FIRST AMENDMENT dated as of August _____, 2000 (this "First
Amendment") to the Credit Agreement dated as of May 26, 2000,
among ISG Resources, Inc. (the "Borrower"), Industrial Services
Group, Inc. (the "Parent"), the Lenders (as defined in the Credit
Agreement), Bank of America, N.A. (formerly known as NationsBank,
N.A.), as Administrative Agent and Issuing Lender, and Canadian
Imperial Bank of Commerce, as Documentation Agent.
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 First Amendment, and as hereinafter
amended, modified, supplemented, extended or restated from time to time, being
called the "Amended Credit Agreement").
The Borrower has requested the Lenders to, among other things, amend
certain covenants contained in the Credit Agreement.
The parties hereto have agreed, subject to the terms and conditions
hereof, to amend the Credit Agreement as provided herein.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement. Subject to satisfaction
of the conditions precedent set forth in Section 3 of this First Amendment, the
Credit Agreement is hereby amended as follows:
(a) Section 7.14 of the Credit Agreement is hereby deleted in
its entirety and the following is inserted in lieu thereof:
" 7.14 Capital Expenditures. The Borrower will not
permit Consolidated Capital Expenditures for fiscal
year 2000 of the Borrower to be more than
$10,000,000. The Borrower will not permit
Consolidated Capital Expenditures for any fiscal year
of the Borrower thereafter to be more than
$12,000,000."
(b) Section 7.19(c) of the Credit Agreement is hereby deleted
in its entirety and the following is substituted in lieu thereof:
"(c) Consolidated Net Worth. The Borrower will not
permit Consolidated Net Worth as of the Closing Date
to be less than the "Minimum Compliance Level." The
Minimum Compliance Level shall have been $24,000,000
on the Closing Date.
(c) Section 7.19(d) is hereby added:
"(d) Minimum Consolidated EBITDA. The
Borrower will not permit Consolidated EBITDA to be
less than the amount set forth below as of the last
day of the fiscal quarter set forth opposite such
amount:
June 30, 2000 $28,000,000
September 30, 2000 $28,000,000
December 31, 2000 $28,000,000
March 31, 2001 $28,000,000
June 30, 2001 $28,000,000
September 30, 2001 $30,000,000
December 31, 2001 $30,000,000
March 31, 2002 $30,000,000
June 30, 2002 $30,000,000
September 30, 2002 $32,000,000
December 31, 2002 $32,000,000
March 31, 2003 $32,000,000
June 30, 2003 $32,000,000
SECTION 2. Representations and Warranties. Each of the Borrower and the
Parent hereby represents and warrants to the Agents and the Lenders, as follows:
(a) The Borrower and the Parent are in compliance with all the
terms and conditions of the Credit Agreement on its part to be observed
or performed. There exists no Default or Event of Default.
(b) The execution, delivery and performance by each of the
Borrower and the Parent of this First Amendment dated as of the date
hereof have been duly authorized by the Borrower and the Parent.
(c) This First Amendment dated as of the date hereof
constitutes the legal, valid and binding obligations of the Borrower
and the Parent enforceable against each in accordance with their terms.
(d) The execution, delivery and performance by the Borrower
and the Parent of this First Amendment (i) do not conflict with or
violate (A) any provision of law, statute, rule or regulation, or of
the constitutive documents 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 they or any of their respective properties 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 3. Effectiveness. This First Amendment shall become effective
only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the "First
Amendment Effective Date").
(a) The Administrative Agent shall have received duly executed
counterparts of this First Amendment which, when taken together, bear
the authorized signatures of the Borrower, the Parent and the Lenders.
(b) The Borrower, the Parent and the other Credit Parties
shall have obtained all governmental, shareholder and third party
consents and approvals necessary or, in the opinion of the
Administrative Agent, desirable in connection with the execution,
delivery and performance of this First Amendment and the other Credit
Documents (including the exercise of remedies under the Collateral
Documents) without any action being taken by any Governmental Authority
that could restrain, prevent or impose any material adverse condition
on the Consolidated Parties taken as a whole or such transactions or
that could seek or threaten any of the foregoing, and no law or
regulation shall be applicable which in the judgment of the
Administrative Agent could have such effect.
(c) There shall not exist any order, decree, judgment, ruling
or injunction or any pending or threatened action, suit, investigation
or proceeding that purports to affect the transactions contemplated by
this First Amendment, the Credit Facilities or the other related
financings or that could reasonably be expected to have a Material
Adverse Effect.
(d) None of the Borrower and the Subsidiaries shall be in
violation of any law, rule or regulation, or in default with respect to
any judgment, writ, injunction or decree of any Governmental Authority,
where such violation or default could reasonably be expected to result
in a Material Adverse Effect.
(e) The Administrative Agent shall be satisfied that the
representations and warranties set forth in Section 2 are true and
correct on and as of the First Amendment Effective Date.
(f) The Administrative Agent shall have received such other
documents, legal opinions, instruments and certificates relating to
this First Amendment as they shall reasonably request and such other
documents, legal opinions, instruments and certificates shall be
satisfactory in form and substance to the Administrative Agent and the
Lenders. All corporate and other proceedings taken or to be taken in
connection with this First Amendment and all documents incidental
thereto, whether or not referred to herein, shall be satisfactory in
form and substance to the Administrative Agent and the Lenders.
(g) The Borrower shall have paid all fees and expenses
referred to in Section 5 of this First Amendment.
SECTION 4. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. Expenses. The Borrower shall pay (i) all fees and expenses
of counsel to the Administrative Agent outstanding as of the date hereof and all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Lenders in connection with the preparation, negotiation, execution, delivery and
enforcement of this First Amendment, (ii) an amendment fee (the "Amendment Fee")
payable to the Agent in the aggregate amount of 5 basis points on the Commitment
of each Lender as of the First Amendment Effective Date, payable to each of the
Lenders executing the First Amendment prior to the First Amendment Effective
Date. The agreement set forth in this Section 5 shall survive the termination of
this First Amendment and the Amended Credit Agreement.
SECTION 6. Counterparts. This First 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. Delivery of an
executed counterpart of a signature page to this First Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this First
Amendment.
SECTION 7. Credit Agreement. Except as expressly set forth herein, the
amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Administrative Agent or the Lenders under the Credit Agreement, nor shall they
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement. The
amendments provided herein shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to by such amendments.
Except as expressly amended herein, the Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof. As used in the
Credit Agreement, the terms "Agreement", "herein", "hereinafter", "hereunder",
"hereto" and words of similar import shall mean, from and after the date hereof,
the Amended Credit Agreement.
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IN WITNESS WHEREOF, the Borrower, the Parent and the Lenders have
caused this First Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
BORROWER: ISG RESOURCES, INC.,
-------- a Utah corporation
By:_____________________
Name:
Title:
PARENT: INDUSTRIAL SERVICES GROUP, INC.,
------ a Delaware corporation
By:_____________________
Name:
Title:
LENDERS: BANK OF AMERICA, N. A.,
------- as a Lender
By:____________________
Name: David Strickert
Title: Principal
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By:_____________________
Name:
Title:
ZIONS FIRST NATIONAL BANK
as Lender
By:____________________
Name:
Title:
