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EXHIBIT 10.1
AMENDMENT NO. 6
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT ("AMENDMENT") is dated as of
April 29, 1999, by and among METAL MANAGEMENT, INC., a Delaware corporation
("MTLM"), each of the corporations and other entities set forth on ANNEX 1
hereto (MTLM and each of such corporations and other entities sometimes
hereinafter are referred to individually as a "BORROWER" and collectively as
"BORROWERS"); MTLM, acting in its capacity as funds administrator for itself and
the other Borrowers (in such capacity, the "FUNDS ADMINISTRATOR"); BT COMMERCIAL
CORPORATION, a Delaware corporation (in its individual capacity, hereinafter
referred to as "BTCC") and the other financial institutions signatories hereto
as lenders (BTCC and each of such other financial institutions hereinafter are
referred to individually as a "LENDER" and collectively as "LENDERS"); and BTCC,
acting in its capacity as agent (in such capacity, hereinafter referred to as
the "AGENT") for itself and the other Lenders. Capitalized terms used herein but
not otherwise defined herein shall have the respective meanings assigned to such
terms in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrowers, the Funds Administrator, the Agent and the
Lenders have entered into that certain Credit Agreement dated as of March 31,
1998, as amended (the "CREDIT AGREEMENT"), pursuant to which the Lenders have
agreed to make certain loans and other financial accommodations to or for the
account of the Borrowers;
WHEREAS, the respective Borrowers have requested that the Agent and the
Lenders further amend the Credit Agreement in order, among other things, to
permit (A) the issuance by MTLM of second lien senior notes in an aggregate
principal amount not exceeding $30,000,000 (the "SENIOR NOTES") and (B) the
guaranty by the other Borrowers of the indebtedness evidenced by the Senior
Notes; and
WHEREAS, the Agent and the Lenders have agreed to further amend the
Credit Agreement on the terms and subject to the conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Effective as of the date hereof, upon
satisfaction of the conditions precedent set forth in SECTION 2 below, and in
reliance upon the representations and warranties of the respective Borrowers and
the Funds Administrator set forth herein, the Credit Agreement is hereby amended
as follows:
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1.1 The Credit Agreement is hereby amended by inserting the following
defined terms in SECTION 1.1 thereof in the appropriate alphabetical order:
OFFERING MEMORANDUM shall mean the Offering Memorandum dated
April __, 1999, previously delivered to the Agent.
PREFERRED REDEMPTION PERIOD shall mean the period commencing on
the Senior Note Issuance Date and ending on the earlier to occur of (A)
October 31, 1999 and (B) the date, if any, on which the Funds
Administrator shall request in writing that the Agent terminate the
Preferred Redemption Reserve.
PREFERRED REDEMPTION RESERVE shall mean a special reserve
established upon the written request of the Funds Administrator in an
amount specified by the Funds Administrator in such request and
maintained by Agent against the Borrowing Base at all times during the
Preferred Redemption Period, PROVIDED, that such reserve shall in no
event exceed $6,000,000 and (B) such request shall be received by the
Agent no later than the Senior Note Issuance Date.
SENIOR NOTE DOCUMENTS means, collectively, the Senior Notes,
the Senior Note Indenture and all other agreements, instruments and
documents executed and/or delivered by any Credit Party pursuant
thereto or in connection therewith.
SENIOR NOTE INDENTURE means the Indenture pursuant to which the
Senior Notes are issued, among MTLM, as issuer, the other Borrowers, as
guarantors, and Xxxxxx Trust and Savings Bank, as trustee.
SENIOR NOTES means the 12-3/4% Senior Secured Notes due 2004 of
MTLM in an aggregate original principal amount not exceeding
$30,000,000, described in the Offering Memorandum.
1.2 The Credit Agreement is hereby amended by deleting therefrom CLAUSE
(III) of the definition of the term "Change of Control" set forth in SECTION 1.1
thereof and substituting therefor the following language:
(III) any "change of control" or similar event occurs under the
Subordinated Note Indenture or Senior Note Indenture, respectively.
1.3 The Credit Agreement is hereby amended by deleting SECTION 8.3(G)
thereof in its entirety and substituting therefor the following language:
(G) (I) Indebtedness evidenced by the Subordinated Notes (and
guaranties thereof by Subsidiaries of MTLM) in an aggregate outstanding
principal amount not exceeding $300,000,000 at any time and (II)
Indebtedness evidenced by the Senior Notes (and guaranties thereof by
Subsidiaries of MTLM) in an aggregate outstanding principal amount not
exceeding $30,000,000 at any time, PROVIDED, that, except as otherwise
expressly permitted pursuant to SECTION 8.7(VI), in each case the net
proceeds thereof shall be
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deposited immediately upon receipt thereof by or for the account of
MTLM or any other Borrower into the Collection Account for application
to the outstanding principal balance of the Revolving Loans and Letter
of Credit Obligations pursuant to the terms hereof;
1.4 The Credit Agreement is hereby amended by deleting SECTION 8.3(N)
thereof in its entirety and substituting therefor the following language:
(N) initial or successive refinancings of the Indebtedness
permitted by CLAUSE (G) above, so long as (I) the aggregate outstanding
principal amount of such Indebtedness shall not exceed at any time, (X)
in the case of any such refinancing of Indebtedness evidenced by the
Subordinated Notes, $300,000,000 and (Y) in the case of any such
refinancing of Indebtedness evidenced by the Senior Notes, $30,000,000;
(II) in the case of any such refinancing of Indebtedness evidenced by
the Subordinated Notes, such Indebtedness is expressly subordinated to
the Obligations on terms substantially equivalent (or more favorable to
the Agent and the Lenders) to those set forth in the Subordinated Note
Documents; (III) each such refinancing otherwise shall be on terms and
conditions and governed by documents that are not more restrictive in
any material respect to the Consolidated Entity than the Subordinated
Note Documents and Senior Note Documents, respectively; and (IV) such
Indebtedness has a final maturity and a weighted average life to
maturity no earlier than the refinanced Indebtedness; and
1.5 The Credit Agreement is hereby amended by deleting SECTION 8.4(A)
thereof in its entirety and substituting therefor the following language:
(A) Liens granted to the Agent and Liens granted pursuant to
the Senior Note Documents in favor of the trustee under the Senior Note
Indenture, to the extent such Liens secure Indebtedness permitted
pursuant to SECTION 8.3(G)(II);
1.6 SECTION 8.7 of the Credit Agreement is hereby amended by (A)
inserting therein the following language immediately following CLAUSE (V)
thereof and (B) renumbering clause "(VI)" thereof as clause "(VII)":
(VI) so long as before and after giving effect to each such
repurchase or redemption, no Default or Event of Default shall have
occurred and be continuing:
(1) on or at any time after the date on which the proceeds
of the Senior Notes are received by or for the account of MTLM
(the "SENIOR NOTE ISSUANCE DATE"), MTLM may repurchase or redeem
shares of its convertible preferred stock having an aggregate face
amount no greater than $3,000,000 with aggregate proceeds of the
issuance of the Senior Notes not exceeding $3,750,000; and
(2) if on or prior to the Senior Note Issuance Date, the
Funds Administrator has requested the establishment by Agent of
the Preferred Redemption Reserve, at any time during the Preferred
Redemption Period, MTLM may repurchase or redeem shares of its
convertible preferred stock in addition to those repurchases and
redemptions permitted pursuant to CLAUSE (1) above, PROVIDED, that
the
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aggregate consideration for such additional repurchases and
redemptions shall not exceed the Preferred Redemption Reserve; and
1.7 The Credit Agreement is hereby amended by deleting CLAUSE (II) of
SECTION 8.11(A) thereof in its entirety and substituting therefor the following
language:
(II) the Subordinated Note Indenture and the other Subordinated Note
Documents and the Senior Note Indenture and the other Senior Note
Documents, respectively,
1.8 The Credit Agreement is hereby amended by deleting SECTION 8.12
thereof in its entirety and substituting therefor the following language:
8.12 SUBORDINATED NOTES AND SENIOR NOTES.
(A) NO CHANGE. MTLM shall not amend or otherwise
change the respective terms of any of the Subordinated Note
Documents or Senior Note Documents if such amendment change could
reasonably be expected to affect the Agent or the Lenders in any
material and adverse respect.
(B) NOTICES. MTLM shall deliver to the Agent (I) a
copy of each notice or other communication delivered by or on
behalf of such Borrower to the trustee under the Subordinated Note
Documents or Senior Note Documents, respectively, such delivery to
be made at the same time and by the same means as such notice or
other communication is delivered to such trustee, and (II) a copy
of each notice or other communication received by MTLM from such
trustee, such delivery to be made promptly after such notice or
other communication is received by such Borrower.
2. CONDITIONS PRECEDENT. This Amendment shall become effective as of
the date hereof, upon satisfaction of each of the following conditions:
(A) the Agent shall have received six (6) copies of this
Amendment, duly executed by the Majority Lenders, each of the Borrowers
and the Funds Administrator;
(B) (I) issuance of the Senior Notes shall occur no later than
May 31, 1999, (II) the respective terms and provisions of Senior Note
Documents shall be in all respects satisfactory to the Agent and (III)
the Agent shall have entered into an Intercreditor Agreement with the
trustee under the Senior Note Indenture in all respects in form and
substance satisfactory to the Agent.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
3.1 Each of the Borrowers and the Funds Administrator hereby
represents and warrants to the Agent and each of the Lenders that,
after giving effect to this Amendment:
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(A) All representations and warranties contained in
the Credit Agreement and the other Credit Documents are true and
correct in all material respects on and as of the date of this
Amendment, in each case as if then made, other than
representations and warranties that expressly relate solely to an
earlier date (in which case such representations and warranties
remain true and accurate on and as of such earlier date);
(B) No Default or Event of Default has occurred which
is continuing;
(C) This Amendment, and the Credit Agreement, as
amended hereby, constitute legal, valid and binding obligations of
the Borrowers and the Funds Administrator, respectively, and are
enforceable against each of the Borrowers and the Funds
Administrator in accordance with their respective terms; and
(D) The execution and delivery by the Borrowers and
the Funds Administrator of this Amendment does not require the
consent or approval of any Person, except such consents and
approvals as have been obtained.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
CREDIT DOCUMENTS.
4.1 Upon the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in each of the
other Credit Documents to the "Credit Agreement" shall in each case
mean and be a reference to the Credit Agreement as amended hereby.
4.2 Except as expressly set forth herein, (I) the execution
and delivery of this Amendment shall in no way affect any of the
respective rights, powers or remedies of the Agent or any of the
Lenders with respect to any Event of Default nor constitute a waiver of
any provision of the Credit Agreement or any of the other Credit
Documents and (II) all of the respective terms and provisions of the
Credit Agreement, the other Credit Documents and all other documents,
instruments, amendments and agreements executed and/or delivered by any
of the Borrowers and/or the Funds Administrator pursuant thereto or in
connection therewith shall remain in full force and effect and are
hereby ratified and confirmed in all respects. The execution and
delivery of this Amendment by the Agent and each of the Lenders shall
in no way obligate the Agent or any of the Lenders, at any time
hereafter, to consent to any other amendment or modification of any
term or provision of the Credit Agreement or any of the other Credit
Documents, whether of a similar or different nature.
5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES.
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6. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other pur pose.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. Any such counterpart
which may be delivered by facsimile transmission shall be deemed the equivalent
of an originally signed counterpart and shall be fully admissible in any
enforcement proceedings regarding this Agreement.
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FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the date first set forth above.
BT COMMERCIAL CORPORATION, in its
individual capacity as a Lender and in its capacity
as Agent
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Principal
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XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
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FLEET CAPITAL CORPORATION (FORMERLY
KNOWN AS SANWA BUSINESS CREDIT
CORPORATION)
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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LASALLE NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Assistant Vice President
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CONGRESS FINANCIAL CORP. (CENTRAL)
By:
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Name:
-----------------------------
Title:
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Amendment No. 6
to Credit Agreement
8
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
---------------------------------------------
Title: Vice President
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NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
---------------------------------------------
Title: Vice President
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PNC BUSINESS CREDIT
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
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IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Vice President
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NATIONAL BANK OF CANADA
By: /s/ Xxxxxxxx Xxxxxxx / Xxxxx X. Xxxxx
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Name: Xxxxxxxx Xxxxxxx / Xxxxx X. Xxxxx
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Title: Vice President / Vice President & Manager
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BANKBOSTON, N.A.
By: /s/ Marwan Isbaih
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Name: Marwan Isbaih
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Title: Vice President
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Amendment No. 6
to Credit Agreement
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METAL MANAGEMENT, INC., a Delaware
corporation, in its individual capacity as a
Borrower and in its capacity as Funds
Administrator
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
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Amendment No. 6
to Credit Agreement
10
AEROSPACE METALS, INC.
AMERICAN SCRAP PROCESSING, INC.
C SHREDDING CORP.
CALIFORNIA METALS RECYCLING, INC.
CIM TRUCKING, INC.
COMETCO CORP.
XXXXX BUILDING CORPORATION
XXXXX IRON & METAL, INC.
EMCO TRADING, INC.
FERREX TRADING CORPORATION
FIRMA, INC.
FIRMA PLASTIC CO., INC.
HOUSTON COMPRESSED STEEL CORP.
HOUTEX METALS COMPANY, INC.
THE XXXXX CORPORATION
X. XXXXXX IRON & METAL, INC.
KANKAKEE SCRAP CORPORATION
MAC LEOD METALS CO.
METAL MANAGEMENT ARIZONA, INC.
METAL MANAGEMENT REALTY, INC.
PROLER SOUTHWEST INC.
PROLER STEELWORKS L.L.C.
SALT RIVER RECYCLING, L.L.C.
SCRAP PROCESSING, INC.
TROJAN TRADING CO.
USA SOUTHWESTERN CARRIER, INC.
138 SCRAP ACQUISITION CORP.
R & P HOLDINGS, INC.
METAL MANAGEMENT GULF
COAST, INC.
XXXXXX RECYCLING WEST, INC.
NAPORANO IRON & METAL CO.
NIMCO SHREDDING CO.
XXXXXXX XXXXXXXXX & SONS, INC.
TORRINGTON SCRAP COMPANY
XXXXXXXXX ACQUISITION CORP.
METAL MANAGEMENT
PITTSBURGH, INC.
FPX, INC.
PERLCO, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Vice President
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Amendment No. 6
to Credit Agreement
11
RESERVE IRON & METAL LIMITED
PARTNERSHIP
By: X. XXXXXX IRON & METAL, INC., its
general partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
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Amendment No. 6
to Credit Agreement
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ANNEX 1
TO
AMENDMENT NO. 6
DATED AS OF APRIL ___, 1999
OTHER BORROWERS
1. AEROSPACE METALS, INC.
2. AMERICAN SCRAP PROCESSING, INC.
3. C SHREDDING CORP.
4. CALIFORNIA METALS RECYCLING, INC.
5. CIM TRUCKING, INC.
6. COMETCO CORP.
7. XXXXX BUILDING CORPORATION
8. XXXXX IRON & METAL, INC.
9 EMCO TRADING, INC.
10. FERREX TRADING CORPORATION
11. FIRMA, INC.
12. FIRMA PLASTIC CO., INC.
13. HOUSTON COMPRESSED STEEL CORP.
14. HOUTEX METALS COMPANY, INC.
15. THE XXXXX CORPORATION
16. X. XXXXXX IRON & METAL, INC.
17. KANKAKEE SCRAP CORPORATION
18. MAC LEOD METALS CO.
19. METAL MANAGEMENT ARIZONA, INC.
20. METAL MANAGEMENT REALTY, INC.
21. PROLER SOUTHWEST INC.
22. PROLER STEELWORKS L.L.C.
23. SALT RIVER RECYCLING, L.L.C.
24. SCRAP PROCESSING, INC.
25. TROJAN TRADING CO.
26. USA SOUTHWESTERN CARRIER, INC.
27. RESERVE IRON & METAL LIMITED PARTNERSHIP
28. 138 SCRAP ACQUISITION CORP.
29. R & P HOLDINGS, INC.
30. METAL MANAGEMENT GULF COAST, INC.
31. XXXXXX RECYCLING WEST, INC.
32. NAPORANO IRON & METAL CO.
33. NIMCO SHREDDING CO.
34. XXXXXXX XXXXXXXXX & SONS, INC.
35. TORRINGTON SCRAP COMPANY
36. XXXXXXXXX ACQUISITION CORP.
37. METAL MANAGEMENT PITTSBURGH, INC.
38. FPX, INC.
39. PERLCO, L.L.C.
