EX-4.22 8 c61089exv4w22.htm EX-4.22 exv4w22
Exhibit 4.22
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN PORTIONS OF THIS AGREEMENT. CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
         
    Westpac Institutional Banking
    Level 3, 275 Kent Street
    SYDNEY NSW 2000
 
  Phone:   (02) 8254 8812
 
  Fax:   (02) 8254 8999
20 July 2010
Sims Metal Management Limited
Suite 1202, Level 12
65 Berry Street
North Sydney NSW 2060
Attention: Peter Ricketts
Variation to Cash Advance Facility for the Sims Group
Westpac Banking Corporation (Westpac) proposes to further vary its facility currently available to Sims Metal Management Limited ACN 114 838 630 (Sims) and its subsidiaries listed in Schedule 1 (together the Undertaking Companies) on the terms set out in Westpac’s agreement dated 1 November 2000, as amended (the Agreement), and the Standard Terms dated 2 November 2009, as amended (the Standard Terms).
The amendments needed to document the varied facility are set out below.
Please confirm the Undertaking Companies’ acceptance of these amendments by signing the accompanying copy of this letter and arranging for it to be signed also by the companies listed in Schedule 2 (together the Guarantors) and returning it to us within 30 days of the date of this letter or such later date as Westpac may agree in writing.
Capitalised terms defined in the Agreement and the Standard Terms have the same meanings when used in this letter.
This is a Bank Document for the purposes of the Standard Terms.
1. Amendments
In the Agreement, the following sections of the Facility Details replace the equivalent existing sections:
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Page 1


 

     
Maximum amount outstanding at any time
  Tranche A: $250,000,000 (as reduced, the Tranche A Commitment).

Tranche B: $150,000,000 (as reduced, the Tranche B Commitment), (together the Commitment).
 
   
 
  Sims Metal Management Limited may cancel all or part of the undrawn Tranche A Commitment or Tranche B Commitment on 20 Business Days’ Notice to Westpac. The Commitment will be automatically cancelled on the last day of the Term or as otherwise agreed in writing by Westpac and Sims.
 
   
Margin
  The Margin is payable on outstandings drawn under the facility and will vary as set out in the following grid.
 
   
 
  (The calculation and definition of the Finance Debt/EBITDA multiple is set out in the Standard Terms).
                 
Finance Debt/   Tranche A     Tranche B  
EBITDA =   Margin     Margin  
[*]
    [*]       [*]  
     
 
  The amendments to the Margin contained in the grid set out above will take effect when the conditions precedent set out below are satisfied.
 
   
 
  Any adjustment to the Margin according to the grid set out above following a change in the Finance Debt/EBITDA multiple will be effective from the beginning of the first interest period which commences on a date following the delivery of a compliance certificate under clause 4(a)(ii) of the Standard Terms. The adjusted Margin will apply until a subsequent compliance certificate discloses a change in the Finance Debt/EBITDA multiple.
 
   
Undrawn Line Fee
  Calculated as a percentage per annum of the daily amount of the undrawn Tranche A Commitment and the undrawn Tranche B Commitment as set out below. It is payable quarterly in arrears on the last Business Day of each calendar quarter, and on the last day of the Term (or at any other intervals designated by Westpac from time to time). If the Commitment is cancelled or reduced in the calendar quarter the relevant amount of fee is not refundable.
 
   
 
  (The calculation and definition of the Finance Debt/EBITDA multiple is set out in the Standard Terms).
 
   
 
  Tranche A Commitment:
 
   
 
  [*] of the applicable Margin.
 
   
 
  Tranche B Commitment:
 
   
 
  [*] of the applicable Margin.
 
   
Term
  For Tranche A and Tranche B until 1 August 2011 or as otherwise agreed (the Term).
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2. General
Conditions Precedent
Before the amendments referred to above become effective Westpac must confirm in writing that the following conditions precedent have been satisfied:
    the Undertaking Companies and the Guarantors must sign and return a copy of this agreement; and
 
    [*]
References to Agreement
Any reference in the Agreement or the Standard Terms to the Agreement includes a reference to the Agreement as amended by this letter or as further varied from time to time.
Confirmation of Agreement
Other than set out in this letter, the Agreement remains unchanged.
Confirmation by SMM — North America Trade Corporation
SMM — North America Trade Corporation acknowledges that it is bound by the Standard Terms as an Undertaking Company and consents to the amendments to the Standard Terms by the Variation to Standard Terms dated 2 November 2009 (the Variation). Any reference to “Sims — North America Trade Corporation” in the Variation is a reference to SMM — North America Trade Corporation.
Confirmation by Guarantors
Each Guarantor confirms that:
  It agrees to the amendments to the Agreement referred to in this letter;
 
  The amendments do not in any way release, reduce or limit its liability and obligations to Westpac under the Group Guarantee dated 15 November 2000 between (amongst others) it and Westpac (the “Group Guarantee”);
 
  The Group Guarantee remains a valid obligation binding on it to pay amongst other things and according to its terms, all moneys due and payable from time to time to Westpac under the Agreement and Standard Terms as varied from time to time;
 
  Westpac is under no obligation to advise it of any further variation to the Agreement as a result of having requested this confirmation; and
 
  This confirmation is binding on it irrespective of whether all Guarantors sign or whether the statements are true in respect of each other Guarantor.
Governing law and Jurisdiction
This letter is governed by New South Wales law. The Undertaking Companies and Guarantors accept the non-exclusive jurisdiction of the courts having jurisdiction there.
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Schedule 1
     
    ACN/ARBN/Registered Number/Place of
Name of Undertaking Company   Incorporation
Sims Group Australia Holdings Limited
  008 634 526
Sims Group UK Limited
  UK 3242331
Sims Group UK Holdings Limited
  UK 2904307
Mirec BV
  The Netherlands 17073024
Sims Recycling Solutions AB
  Sweden
Sims Group USA Corporation
  Delaware
Sims Group Global Trade Corporation
  Delaware
North Carolina Resource Conservation, LLC
  North Carolina
Sims Group USA Holdings Corporation
  Delaware
Schiabo Larovo Corporation
  Delaware
Simsmetal East LLC
  Delaware
Simsmetal West LLC
  Delaware
Metal Management, Inc.
  Delaware
Metal Management Alabama, Inc.
  Delaware
Metal Management Arizona, L.L.C.
  Arizona
Metal Management Connecticut, Inc.
  Delaware
Metal Management Memphis, L.L.C.
  Tennessee
Metal Management Midwest, Inc.
  Illinois
Metal Management Mississippi, Inc.
  Delaware
Metal Management Northeast, Inc.
  New Jersey
Metal Management Ohio, Inc.
  Ohio
Metal Management West, Inc.
  Colorado
Proler Southwest LP
  Texas
Metal Dynamics Detroit LLC
  Delaware
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Schedule 2
     
    ACN/ARBN/Registered Number/Place of
Name of Guarantor   Incorporation
Sims Group Australia Holdings Limited
  008 634 526
Sims Metal Management Limited
  114 838 630
Simsmetal Holdings Pty Limited
  000 021 563
Simsmetal Services Pty Limited
  000 166 987
Sims Manufacturing Pty Limited
  004 332 870
Sims Industrial Pty Limited
  000 090 479
Sims Energy Pty Limited
  009 667 752
Sims Group UK Limited
  UK 3242331
Sims Group UK Holdings Limited
  UK 2904307
Mirec BV
  The Netherlands 17073024
Sims Recycling Solutions AB
  Sweden
Simsmetal Industries Limited
  New Zealand
Sims M+R GmbH
  Germany
Sims Group German Holdings GmbH
  Germany
Sims Metal Management Asia Limited (formerly known as Sims Asia Holdings Limited)
  Hong Kong
Sims Group Recycling Solutions Canada Ltd.
  Canada
Sims Group Canada Holdings Limited
  Canada
Sims Group USA Corporation
  Delaware
Sims Group Global Trade Corporation
  Delaware
North Carolina Resource Conservation, LLC
  North Carolina
Sims Group USA Holdings Corporation
  Delaware
SHN Co., LLC
  Delaware
HNE Recycling LLC
  Delaware
HNW Recycling LLC
  Delaware
Schiabo Larovo Corporation
  Delaware
Simsmetal East LLC
  Delaware
Simsmetal West LLC
  Delaware
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    ACN/ARBN/Registered Number/Place of
Name of Guarantor   Incorporation
Sims Recycling Solutions Holdings Inc. (formerly known as Sims Recycling Solutions, Inc.)
  Illinois
SMM — North America Trade Corporation (formerly known as Metal Management S&A Holdings, Inc.)
  Delaware
Sims Recycling Solutions, Inc. (formerly known as United Refining & Smelting Co)
  Illinois
Metal Management, Inc.
  Delaware
CIM Trucking, Inc.
  Illinois
Metal Management Alabama, Inc.
  Delaware
Metal Management Arizona, L.L.C.
  Arizona
Metal Management Connecticut, Inc.
  Delaware
Metal Management Indiana, Inc.
  Illinois
Metal Management Memphis, L.L.C.
  Tennessee
Metal Management Midwest, Inc.
  Illinois
Metal Management Mississippi, Inc.
  Delaware
Metal Management New Haven, Inc.
  Delaware
Metal Management Northeast, Inc.
  New Jersey
Metal Management Ohio, Inc.
  Ohio
Metal Management Pittsburgh, Inc.
  Delaware
Metal Management Proler Southwest, Inc.
  Delaware
Metal Management West Coast Holdings, Inc.
  Delaware
Metal Management West, Inc.
  Colorado
MM Metal Dynamics Holdings, Inc.
  Delaware
Naporano Iron & Metal, Inc.
  Delaware
New York Recycling Ventures, Inc.
  Delaware
Proler Southwest GP, Inc.
  Delaware
Proler Southwest LP
  Texas
Reserve Iron & Metal Limited Partnership
  Delaware
Metal Dynamics LLC
  Delaware
Metal Dynamics Detroit LLC
  Delaware
TH Properties LLC (formerly known as Metal
Dynamics Indianapolis LLC)
  Delaware
Sims Municipal Recycling of New York LLC
  Delaware
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Westpac
   
 
   
Signed for Westpac Banking Corporation by its attorney
 
 
   
 
Name:
   
Title:
   
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Guarantors and Undertaking Companies
     
Accepted and agreed for and on behalf of:
   
Sims Metal Management Limited ACN 114 838 630
   
 
   
 
   
Director
  Director/Secretary
Name (please print)
  Name (please print)
Date of acceptance:
   
We confirm:
The Company is solvent. It is not prevented by Chapter 2E or any other provision of the Corporations Act 2001 from entering into and performing the accepted agreement. We hold the offices stated under our signatures. We am/are authorised to sign the accepted agreement.
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Page 8


 

     
Executed by
   
Schiabo Larovo Corporation
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 9


 

     
Executed by
   
Simsmetal East LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
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Page 10


 

     
Executed by
   
Simsmetal West LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 11


 

     
Executed by
   
Metal Management, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 12


 

     
Executed by
   
Metal Management Alabama, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 13


 

     
Executed by
   
Metal Management Arizona, L.L.C.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 14


 

     
Executed by
   
Metal Management Connecticut, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 15


 

     
Executed by
   
Metal Management Memphis, L.L.C.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 16


 

     
Executed by
   
Metal Management Midwest, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 17


 

     
Executed by
   
Metal Management Mississippi, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 18


 

     
Executed by
   
Metal Management Northeast, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 19


 

     
Executed by
   
Metal Management Ohio, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
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Page 20


 

     
Executed by
   
Metal Management West, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 21


 

     
Executed by
   
Proler Southwest LP
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 22


 

     
Executed by
   
Metal Dynamics Detroit LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 23


 

         
Executed by
       
Simsmetal Industries Limited
       
by its directors:
       
 
       
 
Signature of director
 
 
Signature of director
   
 
       
 
Name of director (please print)
 
 
Name of director (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 24


 

         
Executed by
Sims M+R GmbH
       
by its officer:
       
 
       
 
Signature of officer
 
 
Signature of officer
   
 
       
 
Name of officer (please print)
 
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 25


 

         
Executed by
       
Sims Group German Holdings GmbH
       
by its officer:
       
 
       
 
Signature of officer
 
 
Signature of officer
   
 
       
 
Name of officer (please print)
 
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
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Page 26


 

         
THE COMMON SEAL of
       
Sims Metal Management Asia Limited
       
(formerly known as Sims Asia Holdings Limited)
       
was affixed to this document in the presence of:
       
 
       
 
Signature of officer
 
 
Signature of officer
   
 
       
 
Name of officer (please print)
 
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 27


 

     
Executed by
   
Sims Group Recycling Solutions Canada Ltd.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 28


 

     
Executed by
   
Sims Group Canada Holdings Limited
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 29


 

     
Executed by
   
Sims Recycling Solutions Holdings Inc.
   
(formerly known as Sims Recycling Solutions, Inc).
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 30


 

     
Executed by
   
SMM — North America Trade Corporation
   
(formerly known as Metal Management S&A Holdings, Inc.)
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 31


 

     
Executed by
   
Sims Recycling Solutions, Inc.
   
(formerly known as United Refining & Smelting Co.)
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 32


 

     
Executed by
   
CIM Trucking, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 33


 

     
Executed by
   
Metal Management Indiana, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 34


 

     
Executed by
   
Metal Management New Haven, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 35


 

     
Executed by
   
Metal Management Pittsburgh, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 36


 

     
Executed by
   
Metal Management Proler Southwest, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 37


 

     
Executed by
   
Metal Management West Coast Holdings, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 38


 

     
Executed by
   
MM Metal Dynamics Holdings, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 39


 

     
Executed by
   
Naporano Iron & Metal, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 40


 

     
Executed by
   
New York Recycling Ventures, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 41


 

     
Executed by
   
Proler Southwest GP, Inc.
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 42


 

     
Executed by
   
Reserve Iron & Metal Limited Partnership
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 43


 

     
Executed by
   
Metal Dynamics LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 44


 

     
Executed by
   
TH Properties LLC (formerly known as
   
Metal Dynamics Indianapolis LLC)
   
by its member: Metal Dynamics LLC
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 45


 

     
Executed by
   
Sims Municipal Recycling of New York LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 46


 

         
Signed by
       
Sims Group Australia Holdings Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 47


 

         
Signed by
       
Simsmetal Holdings Pty Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 48


 

         
Signed by
       
Simsmetal Services Pty Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 49


 

         
Signed by
       
Sims Manufacturing Pty Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 50


 

         
Signed by
       
Sims Industrial Pty Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 51


 

         
Signed by
       
Sims Energy Pty Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 52


 

         
Signed by
       
Sims Group UK Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 53


 

         
Signed by
       
Sims Group UK Holdings Limited
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 54


 

         
Signed by
       
Mirec BV
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 55


 

         
Signed by
       
Sims Recycling Solutions AB
       
by a director and secretary/director:
       
 
       
 
Signature of director
 
 
Signature of director/secretary
   
 
       
 
Name of director (please print)
 
 
Name of director/secretary (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 56


 

     
Executed by
   
Sims Group USA Corporation
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 57


 

     
Executed by
   
Sims Group Global Trade Corporation
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 58


 

     
Executed by
   
North Carolina Resource Conservation LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 59


 

     
Executed by
   
Sims Group USA Holdings Corporation
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 60


 

     
Executed by
   
SHN Co., LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 61


 

     
Executed by
   
HNE Recycling LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

Page 62


 

     
Executed by
   
HNW Recycling LLC
   
by its officer:
   
 
   
 
Signature of officer
   
 
   
 
Name of officer (please print)
   
[*] Confidential Treatment Requested
Execution version

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