SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 99.3
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (the “Amendment”) is entered into as of
December 31, 2007, among XXXX GROUP USA HOLDINGS CORPORATION, a Delaware corporation, formerly
known, as Xxxx Xxxx Xxx Corporation (the “Company”), XXXX GROUP GLOBAL TRADE CORPORATION, a
Delaware limited liability company, successor by merger to Xxxx Xxxx Xxx Global Trade LLC
(“Global Trade”), HNE RECYCLING LLC, a Delaware limited liability company (“HNE
Recycling”), HNW RECYCLING LLC, a Delaware limited liability company (“HNW Recycling”),
SIMSMETAL EAST LLC, a Delaware limited liability company, successor to Xxxx Xxxx Xxx East.(General
Partnership), a New York general partnership (“SHN East”), SIMSMETAL WEST LLC, a Delaware
limited liability company, successor to Xxxx Xxxx Xxx West (General Partnership), a California
general partnership (“SHN West”), XXXX GROUP USA CORPORATION, a Delaware corporation
(“Sims USA” and together with the Company, Global Trade, HNE Recycling, HNW Recycling, SHN
East and SHN West collectively, the “Borrowers” individually, a “Borrower”), and BANK OF
AMERICA, N.A., a national banking association (the “Lender”).
RECITALS
A. The Borrowers and the Lender are each a party to that certain Credit Agreement dated as of
September 12, 2006, as amended by that certain Amendment to Credit Agreement dated as of October 4,
2006 (as amended, restated, extended, supplemented or otherwise modified from time to time, the
“Credit Agreement;” the terms defined therein being used herein as therein defined),
pursuant to which and subject to the terms and conditions therein contained, the Lender agreed to
make Loans to, and issue Letters of Credit for the account of, the Borrowers.
B. The Borrowers have requested that the Lender agree to extend the Maturity Date from
December 1, 2008 to December 1, 2009, which the Lender has agreed to do, subject to the terms and
conditions of this Amendment.
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration receipt of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions; Interpretation. All capitalized terms used in this Amendment and not
otherwise defined herein have the meanings specified in the Credit Agreement. The rules of
construction and interpretation specified in Section 1.02 of the Credit Agreement also
apply to this Amendment and are incorporated herein by this reference.
2. Amendment to Credit Agreement. Subject to the terms and conditions of this Amendment, the
definition of “Maturity Date” set forth in Section 1.01 of the Credit Agreement is
amended and restated to read as follows:
“Maturity Date” means December 1, 2009; provided, however, that
if such date is not a Business Day, the Maturity Date shall be the next preceding Business
Day.
3. Conditions to Effectiveness of Amendment. Notwithstanding anything contained herein to the
contrary, this Amendment shall become effective as of December 31, 2007; provided that all
of the following conditions are fully and simultaneously satisfied on or before December 31, 2007:
(a) Delivery of Amendment. Each Borrower and the Lender shall have executed and
delivered counterparts of this Amendment to the Lender, sufficient in number for distribution to
the Company and the Lender;
(b) Confirmation of Parent. Xxxx Group Limited, a corporation registered in the State
of Victoria, Commonwealth of Australia (the “Parent”), shall have executed and delivered to
the Lender a Consent of Guarantor in the form of Annex 1 hereto (the “Parent
Consent”), sufficient in number for distribution to the Company and the Lender;
(c) Payment of Expenses. Unless waived by the Lender, the Borrowers shall have paid
all fees, charges and disbursements of counsel to the Lender (directly to such counsel if requested
by the Lender) to the extent invoiced prior to or on the effective date of this Amendment,
plus such additional amounts of such fees, charges and disbursements as shall constitute
its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrowers and the Lender);
(d) Representations True; No Default. The representations of the Borrowers as set
forth in Article V of the Credit Agreement shall be true on and as of the date of this
Amendment with the same force and effect as if made on and as of this date or, if any such
representation or warranty is stated to have been made as of or with respect to a specific date, as
of or with respect to such specific date. No Event of Default and no event which, with notice or
lapse of time or both, would constitute an Event of Default, shall have occurred and be continuing
or will occur as a result of the execution of this Amendment; and
(e) Other Documents. The Lender shall have received such other documents,
instruments, and undertakings as the Lender may reasonably request.
4. Representations and Warranties. The Borrowers hereby represent and warrant to the Lender
that each of the representations and warranties set forth in Article V of the Credit
Agreement is true and correct as if made on and as of the date of this Amendment or, if any such
representation or warranty is stated to have been made as of or with respect to a specific date, as
of or with respect to such specific date. The Borrowers expressly agree that it shall be an
additional Event of Default under the Credit Agreement if any representation or warranty made by
the Borrower hereunder shall prove to have been incorrect in any material respect when made.
5. Assumption of Obligations. Without limiting the provisions of Section 7, each Borrower
hereby assumes, and agrees to pay, discharge, satisfy and perform, for the benefit of the Lender,
all of the debts, liabilities, obligations, covenants and duties of, its predecessor (whether by
name change, merger, or otherwise) under the Credit Agreement, the Notes and the other Loan
Documents (collectively, the “Predecessor Obligations”), as direct and primary obligations
of such Borrower (including any such Predecessor Obligations that may have accrued prior to the
date hereof or that are outstanding as of the date hereof), including, without limitation, with
respect to the Loans and L/C Obligations, and each Borrower agrees that it shall comply with and be
fully bound by the terms of the Credit Agreement, the Notes and the other Loan Documents as if it
had been a signatory thereto as of the original date thereof
6. Additional Covenants of Borrowers. Each Borrower agrees as follows:
(a) Authorization. The Borrowers shall deliver to the Lender, on or before March 31,
2008, the following, each in form and substance and dated as of a date satisfactory to the Lender
and its legal counsel:
(i) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Lender may require to
establish the identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this Amendment
and the other Loan Documents to which such Loan Party is a party; and
(ii) such evidence as the Lender may reasonably require to verify that each Loan Party
is duly organized or formed, validly existing, in good standing and qualified to engage in
business in each jurisdiction in which it is required to be qualified to engage in business,
including certified copies of each Borrower’s Organization Documents, certificates of good
standing and/or qualification to engage in business.
(b) Opinions of Counsel. The Borrowers shall deliver to the Lender, on or before
March 31, 2008, favorable opinions of Xxxxx & XxXxxxxx LLP, counsel to the Loan Parties, addressed
to the Lender, as to such matters concerning the Loan Parties, this Amendment, the Parent Consent
and the other Loan Documents to which the Loan Parties are a party as the Lender may reasonably
request.
(c) Additional Event of Default. The failure of the Borrowers to deliver to the
Lender the certificates, documents and legal opinions described in subsections (a) and (b) above,
by March 31, 2008 shall constitute an additional Event of Default under the Credit Agreement.
7. No Further Amendment. Except as expressly modified by this Amendment, the Credit
Agreement, the Notes and the other Loan Documents shall remain unmodified and in full force and
effect and the parties hereby ratify their respective obligations thereunder.
8. Reservation of Rights. The Borrowers acknowledge and agree that the execution and delivery
by the Lender of this Amendment shall not be deemed to create a course of dealing or otherwise
obligate the Lender to forbear or execute similar amendments under the same or similar
circumstances in the future.
9. Miscellaneous.
(a) Counterparts; Integration. This Amendment may be executed in counterparts (and by
different parties hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This Amendment and the
other Loan Documents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof Delivery of an executed counterpart of a signature page of
this Amendment by telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment.
(b) Severability. If any provision of this Amendment is held to be illegal, invalid
or unenforceable, the legality, validity and enforceability of the remaining provisions of this
Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(c) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| XXXX GROUP USA HOLDINGS CORPORATION, formerly known as Sims Xxxx Xxx Corporation | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| XXXX GROUP GLOBAL TRADE CORPORATION, successor by merger to Xxxx Xxxx Xxx Global Trade LLC | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| HNE RECYCLING LLC | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: Title: |
Xxxxx X. Xxxxxxxxx Executive Vice President & Chief Financial Officer |
|||
| HNW RECYCLING LLC | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| SIMSMETAL EAST LLC, successor to Sims Xxxx Xxx East (General Partnership) | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| SIMSMETAL WEST LLC, successor to Xxxx Xxxx Xxx West (General Partnership) | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| XXXX GROUP USA CORPORATION | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
| BANK OF AMERICA, N.A. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Senior Vice President | |||
ANNEX I
CONSENT OF GUARANTOR
This CONSENT OF GUARANTOR (this “Consent”) is entered into as of December 31, 2007, by
XXXX GROUP LIMITED, a corporation registered in the State of Victoria, Commonwealth of Australia
(the “Guarantor”), to and in favor of BANK OF AMERICA, N.A., a national banking association
(the “Lender”).
RECITALS
X. Xxxx Group USA Holdings Corporation, a Delaware corporation, formerly known as Sims Xxxx
Xxx Corporation (the “Company”), Xxxx Group Global Trade Corporation, a Delaware limited
liability company, successor by merger to Xxxx Xxxx Xxx Global Trade LLC (“Global Trade”),
HNE Recycling LLC, a Delaware limited liability company (“HNE Recycling”), HNW Recycling
LLC, a Delaware limited liability company (“HNW Recycling”), SimsMetal East LLC, a Delaware
limited liability company, successor to Xxxx Xxxx Xxx East (General Partnership), a New York
general partnership (“SHN East”), SimsMetal West LLC, a Delaware limited liability company,
successor to Xxxx Xxxx Xxx West (General Partnership), a California general partnership (“SHN
West”), Xxxx Group USA Corporation, a Delaware corporation (“Sims USA” and together with
the Company, Global Trade, HNE Recycling, HNW Recycling, SHN East and SHN West collectively, the
“Borrowers” individually, a “Borrower”), and the Lender are each a party to that
certain Credit Agreement dated as of September 12, 2006, as amended by that certain Amendment to
Credit Agreement dated as of October 4, 2006 (as amended, restated, extended, supplemented or
otherwise modified from time to time, the “Credit Agreement;” the terms defined therein
being used herein as therein defined).
B. In connection with and as a condition to the obligation of the Lender to make its initial
Credit Extension under the Credit Agreement, the Guarantor entered into that certain Deed Poll of
Continuing Guaranty dated as of September 12, 2006 (as amended, restated, extended, supplemented or
otherwise modified from time to time, the “Guaranty”), pursuant to which the Guarantor
guaranteed, among other things, the payment and performance of the debts, liabilities, obligations,
covenants and duties of, the Borrowers to the Lender arising under the Credit Agreement and the
other Loan Documents to which any Borrower is a party.
C. The Borrowers and the Lender intend to enter into that certain Second Amendment to Credit
Agreement dated as of December 31, 2007 (the “Amendment”), pursuant to which, among other
things, the Lender will agree to extend the Maturity Date from December 1, 2008 to December 1,
2009.
D. It is a condition precedent to the effectiveness of the Amendment that the Guarantor enter
into this Consent.
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration receipt of which is hereby acknowledged, the Guarantor agrees as follows:
AGREEMENT
1. Definitions. Capitalized terms not otherwise defined in this Consent shall have the
meanings given in the Guaranty, and if not defined therein shall have the meanings given in the
Credit Agreement.
2. Consent. The Guarantor hereby acknowledges that it has received a copy of the Credit
Agreement and hereby consents to its contents, including all prior and current amendments to the
Credit Agreement (notwithstanding that such consent is not required).
3. Ratification and Confirmation. The Guarantor hereby ratifies and confirms each of its
debts, liabilities, obligations, covenants and duties to the Lender arising under the Guaranty. The
Guarantor hereby confirms and agrees that its guarantee of the payment and performance of the
Guaranteed Obligations (as defined in the Guaranty) remains in full force and effect.
4. Representations and Warranties. The Guarantor hereby represents and warrants to the Lender
that each of the representations and warranties set forth in Article IV of the Guaranty is
true and correct as if made on and as of the date of this Consent.
5. Governing Law. THIS CONSENT IS GOVERNED BY THE LAW IN FORCE IN NEW SOUTH WALES, AUSTRALIA.
6. Effectiveness. This Consent shall become effective when the Lender shall have received a
copy of this Consent that bears the signatures of the Guarantor. Delivery of an executed signature
page of this Consent by telecopy shall be effective as delivery of a manually executed signature
page of this Consent.
7. Consideration. The Guarantor acknowledges that the Lender is acting in reliance on the
Guarantor incurring obligations and giving rights under this Consent.
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THIS CONSENT IS EXECUTED AND UNCONDITIONALLY DELIVERED AS A DEED POLL FOR THE BENEFIT OF BANK OF
AMERICA, N.A. (INCLUDING ITS PERMITTED SUCCESSORS AND ASSIGNS) AND IS GOVERNED BY THE LAWS OF THE
STATE OF NEW SOUTH WALES.
EXECUTED by XXXX GROUP
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LIMITED in accordance with section
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127(1) of the Corporations Xxx 0000
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(Cwlth) by authority of its directors:
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| ) | Signature of director/company secretary* | |||||
Signature of director
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| ) | Name of director/company secretary* | |||||
Signature of director (block letters)
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| *delete whichever is not applicable |
