ISG Real Estate Inc., and each wholly-owned Domestic
Subsidiary of the Company who has guaranteed the Obligations are collectively
referred to herein as the "CREDIT SUPPORT PARTIES", and the Credit Agreement and
the Collateral Documents are collectively referred to herein as the "CREDIT
SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guarantee or secure, as the case may be, to the fullest
extent possible in accordance with and subject to the Credit Support Documents
the payment and performance of all "Obligations" under each of the Credit
Support Documents, as the case may be (in each case as such terms are defined in
the applicable Credit Support Document), including without limitation the
payment and performance of all such "Obligations" under each of the Credit
Support Documents, as the case may be, in respect of the Obligations of the
Company now or hereafter existing under or in respect of the Credit Agreement
and hereby pledges and assigns to the Collateral Agent, and grants to the
Collateral Agent a continuing lien on and security interest in and to all
Collateral as collateral security for the prompt payment and performance in full
when due of the "Obligations" under each of, and in accordance with and subject
to, the Credit Support Documents to which it is a party (whether at stated
maturity, by acceleration or otherwise).
Each Credit Support Party acknowledges and agrees that all of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Credit Agreement, this Amendment and the Credit Support Documents to which it is
a party or otherwise bound are true and correct in all material respects on and
as of the Fifth Amendment Effective Date to the same extent as though made on
and as of the Fifth Amendment Effective Date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party (other than the Company) is not required by the terms
of the Credit Agreement or any other Credit Document to consent to the
amendments to the Credit Agreement effected pursuant to this Amendment and (ii)
nothing in the Credit Agreement, this Amendment or any other Credit Document
shall be deemed to require the consent of such Credit Support Party (other than
the Company) to any future amendments to the Credit Agreement.
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SECTION V. MISCELLANEOUS
A. BINDING EFFECT. This Amendment shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder or any interest therein may be
assigned or delegated by any Credit Party without the prior written consent of
all Lenders.
B. SEVERABILITY. In case any provision in or obligation hereunder shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
C. REFERENCE TO CREDIT AGREEMENT. On and after the Fifth Amendment
Effective Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Credit Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
D. EFFECT ON CREDIT AGREEMENT. Except as specifically amended by this
Amendment, the Credit Agreement and the other Credit Documents shall remain in
full force and effect and are hereby ratified and confirmed.
E. EXECUTION. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any Agent
or Lender under, the Credit Agreement or any of the other Credit Documents.
F. HEADINGS. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
G. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
H. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. As set forth herein, this Amendment shall become effective upon
the execution of a counterpart hereof by each of the parties hereto and receipt
by the Administrative Agent and the Syndication Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY INTERNATIONAL STEEL GROUP INC.
By: /s/ Brian D. Kurtz
----------------------------------
Name: Brian D. Kurtz
Title: Vice President, Finance and
Treasurer
BORROWERS ISG ACQUISITION INC.
ISG CLEVELAND INC.
ISG HENNEPIN INC.
ISG INDIANA HARBOR INC.
ISG WARREN INC.
ISG RIVERDALE INC.
ISG PLATE LLC
ISG PIEDMONT LLC
ISG BURNS HARBOR LLC
ISG SPARROWS POINT LLC
ISG STEELTON LLC
ISG LACKAWANNA LLC
By: /s/ Brian D. Kurtz
----------------------------------
Name: Brian D. Kurtz
Title: Vice President and
Assistant Secretary
CREDIT SUPPORT PARTIES
ISG RAILWAYS INC.
ISG/EGL HOLDING COMPANY
ISG CLEVELAND WORKS RAILWAY COMPANY
ISG SOUTH CHICAGO & INDIANA HARBOR
RAILWAY COMPANY
ISG VENTURE INC.
ISG SALES INC.
ISG CLEVELAND WEST INC.
ISG CLEVELAND WEST PROPERTIES INC.
ISG TECHNOLOGIES INC.
ISG REAL ESTATE INC.
ISG HIBBING INC.
HIBBING TACONITE HOLDING INC.
ISG PLATE SERVICES LLC
ISG SPARROWS POINT SERVICES LLC
ISG BURNS HARBOR SERVICES LLC
ISG LACKAWANNA SERVICES LLC
ISG STEELTON SERVICES LLC
By: /s/ Brian D. Kurtz
----------------------------------
Name: Brian D. Kurtz
Title: Vice President and
Assistant Secretary
ADMINISTRATIVE AGENT AND ISSUING BANK UBS AG, STAMFORD BRANCH
By: /s/ Wilfred V. Saint
----------------------------------
Name: Wilfred V. Saint
Title: Director
Banking Products Services,
US
By: /s/ Juan Zuniga
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Name: Juan Zuniga
Title: Associate Director
Banking Products Services,
US
LENDER AND SWING LINE LENDER UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ Wilfred V. Saint
----------------------------------
Name: Wilfred V. Saint
Title: Director
Banking Products Services,
US
By: /s/ Juan Zuniga
----------------------------------
Name: Juan Zuniga
Title: Associate Director
Banking Products Services,
US
FIFTH AMENDMENT TO THE
CREDIT AND GUARANTY AGREEMENT
To approve the Fifth Amendment:
Syndication Agent Name of Institution:
Goldman Sachs
By: /s/ Bruce H. Mendelshon
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Name: Bruce H. Mendelshon
Title: Authorized Signatory
FIFTH AMENDMENT TO THE
CREDIT AND GUARANTY AGREEMENT
To approve the Fifth Amendment:
Collateral Agent Name of Institution:
The CIT Group/Business Credit, Inc.
By: /s/ George Louis McKinley
----------------------------------
Name: George Louis McKinley
Title: Vice President
FIFTH AMENDMENT TO THE
CREDIT AND GUARANTY AGREEMENT
To approve the Fifth Amendment:
Co-Documentation Agent Name of Institution:
LaSalle Bank National Association
By: /s/ Keith J. Cable
----------------------------------
Name: Keith J. Cable
Title: Vice President