Exhibit 4.16
[Execution]
AMENDMENT NO. 15 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 15 TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of September 10, 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"), Wachovia Bank, National Association, a national banking
association that is 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 provided and may hereafter make and provide loans, advances and
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 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, Amendment No. 4 to Loan and Security
Agreement, dated as of May 20, 2005, Amendment No. 5 to Loan and Security
Agreement, dated as of September 8, 2005, Amendment No. 6 and Waiver to Loan and
Security Agreement, dated as of December 29, 2005, Consent and Amendment No. 7
to Loan and Security Agreement, dated as of January 24, 2006, Consent and
Amendment No. 8 to Loan and Security Agreement, dated as of March 31, 2006,
Amendment No. 9 to Loan and Security Agreement, dated as of July 18, 2006,
Amendment No. 10 to Loan and Security Agreement, dated as of October 30, 2006,
Amendment No. 11 and Waiver to Loan and Security Agreement, dated as of December
28, 2006, Amendment No. 12 and Consent to Loan and Security Agreement, dated as
of December 28, 2006, Amendment No. 13 and Waiver to Loan and Security
Agreement, dated as of March 29, 2007, and Amendment No. 14 to Loan and Security
Agreement, dated as of July 20, 2007 (as the same now exists or 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 have requested that Agent and Lenders make certain
amendments to the Loan Agreement and the other Financing Agreements, and Agent
and Lenders are willing to agree to such amendments, subject to the terms and
conditions contained herein; and
WHEREAS, by this Amendment, Borrowers, Guarantors, Agent and Lenders
desire and intend to evidence such 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) 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. 15" shall mean this Amendment No. 15 to
Loan and Security 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. 15 Effective Date" shall mean the first
date on which all of the conditions precedent to the effectiveness of Amendment
No. 15 shall have been satisfied or shall have been waived by Agent.
(iii) "PBGC Security Agreements" shall mean, collectively, the
PBGC Second Priority Security Agreement, the PBGC Fourth Priority Security
Agreement, and all other security agreements, guarantees, or other documents and
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instruments at any time executed and/or delivered by any Borrower or Guarantor
with, to or in favor of the PBGC, the WHX Plan or their respective subrogees in
connection therewith or related thereto which secure the PBGC Debt, as all of
the foregoing now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
(b) AMENDMENTS TO DEFINITIONS.
(i) BORROWING BASE. The first sentence of the definition of
"Borrowing Base" in Section 1.11 of the Loan Agreement is hereby amended by
deleting such sentence in its entirety and replacing it with the following:
"1.11 `Borrowing Base' shall mean, at any time, the amount
equal to:
(a) the sum of:
(i) eighty-five (85%) percent of the Eligible
Accounts, PLUS
(ii) the lesser of: (A) $30,000,000 and (B) the
sum of (1) the lesser of (x) 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 (y) 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 (2) the lesser of (x) the sum of (aa) 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 (bb) 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 (y) 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, MINUS,
(b) Reserves."
(ii) EXCESS AVAILABILITY. The definition of "Excess
Availability" in Section 1.46 of the Loan Agreement is hereby amended by
deleting such definition in its entirety and replacing it with the following:
"1.46 `Excess Availability' shall mean the amount, as
determined by Agent, calculated at any date, equal to: (a) the
lesser of (i) the Borrowing Base (after giving effect to any
Reserves other than any Reserves in respect of Letter of Credit
Accommodations) and (ii) the Revolving Loan Limit, MINUS (b) the sum
of: (i) the amount of all then outstanding and unpaid Obligations
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(but not including for this purpose the then outstanding aggregate
principal amount of the Term Loans, the Equipment Purchase Term
Loans, the Supplemental Term Loans, the Term B Loan or any
outstanding Letter of Credit Accommodations), PLUS (ii) the amount
of all Reserves then established in respect of Letter of Credit
Accommodations, PLUS (iii) the aggregate amount of all then
outstanding and unpaid trade payables and other obligations of
Borrowing Base Parties which are outstanding more than sixty (60)
days past due as of such time (other than trade payables or other
obligations being contested or disputed by Borrowing Base Parties in
good faith), PLUS (iv) without duplication, the amount of checks
issued by Borrowing Base Parties to pay trade payables and other
obligations which are more than sixty (60) days past due as of such
time (other than trade payables or other obligations being contested
or disputed by Borrowing Base Parties in good faith), but not yet
sent, PLUS (v) the difference (if positive) between (A) the
aggregate amount of the proceeds of the loans or advances which have
been received by Parent from Tranche B Term Loan Lenders under
Section 9.9(f) hereof on or after the Amendment No. 14 Effective
Date for purposes of the loans or advances permitted to be made by
Parent to WHX pursuant to Section 9.10(l) hereof or the
distributions permitted to be made by Parent to WHX pursuant to
Sections 9.11(e) hereof and which have not been provided by Parent
to WHX in the form of loans or advances pursuant to Sections 9.10(l)
hereof or distributions pursuant to Sections 9.11(e) hereof, and (B)
the Parcel Sale Reserve Amount."
(iii) TERM B LOAN LENDER. The definition of "Term B Loan
Lender" in the Loan Agreement is hereby amended by deleting such definition in
its entirety and replacing it with the following:
"Term B Loan Lender" shall mean, collectively, Ableco Finance
LLC, a Delaware limited liability company, Fortress Credit Funding
III LP, Fortress Credit Funding II LP, Fortress Credit Funding IV LP
and Fortress Credit Opportunities II LP, and the other lenders who
are from time to time parties to the Loan Agreement as Term B Loan
lenders, and their respective successors and assigns."
(c) INTERPRETATION. Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Loan Agreement.
2. SALE OF ASSETS, CONSOLIDATION, MERGER, DISSOLUTION, ETC. Section 9.7(b)
of the Loan Agreement is hereby amended by inserting the following new
subsections (vii) and (viii) immediately prior to the period at the end of such
Section:
"(vii) the sale by Sumco, Canfield, Lucas, H&H Tube or H&H
Canada of the fee-owned Real Properties of such Borrowers and
Guarantors located in Indianapolis, Indiana, Xxxxxxxx, Ohio, Cudahy,
Wisconsin, Norristown, Pennsylvania and Rexdale, Ontario,
respectively, PROVIDED, THAT, as to any such sale, each of the
following conditions is satisfied as determined by Agent in good
faith: (A) such sale shall be on terms and conditions satisfactory
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to and approved in writing by Agent, Term B Loan Lender and the
Required Lenders; (B) the Net Cash Proceeds payable or deliverable
to Borrowers and Guarantors in respect of any such sale shall be
promptly applied to the Obligations in accordance with Section
2.4(c) hereof, and (C) as of the date of any such sale and after
giving effect thereto, no Default or Event of Default shall exist or
have occurred and be continuing; and
(viii) the sale of all or substantially all of the Capital
Stock or the assets and properties of Sumco or Xxxxxxxx, provided,
THAT, as to any such sale, each of the following conditions is
satisfied as determined by Agent in good faith: (A) such sale shall
be on terms and conditions satisfactory to and approved in writing
by Agent, Term B Loan Lender and the Required Lenders; (B) the Net
Cash Proceeds payable or deliverable to Borrowers in respect of any
such sale shall be promptly applied to the Obligations in accordance
with Section 2.4(c) hereof, and (C) as of the date of any such sale
and after giving effect thereto, no Default or Event of Default
shall exist or have occurred and be continuing."
3. INDEBTEDNESS.
(a) Section 9.9(f)(i) of the Loan Agreement is hereby amended by
deleting the reference to "$97,015,797" and replacing it with "$105,015,797".
(b) Section 9.9(f) of the Loan Agreement is hereby further amended by
deleting the phrase "as in effect on the Amendment No. 14 Effective Date" from
each place it appears in such Section and replacing it with "as in effect on the
Amendment No. 15 Effective Date".
4. LOANS, INVESTMENTS, ETC. Section 9.10(j) of the Loan Agreement is
hereby amended by deleting such Section in its entirety and replacing it with
the following:
"(j) an unsecured loan by Parent to WHX on or after the
Amendment No. 15 Effective Date in an amount not to exceed
$13,100,000, the proceeds of which shall be used by WHX solely to
make a contribution to the WHX Plan for among other things, the
reduction of the Waiver Amount, and other unsecured loans by Parent
to WHX on or after the Amendment No. 15 Effective Date, the proceeds
of which other loans shall be used by WHX solely to make other
contributions to the WHX Plan so long as the aggregate amount of any
such other loans do not exceed the amount required to be contributed
to the WHX Plan as of the date any such other loan is made,
PROVIDED, THAT, (i) 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, (ii) the Indebtedness arising pursuant to any such loan shall
not be evidenced by a promissory note or other instrument unless the
single original of such note or other instrument shall be promptly
delivered to Agent to hold as part of the Collateral, with such
endorsements and/or assignments by WHX as Agent may require, (iii)
as of the date of any such loan and after giving effect thereto,
Parent shall be Solvent, (iv) as of the date of any such loan and
after giving effect thereto, no Default or Event of Default shall
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exist or have occurred and be continuing, (v) the average Excess
Availability for the thirty (30) consecutive days immediately
preceding any such loan shall not have been less than $5,000,000,
and (vi) on the date of any such loan and after giving effect
thereto, Excess Availability shall not be less than $4,000,000;
and".
5. 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, duly authorized,
executed and delivered by Borrowers, Guarantors, Term B Loan Lender and the
Required Lenders;
(b) Agent shall have received, in form and substance satisfactory to
Agent, evidence that Parent shall have received in immediately available funds
$8,000,000 representing the proceeds of new loans made by Tranche B Term Loan
Lenders on the date hereof pursuant to the Tranche B Term Loan Agreement as
permitted under Section 9.9(f) of the Loan Agreement, which funds shall be used
solely to make the loans by Parent to WHX permitted under Section 9.10(j) of the
Loan Agreement;
(c) Agent shall have received, in form and substance satisfactory to
Agent, Amendment No. 1 to the Subordination Agreement, duly authorized, executed
and delivered by Tranche B Term Loan Agent and acknowledged by Borrowers and
Guarantors, which amendment shall be in full force and effect;
(d) Agent shall have received, in form and substance satisfactory to
Agent, a true, correct and complete copy of Amendment No. 12 to Loan and
Security Agreement (the "Tranche B Amendment"), duly authorized, executed and
delivered by Tranche B Term Loan Agent, the lenders party thereto, Borrowers and
Guarantors, which shall be in full force and effect;
(e) 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 or any other Amendment Documents (as hereinafter defined) which any
Borrower or Guarantor is required to obtain from any other Person; and
(f) no Default or Event of Default shall exist or have occurred and
be continuing.
6. 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), the truth and accuracy of
which representations and warranties are a continuing condition of the making of
Loans and providing Letter of Credit Accommodations to Borrowers:
(a) Promptly following the Amendment No. 15 Effective Date,
Borrowers shall cause the WHX Plan's enrolled actuary to prepare and deliver to
Agent, Term Loan Lender and the PBGC a written certification that the Waiver
Amount has been reduced to zero (the "Actuary Certification");
(b) Upon the delivery of the Actuary Certification to the PBGC,
Borrowers (i) shall request the PBGC to acknowledge its agreement with the
Actuary Certification that the PBGC Debt (including each of the Waiver Amount
and the Termination Amount) has been reduced to zero in accordance with the
6
terms of the PBGC Settlement Agreement, and (ii) shall request the PBGC (A) to
promptly deliver to WHX, Parent and Agent, in form and substance satisfactory to
Agent, all releases, terminations and such other documents as Agent may request
to evidence and effectuate the repayment in full of the PBGC Debt and the
termination of the PBGC Security Agreements and the termination and release by
the PBGC of any security interest in and lien upon any assets and properties of
any Borrower and Guarantor created pursuant to the PBGC Security Agreements,
each of which shall duly authorized, executed and delivered by the PBGC,
including, but not limited to, (x) UCC financing statement amendments providing
for the termination of all UCC financing statements previously filed by the
PBGC, as secured party, and any Borrower or Guarantor, as debtor; and (y)
satisfactions and discharges of any mortgages, deeds of trust or deeds to secure
debt by any Borrower or Guarantor in favor of the PBGC, in form acceptable for
recording with the appropriate Governmental Authority, and (B) to take such
other and further actions and to execute and deliver such other and further
documents and instruments as may be necessary and reasonably requested by WHX or
Agent in order to effect or evidence more fully the matters described in clause
(ii)(A) above;
(c) 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
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;
(d) 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"), 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. 15 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;
(e) the execution, delivery and performance of this Amendment and
the other Amendment Documents, (i) are all within each Borrower's and
Guarantor's corporate powers and (ii) 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 Tranche B Term Loan Agreement
7
and the PBGC Agreements) to which any Borrower or Guarantor is a party or by
which any Borrower or Guarantor or its property are bound;
(f) neither the execution and delivery of this Amendment and 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 Tranche B Term Loan
Agreement and the PBGC Agreements), and (v) violates or shall violate any
provision of the Certificate of Incorporation or By-Laws of any Borrower or
Guarantor;
(g) 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 and the other
Amendment Documents;
(h) 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. 15 Effective
Date as if made on the Amendment No. 15 Effective Date, 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 in all material
respects as of such date;
(i) the Tranche B Amendment has been executed and delivered by all
parties thereto and is in full force and effect; and
(j) as of the date of this Amendment and after giving effect hereto,
no Default or Event of Default exists or has occurred and is continuing.
7. 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, 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. 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
8
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.
8. 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. 15 Effective Date. 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, the provisions of this
Amendment shall control.
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 hereof.
10. 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.
11. 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.
12. HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment.
9
13. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on the day and year first above written.
AGENT
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent
By: /s/ Xxxx X. Xxx
--------------------------------------------
Title: Vice President
-----------------------------------------
LENDERS
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxx
--------------------------------------------
Title: Vice President
-----------------------------------------
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Title: Sr. Account Executive
-----------------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Sr. Vice President
-----------------------------------------
ABLECO FINANCE LLC
By: /s/ Xxx Xxxx
--------------------------------------------
Title: Sr. Vice President
-----------------------------------------
FORTRESS CREDIT FUNDING III LP
By: Fortress Credit Funding III GP LLC,
its General Partner
By: /s/ Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Title: Chief Credit Officer
-----------------------------------------
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[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
FORTRESS CREDIT FUNDING II LP
By: Fortress Credit Funding II GP LLC, its
General Partner
By: /s/ Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Title: Chief Credit Officer
-----------------------------------------
FORTRESS CREDIT FUNDING IV LP
By: Fortress Credit Funding IV GP LLC, its
General Partner
By: /s/ Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Title: Chief Credit Officer
-----------------------------------------
FORTRESS CREDIT OPPORTUNITIES II LP
By: Fortress Credit Opportunities II GP LLC,
its General Partner
By: /s/ Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------
Title: Chief Credit Officer
-----------------------------------------
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[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
BORROWERS
HANDY & XXXXXX
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & CEO
-----------------------------------------
OMG, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
CONTINENTAL INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
MARYLAND SPECIALTY WIRE, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
HANDY & XXXXXX TUBE COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
CAMDEL METALS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
XXXXXXXX METAL COATING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
MICRO-TUBE FABRICATORS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
INDIANA TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
XXXXX-XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
HANDY & XXXXXX ELECTRONIC MATERIALS
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
SUMCO INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
OMG ROOFING, INC.
By: /s/ 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
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
ELE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
ALLOY RING SERVICE INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
XXXXXX RADIATOR CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
H&H PRODUCTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
HANDY & XXXXXX AUTOMOTIVE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
HANDY & XXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
HANDY & XXXXXX PERU, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
KJ-VMI REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
XXX-XXXX REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
PLATINA LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
SHEFFIELD STREET CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
SWM, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
WILLING B WIRE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: VP & Treasurer
-----------------------------------------
