Exhibit 4.6
AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT
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AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT (this "Amendment No.
5"), dated as of September 8, 2005, by and among Handy & Xxxxxx, a New York
corporation ("H&H"), 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" and together with H&H, OMG,
Continental, Maryland Wire, H&H Tube, Camdel, Xxxxxxxx, Micro-Tube, Indiana
Tube, Xxxxx and H&H Electronic, 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") and Willing B Wire Corporation, a Delaware corporation
("Willing" and together with each of 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"), Wachovia Bank, National Association, a national banking
association, successor by merger to Congress Financial Corporation, 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").
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 as of March 31, 2004, by and among Agent, Lenders, Borrowers and
Guarantors (as amended by Consent and Amendment No. 1 to Loan and Security
Agreement, dated as of August 31, 2004, Amendment No. 2 to Loan and Security
Agreement, dated as of October 29, 2004, Amendment No. 3 to Loan and Security
Agreement, dated as of December 29, 2004 and Amendment No. 4 to Loan and
Security Agreement, dated as of May 20, 2005, 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 amend the Loan Agreement to, among other things, provide for
the making of additional Loans, and Agent and Lenders are willing to agree to
such amendments, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment Xx. 0, Xxxxxxxxx, Xxxxxxxxxx, Agent and
Lenders desire and intend to evidence such consents and amendments;
NOW THEREFORE, in consideration of the foregoing, and the respective
agreements and covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) AMENDMENTS TO DEFINITIONS.
(i) The definition of "Applicable Margin" in Section 1.8 of
the Loan Agreement is hereby amended by deleting such definition and replacing
it with the following:
"1.8 'Applicable Margin' shall mean, at
any time, as to the Interest Rate for Prime
Rate Loans and the Interest Rate for
Eurodollar Rate Loans, (a) at any time from
the Amendment No. 5 Effective Date until
October 1, 2005 (the "Adjustment Date") (i)
the rate per annum equal to 0.5% with respect
to all Loans consisting of Prime Rate Loans
and (ii) the rate per annum equal to 2.25%
with respect to all Loans consisting of
Eurodollar Rate Loans, and (b) from and after
the Adjustment Date, the applicable
percentage (on a per annum basis) set forth
below if the Quarterly Average Excess
Availability for the immediately preceding
fiscal quarter is at or within the amounts
indicated for such percentage:
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Applicable Prime Applicable Eurodollar
Rate Margin Rate Margin
----------- -----------
Equipment Equipment
Revolving Purchase Revolving Term Purchase
Excess Availability Loans Term Loans Term Loans Loans Loans Term Loans
------------------- ----- ---------- ---------- ----- ----- ----------
(a) $12,500,000 or more 0% 0% 0% 1.75% 1.75% 1.75%
(b) Equal to or greater than 0.25% 0.25% 0.25% 2.00% 2.00% 2.00%
$10,000,000 but less than
$12,500,000
(c) Less than $10,000,000 0.50% 0.50% 0.50% 2.25% 2.25% 2.25%
PROVIDED, THAT, the Applicable Margin shall be
calculated and established once each fiscal quarter
(commencing with the fiscal quarter beginning October 1,
2005)."
(ii) The definition of "Borrowing Base" in Section 1.11 of
the Loan Agreement is hereby amended by deleting clause (a)(i)(2) of such
Section and replacing it with the following:
"(2) the sum of (x) the lesser of (i)
sixty-five (65%) percent multiplied by the Value
of the Eligible Inventory (other than Precious
Metals Inventory) of the Non-Precious Metals
Borrowing Base Parties or (ii) eighty-five (85%)
percent of the Net Recovery Percentage multiplied
by the Value of such Eligible Inventory of the
Non-Precious Metals Borrowing Base Parties, plus
(y) the lesser of (i) the sum of (A) sixty-five
(65%) percent multiplied by the Value of the
Eligible Inventory (other than Precious Metals
Inventory) of the Precious Metals Borrowing Base
Parties and (B) eighty (80%) percent multiplied
by the Value of the Eligible Inventory consisting
of Precious Metals Inventory and Eligible
Consigned Precious Metals Inventory of Parent and
the Precious Metals Borrowing Base Parties or
(ii) eighty-five (85%) percent of the Net
Recovery Percentage multiplied by the Value of
such Eligible Inventory and Eligible Consigned
Precious Metals Inventory of Parent and the
Precious Metals Borrowing Base Parties, or".
(iii) The definition of "Intercreditor Agreement" in Section
1.66 of the Loan Agreement is hereby amended by deleting "dated on or about
October 29, 2004" and replacing it with "dated on or about September 8, 2005".
(iv) The definition of "Tranche B Term Loan Agent" in Section
1.134 of the Loan Agreement is hereby amended by deleting "Canpartners
Investments IV, LLC, a California limited liability company" and replacing it
with "Steel Partners II, L.P., a Delaware limited partnership (as successor in
interest to Canpartners Investments IV, LLC)".
(v) The definition of "Tranche B Term Loan Agreement" in
Section 1.135 of the Loan Agreement is hereby amended by deleting such
definition and replacing it with the following:
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"1.135 'Tranche B Term Loan Agreement' shall mean
the Loan and Security Agreement, dated March 31,
2004, by and among Tranche B Term Loan Agent,
Tranche B Term Loan Lenders, Borrowers and
Guarantors, as amended by Consent to Loan and
Security Agreement, dated as of August 31, 2004,
the Loan and Security Agreement Amendment, dated
as of October 29, 2004, Amendment No. 2 to Loan
and Security Agreement, dated as of May 20, 2005,
Consent, dated as of September 8, 2005, and as
the same may hereafter be further amended,
modified, supplemented, extended, renewed,
restated or replaced, including any agreements
with respect to Refinancing Indebtedness."
(vi) The definition of "Tranche B Term Loan Lenders" in
Section 1.138 of the Loan Agreement is hereby amended by deleting "Canpartners
Investments IV, LLC" and replacing it with "Steel Partners II, L.P."
(b) 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. 5" shall mean Amendment No. 5 to Loan and
Security Agreement by and among Borrowers, Guarantors, Agent and the Lenders, as
the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
(ii) "Amendment No. 5 Effective Date" shall mean the first
date on which all of the conditions precedent to the effectiveness of Amendment
No. 5 shall have been satisfied or waived.
(iii) "Existing Camdel Term Loan" shall have the meaning set
forth in Section 2.3(a) hereof.
(iv) "Existing Camdel Term Loan Balance" shall have the
meaning set forth in Section 2.3(f) hereof.
(v) "Existing Camdel Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Camdel in favor of Agent in the
original principal amount of $1,641,676, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(vi) "Existing Xxxxxxxx Term Loan" shall have the meaning set
forth in Section 2.3(a) hereof.
(vii) "Existing Xxxxxxxx Term Loan Balance" shall have the
meaning set forth in Section 2.3(g) hereof.
(viii) "Existing Xxxxxxxx Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Xxxxxxxx in favor of Agent in the
original principal amount of $993,037, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
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(ix) "Existing Continental Term Loan" shall have the meaning
set forth in Section 2.3(a) hereof.
(x) "Existing Continental Term Loan Balance" shall have the
meaning set forth in Section 2.3(c) hereof.
(xi) "Existing Continental Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Continental in favor of Agent in
the original principal amount of $1,707,688, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xii) "Existing H&H Electronic Term Loan" shall have the
meaning set forth in Section 2.3(a) hereof.
(xiii) "Existing H&H Electronic Term Loan Balance" shall have
the meaning set forth in Section 2.3(j) hereof.
(xiv) "Existing H&H Electronic Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by H&H Electronic in favor of Agent
in the original principal amount of $2,250,951, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xv) "Existing H&H Tube Term Loan" shall have the meaning set
forth in Section 2.3(a) hereof.
(xvi) "Existing H&H Tube Term Loan Balance" shall have the
meaning set forth in Section 2.3(e) hereof.
(xvii) "Existing H&H Tube Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by H&H Tube in favor of Agent in the
original principal amount of $542,487, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(xviii) "Existing Indiana Tube Term Loan" shall have the
meaning set forth in Section 2.3(a) hereof.
(xix) "Existing Indiana Tube Term Loan Balance" shall have
the meaning set forth in Section 2.3(h) hereof.
(xx) "Existing Indiana Tube Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Indiana Tube in favor of Agent in
the original principal amount of $2,156,190, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
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(xxi) "Existing Xxxxx Term Loan" shall have the meaning set
forth in Section 2.3(a) hereof.
(xxii) "Existing Xxxxx Term Loan Balance" shall have the
meaning set forth in Section 2.3(i) hereof.
(xxiii) "Existing Xxxxx Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Xxxxx in favor of Agent in the
original principal amount of $1,441,017, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(xxiv) "Existing Maryland Wire Term Loan" shall have the
meaning set forth in Section 2.3(a) hereof.
(xxv) "Existing Maryland Wire Term Loan Balance" shall have
the meaning set forth in Section 2.3(d) hereof.
(xxvi) "Existing Maryland Wire Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Maryland Wire in favor of Agent
in the original principal amount of $4,170,038, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xxvii) "Existing OMG Term Loan" shall have the meaning set
forth in Section 2.3(a) hereof.
(xxviii) "Existing OMG Term Loan Balance" shall have the
meaning set forth in Section 2.3(b) hereof.
(xxix) "Existing OMG Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by OMG in favor of Agent in the
original principal amount of $5,073,365, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(xxx) "Existing Sumco Term Loan" shall have the meaning set
forth in Section 2.3(a) hereof.
(xxxi) "Existing Sumco Term Loan Balance" shall have the
meaning set forth in Section 2.3(k) hereof.
(xxxii) "Existing Sumco Term Note" shall mean the Term
Promissory Note, dated March 31, 2004, made by Sumco in favor of Agent in the
original principal amount of $2,173,551, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(xxxiii) "Existing Term Loans" shall have the meaning set
forth in Section 2.3(a) hereof.
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(xxxiv) "Restated Camdel Term Note" shall mean the Amended
and Restated Term Promissory Note made by Camdel in favor of Agent in the
original principal amount of $1,623,763, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(xxxv) "Restated Xxxxxxxx Term Note" shall mean the Amended
and Restated Term Promissory Note made by Xxxxxxxx in favor of Agent in the
original principal amount of $1,042,295, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced.
(xxxvi) "Restated Continental Term Note" shall mean the
Amended and Restated Term Promissory Note made by Continental in favor of Agent
in the original principal amount of $1,843,813, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xxxvii) "Restated H&H Electronic Term Note" shall mean the
Amended and Restated Term Promissory Note made by H&H Electronic in favor of
Agent in the original principal amount of $2,245,445, as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xxxviii) "Restated H&H Tube Term Note" shall mean the
Amended and Restated Term Promissory Note made by H&H Tube in favor of Agent in
the original principal amount of $534,583, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xxxix) "Restated Indiana Tube Term Note" shall mean the
Amended and Restated Term Promissory Note made by Indiana Tube in favor of Agent
in the original principal amount of $2,202,516, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xl) "Restated Xxxxx Term Note" shall mean the Amended and
Restated Term Promissory Note made by Xxxxx in favor of Agent in the original
principal amount of $1,578,614, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
(xli) "Restated Maryland Wire Term Note" shall mean the
Amended and Restated Term Promissory Note made by Maryland Wire in favor of
Agent in the original principal amount of $3,252,001, as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(xlii) "Restated OMG Term Note" shall mean the Amended and
Restated Term Promissory Note made by OMG in favor of Agent in the original
principal amount of $5,773,038, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
(xliii) "Restated Sumco Term Note" shall mean the Amended and
Restated Term Promissory Note made by Sumco in favor of Agent in the original
principal amount of $2,053,933, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
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(xliv) "Restated Term Notes" shall mean the collective
reference to the Restated OMG Term Note, the Restated Continental Term Note, the
Restated Maryland Wire Term Note, the Restated H&H Tube Term Note, the Restated
Camdel Term Note, the Restated Xxxxxxxx Term Note, the Restated Indiana Tube
Term Note, the Restated Xxxxx Term Note, the Restated H&H Electronic Term Note
and the Restated Sumco Term Note; each sometimes individually referred to herein
as a "Restated Term Note".
(c) INTERPRETATION. Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Loan Agreement.
2. TERM LOANS. Section 2.3 of the Loan Agreement is hereby amended
by deleting such Section in its entirety and replacing it with the following:
"2.3 TERM LOANS.
(a) Prior to the date of Amendment No. 5,
subject to and upon the terms and conditions
contained herein, Lenders made Term Loans to
(i) OMG in the original principal amount of
$5,073,365 (the "Existing OMG Term Loan"), (ii)
Continental in the original principal amount of
$1,707,688 (the "Existing Continental Term
Loan"), (iii) Maryland Wire in the original
principal amount of $4,170,038 (the "Existing
Maryland Wire Term Loan"), (iv) H&H Tube in the
original principal amount of $542,487 (the
"Existing H&H Tube Term Loan"), (v) Camdel in
the original principal amount of $1,641,676
(the "Existing Camdel Term Loan"), (vi)
Xxxxxxxx in the original principal amount of
$993,037 (the "Existing Xxxxxxxx Term Loan"),
(vii) Indiana Tube in the original principal
amount of $2,156,190 (the "Existing Indiana
Tube Term Loan"), (viii) Xxxxx in the original
principal amount of $1,441,017 (the "Existing
Xxxxx Term Loan"), (ix) H&H Electronic in the
original principal amount of $2,250,951 (the
"Existing H&H Electronic Term Loan") and (x)
Sumco in the original principal amount of
$2,173,551 (the "Existing Sumco Term Loan" and,
together with the Existing OMG Term Loan, the
Existing Continental Term Loan, the Existing
Maryland Wire Term Loan, the Existing H&H Tube
Term Loan, the Existing Camdel Term Loan, the
Existing Xxxxxxxx Term Loan, the Existing
Indiana Tube Term Loan, the Existing Xxxxx Term
Loan and the Existing H&H Electronic Term Loan,
the "Existing Term Loans").
(b) OMG hereby acknowledges, confirms and
agrees that, as of the date of Amendment No. 5
and immediately before giving effect to
Amendment No. 5, OMG is indebted to each Lender
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for the Obligations evidenced by the Existing
OMG Term Note in the principal amount equal to
$3,907,862 (the "Existing OMG Term Loan
Balance"), plus accrued interest and fees
thereon. On the Amendment No. 5 Effective Date,
subject to the terms and conditions contained
herein and in the other Financing Agreements,
each Lender agrees to fund an additional Term
Loan to OMG in the original principal amount
equal to such Lender's Pro Rata Share of
$1,865,176 which, together with the Existing
OMG Term Loan Balance, shall be consolidated
and evidenced by and be due and payable
pursuant to the terms of the Restated OMG Term
Note.
(c) Continental hereby acknowledges,
confirms and agrees that, as of the date of
Amendment No. 5 and immediately before giving
effect to Amendment No. 5, Continental is
indebted to each Lender for the Obligations
evidenced by the Existing Continental Term Note
in the principal amount equal to $1,315,379
(the "Existing Continental Term Loan Balance"),
plus accrued interest and fees thereon. On the
Amendment No. 5 Effective Date, subject to the
terms and conditions contained herein and in
the other Financing Agreements, each Lender
agrees to fund an additional Term Loan to
Continental in the original principal amount
equal to such Lender's Pro Rata Share of
$528,434 which, together with the Existing
Continental Term Loan Balance, shall be
consolidated and evidenced by and be due and
payable pursuant to the terms of the Restated
Continental Term Note.
(d) Maryland Wire hereby acknowledges,
confirms and agrees that, as of the date of
Amendment No. 5 and immediately before giving
effect to Amendment No. 5, Maryland Wire is
indebted to each Lender for the Obligations
evidenced by the Existing Maryland Wire Term
Note in the principal amount equal to
$2,690,642 (the "Existing Maryland Wire Term
Loan Balance"), plus accrued interest and fees
thereon. On the Amendment No. 5 Effective Date,
subject to the terms and conditions contained
herein and in the other Financing Agreements,
each Lender agrees to fund an additional Term
Loan to Maryland Wire in the original principal
amount equal to such Lender's Pro Rata Share of
$561,359 which, together with the Existing
Maryland Wire Term Loan Balance, shall be
consolidated and evidenced by and be due and
payable pursuant to the terms of the Restated
Maryland Wire Term Note.
(e) H&H Tube hereby acknowledges, confirms
and agrees that, as of the date of Amendment
No. 5 and immediately before giving effect to
Amendment No. 5, H&H Tube is indebted to each
Lender for the Obligations evidenced by the
Existing H&H Tube Term Note in the principal
amount equal to $417,860 (the "Existing H&H
9
Tube Term Loan Balance"), plus accrued interest
and fees thereon. On the Amendment No. 5
Effective Date, subject to the terms and
conditions contained herein and in the other
Financing Agreements, each Lender agrees to
fund an additional Term Loan to H&H Tube in the
original principal amount equal to such
Lender's Pro Rata Share of $116,723 which,
together with the Existing H&H Tube Term Loan
Balance, shall be consolidated and evidenced by
and be due and payable pursuant to the terms of
the Restated H&H Tube Term Note.
(f) Camdel hereby acknowledges, confirms
and agrees that, as of the date of Amendment
No. 5 and immediately before giving effect to
Amendment No. 5, Camdel is indebted to each
Lender for the Obligations evidenced by the
Existing Camdel Term Note in the principal
amount equal to $1,264,531 (the "Existing
Camdel Term Loan Balance"), plus accrued
interest and fees thereon. On the Amendment No.
5 Effective Date, subject to the terms and
conditions contained herein and in the other
Financing Agreements, each Lender agrees to
fund an additional Term Loan to Camdel in the
original principal amount equal to such
Lender's Pro Rata Share of $359,232 which,
together with the Existing Camdel Term Loan
Balance, shall be consolidated and evidenced by
and be due and payable pursuant to the terms of
the Restated Camdel Term Note.
(g) Xxxxxxxx hereby acknowledges, confirms
and agrees that, as of the date of Amendment
No. 5 and immediately before giving effect to
Amendment No. 5, Xxxxxxxx is indebted to each
Lender for the Obligations evidenced by the
Existing Xxxxxxxx Term Note in the principal
amount equal to $764,914 (the "Existing
Xxxxxxxx Term Loan Balance"), plus accrued
interest and fees thereon. On the Amendment No.
5 Effective Date, subject to the terms and
conditions contained herein and in the other
Financing Agreements, each Lender agrees to
fund an additional Term Loan to Xxxxxxxx in the
original principal amount equal to such
Lender's Pro Rata Share of $277,381 which,
together with the Existing Xxxxxxxx Term Loan
Balance, shall be consolidated and evidenced by
and be due and payable pursuant to the terms of
the Restated Xxxxxxxx Term Note.
(h) Indiana Tube hereby acknowledges,
confirms and agrees that, as of the date of
Amendment No. 5 and immediately before giving
effect to Amendment No. 5, Indiana Tube is
indebted to each Lender for the Obligations
evidenced by the Existing Indiana Tube Term
Note in the principal amount equal to
$1,505,418 (the "Existing Indiana Tube Term
Loan Balance"), plus accrued interest and fees
thereon. On the Amendment No. 5 Effective Date,
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subject to the terms and conditions contained
herein and in the other Financing Agreements,
each Lender agrees to fund an additional Term
Loan to Indiana Tube in the original principal
amount equal to such Lender's Pro Rata Share of
$697,098 which, together with the Existing
Indiana Tube Term Loan Balance, shall be
consolidated and evidenced by and be due and
payable pursuant to the terms of the Restated
Indiana Tube Term Note.
(i) Xxxxx hereby acknowledges, confirms
and agrees that, as of the date of Amendment
No. 5 and immediately before giving effect to
Amendment No. 5, Xxxxx is indebted to each
Lender for the Obligations evidenced by the
Existing Xxxxx Term Note in the principal
amount equal to $1,109, 976 (the "Existing
Xxxxx Term Loan Balance"), plus accrued
interest and fees thereon. On the Amendment No.
5 Effective Date, subject to the terms and
conditions contained herein and in the other
Financing Agreements, each Lender agrees to
fund an additional Term Loan to Xxxxx in the
original principal amount equal to such
Lender's Pro Rata Share of $468,638 which,
together with the Existing Xxxxx Term Loan
Balance, shall be consolidated and evidenced by
and be due and payable pursuant to the terms of
the Restated Xxxxx Term Note.
(j) H&H Electronic hereby acknowledges,
confirms and agrees that, as of the date of
Amendment No. 5 and immediately before giving
effect to Amendment No. 5, H&H Electronic is
indebted to each Lender for the Obligations
evidenced by the Existing H&H Electronic Term
Note in the principal amount equal to
$1,733,845 (the "Existing H&H Electronic Term
Loan Balance"), plus accrued interest and fees
thereon. On the Amendment No. 5 Effective Date,
subject to the terms and conditions contained
herein and in the other Financing Agreements,
each Lender agrees to fund an additional Term
Loan to H&H Electronic in the original
principal amount equal to such Lender's Pro
Rata Share of $511,600 which, together with the
Existing H&H Electronic Term Loan Balance,
shall be consolidated and evidenced by and be
due and payable pursuant to the terms of the
Restated H&H Electronic Term Note.
(k) Sumco hereby acknowledges, confirms
and agrees that, as of the date of Amendment
No. 5 and immediately before giving effect to
Amendment No. 5, Sumco is indebted to each
Lender for the Obligations evidenced by the
Existing Sumco Term Note in the principal
amount equal to $1,674,227 (the "Existing Sumco
Term Loan Balance"), plus accrued interest and
fees thereon. On the Amendment No. 5 Effective
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Date, subject to the terms and conditions
contained herein and in the other Financing
Agreements, each Lender agrees to fund an
additional Term Loan to Sumco in the original
principal amount equal to such Lender's Pro
Rata Share of $379,706 which, together with the
Existing Sumco Term Loan Balance, shall be
consolidated and evidenced by and be due and
payable pursuant to the terms of the Restated
Sumco Term Note.
(l) Each of the Existing Term Loans (as
consolidated with the additional Term Loans
made in accordance with Sections 2.3(b) through
(k) hereof) is (i) evidenced by a Restated Term
Note in the original principal amount thereof
(as so consolidated), duly executed and
delivered by the applicable Borrower, (ii) to
be repaid, together with interest and other
amounts, in accordance with this Agreement,
such Restated Term Note and the other Financing
Agreements and (iii) secured by the Collateral.
The principal amount of each of the Existing
Term Loans (as consolidated with the additional
Term Loans made in accordance with Sections
2.3(b) through (k) hereof) shall be repaid in
seventy four (74) consecutive monthly
installments (or earlier as provided herein)
payable on the first day of each month
commencing October 1, 2005; PROVIDED, THAT, the
entire unpaid principal amount of each Existing
Term Loan (as so consolidated) and all accrued
and unpaid interest thereon shall be due and
payable upon the effective date of termination
or non-renewal of the Financing Agreements. The
amount of each such monthly installment shall
be equal to $78,014 with respect to the
Existing Term Loan (as so consolidated) to OMG,
$24,916 with respect to the Existing Term Loan
(as so consolidated) to Continental, $43,946
with respect to the Existing Term Loan (as so
consolidated) to Maryland Wire, $7,224 with
respect to the Existing Term Loan (as so
consolidated) to H&H Tube, $21,943 with respect
to the Existing Term Loan (as so consolidated)
to Camdel, $14,085 with respect to the Existing
Term Loan (as so consolidated) to Xxxxxxxx,
$29,764 with respect to the Existing Term Loan
(as so consolidated) to Indiana Tube, $21,333
with respect to the Existing Term Loan (as so
consolidated) to Xxxxx, $30,344 with respect to
the Existing Term Loan (as so consolidated) to
H&H Electronic and $27,756 with respect to the
Existing Term Loan (as so consolidated) to
Sumco.
(m) The Restated OMG Term Note shall
supercede, replace, amend and restate the
Existing OMG Term Note. The Restated
Continental Term Note shall supercede, replace,
amend and restate the Existing Continental Term
Note. The Restated Maryland Wire Term Note
shall supercede, replace, amend and restate the
Existing Maryland Wire Term Note. The Restated
H&H Tube Term Note shall supercede, replace,
12
amend and restate the Existing H&H Tube Term
Note. The Restated Camdel Term Note shall
supercede, replace, amend and restate the
Existing Camdel Term Note. The Restated
Xxxxxxxx Term Note shall supercede, replace,
amend and restate the Existing Xxxxxxxx Term
Note. The Restated Indiana Tube Term Note shall
supercede, replace, amend and restate the
Existing Indiana Tube Term Note. The Restated
Xxxxx Term Note shall supercede, replace, amend
and restate the Existing Xxxxx Term Note. The
Restated H&H Electronic Term Note shall
supercede, replace, amend and restate the
Existing H&H Electronic Term Note. The Restated
Sumco Term Note shall supercede, replace, amend
and restate the Existing Sumco Term Note. The
amendment and restatement contained in each of
the Restated Term Notes shall not, in any
manner, be construed to constitute payment of,
or impair, limit, cancel or extinguish, or
constitute a novation in respect of, any of the
Obligations evidenced by or arising under the
Financing Agreements, and the liens and
security interests securing such Obligations
shall not in any manner be impaired, limited,
terminated, waived or released."
3. INDEBTEDNESS. Section 9.9(f) of the Loan Agreement is hereby amended
by deleting the phrase "as in effect on October 29, 2004" from each place it
appears in such Section and replacing it with "as in effect on the date hereof,
as amended by Consent to Loan and Security Agreement, dated as of August 31,
2004, Loan and Security Agreement Amendment, October 29, 2004, Amendment No. 2
to Loan and Security Agreement, dated as of May 20, 2005 and Consent, dated as
of September 8, 2005".
4. NEW INTERCREDITOR AGREEMENT. Each Lender (a) authorizes Agent to
terminate the Intercreditor Agreement, dated as of October 29, 2004, by and
between Agent and Canpartners Investments IV, LLC, as agent, (b) authorizes
Agent to enter into the Intercreditor Agreement, dated on or about the date
hereof (the "New Steel Partners Intercreditor Agreement"), by and between Agent
and Steel Partners II, L.P., as agent for the Tranche B Term Loan Lenders, and
(iii) agrees that it will be bound (as a Lender) by the terms and conditions of
the New Steel Partners Intercreditor Agreement.
5. AMENDMENT FEE. In addition to all other fees, charges, interest and
expenses payable by any Borrower or Guarantor to Agent or Lenders under the Loan
Agreement and the other Financing Agreements, Borrowers and Guarantors shall pay
to Agent pro rata for the account of Lenders (in such manner as Agent may
agree), contemporaneously with the effectiveness of this Amendment No. 5, an
amendment fee in the amount of $60,000, which fee shall be fully earned and
nonrefundable as of the date hereof and may be charged to any loan account of
Borrowers.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Borrower and Guarantor
hereby represents, warrants and covenants to Agent and Lenders the following
(which shall survive the execution and delivery of this Amendment No. 5), the
13
truth and accuracy of which are a continuing condition of the making of Loans
and providing Letter of Credit Accommodations to Borrowers:
(a) This Amendment No. 5 and each other agreement or instrument to
be executed and delivered by Borrowers and Guarantors in connection herewith
(collectively, together with this Amendment No. 5, the "Amendment 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 date hereof 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, reorganization, moratorium
or other laws relating to or affecting the enforcement of creditors' rights
generally and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
(b) The execution, delivery and performance of this Amendment No. 5
and the other Amendment Documents (a) are all within each Borrower's and
Guarantor's corporate or limited liability company 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 to which any Borrower or Guarantor is a
party or by which any Borrower or Guarantor or its property are bound.
(c) No Default or Event of Default exists or has occurred and is
continuing.
(d) 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 date hereof, as if made on
the date hereof, except to the extent any such representation or warranty is
made as of a specified date, in which case such representation or warranty shall
have been true and correct as of such date.
(e) Each of the Tranche B Amendment (as defined below) and the New
Steel Partners Intercreditor Agreement has been executed and delivered by all of
the parties thereto and is in full force and effect.
(f) All of the Tranche B Term Loan Debt (as defined in the Loan
Agreement immediately before giving effect to this Amendment No. 5) has been
assigned to Steel Partners II, L.P.
(g) Canpartners Investments IV, LLC has resigned as Tranche B Term
Loan Agent, and Steel Partners II, L.P. is the Tranche B Term Loan Agent.
7. 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:
14
(a) Agent shall have received this Amendment No. 5, duly authorized,
executed and delivered by Borrowers, Guarantors and Lenders;
(b) Agent shall have received a true and correct copy of any
consent, waiver or approval to or of this Amendment No. 5 or any other Amendment
Documents which any Borrower or Guarantor is required to obtain from any other
Person, and such consent, waiver or approval shall in form and substance
satisfactory to Agent;
(c) no Default or Event of Default shall exist or have occurred and
be continuing;
(d) Agent shall have received the Assignment and Acceptance
Agreement, dated as of September 8, 2005, by and between Canpartners Investments
IV, LLC and Steel Partners II, L.P., in form and substance satisfactory to
Agent, duly authorized, executed and delivered by the parties thereto;
(e) Agent shall have received a letter agreement, in form and
substance satisfactory to Agent, which terminates the Intercreditor Agreement
(as defined in the Loan Agreement immediately before giving effect to this
Amendment No. 5), duly authorized, executed and delivered by Canpartners
Investments IV, LLC, as agent, and acknowledged by Borrowers and Guarantors;
(f) Agent shall have received the New Steel Partners Intercreditor
Agreement, in form and substance satisfactory to Agent, duly authorized,
executed and delivered by Agent and Steel Partners II, L.P., as agent for the
Tranche B Term Loan Lenders and acknowledged by Borrowers and Guarantors;
(g) Agent shall have received an amendment to the Tranche B Term
Loan Agreement (the "Tranche B Amendment"), in form and substance satisfactory
to Agent, duly authorized, executed and delivered by each of the parties
thereto, which Tranche B Amendment shall be in full force and effect;
(h) Agent shall have received each of the Restated Term Notes, in
form and substance satisfactory to Agent, duly authorized, executed and
delivered by the applicable Borrower party thereto; and
(i) Agent shall have received, in form and substance satisfactory to
Agent, a Secretary's Certificate from each Borrower and Guarantor with respect
to, among other things, resolutions of the Board of Directors of such Borrower
and Guarantor evidencing the adoption and subsistence of resolutions approving
the execution, delivery and performance by such Borrower and Guarantor of this
Amendment and the other Amendment Documents.
8. EFFECT OF THIS AGREEMENT. Except as expressly amended pursuant hereto,
no other changes 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
effective date hereof. To the extent that any provision of the Loan Agreement or
any of the other Financing Agreements are inconsistent with the provisions of
this Amendment No. 5, the provisions of this Amendment No. 5 shall control.
15
9. 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 of this Amendment No. 5.
10. GOVERNING LAW. The validity, interpretation and enforcement of this
Agreement 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.
11. BINDING EFFECT. This Amendment No. 5 shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
12. HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment No. 5.
13. COUNTERPARTS. This Amendment No. 5 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 No. 5 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 No. 5. Any party delivering an
executed counterpart of this Amendment No. 5 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 such agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 5 to be executed on the day and year first above written.
AGENT BORROWERS
----- ---------
WACHOVIA BANK, NATIONAL
ASSOCIATION, successor by merger to
Congress Financial Corporation, as Agent HANDY & XXXXXX
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------------- -----------------------------
Title: Director Title: Vic President - CFO
OMG, INC., formerly known as
Olympic Manufacturing Group, Inc.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
LENDERS Title: Vice President
-------
WACHOVIA BANK, NATIONAL
ASSOCIATION, successor by merger to
Congress Financial Corporation CONTINENTAL INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------ ------------------------------
Title: Director Title: Vice President
TEXTRON FINANCIAL CORPORATION MARYLAND SPECIALTY WIRE, INC.
By: /s/ Xxxx Kalliomoa By: /s/ Xxxxxx X. Xxxxx
------------------------------------ ------------------------------
Title: Sr. Account Executive Title: Vice President
BANK OF AMERICA, N.A. HANDY & XXXXXX TUBE COMPANY, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------ ------------------------------
Title: S.V.P. Title: Vice President
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
CAMDEL METALS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
XXXXXXXX METAL COATING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
MICRO-TUBE FABRICATORS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
INDIANA TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
XXXXX-XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
HANDY & XXXXXX ELECTRONIC
MATERIALS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
SUMCO INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS
----------
HANDY & XXXXXX OF CANADA, LIMITED
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
ELE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
ALLOY RING SERVICE INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
XXXXXX RADIATOR CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
H&H PRODUCTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
HANDY & XXXXXX AUTOMOTIVE GROUP,
INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
HANDY & XXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
HANDY & XXXXXX PERU, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
KJ-VMI REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
XXX-XXXX REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
PLATINA LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
SHEFFIELD STREET CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
SWM, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
WILLING B WIRE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
