EX-4.23



 Exhibit 4.23 

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. 
 Deed of Amendment and Waiver 

Common Terms Deed 
  

			
	Date	  	28 June 2013
		
	Parties	  	 Sims Metal Management Limited
 ABN 69
114 838 630 of Sir Joseph Banks Corporate Park, Suite 3, Level 2 32-34 Lord Street Botany New South Wales 2019, Australia (Sims)
 and each
other Transaction Party under the Common Terms Deed (defined below)

		
		  	 Bank of America, N.A.
 of 800 5th
Avenue – FL 36, Seattle, WA 98104, United States of America

		
		  	 Commonwealth Bank of Australia
 ABN 48
123 123 124 of Level 21, Darling Park Tower 1, 201 Sussex Street, Sydney, New South Wales 2000, Australia

		
		  	 HSBC Bank Australia Limited
 ABN 48
006 434 162 of Level 31, 580 George Street Sydney New South Wales 2000, Australia

		
		  	 HSBC Bank plc
 of City Corporate
Banking Centre, 60 Queen Victoria Street, London, EC4N 4TR, United Kingdom

		
		  	 HSBC Bank USA, National Association

of 452 Fifth Avenue, New York, New York 10018, United States of America

		
		  	 The Hongkong and Shanghai Banking Corporation Limited

ABN 65 117 925 970 of Level 10, 1 Queens Road, Central Hong Kong

		
		  	 Westpac Banking Corporation
 ABN 33
007 457 141 of Level 3, 275 Kent Street Sydney New South Wales 2000, Australia

		
		  	(each of the foregoing banks and financial institutions is a Lender and together the Lenders)

  
  

Recitals 
  

	A	The parties have entered into the Common Terms Deed dated 23 June 2011, as amended (Common Terms Deed), between, amongst others, Sims, each party listed in Part 1 of Schedule 1 of that deed as
Original Borrowers, each party listed in Part 2 of Schedule 1 of that deed as Original Guarantors and the Lenders. 

  

	B	The parties have agreed to: 

  

	 	(a)	Sims making the EBITDA adjustments as set out in this Deed; and 


  
 
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	 	(b)	amend clause 4.17 (Financial undertakings) of the Common Terms Deed as set out in this Deed. 

  

	C	The Lenders agree to give a waiver in respect of clause 4.18(a)(1)(B) (Guarantors) of the Common Terms Deed on the terms set out in this Deed. 


Operative provisions 
  

 
  

	1.	Definitions and Interpretation 

  

	1.1	Capitalised terms in this Deed have the meaning given in the Common Terms Deed unless otherwise defined in this Deed. 

  

	1.2	Clause 1.3 (Interpretation) of the Common Terms Deed applies to this Deed as if set out in full in this Deed and all references to this deed were references to this Deed. 


 

	2.	EBITDA adjustment items 

  

	2.1	The definition of EBITDA in clause 1.2 (Definitions) of the Common Terms Deed requires that for the purposes of calculating EBITDA, the calculation will be adjusted to exclude, among other things:


  

	 	(a)	any significant non-cash items or items disclosed as required by AASB 101.97 and AASB 101.98 due to their size or nature (or by the corresponding provisions of future revisions of this accounting standard) that are of a
non-recurring nature, including losses or gains on the revaluation of assets; 

  

	 	(b)	significant unrealised losses that are of a non-recurring nature; and 

  

	 	(c)	any other significant non-cash items or items, including but not limited to write downs of inventory to net realisable value, that are of a non-recurring nature. 


 

	2.2	In respect of the definition of EBITDA, Sims notifies each Lender of the following items that Sims considers would fall within the adjustments to EBITDA referred to in clause 2.1(a) above for the financial year ending
on 30 June 2013: 

  

	    	[*] 

  

	2.3	The net effect of the adjustment items referred to in clause 2.2 above would be to increase EBITDA (as it will be disclosed in the Sims Group’s audited consolidated annual Financial Reports for the Calculation
Period ending on 30 June 2013) by approximately [*]. The Lenders agree to Sims increasing EBITDA by approximately such amount. 


  
 
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	2.4	In respect of the definition of EBITDA, Sims notifies each Lender of the following item that, if it arises, Sims considers would fall within the adjustment to EBITDA referred to in clause 2.1(b) above for the financial
year ending on 30 June 2013: 

  

	    	[*] 

  

	2.5	[*] The Lenders agree to Sims increasing EBITDA (as it will be disclosed in the Sims Group’s audited consolidated annual Financial Reports for the Calculation Period ending on 30 June 2013) by the amount of
[*]. 

  

	2.6	The net effect of the adjustment items referred to in clause 2.4(b) would be to increase EBITDA (as it will be disclosed in the Sims Group’s audited consolidated annual Financial Reports for the Calculation
Period ending on 30 June 2013) by approximately [*]. The Lenders agree to Sims increasing EBITDA by approximately such amount. 

  

	2.7	In respect of the definition of EBITDA, Sims notifies each Lender of the following items [*] that Sims considers would fall within the adjustments to EBITDA referred to in clause 2.1(a) above for the financial year
ending on 30 June 2013: 

  

	    	[*] 

  

	2.8	In respect of the definition of EBITDA, Sims notifies each Lender of the following item [*] that Sims considers would fall within the adjustments to EBITDA referred to in clause 2.1(c) above for the financial year
ending on 30 June 2013: 

  

	    	[*] 

  

	2.9	The net effect of the adjustment items referred to in clauses 2.7 and 2.8 above would be to increase EBITDA (as it will be disclosed in the Sims Group’s audited consolidated annual Financial Reports for the
Calculation Period ending on 30 June 2013) by approximately [*]. The Lenders agree to Sims increasing EBITDA by approximately such amount. 


  
 
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	2.10	The definition of EBITDA contemplates that the foregoing adjustments to EBITDA will be agreed by the Lenders and Sims in writing prior to the end of the applicable Calculation Period. 


 

	2.11	In addition to the foregoing, as a result of Sims’ ongoing audit process, the auditor of the Sims Group may require further negative adjustments to EBITDA for the financial year ending on 30 June 2013
(Negative Adjustments). At this stage it is not possible for Sims to ascertain or quantify the Negative Adjustments. However, to the extent that the auditor of the Sims Group requires the Negative Adjustments to be reflected in EBITDA
for that period and the Negative Adjustments would fall within the adjustments contemplated by the definition of EBITDA in clause 1.2 of the Common Terms Deed, the Lenders agree to Sims increasing EBITDA in the amount of the Negative Adjustments,
provided that such amount will not exceed [*], for the purpose of compliance with the Common Terms Deed. 

  

	3.	[*] 

  

	3.1	[*] 

  

	4.	Guarantor EBITDA covenant waiver 

  

	4.1	Clause 4.18(a)(1)(B) of the Common Terms Deed requires that, unless a Lender otherwise agrees in writing with Sims that this clause does not apply to such Lender, each Transaction Party must ensure that the Guarantors
(excluding any German Guarantors) will generate at least 80% of the EBITDA for each Calculation Period ending on a Calculation Date. 

  

	4.2	In connection with clause 4.18(a)(1)(B) of the Common Terms Deed, for the Calculation Period ending on 30 June 2013 Sims and the Lenders agree that, to the extent that the Guarantors (excluding any German
Guarantors) generate less than 80% of the EBITDA for that Calculation Period but in any event 75% or more of the EBITDA for that Calculation Period, the Transaction Parties will not be in breach of clause 4.18(a)(1)(B) of the Common Terms Deed and
no Default will arise under the Transaction Documents as a consequence. 

  

	5.	Tangible Net Worth covenant amendment 

  

	5.1	The parties to this Deed agree that the Common Terms Deed is amended, with effect from the date of this Deed, as follows: 

  

	 	(a)	paragraph (3) of clause 4.17(a) of the Common Terms Deed is deleted and replaced with the following: 

  

	 	“(3)	other than the Calculation Dates falling on 30 June 2013, 31 December 2013 and 30 June 2014, Tangible Net Worth must not be less than A$1,500,000,000.”; and 


 

	 	(b)	a new paragraph (c) is inserted into clause 4.17 of the Common Terms Deed immediately after paragraph (b) of that clause as follows: 


 

	 	“(c)	Each Transaction Party must ensure that on the Calculation Dates falling on 30 June 2013, 31 December 2013 and 30 June 2014, Tangible Net Worth must not be less than A$1,300,000,000.”.


  

	6.	References to Common Terms Deed 

  

	6.1	Every reference in the Transaction Documents to the Common Terms Deed is to be construed as a reference to the Common Terms Deed as amended by this Deed. Any reference to this deed, in this
deed, of this deed, this agreement or words to the same effect in the Common Terms Deed will be construed as a reference to the Common Terms Deed as amended by this Deed. 


  
 
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	7.	Confirmation 

  

	7.1	Subject to the provisions of this Deed, the Common Terms Deed is confirmed and remains in full force and effect. For the purposes of the amendment set out in clause 5 above, this Deed and the Common Terms Deed will be
read and construed as one document. 

  

	8.	General 

  

	8.1	Each party to this Deed acknowledges and agrees that it has entered into this Deed for valuable consideration received from the other parties to this Deed, receipt of which is hereby acknowledged. 


 

	8.2	This Deed is a Transaction Document in respect of each Lender for the purposes of the Common Terms Deed and is governed by, and is to be construed in accordance with, the laws of New South Wales. Each Transaction Party
irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales. 

  

	8.3	This Deed may be executed and delivered in counterparts (including by facsimile, telecopy or other electronic imaging means of transmission), each of which will be deemed an original. All counterparts, taken together,
constitute one instrument. 

  

	8.4	All references in this Deed to EBITDA adjustment items denominated in Australian dollars are subject to change in the Sims Group Financial Reports for the financial year ending 30 June 2013 due to estimated amounts
being determined as actual amounts recorded and as a result of prevailing foreign currency exchange rates adopted by Sims. 

  

	8.5	Each of the attorneys executing this Deed states that the attorney has no notice of the revocation of the power of attorney appointing that attorney. 


  
 
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 Executed as a deed. 
  

			
		 	Sims
		
		 	 Executed by
 Sims Metal Management Limited

for itself and as attorney for each

other Transaction Party pursuant
 to clause 15.2 of
the
 Common Terms Deed
 in accordance with section 127(1) of the

Corporations Act 2001 (Cth)
 by a director and secretary/director:

		
	 sign here u
	 	 /s/ Frank Moratti

		 	Company Secretary/Director
		
	 print name
	 	 Frank Moratti

		
	 sign here u
	 	 /s/ Geoff Brunsdon

		 	Director
		
	 print name
	 	 Geoff Brunsdon


  
  

  
 
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		 	Lender
		
		 	 Executed by
 Bank of America, N.A.

by its duly Authorised Officer in the
 presence of:

		
	 sign here u
	 	 /s/ Heidi Green

		 	Authorised Officer
		
	 print name
	 	 Heidi Green

		
	 print title
	 	 Vice President

		
		 	in the presence of
		
	 sign here u
	 	 /s/ Deborah J. Amcio

		 	Witness
		
	 print name
	 	 Deborah J. Amcio


  
  

  
 
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		 	Lender
		
		 	 Signed sealed and delivered for
 Commonwealth Bank of
Australia
 by its attorney

		
	 sign here u
	 	 /s/ Natalie Dundovic

		 	Attorney
		
	 print name
	 	 Natalie Dundovic

		
		 	in the presence of
		
	 sign here u
	 	 /s/Annette Tomoski

		 	Witness
		
	 print name
	 	 Annette Tomoski


  
  

  
 
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		 	Lender
		
		 	 Signed sealed and delivered for
 HSBC Bank Australia
Limited
 by its attorney

		
	 sign here u
	 	 /s/ Robert Agati

		 	Attorney
		
	 print name
	 	 Robert Agati

		
		 	in the presence of
		
	 sign here u
	 	 /s/Elin Schwarzenecker

		 	Witness
		
	 print name
	 	 Elin Schwarzenecker


  
  

  
 
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		 	Lender
		
		 	 Signed sealed and delivered for
 HSBC Bank plc

by its attorney

		
	 sign here u
	 	 /s/ Michael John Lacey

		 	Attorney
		
	 print name
	 	 Michael John Lacey

		
		 	in the presence of
		
	 sign here u
	 	 /s/Adam Spicer

		 	Witness
		
	 print name
	 	 Adam Spicer


  
  

  
 
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		 	Lender
		
		 	 Signed sealed and delivered for

HSBC Bank USA, National Association
 by its authorised
signatory

		
	 sign here u
	 	 /s/ Randolph Cates

		 	Authorised signatory
		
	 print name
	 	 Randolph Cates

		
		 	in the presence of
		
	 sign here u
	 	 /s/ Alexander Gutman

		 	Witness
		
	 print name
	 	 Alexander Gutman


  
  

  
 
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		 	Lender	 	
		
		 	 Signed sealed and delivered for

The Hongkong and Shanghai Banking Corporation Limited

by its attorney

			
	 sign here u
	 	 /s/ Candy Wong Wai Har
	 	
		 	Attorney	 	
			
	 print name
	 	 Candy Wong Wai Har
	 	
			
		 	in the presence of	 	
			
	 sign here u
	 	 /s/Ho Tan Ting Yuk Cindy
	 	
		 	Witness	 	
			
	 print name
	 	 Ho Tan Ting Yuk Cindy
	 	

  
  

  
 
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		 	Lender
		
		 	 Signed sealed and delivered for
 Westpac Banking
Corporation
 by its attorney

		
	 sign here u
	 	 /s/ Jeroen Nanninga

		 	Attorney
		
	 print name
	 	 Jeroen Nanninga

		
		 	in the presence of
		
	 sign here u
	 	 /s/ Lydia Harvey

		 	Witness
		
	 print name
	 	 Lydia Harvey


  
  

  
 
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