EXECUTION COPY
SEVENTH AMENDMENT, dated as of April
9, 1999, to the Credit Agreement, dated as
of December 19, 1995 (as amended to the date
hereof, the "Credit Agreement"), among
International Mill Service, Inc., a
Pennsylvania corporation (the "Borrower"),
Envirosource, Inc., a Delaware corporation
(the "Parent"), the several banks and other
financial institutions parties thereto (the
"Lenders"), NationsBank, N.A., as
administrative agent for the Lenders (in
such capacity, the "Administrative Agent"),
and Credit Lyonnais New York Branch, the New
York branch of a banking organization
organized under the laws of the Republic of
France, as syndication agent for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lenders agree to make various
changes in the Credit Agreement.
(2) The parties hereto have agreed, subject to the terms and conditions
hereof, to grant the requests of the Borrower and to amend the Credit Agreement
as provided herein.
(3) Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement (the Credit
Agreement, as amended by, and together with, this Seventh Amendment, and as
hereinafter amended, modified, extended or restated from time to time, being
called the "Amended Agreement").
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendments to Section 1.1. The definition of "EBITDA" in
Section 1.1 of the Credit Agreement is hereby amended by deleting the last
sentence thereof and inserting the following in lieu thereof:
"For purposes of the Pricing Ratio and Sections 7.1(a), 7.1(c)
and 7.1(d) only, EBITDA shall be determined without regard to
(a) restructuring expenses of the Parent and its Subsidiaries
incurred with respect to 1993 of $900,000 and reorganization
expenses of the Parent and its Subsidiaries incurred in 1996
up to $4,500,000 and (b) unusual charges (other than any
aggregate net gain or any aggregate net loss arising from the
sale, exchange or other disposition of capital assets that are
classified as unusual charges) of the Parent and its
Subsidiaries incurred in any Reference Period during 1998 and
1999 of up to $5,640,000."
SECTION 1.02. Representations and Warranties. The Parent and the
Borrower hereby represent and warrant to each Lender that:
(a) The representations and warranties set forth in Section 4
of the Credit Agreement, and in each other Loan Document, are true and
correct in all material respects on and as of the date hereof and on
and as of the Seventh Amendment Effective Date (as defined in Section
1.03) with the same effect as if made on and as of the date hereof or
the Seventh Amendment Effective Date, as the case may be, except to the
extent such representations and warranties expressly relate solely to
an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as of
such earlier date).
(b) Each of the Loan Parties is in compliance with all the
terms and conditions of the Credit Agreement and the other Loan
Documents on its part to be observed or performed and no Default or
Event of Default has occurred or is continuing.
(c) The execution, delivery and performance by each of the
Borrower and the Parent of this Seventh Amendment have been duly
authorized by such party.
(d) This Seventh Amendment constitutes the legal, valid and
binding obligation of each of the Borrower and the Parent, enforceable
against it in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally.
(e) The execution, delivery and performance by each of the
Borrower and the Parent of this Seventh Amendment (i) do not conflict
with or violate (A) any provision of law, statute, rule or regulation,
or of the certificate of incorporation or by-laws of the Borrower or
the Parent, (B) any order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which the
Borrower or the Parent is a party or by which it or any of its property
may be bound and (ii) do not require any consents under, result in a
breach of or constitute (with notice or lapse of time or both) a
default under any such indenture, agreement or instrument.
SECTION 1.03. Effectiveness. This Seventh Amendment shall become
effective only upon satisfaction of the following conditions precedent and upon
such date, this Seventh Amendment shall be deemed to be effective as of March
26, 1999 (the "Seventh Amendment Effective Date"):
(a) The Administrative Agent shall have received duly executed
counterparts of this Seventh Amendment which, when taken together, bear
the authorized signatures of the Borrower, the Parent and the Required
Lenders.
(b) (i) The representations and warranties set forth in
Section 1.02 shall be true and correct on and as of the Seventh
Amendment Effective Date, (ii) no Default or Event of Default has
occurred or is continuing and (iii) there shall not be any action
pending or any judgment, order or decree in effect which is likely to
restrain, prevent or impose materially adverse conditions upon
performance by any Loan Party of its obligations under the Loan
Documents.
(c) The Borrower shall have paid in full all fees and
reasonable expenses in connection with the Credit Agreement and the
other Loan Documents including, without limitation, the fees and
expenses set forth in Sections 1.05 hereto.
(d) The Administrative Agent shall have received from each of
the Guarantors duly executed Consents, in the form attached hereto as
Exhibit A, which bear the authorized signatures of such Guarantors.
(e) The Administrative Agent shall have received an opinion of
counsel to the Borrower, the Parent and the other Loan Parties in form
and substance satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received such other
documents, legal opinions, instruments and certificates as it shall
reasonably request and such other documents, legal opinions,
instruments and certificates shall be satisfactory in form and
substance to the Administrative Agent and its counsel. All corporate
and other proceedings taken or to be taken in connection with this
Seventh Amendment and all documents incidental thereto, whether or not
referred to herein, shall be satisfactory in form and substance to the
Administrative Agent and its counsel.
SECTION 1.04. APPLICABLE LAW. THIS SEVENTH AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.05. Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses incurred by the Agents in connection with the
preparation, negotiation, execution and delivery and the Agents' and the
Lenders' enforcement of this Seventh Amendment, including, but not limited to,
the reasonable fees and disbursements of counsel. The agreements set forth in
this Section 1.05 shall survive the termination of this Seventh Amendment and
the Amended Agreement.
SECTION 1.06. Counterparts. This Seventh Amendment may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one agreement.
SECTION 1.7. Reference to and Effect on the Loan Documents. (a) On and
after the Seventh Amendment Effective Date, each reference in the Amended
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
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
Amended Agreement as amended by this Seventh Amendment.
(b) Each of the amendments provided herein shall apply and be
effective only with respect to the provisions of the Credit Agreement
specifically referred to by such amendment. Except as specifically
amended above, the Credit Agreement and the Revolving Credit Notes, and
all other Loan Documents, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed.
(c) Except as specifically provided above, the execution,
delivery and effectiveness of this Seventh Amendment shall not operate
as a waiver of any right, power or remedy of any Lender, any Agent or
any Secured Party under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment to be duly executed by their duly authorized officers, all as of the
date first above written.
INTERNATIONAL MILL SERVICE, INC.
By: /s/XXXXXXX X. XXXXX
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Title: Vice President and Treasurer
ENVIROSOURCE, INC.
By: /s/XXXXXXX X. XXXXX
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Title: Vice President and Treasurer
NATIONSBANK, N.A., as Administrative
Agent, as Issuing Lender, as Swingline Lender
and as a Lender
By: /s/XXXX X. XXXXXXXX
--------------------
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH, as
Syndication Agent and as a Lender
By: /s/XXXXXX XXX
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Title: Senior Vice President
PARIBAS, as a Lender
By:
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Title:
By:
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Title:
ROYAL BANK OF CANADA
By: /s/ XXXX X'XXXXXX
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Title: Manager
EXHIBIT A
CONSENT
Dated as of April 9, 1999
Each of the undersigned, as a Guarantor under one of the Guarantees,
dated as of December 19, 1995 (each, a "Guarantee") in favor of the
Administrative Agent for the Lenders parties to the Credit Agreement referred to
in the foregoing Seventh Amendment, hereby consents to the Seventh Amendment and
hereby confirms and agrees that (i) the Guarantee to which such Guarantor is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that, upon the effectiveness of,
and on and after the date of, the Seventh Amendment, each reference in such
Guarantee to the Loan Documents or any thereof, "thereunder", "thereof" or words
of like import shall mean and be a reference to the Loan Documents or such Loan
Document as amended prior to the date of and by the Seventh Amendment and (ii)
the Security Documents (as defined in the Credit Agreement referred to in the
foregoing Seventh Amendment) to which such Guarantor is a party and all of the
Collateral described therein do, and shall continue to, secure the payment of
all of the Obligations (as defined therein).
IMS STEEL SERVICES, INC.
By:
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Title:
CONVERSION SYSTEMS, INC.
By:
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Title:
ENVIROSOURCE MANAGEMENT CORP.
By:
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Title:
ENVIROSAFE SERVICES OF IDAHO, INC.
By:
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Title:
ENVIROSAFE SERVICES OF NORTH AMERICA, INC.
By:
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Title:
ENVIROSAFE SERVICES OF OHIO, INC.
By:
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Title:
ENVIROSAFE SERVICES OF TEXAS, INC.
By:
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Title:
ENVIROSOURCE CORP.
By:
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Title:
ENVIROSOURCE TECHNOLOGIES, INC.
By:
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Title:
ETDS, INC.
By:
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Title:
IU INTERNATIONAL CORPORATION
By:
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Title:
IU NORTH AMERICA FINANCE, INC.
By:
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Title:
IU NORTH AMERICA, INC.
By:
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Title:
MARCUS HOOK PROCESSING, INC.
By:
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Title:
McGRAW CONSTRUCTION COMPANY, INC.
By:
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Title:
NEOAX INVESTMENT CORP.
By:
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Title:
NOSROC CORP.
By:
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Title:
SONCOR CORP.
By:
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Title:
IMS WAYLITE INC.
By:
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Title:
