Exhibit 99.2
AMENDMENT NO. 10 AND WAIVER TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 10 AND WAIVER TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of March 29, 2007, by and among Handy & Xxxxxx, a New
York corporation ("Parent"), OMG, Inc., a Delaware corporation formerly known
as Olympic Manufacturing Group, Inc. ("OMG"), Continental Industries, Inc.,
an Oklahoma corporation ("Continental"), Maryland Specialty Wire, Inc., a
Delaware corporation ("Maryland Wire"), Handy & Xxxxxx Tube Company, Inc., a
Delaware corporation ("H& H Tube"), Camdel Metals Corporation, a Delaware
corporation ("Camdel"), Xxxxxxxx Metal Coating Corporation, a Delaware
corporation ("Canfield"), Micro-Tube Fabricators, Inc., a Delaware
corporation ("Micro-Tube"), Indiana Tube Corporation, a Delaware corporation
("Indiana Tube"), Xxxxx-Xxxxxxxx, Inc., a Wisconsin corporation ("Xxxxx"),
Handy & Xxxxxx Electronic Materials Corporation, a Florida corporation ("H& H
Electronic"), Sumco Inc., an Indiana corporation ("Sumco"), OMG Roofing,
Inc., a Delaware corporation ("OMG Roofing" and together with Parent, OMG,
Continental, Maryland Wire, H& H Tube, Camdel, Xxxxxxxx, Micro-Tube, Indiana
Tube, Xxxxx, H& H Electronic and Sumco each individually, a "Borrower" and
collectively, "Borrowers"), Handy & Xxxxxx of Canada, Limited, an Ontario
corporation ("H& H Canada"), ele Corporation, a California corporation
("ele"), Alloy Ring Service Inc., a Delaware corporation ("Alloy"), Xxxxxx
Radiator Corporation, a Texas corporation ("Xxxxxx"), H& H Productions, Inc.,
a Delaware corporation ("H& H Productions"), Handy & Xxxxxx Automotive Group,
Inc., a Delaware corporation ("H& H Auto"), Handy & Xxxxxx International,
Ltd., a Delaware corporation ("H& H International"), Handy & Xxxxxx Peru,
Inc., a Delaware corporation ("H& H Peru"), KJ-VMI Realty, Inc., a Delaware
corporation ("KVR"), Xxx-Xxxx Realty, Inc., a Delaware corporation
("Xxx-Xxxx"), Platina Laboratories, Inc., a Delaware corporation ("Platina"),
Sheffield Street Corporation, a Connecticut corporation ("Sheffield"), SWM,
Inc., a Delaware corporation ("SWM"), Willing B Wire Corporation, a Delaware
corporation ("Willing" and together with H& H Canada, ele, Alloy, Xxxxxx, H& H
Productions, H& H Auto, H& H International, H& H Peru, KVR, Xxx-Xxxx, Platina,
Sheffield and SWM, each individually, a "Guarantor" and collectively,
"Guarantors"), Steel Partners II, L.P., successor by assignment from
Canpartners Investments IV, LLC, in its capacity as agent pursuant to the
Loan Agreement (as hereinafter defined) acting for the financial institutions
party thereto as lenders (in such capacity, together with its successors and
assigns, "Agent"), and the financial institutions party thereto as lenders
(collectively, "Lenders"). Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings ascribed thereto
in the Loan Agreement.
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and may make loans and advances and provide other financial
accommodations to Borrowers as set forth in the Loan and Security Agreement,
dated March 31, 2004, by and among Agent, Lenders, Borrowers and Guarantors, as
amended by Amendment No. 1 to Loan and Security Agreement, dated as of October
29, 2004, Amendment No. 2 to Loan and Security Agreement, dated as of May 20,
2005, Amendment No. 3 and Waiver to Loan and Security Agreement, dated as of
December 29, 2005, Consent and Amendment No. 4 to Loan and Security Agreement,
dated as of January 24, 2006, Consent and Amendment No. 5 to Loan and Security
Agreement, dated as of March 31, 2006, Amendment No. 6 to Loan and Security
Agreement, dated as of July 18, 2006, Amendment No. 7 to Loan and Security
Agreement, dated as of October 30, 2006, Amendment No. 8 and Waiver to Loan and
Security Agreement dated as of December 28, 2006, and Consent and Amendment No.
9 to Loan and Security Agreement dated as of December 28, 2006 and as the same
may hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement"), and the other agreements, documents
and instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto (all of the foregoing, together with the
Loan Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
agree to (a) make certain amendments to the Loan Agreement and the other
Financing Agreements and (b) waive certain Events of Default under the Loan
Agreement, and Agent and Lenders are willing to agree to such amendments and
waivers, subject to the terms and conditions contained herein.
WHEREAS, by this Amendment, Borrowers, Guarantors, Agent and Lenders
desire and intend to evidence such amendments and waivers;
NOW THEREFORE, in consideration of the foregoing, and the respective
agreements and covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) ADDITIONAL DEFINITIONS. As used herein, the following terms
shall have the following meanings given to them below, and the Loan Agreement
and the other Financing Agreements are hereby amended to include, in addition
and not in limitation, the following:
(i) "Amendment No. 10" shall mean this Amendment No. 10 and
Waiver to Loan Agreement by and among Borrowers, Guarantors, Agent and Lenders,
as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
(ii) "Amendment No. 10 Effective Date" shall mean the first
date on which all of the conditions precedent to the effectiveness of this
Amendment shall have been satisfied or shall have been waived by Agent.
(iii) "Indiana Tube Denmark" shall mean Indiana Tube Danmark
A/S, a Danish corporation, and its successors and assigns.
(iv) "Protechno France" shall mean Protechno, S.A., a French
corporation, and its successors and assigns.
(v) "Specified OMG Roofing EBITDA Amount" shall mean (a)
$3,078,000 for the twelve (12) month period ending March 31, 2007; (b)
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$2,736,000 for the twelve (12) month period ending April 30, 2007; (c)
$2,394,000 for the twelve (12) month period ending May 31, 2007; (d) $2,052,000
for the twelve (12) month period ending June 30, 2007; (e) $1,710,000 for the
twelve (12) month period ending July 31, 2007; (f) $1,368,000 for the twelve
(12) month period ending August 31, 2007; (g) $1,026,000 for the twelve (12)
month period ending September 30, 2007; (h) $684,000 for the twelve (12) month
period ending October 31, 2007; (i) $342,000 for the twelve (12) month period
ending November 30, 2007; and (j) $0 for the twelve (12) month period ending
December 31, 2007 and for each twelve (12) month period ending on the last day
of each month thereafter.
(vi) "Specified Subsidiaries" shall mean, collectively, (a)
Maryland Wire, (b) H& H Tube, (c) H& H Electronic and (d) Hardy & Xxxxxx Ele
(Asia) SdN Bhd., a Malaysian corporation.
(b) AMENDMENTS TO DEFINITIONS.
(i) FINANCING AGREEMENTS. The term "Financing Agreements" as
used in the Loan Agreement and in the other Financing Agreements
shall be deemed and each such reference is hereby amended to
include, in addition and not in limitation, this Amendment No. 10 as
the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(ii) EBITDA. The definition of "EBITDA" in Section 1.30 of the
Loan Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
"1.30 "EBITDA" shall mean, as to any Person, with
respect to any period, an amount equal to: (a) the Consolidated Net
Income of such Person for such period, plus (b) depreciation and
amortization for such period (to the extent deducted in the
computation of Consolidated Net Income of such Person), all in
accordance with GAAP, plus (c) Interest Expense for such period (to
the extent deducted in the computation of Consolidated Net Income of
such Person), plus (d) the Provision for Taxes for such period (to
the extent deducted in the computation of Consolidated Net Income of
such Person), PLUS (e) the Specified OMG Roofing EBITDA Amount (if
any) for such period, PLUS (f) non cash accruals for such period for
environmental liabilities with respect to the Shpack landfill site
located in Attleboro, Massachusetts (to the extent that (i) such
accruals were deducted in the computation of Consolidated Net Income
of such Person for such period and (ii) the aggregate amount of all
such accruals does not exceed $1,538,000), PLUS (g) losses realized
during such period in connection with the inventory hedging program
of such Person (to the extent that such losses were deducted in the
computation of Consolidated Net Income of such Person for such
period), MINUS (h) gains realized during such period in connection
with the inventory hedging program of such Person (to the extent
that such gains were added in the computation of Consolidated Net
Income of such Person for such period), MINUS (i) cash expenses
incurred during such period in connection with environmental
liabilities with respect to the Shpack landfill site located in
Attleboro, Massachusetts."
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(c) INTERPRETATION. Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Loan Agreement.
2. FINANCIAL STATEMENTS AND OTHER INFORMATION. Section 9.6(a) of the Loan
Agreement is hereby amended by deleting the word "and" after subsection (ii) of
such Section and replacing it with a semicolon. :
(b) Section 9.6(a) of the Loan Agreement is hereby amended by
deleting subsection (iii) from such Section in its entirety and replacing it
with the following subsections (iii), (iv) and (v):
"(iii) within ninety (90) days after the end of each fiscal
year (other than the fiscal years ended December 31, 2003, December
31, 2004, December 31, 2005 and December 31, 2006), audited
consolidated financial statements of Parent and its Subsidiaries
(including balance sheets, statements of income and loss, statements
of cash flow and statements of shareholders' equity) and unaudited
consolidating financial statements of Parent and its Subsidiaries
(including balance sheets and statements of income and loss), and
the accompanying notes thereto, all in reasonable detail, fairly
presenting in all material respects the financial position and the
results of the operations of Parent and its Subsidiaries as of the
end of and for such fiscal year, together with the unqualified
opinion of independent certified public accountants with respect to
the audited consolidated financial statements, which accountants
shall be an independent accounting firm selected by Borrowers and
acceptable to Agent, that such audited consolidated financial
statements have been prepared in accordance with GAAP, and present
fairly in all material respects the results of operations and
financial condition of Parent and its Subsidiaries as of the end of
and for the fiscal year then ended; (iv) within one hundred and
fifty (150) days after the end of the fiscal year ended December 31,
2006, annual unaudited consolidated financial statements of Parent
and its Subsidiaries (including balance sheets, statements of income
and loss, statements of cash flow, and statements of shareholders'
equity) and annual unaudited consolidating financial statements of
Parent and its Subsidiaries (including balance sheets and statements
of income and loss), all in reasonable detail, fairly presenting in
all material respects the financial position and the results of the
operations of Parent and its Subsidiaries as of the end of and for
the fiscal year then ended, all of which unaudited financial
statements and unaudited consolidated financial statements and
unaudited consolidating financial statements (other than the
statement of federal deferred tax assets and liabilities) shall be
certified to be correct by the chief financial officer of Parent,
subject to normal year-end adjustments and the absence of footnotes;
and (v) within one hundred fifty (150) days after the end of the
fiscal year ended December 31, 2006, audited consolidated financial
statements of WHX and its Subsidiaries (including balance sheets,
statements of income and loss, statements of cash flow and
statements of shareholders' equity) and unaudited consolidating
financial statements of WHX and its Subsidiaries (including balance
sheets and statements of income and loss), and the accompanying
notes thereto, all in reasonable detail, fairly presenting in all
material respects the financial
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position and the results of the operations of WHX and its
Subsidiaries as of the end of and for such fiscal year, together
with the unqualified opinion of independent certified public
accountants with respect to the audited consolidated financial
statements, which accountants shall be an independent accounting
firm selected by WHX and acceptable to Agent, that such audited
consolidated financial statements have been prepared in accordance
with GAAP, and present fairly in all material respects the results
of operations and financial condition of WHX and its Subsidiaries as
of the end of and for the fiscal year then ended."
3. INDEBTEDNESS. Section 9.9(j) of the Loan Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the following:
"(j) [Intentionally Deleted]."
4. LOANS, INVESTMENTS, ETC. Section 9.10 of the Loan Agreement is hereby
amended by (a) deleting "and" appearing at the end of clause (h) of such
Section, (b) deleting the period appearing at the end of clause (i) of such
Section and replacing it with "; and" and (c) adding the following new clauses
(j) and (k) at the end of such Section:
"(j) unsecured loans by Parent to WHX on or after the
Amendment No. 10 Effective Date, the proceeds of which shall be used
by WHX solely to make contributions to the WHX Plan, provided, THAT,
(i) the aggregate amount of any such loan shall not exceed the
amount required to be contributed to the WHX Plan as of the date
such loan is made, (ii) within thirty (30) days after the end of
each fiscal month, Parent shall provide to Agent a report in form
and substance satisfactory to Agent of the outstanding amount of
such loans as of the last day of the immediately preceding month and
indicating any payments received during the immediately preceding
month, (iii) the Indebtedness arising pursuant to any such loan
shall be evidenced by a promissory note and the single original of
such note shall be promptly delivered to Working Capital Agent to
hold as part of the Collateral, with such endorsements and/or
assignments by WHX as Working Capital Agent may require, (iv) as of
the date of any such loan and after giving effect thereto, Parent
shall be Solvent, (v) as of the date of any such loan and after
giving effect thereto, no Default or Event of Default shall exist or
have occurred and be continuing, (vi) the average Excess
Availability under the Working Capital Loan (as determined by the
Working Capital Agent) for the thirty (30) consecutive days
immediately preceding any such loan shall not have been less than
$5,000,000, and (vii) on the date of any such loan and after giving
effect thereto, Excess Availability under the Working Capital Loan
(as determined by the Working Capital Agent) shall not be less than
$4,000,000; and
(k) an unsecured loan by Parent to WHX on or after the
Amendment No. 10 Effective Date for purposes other than those
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described in Section 9.10(j) hereof, PROVIDED, THAT, (i) the
aggregate outstanding amount of such loan shall not exceed the
principal amount of $3,500,000 at any time, (ii) within thirty (30)
days after the end of each fiscal month, Parent shall provide to
Agent a report in form and substance satisfactory to Agent of the
outstanding amount of such loan as of the last day of the
immediately preceding month and indicating any payments received
during the immediately preceding month, (iii) the Indebtedness
arising pursuant to such loan shall be evidenced by a promissory
note and the single original of such note or shall be promptly
delivered to Working Capital Agent to hold as part of the Collateral
under the Working Capital Loan Agreement, with such endorsement
and/or assignment by WHX as Working Capital Agent may require, (iv)
as of the date of such loan and after giving effect thereto, Parent
shall be Solvent, (v) as of the date of such loan and after giving
effect thereto, no Default or Event of Default shall exist or have
occurred and be continuing, (vi) the average Excess Availability
under the Working Capital Loan (as determined by the Working Capital
Agent) for the thirty (30) consecutive days immediately preceding
such loan shall not have been less than $5,000,000, (vii) on the
date of such loan and after giving effect thereto, Excess
Availability under the Working Capital Loan (as determined by the
Working Capital Agent) shall not be less than $4,000,000, and (viii)
such loan shall be repaid in full upon the consummation of the WHX
Recapitalization with the Net Cash Proceeds from the issuance and
sale of Capital Stock of WHX."
5. FINANCIAL COVENANTS. Section 9.17(a) of the Loan Agreement is hereby
amended by deleting such Section and replacing it with the following:
"(a) EBITDA. (i) Parent and its Subsidiaries shall not permit
EBITDA of Parent and its Subsidiaries (other than Specified
Subsidiaries), on a consolidated basis, for the twelve (12)
consecutive fiscal months ending on the last day of each fiscal
quarter set forth below to be less than the applicable amount set
forth below opposite such period:
----------------------------------------------------------------
Fiscal Quarter End Minimum EBITDA
----------------------------------------------------------------
March 31, 2007 $29,100,000
----------------------------------------------------------------
June 30, 2007 $29,400,000
----------------------------------------------------------------
September 30, 2007 $29,700,000
---------------------------------------------------------------
December 31, 2007 and each fiscal $30,000,000
quarter ending thereafter
----------------------------------------------------------------
(b) Section 9.17(b) of the Loan Agreement is hereby amended by
deleting such Section and replacing it with the following:
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"(b) [Intentionally Deleted]."
(c) Section 9.17(c) of the Loan Agreement is hereby amended by
deleting such Section and replacing it with the following:
"(c) CAPITAL EXPENDITURES. Parent and it Subsidiaries shall
not, directly or indirectly, make or commit to make (whether through
purchase, capital lease or otherwise) Capital Expenditures in any
twelve (12) consecutive fiscal months ending on the last day of each
fiscal quarter in excess of $12,000,000 during such twelve (12)
consecutive fiscal month period."
(d) Section 9.17(d) of the Loan Agreement is hereby amended by
deleting such Section and replacing it with the following:
"(d) LEVERAGE RATIO. Parent and its Subsidiaries shall not
permit the Senior Leverage Ratio as of the last day of each fiscal
month set forth below to be greater than the applicable ratio set
forth below:
----------------------------------------------------------------
Fiscal Month End Maximum Leverage Ratio
----------------------------------------------------------------
March 31, 2007 4.5 to 1
----------------------------------------------------------------
April 30, 2007 4.5 to 1
----------------------------------------------------------------
May 31, 2007 4.5 to 1
----------------------------------------------------------------
June 30, 2007 4.25 to 1
----------------------------------------------------------------
July 31, 2007 4.25 to 1
----------------------------------------------------------------
August 31, 2007 4.0 to 1
----------------------------------------------------------------
September 30, 2007 4.0 to 1
----------------------------------------------------------------
October 31, 2007 and the last day 3.75 to 1"
of each fiscal month thereafter
----------------------------------------------------------------
6. TERM. Section 13.1(a) of the Loan Agreement is hereby amended by
deleting the first sentence from such Section in its entirety and replacing it
with the following:
"This Agreement and the other Financing Agreements shall
become effective as of the date set forth on the first page hereof
and shall continue in full force and effect for a term ending on
June 30, 2008 (the "Termination Date"), unless sooner terminated
pursuant to the terms hereof."
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7. WAIVER OF EVENTS OF DEFAULT.
(a) Subject to the terms and conditions contained herein, Agent
and Lenders hereby waive the following Events of Default (collectively, the
"Existing Defaults"):
(i) the Event of Default arising under Section 10.1(a)(iii) of
the Loan Agreement as a result of the failure of Parent and its Subsidiaries to
comply with the terms of Section 9.17(a) of the Loan Agreement with respect to
the fiscal quarter ended December 31, 2006; and
(ii) the Event of Default arising under Section 10.1(a)(iii)
of the Loan Agreement as a result of the failure of Parent and its Subsidiaries
to comply with the terms of Section 9.17(b) of the Loan Agreement with respect
to the fiscal quarter ended December 31, 2006.
(b) Agent and Lenders have not waived and are not by this
Amendment waiving, and have no present intention of waiving, any other Events of
Default, which may have occurred prior to the date hereof, or may be continuing
on the date hereof or any Event of Default which may occur after the date
hereof, other than the Existing Defaults, whether the same or similar to the
Existing Defaults or otherwise. Agent and Lenders reserve the right, in their
discretion, to exercise any or all of its or their rights and remedies arising
under the Financing Agreements, applicable law or otherwise, as a result of any
other Events of Default which may have occurred prior to the date hereof, or are
continuing on the date hereof, or any Event of Default which may occur after the
date hereof, whether the same or similar to the Existing Defaults. Nothing
contained herein shall be construed as a waiver of the failure of Borrowers and
Guarantors to comply with the terms of the Loan Agreement and the other
Financing Agreements after the date hereof.
8. CONDITIONS PRECEDENT. The provisions contained herein shall only be
effective upon the satisfaction of each of the following conditions precedent in
a manner satisfactory to Agent:
(a) Agent shall have received this Amendment No. 10, duly
authorized, executed and delivered by Borrowers, Guarantors and all Lenders;
(b) Agent shall have received, in form and substance satisfactory to
Agent, Amendment No. 13 to the Working Capital Loan Agreement, together with all
exhibits and schedules thereto, duly authorized, executed and delivered by each
of the parties thereto, which Working Capital Amendment No. 13 shall be in full
force and effect;
(c) Agent shall have received, in form and substance satisfactory to
Agent, an amendment to each of the Mortgages relating to the Real Property of
Borrowers and Guarantors located in the States of Indiana and Connecticut, duly
authorized, executed and delivered by the applicable Borrower or Guarantor;
(d) Agent shall have received, in form and substance satisfactory to
Agent, a true and correct copy of any consent, waiver or approval to or of this
Amendment No. 10 or any other Amendment Documents (as hereinafter defined) which
any Borrower or Guarantor is required to obtain from any other Person; and
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(e) After giving effect to the waivers provided by this Amendment,
no Default or Event of Default shall exist or have occurred and be continuing.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Borrower and Guarantor
hereby represents and warrants to Agent and Lenders the following (which shall
survive the execution and delivery of this Amendment No. 10), the truth and
accuracy of which representations and warranties are a continuing condition of
the Loans to Borrowers:
(a) on or before April 30, 2007 (or such later date as Agent may
agree in its sole discretion), Borrowers shall deliver or cause to be delivered
to Agent, in form and substance satisfactory to Agent , (i) a pledge and
security agreement by H& H International in favor of Agent with respect to
sixty-five (65%) of the issued and outstanding shares of Capital Stock of
Indiana Tube Denmark, duly authorized, executed and delivered by H& H
International; (ii) copies of the originals of the stock certificates (if any)
representing all of the issued and outstanding shares of the Capital Stock of
Indiana Tube Denmark, together with stock powers duly executed in blank with
respect thereto, that are delivered to Working Capital Agent under the Working
Capital Amendment No. 13; (iii) if requested by Agent, an opinion of Danish
counsel to H& H International with respect to the pledge of such Capital Stock;
and (iv) such other documents, agreements and instruments as Agent may request
to create and perfect a security interest in such Capital Stock in favor of
Agent;
(b) on or before April 30, 2007 (or such later date as Agent may
agree in its sole discretion), Borrowers shall deliver or cause to be delivered
to Agent, in form and substance satisfactory to Agent (i) a pledge and security
agreement by Indiana Tube Denmark in favor of Agent with respect to sixty-five
(65%) of the issued and outstanding shares of Capital Stock of Protechno France,
duly authorized, executed and delivered by Indiana Tube Denmark; (ii) copies of
the originals of the stock certificates (if any) representing all of the issued
and outstanding shares of the Capital Stock of Protechno France, together with
stock powers duly executed in blank with respect thereto, that are delivered to
Working Capital Agent under the Working Capital Amendment No. 13; (iii) if
requested by Agent, an opinion of Danish counsel to Indiana Tube Denmark with
respect to the pledge of such Capital Stock; and (iv) such other documents,
agreements and instruments as Agent may request to create and perfect a security
interest in such Capital Stock in favor of Agent;
(c) on or before July 31, 2007 (or such later date as Agent may
agree in its sole discretion), Borrowers shall deliver to Agent, in form and
substance satisfactory to Agent, an endorsement (or a commitment to issue an
endorsement) to the existing title insurance policies relating to Mortgages
encumbering the Real Property of Borrowers and Guarantors located in the State
of Indiana (i) insuring the priority and amount of such Mortgages (as so
amended) and (ii) containing any legally available endorsements, assurances or
affirmative coverage requested by Agent for the protection of its interest with
respect to such Mortgages (as so amended);
(d) each Borrower and Guarantor is a corporation duly organized and
in good standing under the laws of its jurisdiction of incorporation and is duly
qualified as a foreign corporation and in good standing in all states, provinces
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or other jurisdictions where the nature and extent of the business transacted by
it or the ownership of assets makes such qualification necessary, except for
those jurisdictions in which the failure to so qualify would not have a Material
Adverse Effect;
(e) this Amendment, each other agreement or instrument to be
executed and delivered by Borrowers and Guarantors in connection herewith
(collectively, together with this Amendment, the "Amendment Documents")
Documents have been duly authorized, executed and delivered by all necessary
action on the part of each of the Borrowers and Guarantors which is a party
hereto and thereto and, if necessary, their respective stockholders and is in
full force and effect as of the Amendment No. 10 Effective Date, and the
agreements and obligations of each of the Borrowers and Guarantors contained
herein and therein constitute the legal, valid and binding obligations of each
of the Borrowers and Guarantors, enforceable against them in accordance with
their terms, except as enforceability is limited by bankruptcy, insolvency,
moratorium or other similar laws affecting creditors' rights generally and by
general equitable principles;
(f) the execution, delivery and performance of this Amendment No.
10, the other Amendment Documents, (a) are all within each Borrower's and
Guarantor's corporate powers and (b) are not in contravention of law or the
terms of any Borrower's or Guarantor's certificate or articles of incorporation,
by laws, or other organizational documentation, or any indenture, agreement or
undertaking (including, without limitation, the Working Capital Loan Agreement)
to which any Borrower or Guarantor is a party or by which any Borrower or
Guarantor or its property are bound;
(g) neither the execution and delivery of this Amendment, the other
Amendment Documents, nor the consummation of the transactions contemplated
hereby or thereby, nor compliance with the provisions hereof or thereof (i) has
resulted in or shall result in the creation or imposition of any Lien upon any
of the Collateral, except in favor of Agent, or as expressly permitted by
Section 9.8 of the Loan Agreement, (ii) has resulted in or shall result in the
incurrence, creation or assumption of any Indebtedness of any Borrower or
Guarantor, except as expressly permitted under Section 9.9 of the Loan
Agreement; (iii) has violated or shall violate any applicable laws or
regulations or any order or decree of any court or Governmental Authority in any
respect; (iv) does or shall conflict with or result in the breach of, or
constitute a default in any respect under any material mortgage, deed of trust,
security agreement, agreement or instrument to which any Borrower or Guarantor
is a party or may be bound (including without limitation the Working Capital
Loan Agreement), and (v) violates or shall violate any provision of the
Certificate of Incorporation or By-Laws of any Borrower or Guarantor;
(h) No action of, or filing with, or consent of any Governmental
Authority, and no approval or consent of any other third party that has not been
obtained, is required to authorize, or is otherwise required in connection with,
the execution, delivery and performance of this Amendment 10 or the other
Amendment Documents;
(i) all of the representations and warranties set forth in the Loan
Agreement and the other Financing Agreements, each as amended hereby, are true
and correct in all material respects on and as of the Amendment No. 10 Effective
Date as if made on the Amendment No. 10 Effective Date, except to the extent any
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such representation or warranty is made as of a specified date, in which case
such representation or warranty shall have been true and correct in all material
respects as of such date;
(j) the Working Capital Amendment No. 13 has been executed and
delivered by all parties thereto and is in full force and effect; and
(k) after giving effect to waivers provided by this Amendment and
the other Amendment Documents, no Default or Event of Default exists or has
occurred and is continuing.
10. GENERAL RELEASE. Each Borrower and Guarantor may have certain Claims
(as hereinafter defined) against the Released Parties (as hereinafter defined)
regarding or relating to the Loan Agreement or the other Financing Agreements.
Agent, the Lenders, Borrowers and Guarantors desire to resolve each and every
one of such Claims in conjunction with the execution of this Amendment and thus
each Borrower and Guarantor makes the release contained in this Section 14. In
consideration of Agent's and Lenders' entering into this Amendment and agreeing
to the substantial concessions as set forth herein, each Borrower and Guarantor
hereby fully and unconditionally releases and forever discharges Agent and each
Lender and their respective directors, officers, employees, subsidiaries,
branches, affiliates, attorneys, agents, representatives, successors and assigns
and all persons, firms, corporations and organizations acting on any of their
behalves (collectively, the "Released Parties"), of and from any and all claims,
allegations, causes of action, costs or demands and liabilities, of whatever
kind or nature, from the beginning of the world to the date on which this
Amendment is executed, whether known or unknown, liquidated or unliquidated,
fixed or contingent, asserted or unasserted, foreseen or unforeseen, matured or
unmatured, suspected or unsuspected, anticipated or unanticipated, which such
Borrower or Guarantor has, had, claims to have had or hereafter claims to have
against the Released Parties by reason of any act or omission on the part of the
Released Parties, or any of them, occurring prior to the date on which this
Amendment is executed, including on account of or in any way affecting,
concerning or arising out of or founded upon this Amendment up to and including
the date on which this Amendment is executed, including all such loss or damage
of any kind heretofore sustained or that may arise as a consequence of the
dealings among the parties up to and including the date on which this Amendment
is executed, including the administration or enforcement of the Loans, the
Obligations, the Loan Agreement or any of the other Financing Agreements
(collectively, all of the foregoing are the "Claims"). Each Borrower and
Guarantor represents and warrants that it has no knowledge of any claim by it
against the Released Parties or of any facts or acts or omissions of the
Released Parties which on the date hereof would be the basis of a claim by such
Borrower or Guarantor against the Released Parties which is not released hereby.
Each Borrower and Guarantor represents and warrants that the foregoing
constitutes a full and complete release of all Claims.
11. EFFECT OF THIS AGREEMENT. Except as expressly amended or waived
pursuant hereto, no other changes, waivers or modifications to the Financing
Agreements are intended or implied, and in all other respects the Financing
Agreements are hereby specifically ratified, restated and confirmed by all
parties hereto as of the Amendment No. 10 Effective Date. To the extent that any
11
provision of the Loan Agreement or any of the other Financing Agreements are
inconsistent with the provisions of this Amendment, the provisions of this
Amendment shall control.
12. FURTHER ASSURANCES. Borrowers and Guarantors shall execute and deliver
such additional documents and take such additional action as may be requested by
Agent to effectuate the provisions and purposes hereof.
13. GOVERNING LAW. The validity, interpretation and enforcement of this
Amendment and the other Financing Agreements (except as otherwise provided
therein) and any dispute arising out of the relationship between the parties
hereto, whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of New York but excluding any principles of conflicts
of law or other rule of law that would cause the application of the law of any
jurisdiction other than the laws of the State of New York.
14. BINDING EFFECT. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
15. HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment.
16. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Amendment by telefacsimile or other electronic method of
transmission shall have the same force and effect as the delivery of an original
executed counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by telefacsimile or other electronic method of
transmission shall also deliver an original executed counterpart, but the
failure to do so shall not affect the validity, enforceability or binding effect
of this Amendment.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 10
to be executed on the day and year first above written.
AGENT
STEEL PARTNERS II, L.P., as Lender and Agent
By: STEEL PARTNERS, L.L.C., as general
partner
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Managing Member
BORROWERS
HANDY & XXXXXX
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & CFO
OMG, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
CONTINENTAL INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
MARYLAND SPECIALTY WIRE, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
HANDY & XXXXXX TUBE COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
CAMDEL METALS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
XXXXXXXX METAL COATING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
MICRO-TUBE FABRICATORS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
INDIANA TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
XXXXX-XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
HANDY & XXXXXX ELECTRONIC MATERIALS
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
SUMCO INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
OMG ROOFING, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS
HANDY & XXXXXX OF CANADA, LIMITED
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
ELE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
ALLOY RING SERVICE INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
XXXXXX RADIATOR CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
H&H PRODUCTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
HANDY & XXXXXX AUTOMOTIVE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
HANDY & XXXXXX INTERNATIONAL, LTD.
By: /S/XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
HANDY & XXXXXX PERU, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
KJ-VMI REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
XXX-XXXX REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
PLATINA LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
SHEFFIELD STREET CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
SWM, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
WILLING B WIRE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------
Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer
