AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT, dated as of
December 12, 2000, among International Mill Service, Inc., a Pennsylvania
corporation ("IMS"), IMS Alabama, Inc. ("Alabama") (each, a "Borrower", and,
together with IMS, the "Borrowers"), the financial institutions party hereto
from time to time (the "Lenders") and Bank of America, N.A. ("Bank of America"),
a national banking association, as agent for the Lenders (the "Agent").
WHEREAS, the Borrowers, the Lenders and Bank of America are
parties to a Loan and Security Agreement dated as of November 16, 1999 (as the
same may be amended, modified, supplemented or restated from time to time, the
"Loan Agreement"; unless otherwise defined herein, terms defined in the Loan
Agreement being used herein as therein defined);
WHEREAS, the parties hereto have agreed to amend certain
provisions of the Loan Agreement;
WHEREAS, the parties hereto have agreed to waive certain
provisions of the Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise specifically defined
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herein, all capitalized terms used herein shall have the respective
meanings ascribed to such terms in the Loan Agreement.
Section 2. Amendment to Loan Agreement. Subject to the
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conditions as to effectiveness set forth in Paragraph 5 of
this Amendment, the Loan Agreement is hereby
amended as follows:
(a) Section 9.23(a) of the Loan Agreement is hereby
amended by deleting the words "would exceed $25,000,000 for any Fiscal
Year of Borrowers" appearing therein and substituting the words "would
exceed (i) $36,000,000 for the Borrowers' Fiscal Year ending December
31, 2000, and (ii) $25,000,000 for any Fiscal Year of the Borrowers
thereafter".
(b) Section 9.24 of the Loan Agreement is hereby
amended by deleting the words "would exceed $18,000,000" appearing
therein and substituting the words "would exceed $16,000,000".
Section 3. Waiver under Loan Agreement. The Lenders hereby
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waive any existing Default or Event of Default that arose solely as a result of
a breach under clause (a) of Section 9.23 of the Loan Agreement, for the period
beginning on October 31, 2000 through the effective date of this Amendment.
Section 4. Representations and Warranties of the Borrowers.
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The Borrowers hereby represent and warrant as of the date hereof as follows
(which representations and warranties shall survive the execution and delivery
of this Amendment):
(a) All representations and warranties made by the
Borrowers in Article 8 of the Loan Agreement and each of the other Loan
Documents are true and correct in all material respects as of the date
hereof with the same force and effect as if made on such date (except
to the extent that any such representation or warranty relates
expressly to an earlier date or to the extent that any such
representation or warranty is expressly waived herein).
(b) The Borrowers have the requisite power to
execute, deliver and carry out the terms and provisions of this
Amendment.
(c) This Amendment has been duly executed and
delivered and constitutes the legal, valid and binding obligation of
the Borrowers, and is enforceable in accordance with its terms subject
(i) as to enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally, from time to time in
effect, and (ii) to general principles of equity.
(d) Other than as specified and waived in Section 3
of this Amendment, no event has occurred and is continuing which
constitutes or would constitute a Default or an Event of Default under
the Loan Agreement.
Section 5 Conditions Precedent. Notwithstanding any term or
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provision of this Amendment to the contrary, Sections 2 and 3 hereof shall not
become effective until:
(a) The Agent shall have received counterparts of
this Amendment, duly executed and delivered on behalf of the Lenders
and the Borrowers.
Section 6 Continued Effectiveness. Nothing herein shall be
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deemed to be a waiver of any covenant (except as contained in Section 3 herein),
or agreement contained in, or any Default or Event of Default under the Loan
Agreement and each of the parties hereto agrees that, as amended by this
Amendment, all of the covenants and agreements and other provisions contained in
the Loan Agreement and the other Loan Documents shall remain in full force and
effect from and after the date of this Amendment.
Section 7 Counterparts. This Amendment may be executed in two
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or more counterparts, each of which shall be an original, and all of which,
taken together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (OTHER THAN
THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
BORROWER AND GUARANTOR: INTERNATIONAL MILL SERVICES, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
BORROWER AND GUARANTOR: IMS ALABAMA, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
LENDERS: BANK OF AMERICA, N.A., AS A LENDER
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
SOVEREIGN BANK, AS A LENDER
By: /s/XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
FOOTHILL CAPITAL CORPORATION,
AS A LENDER
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Assistant Vice President
AGENT: BANK OF AMERICA, N.A., AS AGENT
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
