Contract
Exhibit 10.13
FOURTH AMENDMENT AND CONSENT dated as of October 25, 2006 (“Amendment”), to the
FINANCING AGREEMENT, dated as of July 15, 2005 (as amended, modified or supplemented from time to
time, the “Financing Agreement”), among HORSEHEAD CORPORATION (f/k/a Horsehead Corp. and
Horsehead Acquisition Corp.), a Delaware corporation (the “Company”), HORSEHEAD
INTERMEDIARY CORP., a Delaware corporation (“Horsehead Intermediary”), CHESTNUT RIDGE
RAILROAD CORP., a Delaware corporation (together with the Company and Horsehead Intermediary, the
“Credit Parties”), THE CIT GROUP/BUSINESS CREDIT, INC. (“CIT”), PNC BANK, NATIONAL
ASSOCIATION (“PNC” and together with CIT, collectively, the “Lenders”), and CIT, as
agent for the Lenders (the “Agent”). Terms which are capitalized in this Amendment and not
otherwise defined shall have the meanings ascribed to such terms in the Financing Agreement.
WHEREAS, the Credit Parties have requested that the Agent and Lenders (i) amend certain
provisions of the Financing Agreement, and consent to the payment by the Company of certain fees
and the payment by the Company and Horsehead Intermediary of a special dividend, in each case
effective on the First Effective Date, as hereinafter defined, and (ii) amend certain other
provisions of the Financing Agreement, and consent to the payment by the Company to Sun Capital
Partners Management III, LLC (“SCP Management”) of a certain management fee, in each case in
connection with a proposed 144A offering of common stock, par value $0.01 per share, of the Parent
(the “Offering”) and effective on the Second Effective Date, as hereinafter defined, and the Agent
and Lenders are willing to amend such provisions of the Financing Agreement and provide such
consents, in each case on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section One. Initial Amendments to Financing Agreement. Effective as of the
First Effective Date (as defined in Section Five hereof), the Financing Agreement is hereby amended
as follows:
(a) Clause (a) of the definition of the term Net Availability is amended by deleting the
phrase “Forty-Five Million Dollars ($45,000,000)” and by substituting in lieu thereof the phrase
“Seventy-Five Million Dollars ($75,000,000)”;
(b) Clause (g) of the definition of the term Permitted Indebtedness is amended by deleting the
phrase “Twenty-Seven Million Dollars ($27,000,000)” and by substituting in lieu thereof the phrase
“Fifty-Seven Million Dollars ($57,000,000)”;
(c) The definition of the term Revolving Line of Credit is amended by deleting the phrase
“Forty-Five Million Dollars ($45,000,000)” and by substituting in lieu thereof the phrase
“Seventy-Five Million Dollars ($75,000,000);
(d) Section 7.3 of the Financing Agreement is amended by deleting in its entirety subsection
(d) thereof and substituting the following in lieu thereof:
“(d) Capital Expenditures. To cause the Company and its consolidated subsidiaries not
to contract for, purchase, make expenditures for, lease pursuant to a Capital Lease or otherwise
incur obligations with respect to Capital Expenditures (whether subject to a security interest or
otherwise) during any fiscal year of the Company in the aggregate amount in excess of the amount
corresponding to such fiscal year as set forth below:
| Fiscal Year: | Maximum Capital Expenditures: | |||
2005 |
$ | 9,400,000 | ||
2006 |
$ | 15,000,000 | ||
2007 |
$ | 40,000,000 | ||
2008 |
$ | 15,000,000 | ||
2009 and thereafter |
$ | 11,000,000” | ||
(e) Schedule 7.4(h) is amended and restated as set forth on Exhibit A annexed to this
Amendment.
Section Two. Initial Consent. Notwithstanding any prohibition against the
payment of dividends contained in Section 7.4(f) of the Financing Agreement, or the prohibition
against the payment of management fees contained in Section 7.4 (i) of the Financing Agreement, the
Agent and the Lenders hereby consent to the following transactions:
(i) the payment by the Company, in cash, on or about the date hereof, of a management fee to
SCP Management in the amount of $500,000 (the “First Management Fee”);
(ii) the payment by the Company, in cash, on a regularly scheduled payroll date occurring on
or before December 31, 2006, of management bonuses in the aggregate amount of $476,521.70 (the
“Management Bonuses”);
(iii) the payment in cash, on or about the date hereof, of a dividend (the “Permitted
Dividend”) by the Company to Horsehead Intermediary in an amount equal to $49,023,478.30;
(iv) the payment in cash, on or about the date hereof (utilizing the proceeds of the Permitted
Dividend), of a dividend by Horsehead Intermediary to the Parent
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in an amount equal to the amount
of the Permitted Dividend, a portion of the proceeds of which shall
be used by the Parent in payment of the principal amount of certain indebtedness owing by the Parent to its shareholders
(the “Shareholder Debt”), and the balance of the proceeds of which shall be distributed by the
Parent to its shareholders as a special dividend; and
(v) the payment in cash, on or about the date hereof, of a management fee by the Company to
SCP Management in the amount of $5,000,000, as a prepayment of the management fees owing by the
Company to SCP Management in 2007 (the “Second Management Fee”),
provided that (x) the First Management Fee and the Second Management Fee are paid in full
on or about the date hereof, (y) all of the proceeds of the Permitted Dividend are distributed on
or about the date hereof and either applied by the Parent in payment of the Shareholder Debt or
declared and paid as a dividend by the Parent to its shareholders and (z) all of the proceeds of
the Revolving Loans in the aggregate principal amount of $24,523,478.30 made on or about the date
hereof in connection with the increase in the Revolving Line of Credit, as provided under Section
One of this Amendment (together with all of the proceeds of the loans made on or about the date
hereof by Contrarian or its affiliate to the Company in the aggregate principal amount of
$30,000,000) are used solely to pay the First Management Fee, the Second Management Fee and the
Permitted Dividend.
Section Three. Representations and Warranties. Each of the Credit Parties
warrants and represents to the Agent and each Lender as follows:
(a) the execution, delivery and performance of this Amendment and the other documents
described herein by such Credit Party are within its corporate powers, have been duly authorized by
all necessary corporate action, and such Credit Party has received all necessary consents and
approvals (if any shall be required) for the execution and delivery of this Amendment and such
other documents;
(b) upon the execution of this Amendment and the other documents described herein, this
Amendment and such other documents shall constitute the legal, valid and binding obligation of such
Credit Party, enforceable against such Credit Party in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’
rights generally and (ii) general principles of equity;
(c) The payment of the Management Bonuses, the First Management Fee, the Second Management Fee
and the Permitted Dividend, and the payment of the Third Management Fee (as defined in Section
Seven hereof) and the consummation of the transactions contemplated thereby are and will be within
the corporate powers of the Company and Horsehead Intermediary, and have been duly authorized by
all necessary corporate action. At the time of consummation thereof, the payment of the Management
Bonuses, the First Management Fee, the Second Management Fee, the Third Management Fee and the
Permitted Dividend shall have been made in accordance with all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and registrations with, and all
other actions in respect of, all governmental agencies, authorities or instrumentalities required
in order to pay the
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Management Bonuses, the First Management Fee, the Second Management Fee, the
Third Management Fee and the Permitted Dividend in accordance with all applicable laws have been
obtained, given, filed or taken and are or will be in full force and effect;
(d) On a pro forma basis, after giving effect to the payment of the Management
Bonuses, the First Management Fee, the Second Management Fee, the Third Management Fee and the
Permitted Dividend, and the incurrence by the Company of all Indebtedness under the Financing
Agreement and the Contrarian Transaction Documents to be incurred by it in order to finance the
payment of the Management Bonuses, the First Management Fee, the Second Management Fee, the Third
Management Fee and the Permitted Dividend (i) the sum of the assets, at a fair valuation of the
Company (on a consolidated basis with its consolidated subsidiaries) will exceed its debts, (ii)
the Company (on a consolidated basis with its consolidated subsidiaries) has not incurred and does
not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as
such debts mature and (iii) the Company (on a consolidated basis with its consolidated
subsidiaries) will have sufficient capital with which to conduct its business. For purposes of
this clause (d), (1) “debt” means any liability on a claim, and “claim” means (x) right to payment,
whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured; and (2) the amount of contingent liabilities at any
time shall be computed as the amount that can reasonably be expected to become an actual or matured
liability; and
(e) no Default or Event of Default has occurred and is continuing.
Each Credit Party confirms, reaffirms and restates to the Agent and each Lender, as of the First
Effective Date each of the representations and warranties set forth in the Financing Agreement,
except to the extent that such representations and warranties solely relate to a specific earlier
date, in which case each Credit Party confirms, reaffirms and restates such representations and
warranties as of such earlier date.
Section Four. Amendment Fee. As consideration for the amendments contained
in Sections One and Six of this Amendment, and the consents provided for in Sections Two and Seven
of this Amendment, the Company shall pay to the Agent, for the ratable benefit of Lenders, a
non-refundable amendment fee in the amount of Three Hundred Sixty Thousand Dollars ($360,000) (the
“Amendment Fee”), which Amendment Fee shall be fully earned and due and payable on the First
Effective Date.
Section Five. Initial Conditions Precedent. The effectiveness of this
Amendment and the provisions hereof are subject to the following conditions precedent, including,
where applicable, that the Agent shall have received the following documents and other items (all
such documents and other items to be in form and substance satisfactory to the Agent):
(a) This Amendment duly executed by authorized representatives of each of the Credit Parties
and each of the Lenders;
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(b) An amendment to the Contrarian Financing Documents covering such matters as may be
reasonably satisfactory to the Agent, duly executed by authorized representatives of each of the
Credit Parties and Contrarian;
(c) A Second Amended and Restated Promissory Note (Revolving Loan) in the principal amount of
$50,025,000, duly executed in favor of CIT by an authorized representative of the Company;
(d) A First Amended and Restated Promissory Note (Revolving Loan) in the principal amount of
$24,975,000, duly executed in favor of PNC by an authorized representative of the Company;
(e) A Third Amendment to the Contrarian Intercreditor Agreement, duly executed by an
authorized representative of Contrarian, covering such matters as may be reasonably satisfactory to
the Agent;
(f) Amendments to each of the Mortgages duly executed by an authorized representative of the
Company (or other Credit Party, if applicable);
(g) A valuation report, prepared as of a recent date by Valuation Research Corporation,
pursuant to which Valuation Research Corporation shall have set forth its analysis of the value of
the Company, on a consolidated basis with its consolidated subsidiaries and as a going concern,
which report shall be addressed to (among others) each Lender party to the Financing Agreement as
of the First Effective Date;
(h) A pro forma Consolidated Balance Sheet, prepared by or under the direction
of, and certified by, the Company’s chief financial officer, which Consolidated Balance Sheet shall
reflect that the Company and its consolidated subsidiaries have a net worth, as defined in
accordance with GAAP of not less than $8,000,000, after giving effect to the payment of the
Permitted Dividend, the First Management Fee, the Second Management Fee and the Third Management
Fee;
(i) Evidence that the execution, delivery and performance of this Amendment by each of the
Credit Parties have been duly authorized by all necessary action, and that no amendment or other
modification to the articles or certificate of incorporation or bylaws of any Credit Party has been
made since the date of the original delivery thereof to the Agent and that such documents (in the
form delivered to the Agent) remain in full force and effect; and
(j) A written opinion of counsel for the Credit Parties addressed to the Agent and the Lenders
covering such matters as may be reasonably requested by the Agent.
The date upon which all of the conditions precedent set forth in this Section Five shall have been
satisfied is referred to herein as the “First Effective Date”.
Section Six. Subsequent Amendment to Financing Agreement. Effective as of
the Second Effective Date (as defined in Section Eight hereof), the definition of Permitted
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Distributions is amended by (i) deleting the word “and” at the end of clause (c) thereof, (ii)
deleting the period at the end of clause (d) thereof, and substituting in lieu thereof a
semi-colon, followed by the word “and” and (iii) inserting the following new clause (e) at the end
thereof:
“(e) dividends from the Company to Horsehead Intermediary, the
proceeds of which are used solely by Horsehead Intermediary to fund
the concurrent declaration and payment by Horsehead Intermediary of
dividends to the Parent, the proceeds of which are used solely by
the Parent to fund the payment of out-of-pocket costs and expenses
(including reasonable fees and disbursements of attorneys and
accountants) paid or incurred by the Parent, arising directly from
and solely in connection with (i) the consummation of the Offering
and the transactions contemplated to occur thereunder, and
thereafter (ii) the obligation of the Parent, in accordance with the
rules and regulations of the Securities Exchange Commission and the
requirements of any national securities exchanges on which the
Parent lists a class of equity securities, respectively, to make
public disclosure from time to time of its results of operation and
financial condition, on a consolidated basis with its subsidiaries,
and other similar kinds of public reporting requirements, and
listing requirements.”
Section Seven. Subsequent Consent. Notwithstanding any prohibition against
the payment of management fees contained in Section 7.4 (i) of the Financing Agreement, the Agent
and the Lenders hereby consent to the payment in cash, on or about the Second Effective Date, of a
management fee by the Company to SCP Management (the “Third Management Fee”) in the amount of
$4,500,000.
Section Eight. Conditions Precedent to Subsequent Amendment to Financing
Agreement and Subsequent Consent. The effectiveness of the amendment to the Financing Agreement
set forth in Section Six of this Amendment, and to the consent contained in Section Seven of this
Amendment, is subject to the following conditions precedent, including, where applicable, that the
Agent shall have received the following documents and other items (all such documents and other
items to be in form and substance satisfactory to the Agent):
(a) The Agent and its counsel shall have received final versions of the offering memorandum
for the Offering and all material documents and agreements to be executed or delivered by the
Parent or the Credit Parties in connection with the Offering (such memorandum, together with such
documents and agreements, collectively, the “Offering Documents”) and the Offering shall have been
consummated in accordance with the terms of the Offering Documents;
(b) Each of Xxxxx Xxxxxxx and Xxxxxx Xxxxxxxx shall have entered into an employment agreement
with the Company, substantially in the forms that the Agent received and
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reviewed to its reasonable
satisfaction prior to the First Effective Date, and the Company shall have delivered to the Agent a
fully executed copy of each such agreement; and
(c) The Agent shall have received a certificate executed by a duly authorized officer of the
Company, stating that after giving effect to the consummation of the Offering, no Change of Control
shall have occurred.
The date upon which all of the conditions precedent set forth in this Section Eight shall have
been satisfied is referred to herein as the “Second Effective Date”.
Section Nine. Termination of Sun Management Agreement. Each Credit Party
agrees (and warrants and represents that SCP Management has heretofore agreed) that the Sun
Management Agreement shall be terminated effective as of the Second Effective Date, at which time
the Sun Management Agreement shall cease to be of any further force or effect. Each Credit Party
further agrees that (i) notwithstanding the terms of Section 7.4 (i) of the Financing Agreement, at
all times after the Second Effective Date, such Credit Party shall not pay any management,
consulting or other similar fees or compensation to SCP Management, make any Permitted Management
Fee Payments, or pay any “Management Fee” as defined under the Sun Management Agreement and (ii)
for avoidance of doubt, for purposes of calculating Consolidated EBITDA and Consolidated Fixed
Charges for any fiscal quarter (each a “referenced fiscal quarter”) following the fiscal quarter
during which the Second Effective Date occurs (x) no fees accrued or accruing under the Sun
Management Agreement may be added back to Consolidated Net Income for such referenced fiscal
quarter and (y) no amounts described in clause (i) of the defined term Consolidated Fixed Charges
may be included in the calculation of Consolidated Fixed Charges for such referenced fiscal
quarter. Finally, each Credit Party agrees that if the Offering is not consummated in accordance
with the terms of the Offering Documents (a) the Sun Management Agreement, at the election of the
parties thereto, may continue in full force and effect, in which event clauses (i) and (ii)
contained in the previous sentence shall be null and void and (b) the Company and SCP Management
shall reconcile, as soon as practicable after the basis for calculating the same becomes available,
the amount of the Second Management Fee and settle between themselves any overpayment or
underpayment thereof, based on the amount of the Permitted Management Fee Payment that would
otherwise be due and payable by the Company to SCP Management in 2007, in accordance with the terms
of the Sun Management Agreement.
Section Ten. General Provisions.
(a) Except as herein expressly amended, the Financing Agreement and all other agreements,
documents, instruments and certificates executed in connection therewith, are ratified and
confirmed in all respects and shall remain in full force and effect in accordance with their
respective terms.
(b) The execution, delivery and effectiveness of the consent contained in Section Two hereof
shall not operate as a waiver of any right, power or remedy of any Lender or of Agent under the
Financing Agreement or any of the other Loan Documents, nor constitute a waiver of any other
provision of the Financing Agreement or any of the other Loan Documents.
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(c) All references to the Financing Agreement and each other Loan Document shall mean the
Financing Agreement as amended hereby and as hereafter amended, supplemented and modified from time
to time.
(d) This Amendment embodies the entire agreement between the parties hereto with respect to
the subject matter hereof and supercedes all prior agreements,
commitments, arrangements, negotiations or understandings, whether written or oral, of the
parties with respect thereto.
(e) This Amendment shall be governed by and construed in accordance with the internal laws of
the State of New York, without regard to the conflicts of law principles thereof.
(f) By its signature below, PNC also hereby confirms its consent to the execution and delivery
by the Agent of the Third Amendment to the Contrarian Intercreditor Agreement.
(g) Notwithstanding anything to the contrary contained in the definition of the term
“Commitment” in the Financing Agreement, the Commitments of each Lender as of the First Effective
Date are reflected on the signature page to this Amendment.
(h) The Company shall deliver to the Agent as soon as practicable after the Second Effective
Date, and in any event no later than ten (10) Business Days thereafter, a capitalization chart
which shall set forth, after giving effect to the consummation of the Offering, the name of each
holder, beneficially or of record, of shares of capital stock of the Parent, together with the
corresponding number (and relative percentage) of such shares so held.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties to this Amendment have signed below to indicate their
agreement with the foregoing and their intent to be bound thereby.
| HORSEHEAD CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxx | ||||||
| Title: CFO | ||||||
| HORSEHEAD INTERMEDIARY CORP. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxx | ||||||
| Title: CFO | ||||||
| CHESTNUT RIDGE RAILROAD CORP. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxx | ||||||
| Title: CFO | ||||||
| THE CIT GROUP/BUSINESS CREDIT, INC., | ||||||
| as a Lender and as Agent | ||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxxx | ||||||
| Title: Vice President | ||||||
| Commitment: $50,025,000 | ||||||
| PNC BANK, NATIONAL ASSOCIATION, | ||||||
| as a Lender | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| Commitment: $24,975,000 | ||||||
Signature Page to Fourth Amendment and Consent
EXHIBIT A
Section 7.4(h) to Financing Agreement
Contribution Agreement, dated March 15, 2004, by and between Horsehead Corporation and Chestnut
Ridge Railroad Corp.
Administrative Services Agreement, dated February 4, 2004, by and between Horsehead Corporation and
Chestnut Ridge Railroad Corp.
Management Services Agreement, dated December 23, 2003, by and between Horsehead Corporation and
Sun Capital Partners Management III, LLC
Agreement, dated as of October 25, 2006, by and between Horsehead Corporation and Sun Capital
Partners Management III, LLC
Purchase/Placement Agreement to be entered into in connection with the Offering (as defined in the
Fourth Amendment and Consent to Financing Agreement dated as of October 25, 2006) by and among
Friedman, Billings, Xxxxxx & Co., Inc., Horsehead Holding Corp., Horsehead Intermediary Corp.,
Horsehead Corporation and Chestnut Ridge Railroad Corp.
