Exhibit 4.15
[Execution]
AMENDMENT NO. 14 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 14 TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of July 20, 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, and Amendment No. 13 and Waiver to Loan and Security
Agreement, dated as of March 29, 2007 (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 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. 14" shall mean this Amendment No. 14 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. 14 Effective Date" shall mean the first
date on which all of the conditions precedent to the effectiveness of this
Amendment shall have been satisfied or shall have been waived by Agent.
(iii) "Bank Product Provider" shall mean any Lender, Affiliate
of Lender or other financial institution (in each case as to any such Lender,
Affiliate or other financial institution to the extent approved by Agent) that
provides any Bank Products to Borrowers or Guarantors.
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(iv) "Bank Products" shall mean any one or more of the
following types or services or facilities provided to a Borrower or Guarantor by
a Bank Product Provider: (a) credit cards or stored value cards, and (b) cash
management or related services, including (1) the automated clearinghouse
transfer of funds for the account of a Borrower or Guarantor pursuant to
agreement or overdraft for any accounts of Borrowers or Guarantors maintained at
Agent or any Bank Product Provider that are subject to the control of Agent
pursuant to any Deposit Account Control Agreement to which Agent or such Bank
Product Provider is a party, as applicable, and (2) controlled disbursement
services. Any of the foregoing shall only be included in the definition of the
term "Bank Products" to the extent that the Bank Product Provider has been
approved by Agent.
(v) "Commodity Hedging Obligations" shall mean, with respect
to any Person, the obligations of such Person under commodity swaps, commodity
futures contracts, options on commodity futures contracts, commodity options,
and other agreements or arrangements designed to protect such Person against
fluctuations in commodity values.
(vi) "Parcel Sale Proceeding" shall mean the litigation
currently pending against Parent in the Superior Court of Fairfield County,
Connecticut resulting from the sale by Parent of a certain parcel of real
property in December 2003.
(vii) "Parcel Sale Reserve Amount" shall mean the amount of
$3,520,200, LESS (A) an amount equal to the amount of any payment by Parent to
the plaintiff in the Parcel Sale Proceeding or to an escrow account pursuant to
any settlement agreement in connection with the Parcel Sale Proceeding, which
reduction shall be effective upon the receipt by Agent, in form and substance
reasonably satisfactory to Agent, of evidence of any such payment, and (B) any
amounts held or restrained by a financial institution pursuant to that certain
Order of Prejudgment Attachment entered by the Superior Court of Fairfield
County, Connecticut on December 18, 2006 in connection with the Parcel Sale
Proceeding and/or that certain Notice of Bank Attachment/Garnishment dated May
21, 2007 by the State Marshal of Fairfield County, Connecticut to JPMorgan Chase
Bank, or otherwise garnished and restrained in connection with the H&H East
Parcel Proceeding; PROVIDED, HOWEVER, the Parcel Sale Reserve Amount shall be
reduced to $0 in the event that the judgment against Parent in the Parcel Sale
Proceeding is overturned, satisfied or otherwise vacated."
(viii) "Secured Parties" shall mean, collectively, (a) Agent,
(b) Lenders, and (c) Bank Product Providers (to the extent approved by Agent).
(b) AMENDMENTS TO DEFINITIONS.
(i) EBITDA. The definition of "EBITDA" in Section 1.32 of the
Loan Agreement is hereby amended by deleting such definition in its entirety and
replacing it with the following:
"1.32 `EBITDA' shall mean, as to any Person, with respect to
any period, an amount equal to: (a) the Consolidated Net Income of
such Person for such period, PLUS (b) depreciation and amortization
for such period (to the extent deducted in the computation of
Consolidated Net Income of such Person), all in accordance with
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GAAP, PLUS (c) Interest Expense for such period (to the extent
deducted in the computation of Consolidated Net Income of such
Person), PLUS (d) the Provision for Taxes for such period (to the
extent deducted in the computation of Consolidated Net Income of
such Person), PLUS (e) the Specified OMG Roofing EBITDA Amount (if
any) for such period, PLUS (f) non cash accruals for such period for
environmental liabilities with respect to the Shpack landfill site
located in Attleboro, Massachusetts (to the extent that (1) such
accruals were deducted in the computation of Consolidated Net Income
of such Person for such period and (2) the aggregate amount of all
such accruals does not exceed $1,538,000), PLUS (g) losses realized
during such period in connection with the inventory hedging program
of such Person (to the extent that such losses were deducted in the
computation of Consolidated Net Income of such Person for such
period), PLUS (h) non cash accruals for such period for audit fees
incurred in 2007 for the fiscal year 2006 audit of such Person (to
the extent that (1) such accruals were deducted in the computation
of Consolidated Net Income of such Person for such period and (2)
the aggregate amount of all such accruals does not exceed
$1,000,000), PLUS (i) a one-time non-cash charge incurred during
fiscal year 2007 in connection with the redesign of the
post-retirement medical benefits owing to union employees of
Xxxxxxxx (to the extent that (1) such losses were deducted in the
computation of Consolidated Net Income of such Person for such
period and (2) the aggregate amount of such losses does not exceed
$727,252), MINUS (j) gains realized during such period in connection
with the inventory hedging program of such Person (to the extent
that such gains were added in the computation of Consolidated Net
Income of such Person for such period), MINUS (k) cash expenses
incurred during such period in connection with environmental
liabilities with respect to the Shpack landfill site located in
Attleboro, Massachusetts, MINUS (l) cash expenses incurred during
such period in connection with the redesign of the post-retirement
medical benefits owing to union employees of Xxxxxxxx during fiscal
year 2007."
(ii) EXCESS AVAILABILITY. The definition of "Excess
Availability" in Section 1.46 of the Loan Agreement is hereby amended by
inserting the following immediately prior to the period at the end of such
definition:
", PLUS (v) the amount equal to (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 Sections 9.10(l) or (m) hereof or
the distributions permitted to be made by Parent to WHX
pursuant to Sections 9.11(e) or (f) hereof and which have not
been provided by Parent to WHX in the form of loans or
advances pursuant to Sections 9.10(l) or (m) hereof or
distributions pursuant to Sections 9.11(e) or (f) hereof, LESS
(B) the Parcel Sale Reserve Amount".
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(iii) OBLIGATIONS. The definition of "Obligations" in Section
1.89 of the Loan Agreement is hereby amended by inserting the following
immediately prior to the period at the end of such definition:
"and for purposes only of Section 5.1 hereof and subject to
the priority in right of payment set forth in Section 6.4 hereof,
all obligations, liabilities and indebtedness of every kind, nature
and description owing by any or all of Borrowers or Guarantors to
Agent or any Bank Product Provider arising under or pursuant to any
Bank Products, whether now existing or hereafter arising, PROVIDED,
THAT, (a) any Bank Product Provider, other than Wachovia and its
Affiliates, shall have delivered written notice to Agent that (i)
such Bank Product Provider has entered into a transaction to provide
Bank Products to a Borrower or Guarantor and (ii) the obligations
arising pursuant to such Bank Products provided to such Borrower or
Guarantor constitute Obligations entitled to the benefits of the
security interest of Agent granted hereunder, and Agent shall have
accepted such notice in writing and (b) in no event shall any Bank
Product Provider to whom such obligations, liabilities or
indebtedness are owing be deemed a Lender for purposes hereof to the
extent of and as to such obligations, liabilities or indebtedness
other than for purposes of Section 5.1 hereof and other than for
purposes of Sections 12.1, 12.2, 12.3(b), 12.6, 12.7. 12.9, 12.12,
and 13.6 hereof".
(iv) RESERVES. The definition of "Reserves" in Section 1.119
of the Loan Agreement is hereby amended by inserting the following sentence at
the end of the second sentence of such definition:
"Without limiting the generality of the foregoing, Reserves
may, at Agent's option, be established to reflect obligations,
liabilities or indebtedness (contingent or otherwise) of Borrowers
or Guarantors to Agent or any Bank Product Provider arising under or
in connection with any Bank Products or as Agent or such Bank
Product Provider may otherwise require in connection therewith to
the extent that such obligations, liabilities or indebtedness
constitute Obligations as such term is defined herein or otherwise
receive the benefit of the security interest of Agent in any
Collateral."
(c) INTERPRETATION. Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Loan Agreement.
2. GRANT OF SECURITY INTEREST. Section 5.1 of the Loan Agreement is hereby
amended by (a) deleting each reference to "Lenders" and replacing it with "the
other Secured Parties" and (b) deleting each reference to "any Lender" and
replacing it with "any other Secured Party".
3. PAYMENTS.
(a) Section 6.4(a) of the Loan Agreement is hereby amended by
deleting clause "ninth" from the second sentence of such Section in its entirety
and replacing it with the following:
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"NINTH, to pay or prepay in full any other Obligations
(including any Obligations arising under or pursuant to any Bank
Products on a pro rata basis), whether or not then due, in such
order and manner as Agent determines".
(b) Section 6.4(a) of the Loan Agreement is hereby amended by
deleting clause "eleventh" from the third sentence of such Section in its
entirety and replacing it with the following:
"ELEVENTH, to pay or prepay in full any other Obligations
(including the Early Termination Fee but excluding any Obligations
arising under or pursuant to any Bank Products), whether or not then
due, in such order and manner as Agent determines; and TWELFTH, to
pay or prepay in full any Obligations arising under or pursuant to
any Bank Products on a pro rata basis".
4. BANK PRODUCTS. Section 6 of the Loan Agreement is hereby amended by
adding the following new Section 6.12 to the end of such Section:
"6.12 BANK PRODUCTS. Borrowers and Guarantors, or any of their
Subsidiaries, may (but no such Person is required to) request that
the Bank Product Providers provide or arrange for such Person to
obtain Bank Products from Bank Product Providers, and each Bank
Product Provider may, in its sole discretion, provide or arrange for
such Person to obtain the requested Bank Products. Borrowers and
Guarantors or any of their Subsidiaries that obtains Bank Products
shall indemnify and hold Agent, each Lender and their respective
Affiliates harmless from any and all obligations now or hereafter
owing to any other Person by any Bank Product Provider in connection
with any Bank Products other than for gross negligence or willful
misconduct on the part of any such indemnified Person. This Section
6.12 shall survive the payment of the Obligations and the
termination of this Agreement. Borrower and its Subsidiaries
acknowledge and agree that the obtaining of Bank Products from Bank
Product Providers (a) is in the sole discretion of such Bank Product
Provider, and (b) is subject to all rules and regulations of such
Bank Product Provider."
5. COLLATERAL REPORTING. Section 7.1(a)(iii) of the Loan Agreement is
hereby amended by (a) deleting "and" appearing at the end of clause (F) of such
Section, (b) inserting "and" appearing at the end of clause (G) of such Section
and (c) adding the following new clause (H) at the end of such Section:
"(H) a description of all arrangements relating to Commodity
Hedging Obligations (including all liabilities and potential
liabilities owing to securities and commodities intermediaries)
entered into during the immediately preceding month and the cash and
cash equivalents and other assets of Borrowers and Guarantors held
by such intermediaries, brokers and dealers;".
6. ENCUMBRANCES.
(a) Section 9.8(a) of the Loan Agreement is hereby amended by deleting
the reference to "Lenders" and replacing it with "the other Secured Parties".
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(b) Section 9.8 of the Loan Agreement is hereby amended by (a) deleting
"and" appearing at the end of subsection (m) of such Section, (b) deleting the
period appearing at the end of subsection (n) of such Section and replacing it
with "; and" and (c) adding the following new subsection (o) at the end of such
Section:
"(o) liens of a single commodities intermediary securing
Indebtedness of Parent permitted under Section 9.9(m) hereof; PROVIDED,
THAT, (i) such liens do not at any time encumber any assets other than
assets held in the commodities account established in accordance with
Section 9.9(m) hereof and (ii) Agent shall have received, in form and
substance reasonably satisfactory to Agent, an Investment Property
Control Agreement with respect to such commodities account, duly
authorized, executed and delivered by Parent and such commodities
intermediary,."
7. INDEBTEDNESS.
(a) Section 9.9(c) of the Loan Agreement is hereby amended by deleting
the reference to "Lenders" and replacing it with "the other Secured Parties".
(b) Section 9.9(f)(i) of the Loan Agreement is hereby amended by
deleting the reference to "$90,000,000" and replacing it with "$97,015,797".
(c) Section 9.9(f) of the Loan Agreement is hereby further amended by
deleting the phrase "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"
from each place it appears in such Section and replacing it with "as in effect
on the Amendment Xx. 00 Xxxxxxxxx Xxxx".
(x) Section 9.9 of the Loan Agreement is hereby amended by (a) deleting
"and" appearing at the end of subsection (k) of such Section, (b) deleting the
period appearing at the end of subsection (l) of such Section and replacing it
with "; and" and (c) adding the following new subsection (m) at the end of such
Section:
"(m) Indebtedness of Parent to a single commodities
intermediary and its affiliates in respect of Commodity Hedging
Obligations (including, without limitation, any commodities account
maintained with a broker-dealer) which do not increase the amount of
such Indebtedness or other obligations of Parent outstanding other
than as a result of fluctuations in commodity prices or by reason of
fees and expenses payable in connection therewith, PROVIDED, THAT,
each of the following conditions is satisfied as determined by
Agent: (i) such Indebtedness shall be on terms and conditions
reasonably acceptable to Agent, (ii) such Commodity Hedging
Obligations shall be incurred (and such commodities account shall be
established and utilized) by Parent in the ordinary course of
business and consistent with past practice, (iii) Agent shall have
received true, correct and complete copies of all agreements,
documents and instruments evidencing or otherwise related to such
Indebtedness, (iv) Agent shall have received, in form and substance
reasonably satisfactory to Agent, an Investment Property Control
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Agreement with respect to such commodities account, duly authorized,
executed and delivered by Parent and such commodities intermediary,
(v) as of the date of incurring such Indebtedness and after giving
effect thereto, no Default or Event of Default shall exist or have
occurred, (vi) Parent shall not, directly or indirectly, (A) amend,
modify, alter or change the terms of such Indebtedness or any
agreement, document or instrument related thereto, except, that,
Parent may, after prior written notice to Agent, amend, modify,
alter or change the terms thereof in a manner which is not adverse
to the interests of Agent, any Lender, any Borrower or any Guarantor
in any material respect, or (B) redeem, retire, defease, purchase or
otherwise acquire such Indebtedness or set aside or otherwise
deposit or invest any sums for such purpose, and (vii) Parent shall
furnish to Agent all notices or demands in connection with such
Indebtedness either received by Parent or on its behalf promptly
after the receipt thereof, or sent by Parent or on its behalf
concurrently with the sending thereof, as the case may be."
8. LOANS, INVESTMENTS, ETC. Section 9.10 of the Loan Agreement is hereby
amended by (a) deleting "and" appearing at the end of subsection (j) of such
Section, (b) deleting the period appearing at the end of subsection (k) of such
Section and replacing it with a semicolon, and (c) adding the following new
subsections (l) and (m) at the end of such Section:
"(l) unsecured loans or advances by Parent to WHX on or after
the Amendment No. 14 Effective Date with the proceeds of loans or
advances made by Tranche B Term Loan Lenders permitted under Section
9.9(f) hereof, PROVIDED, THAT, (i) the sum of the aggregate
outstanding principal amount of all such loans and advances plus the
aggregate amount of all distributions made by Parent to WHX
permitted under Section 9.11(e) hereof shall not at any time exceed
the difference between (x) $5,689,276 minus (y) the Parcel Sale
Reserve Amount, (ii) any such loan or advance by Parent to WHX shall
be made within sixty (60) days following (x) the receipt by Parent
of cash proceeds of a loan or advance made by Tranche B Term Loan
Lenders to Parent pursuant to Section 9.9(f) hereof and/or (y) a
reduction in the Parcel Sale Reserve Amount in accordance with the
definition thereof, (iii) 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 and advances, if any, as of the last day of the
immediately preceding month and indicating any payments received
during the immediately preceding month, (iv) the Indebtedness
arising pursuant to such loans and advances, if any, shall be not
evidenced by a promissory note or other instrument unless the single
originals 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, and (v)
as of the date of each such loan or advance and after giving effect
thereto, no Default or Event of Default shall exist or have occurred
and be continuing; and
"(m) unsecured loans or advances by Parent to WHX on or after
the Amendment No. 14 Effective Date with the proceeds of loans or
advances made by Tranche B Term Loan Lenders permitted under Section
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9.9(f) hereof, which loans shall be in addition to and not in
limitation of the loans and advances permitted under Section 9.10(l)
hereof; PROVIDED, THAT, (i) the sum of the aggregate outstanding
principal amount of the loans and advances by Parent to WHX
permitted under Section 9.10(l) hereof plus the distributions by
Parent to WHX permitted under Section 9.11(e) hereof is equal to (x)
$5,689,276 minus (y) the Parcel Sale Reserve Amount, (ii) the sum of
the aggregate outstanding principal amount of such loans and
advances plus the distributions by Parent to WHX permitted under
Section 9.11(f) hereof shall not at any time exceed $1,700,000,
(iii) within sixty (60) days prior to making any such loan or
advance to WHX, Parent shall have received cash proceeds of a loan
or advance made by Tranche B Term Loan Lenders in an amount equal to
or greater than the amount of such loan or advance, (iv) 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 and advances, if any,
as of the last day of the immediately preceding month and indicating
any payments received during the immediately preceding month, (v)
the Indebtedness arising pursuant to such loans and advances, if
any, shall be not evidenced by a promissory note or other instrument
unless the single originals 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, and (vi) as of the date of each such loan or advance and
after giving effect thereto, no Default or Event of Default shall
exist or have occurred and be continuing."
9. DIVIDENDS AND REDEMPTIONS. Section 9.11 of the Loan Agreement is hereby
amended by (a) deleting the period appearing at the end of subsection (d) of
such Section and replacing it with a semicolon, and (b) adding the following new
subsections (e) and (f) at the end of such Section:
"(e) Parent may make distributions to WHX on or after the
Amendment No. 14 Effective Date with the proceeds of loans or
advances made by Tranche B Term Loan Lenders permitted under Section
9.9(f) hereof, PROVIDED, THAT, (i) the sum of the aggregate amount
of all such distributions plus the aggregate principal amount of all
loans and advances made by Parent to WHX permitted under Section
9.10(l) hereof shall not at any time exceed the difference between
(x) $5,689,276 minus (y) the Parcel Sale Reserve Amount, (ii) any
such distribution by Parent to WHX shall be made within sixty (60)
days following (x) the receipt by Parent of cash proceeds of a loan
or advance made by Tranche B Term Loan Lenders to Parent pursuant to
Section 9.9(f) hereof and/or (y) a reduction in the Parcel Sale
Reserve Amount in accordance with the definition thereof, (iii)
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 amount of distributions, if any, made to WHX
pursuant to this Section as of the last day of the immediately
preceding month, (iv) such distribution shall be paid with funds
legally available therefor and shall not violate any law or
regulation or the terms of any indenture, agreement or undertaking
to which such Borrower or Guarantor is a party or by which such
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Borrower or Guarantor or its or their property are bound, and (v) as
of the date of each such distribution and after giving effect
thereto, no Default or Event of Default shall exist or have occurred
and be continuing; and
(f) Parent may make distributions to WHX on or after the
Amendment No. 14 Effective Date with the proceeds of loans or
advances made by Tranche B Term Loan Lenders permitted under Section
9.9(f) hereof, which distributions shall be in addition to and not
in limitation of the distributions permitted under Section 9.11(e)
hereof; PROVIDED, THAT, (i) the sum of the distributions by Parent
to WHX permitted under Section 9.11(e) hereof plus the outstanding
principal amount of the loans and advances by Parent to WHX
permitted under Section 9.10(l) hereof is equal to (x) $5,689,276
minus (y) the Parcel Sale Reserve Amount, (ii) the sum of such
distributions plus the aggregate outstanding principal amount of the
loans and advances by Parent to WHX permitted under Section 9.10(m)
hereof shall not at any time exceed $1,700,000, (iii) within sixty
(60) days prior to making any such distribution to WHX, Parent shall
have received cash proceeds of a loan or advance made by Tranche B
Term Loan Lenders in an amount equal to or greater than the amount
of such distribution, (iv) 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 amount of distributions,
if any, made to WHX pursuant to this Section as of the last day of
the immediately preceding month, (v) such distribution shall be paid
with funds legally available therefor and shall not violate any law
or regulation or the terms of any indenture, agreement or
undertaking to which such Borrower or Guarantor is a party or by
which such Borrower or Guarantor or its or their property are bound,
and (vi) as of the date of each such distribution and after giving
effect thereto, no Default or Event of Default shall exist or have
occurred and be continuing."
10. TRANSACTION WITH AFFILIATES. Section 9.12 of the Loan Agreement is
hereby amended by (a) deleting "and" appearing at the end of subsection
9.12(b)(ii), (b) deleting the period appearing at the end of subsection
9.12(b)(iii) and replacing it with "; and" and (c) adding the following new
subsection 9.12(b)(iv) at the end of such Section.
"(iv) the loans and advances by Parent to WHX made in
accordance with Sections 9.10(l) and 9.10(m) hereof and the
distributions by Parent to WHX made in accordance with Sections
9.11(e) and 9.11(f) hereof."
11. Term. Section 13.1(a) of the Loan Agreement is hereby amended by
inserting the following immediately prior to the period at the end of the third
sentence of such Section:
"and for any of the Obligations arising under or in connection
with any Bank Products in such amounts as the Bank Product Provider
providing such Bank Products may require (unless such Obligations
arising under or in connection with any Bank Products are paid in
full in cash and terminated in a manner satisfactory to such Bank
Product Provider)".
10
12. SCHEDULES TO LOAN AGREEMENT. The Loan Agreement is hereby amended by
deleting Schedule 1.24 to the Loan Agreement and replacing it with the Schedule
set forth on Schedule 1 attached to this Amendment.
13. 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 and the Required Lenders;
(b) Agent shall have received, in form and substance satisfactory to
Agent, a true, correct and complete copy of Amendment No. 11 to Loan and
Security Agreement (the "Tranche B Amendment"), duly authorized, executed and
delivered by Tranche B Term Loan Agent, Borrowers and Guarantors, which shall be
in full force and effect;
(c) 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
(d) no Default or Event of Default shall exist or have occurred and
be continuing.
14. 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) 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;
(b) 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. 14 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;
11
(c) 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
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;
(d) 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;
(e) 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;
(f) 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. 14 Effective
Date as if made on the Amendment No. 14 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;
(g) the Tranche B Amendment has been executed and delivered by all
parties thereto and is in full force and effect; and
(h) after giving effect to the waivers provided by this Amendment,
no Default or Event of Default exists or has occurred and is continuing.
15. 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
12
to the substantial concessions as set forth herein, each Borrower and Guarantor
hereby fully and unconditionally releases and forever discharges Agent and each
Lender and their respective directors, officers, employees, subsidiaries,
branches, affiliates, attorneys, agents, representatives, successors and assigns
and all persons, firms, corporations and organizations acting on any of their
behalves (collectively, the "Released Parties"), of and from any and all claims,
allegations, causes of action, costs or demands and liabilities, of whatever
kind or nature, from the beginning of the world to the date on which this
Amendment is executed, whether known or unknown, liquidated or unliquidated,
fixed or contingent, asserted or unasserted, foreseen or unforeseen, matured or
unmatured, suspected or unsuspected, anticipated or unanticipated, which such
Borrower or Guarantor has, had, claims to have had or hereafter claims to have
against the Released Parties by reason of any act or omission on the part of the
Released Parties, or any of them, occurring prior to the date on which this
Amendment is executed, including on account of or in any way affecting,
concerning or arising out of or founded upon this Amendment up to and including
the date on which this Amendment is executed, including all such loss or damage
of any kind heretofore sustained or that may arise as a consequence of the
dealings among the parties up to and including the date on which this Amendment
is executed, including the administration or enforcement of the Loans, the
Obligations, the Loan Agreement or any of the other Financing Agreements
(collectively, all of the foregoing are the "Claims"). Each Borrower and
Guarantor represents and warrants that it has no knowledge of any claim by it
against the Released Parties or of any facts or acts or omissions of the
Released Parties which on the date hereof would be the basis of a claim by such
Borrower or Guarantor against the Released Parties which is not released hereby.
Each Borrower and Guarantor represents and warrants that the foregoing
constitutes a full and complete release of all Claims.
16. 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. 14 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.
17. 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.
18. 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.
19. 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.
13
20. HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment.
21. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
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: Senior 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
-----------------------------------------
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[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
-----------------------------------------
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[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
-----------------------------------------
SCHEDULE 1
TO
AMENDMENT NO. 14 TO LOAN AND SECURITY AGREEMENT
SCHEDULE 1.24
TO
LOAN AND SECURITY AGREEMENT
COMMITMENTS
------------------------------------------------------------------------------------------------
Commitment for
Supplemental Commitment Commitment Total
Lender Term Loans for Term B Loans for Other Loans Commitment
---------- ---------------- --------------- ----------
------------------------------------------------------------------------------------------------
Wachovia Bank, National $7,000,000 $0 $42,000,000 $49,000,000
Association
------------------------------------------------------------------------------------------------
Textron Financial $0 $0 $14,500,000 $14,500,000
Corporation
------------------------------------------------------------------------------------------------
Bank of America, N.A. $0 $0 $19,500,000 $19,500,000
------------------------------------------------------------------------------------------------
Ableco Finance LLC $0 $21,000,000 $0 $21,000,000
------------------------------------------------------------------------------------------------
Fortress Credit $0 $16,800,000 $0 $16,800,000
Funding III LP
------------------------------------------------------------------------------------------------
Fortress Credit $0 $2,100,000 $0 $2,100,000
Funding II LP
------------------------------------------------------------------------------------------------
Fortress Credit $0 $1,100,000 $0 $1,100,000
Funding IV LP
------------------------------------------------------------------------------------------------
Fortress Credit $0 $1,000,000 $0 $1,000,000
Opportunities II LP
------------------------------------------------------------------------------------------------
Totals............ $7,000,000 $42,000,000 $76,000,000 $125,000,000
------------------------------------------------------------------------------------------------
