JOINDER AND AMENDMENT NO. 1 to AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT 99.4
JOINDER AND AMENDMENT NO. 1
to
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
JOINDER AND AMENDMENT NO. 1 (this “Amendment”) is entered into as of December 16, 2005, by and among EDGEN CARBON PRODUCTS GROUP, L.L.C., a limited liability company organized under the laws of the State of Louisiana (“Edgen Carbon”), EDGEN ALLOY PRODUCTS GROUP, L.L.C., a limited liability company organized under the laws of the State of Louisiana (“Edgen Alloy”) (Edgen Carbon and Edgen Alloy, each individually a “Borrower” and collectively, the “Borrowers”), EDGEN CORPORATION, a corporation organized under the laws of the State of Nevada (“Holdings”), EDGEN LOUISIANA CORPORATION, a corporation organized under the laws of the State of Louisiana (“Sub-Holdings” and, together with Holdings and each other Person designated as such on the signature pages hereto, each an “Existing Guarantor” and collectively, the “Existing Guarantors”), XXXXXX INTERNATIONAL METALS, INC., a corporation organized under the laws of Texas (“Xxxxxx”, and together with the Existing Guarantors, each a “Guarantor” and collectively, the “Guarantors”), the financial institutions which are now or which hereafter become a party to the Loan Agreement (as hereinafter defined) (each a “Lender” and collectively, the “Lenders”) and GMAC COMMERCIAL FINANCE LLC, a limited liability company organized under the laws of the State of Delaware (“GMAC CF”), as agent for Lenders (GMAC CF, in such capacity, the “Agent”).
BACKGROUND
Borrowers, Existing Guarantors, Agent and Lenders are parties to an Amended and Restated Loan and Security Agreement dated as of February 1, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which Agent and Lenders provide Borrowers with certain financial accommodations.
Pursuant to a consent letter dated November 30, 2005 (the “Consent Letter”), Agent and Lenders have consented to (i) the acquisition by Edgen Carbon of all of the capital stock of Xxxxxx (the “Acquisition”) and (ii) the issuance of the 9 7/8% Senior Secured Notes in favor of the Senior Note Holders in the amount of $31,000,000, as more fully described in the Supplemental Note Documentation (as hereinafter defined). The Acquisition and issuance under the Supplemental Note Documentation have each been consummated.
As required under the Consent Letter and the terms of the Loan Agreement, the Loan Parties have agreed to enter into this Joinder and Amendment No. 1, which shall, among other things, effectuate the joinder of Xxxxxx to the Loan Agreement as a Guarantor.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit heretofore or hereafter made to or for the account of each Borrower by Agent and Lenders, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall have the meanings given to them in the Loan Agreement.
2. Joinder.
(a) Subject to satisfaction of the conditions precedent set forth in Section 4 below, Xxxxxx is hereby added as a Guarantor under the Loan Agreement, and all references to “Guarantor”, “Guarantors”, “Loan Party” or “Loan Parties” thereunder and under all of the Other Documents shall hereafter be deemed to include Xxxxxx. Xxxxxx hereby adopts the Loan Agreement, pursuant to the terms of Article XV thereof, and each of the Other Documents and assumes in full, and acknowledges that it is jointly and severally liable, together with the other Loan Parties, for the payment, discharge, satisfaction and performance of all Obligations under the Loan Agreement and the Other Documents. For the avoidance of doubt, Xxxxxx shall be considered a Restricted Subsidiary. Without limiting the generality of the foregoing, in order to secure the prompt payment and performance of the Obligations, Xxxxxx hereby assigns, pledges and grants to Agent for its benefit and for the ratable benefit of Lenders a continuing security interest in and to all of its Collateral, whether now owned or existing or hereafter acquired or arising and wheresoever located. The parties hereto confirm the priority of the Lien of Agent in the Collateral is subject to the terms of the Intercreditor Agreement. Agent is hereby authorized to file one or more UCC-1 financing statements in the applicable jurisdiction(s) with respect to such security interest.
(b) Notwithstanding any other provisions of this Agreement or the Loan Agreement, (x) Xxxxxx’x Receivables and Inventory shall not be included in the Formula Amount until each of the following conditions to the initial inclusion of such Receivables and Inventory have been met: (i) the merger of Xxxxxx with and into Edgen Carbon or another Borrower under the Loan Agreement (the “Merger”) or Xxxxxx otherwise becoming a Borrower under the Loan Agreement; (ii) Agent shall have received a completed documentation information questionnaire, in form and substance satisfactory to Agent, with respect to Xxxxxx; (iii) Agent shall have completed its due diligence with respect to Xxxxxx, which results shall be reasonably satisfactory to Agent; and (iv) such Receivables and Inventory are otherwise eligible under the Loan Agreement; (y) the Merger shall not occur and/or Xxxxxx shall not be designated as a “Borrower” until Agent shall have completed its review of disclosure schedules with respect to the Acquisition of Xxxxxx as such schedules relate to Xxxxxx and related information reasonably requested by Agent, which review shall be reasonably satisfactory to Agent and so long as no Default or Event of Default shall result from such Merger and (z) prior to the Merger or Xxxxxx otherwise becoming a Borrower, Xxxxxx shall be permitted to receive a maximum of $1,000,000 in intercompany loans at any time outstanding; provided, however, (a) Edgen Carbon may make a one-time loan to Xxxxxx on the closing date of the Acquisition in an aggregate amount of $5,000,000, the proceeds of which shall be used to repay Xxxxxx Metals Group Limited or one of its affiliates in connection with the Acquisition and (b) upon the satisfaction of the conditions set forth in Section 4(g), hereof Xxxxxx may receive intercompany loans in accordance with Loan Agreement.
(c) Notwithstanding any other provision of this Agreement, until the earliest of (x) the occurrence of an Event of Default; (y) the date which is ninety (90) days from the date hereof, and (z) the date of the Merger, Xxxxxx may deposit Collateral (or proceeds thereof) into its bank account at Xxxxx Fargo Bank, Houston, Texas without compliance with Section 4.15(h) of the Loan Agreement.
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3. Amendment. Subject to satisfaction of the conditions precedent set forth in Section 4 below, the Loan Agreement is hereby amended as follows:
(a) Section 1.2 of the Loan Agreement is hereby amended by inserting the following new definitions in their appropriate alphabetical positions:
“Acquisition Agreement” shall mean the Agreement for the Sale and Purchase of Stock in Xxxxxx International Metals, Inc., dated as of November 30, 2005, by and among Edgen Carbon and the Seller.
“Amendment No. 1 Effective Date” shall mean December 16, 2005.
“Seller” shall mean Xxxxxx International Metals Limited.
“Supplemental Note Documentation” shall mean the Second Supplemental Indenture dated as of December 16, 2005 by and among the Borrowers, Existing Guarantors, Xxxxxx and the Bank of New York, as trustee and collateral agent.
(b) Section 7.7(g)(ii) of the Loan Agreement is hereby amended by deleting “$105,000,000” and replacing the same with “$136,000,000”.
4. Conditions of Effectiveness. This Amendment shall become effective upon the satisfaction (or waiver in writing) of each of the following conditions:
(a) Agent’s receipt of four (4) copies of this Amendment duly executed by each Loan Party;
(b) Agent’s receipt of a completed documentation information questionnaire, in form and substance satisfactory to Agent;
(c) Agent’s receipt of a certificate from the secretary or an assistant secretary of Xxxxxx, evidencing the incumbency of all officers who are authorized to sign this Amendment and any Other Documents on behalf of Xxxxxx, and attaching (i) Xxxxxx’x certificate of incorporation and by-laws and all amendments thereto, and (ii) a copy of the resolutions, in form and substance reasonably satisfactory to Agent, of the board of directors of Xxxxxx authorizing the execution, delivery and performance of this Amendment and the transactions contemplated herein;
(d) Agent’s receipt of good standing certificates for Xxxxxx dated not more than thirty (30) days prior to the date hereof, issued by the secretary of state of Xxxxxx’x jurisdiction of incorporation and each jurisdiction where the conduct of Xxxxxx’x business activities or the ownership of its properties necessitates qualification;
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(e) Agent’s receipt of executed copies of the Acquisition Agreement and all agreements, instruments and documents executed in connection therewith, and evidence that the transactions contemplated by such documentation were consummated prior to or simultaneously to the Amendment No.1 Effective Date;
(f) Agent’s receipt of UCC, tax and judgment lien searches with respect to Xxxxxx, the results of which shall be acceptable to Agent;
(g) Agent’s receipt of the disclosure schedules with respect to the Acquisition of Xxxxxx as such schedules relate to Xxxxxx, revised Schedules to the Loan Agreement and related information reasonably requested by Agent (“Revised Schedules/Information”) reflecting the Acquisition and the issuance of Indebtedness under the Supplemental Note Documentation. The Revised Schedules/Information shall not reflect a Material Adverse Effect on the operations or condition (financial or otherwise) of the Loan Parties, individually or in the aggregate and the revised Schedules to the Loan Agreement shall be deemed to supplement the existing Schedules to the Loan Agreement for all purposes of the Loan Agreement;
(h) Agent’s receipt of executed copies of the Supplemental Note Documentation and all agreements, instruments and documents executed in connection therewith, and evidence that the transactions contemplated by such documentation were consummated prior to or simultaneously to the Amendment No.1 Effective Date; and
(i) Agent’s receipt of such other certificates, instruments, documents and agreements as may be reasonably required by Agent or its counsel, each of which shall be in form and substance reasonably satisfactory to Agent and its counsel.
5. Representations and Warranties. Each Loan Party hereby represents and warrants as follows:
(a) This Amendment constitutes, and the Loan Agreement continues to constitute, legal, valid and binding obligations of such Loan Party and are enforceable against such Loan Party in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, such Loan Party hereby reaffirms all covenants, representations and warranties made in the Loan Agreement and agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or would exist after giving effect to this Amendment.
(d) Such Loan Party has no defense, counterclaim or offset with respect to the Loan Agreement.
6. Additional Representations and Warranties of Xxxxxx. Xxxxxx hereby further represents and warrants as follows:
(a) Upon the effectiveness of this Amendment, all covenants, representations and warranties made in the Loan Agreement shall be deemed to have been made by Xxxxxx as of the effective date of this Amendment.
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(b) Xxxxxx has full power, authority and legal right to enter into this Amendment and to perform all its Obligations hereunder, under the Loan Agreement and the Other Documents. The execution, delivery and performance of this Amendment and the transactions contemplated herein (i) are within Xxxxxx’x corporate powers, have been duly authorized, are not in contravention of the terms of Xxxxxx’x certificate of incorporation, by-laws or other applicable documents relating to Xxxxxx’x formation and (ii) will not (A) conflict with applicable law, (B) conflict with, result in any breach in any of the provisions of or constitute a default under any material agreement or undertaking to which Xxxxxx is a party or by which Xxxxxx is bound and (C) result in the creation of any Lien except Permitted Encumbrances upon any asset of Xxxxxx under the provisions of any agreement, charter document, instrument, by-law, or other instrument to which Xxxxxx is a party or by which Xxxxxx or its property may be bound except for any conflict, breach or default under clause (A) and (B) of this clause (ii) which could not reasonably be expected to have a Material Adverse Effect.
(c) Xxxxxx is duly organized and in good standing under the laws of the State of Texas and is qualified to do business and is in good standing in such states which constitute all states in which qualification and good standing are necessary for Xxxxxx to conduct its business and own its property and where the failure to so qualify could reasonably be expected to have a Material Adverse Effect. Xxxxxx has delivered to the Agent true and complete copies of its certificate of incorporation and by-laws, and will promptly notify the Agent of any amendment or changes thereto. Xxxxxx’x exact name is set forth in the first paragraph to this Amendment.
(d) (i) Xxxxxx has not been known by any other name within the five (5) years prior to the Amendment No. 1 Effective Date, (ii) Xxxxxx xxxxx Inventory under no other name, and (iii) Xxxxxx has not been the surviving entity of a merger or consolidation nor has acquired all or substantially all of the assets of any person or entity as of the Amendment No. 1 Effective Date.
7. Effect on the Loan Agreement.
(a) Upon the effectiveness of Sections 2 and 3 above, each reference in the (x) Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean and be a reference to the Loan Agreement as amended hereby, and (y) Other Documents to the “Loan and Security Agreement” or otherwise to the Loan Agreement shall mean and be a reference to the Loan Agreement as amended hereby.
(b) The Loan Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or Lenders, nor constitute a waiver of
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any provision of the Loan Agreement, or any other documents, instruments or agreements executed and/or delivered under or in connection therewith, except as expressly provided herein.
8. Governing Law. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and shall be governed by and construed in accordance with the laws of the State of New York.
9. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
10. Counterparts; Facsimile. This Amendment may be executed by the parties hereto in one or more counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same agreement. Any signature delivered by a party by facsimile transmission shall be deemed to be an original signature hereto.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
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IN WITNESS WHEREOF, this Joinder and Amendment No. 1 has been duly executed as of the day and year first written above.
| EDGEN CARBON PRODUCTS GROUP, L.L.C., | ||
| By: | /s/ Xxxxx X. Xxxxxx, III | |
| Name: | Xxxxx X. Xxxxxx, III | |
| Title: | Secretary and Manager | |
| EDGEN ALLOY PRODUCTS GROUP, L.L.C., as a Borrower and as a Guarantor | ||
| By: | /s/ Xxxxx X. Xxxxxx, III | |
| Name: | Xxxxx X. Xxxxxx, III | |
| Title: | Secretary and Manager | |
| EDGEN CORPORATION, as a Guarantor | ||
| By: | /s/ Xxxxx X. Xxxxxx, III | |
| Name: | Xxxxx X. Xxxxxx, III | |
| Title: | Secretary, Chief Financial Officer | |
| and Executive Vice President | ||
| EDGEN LOUISIANA CORPORATION, as a Guarantor | ||
| By: | /s/ Xxxxx X. Xxxxxx, III | |
| Name: | Xxxxx X. Xxxxxx, III | |
| Title: | Secretary, Chief Financial Officer | |
| and Executive Vice President | ||
Signature Page to Xxxxxx Consent and Joinder
| XXXXXX INTERNATIONAL METALS, INC., as a Guarantor | ||
| By: | /s/ Xxxxx X. Xxxxxx, III | |
| Name: | Xxxxx X. Xxxxxx, III | |
| Title: | Secretary and Treasurer | |
| GMAC COMMERCIAL FINANCE LLC, as Lender and as Agent | ||
| By: | /s/ Xxxxx Xx Xxxxxx | |
| Name: | Xxxxx Xx Xxxxxx | |
| Title: | Director | |
Signature Page to Xxxxxx Consent and Joinder
