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[EXECUTION COPY]
THIRD AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
This THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT, dated as of October
11, 1996 (this "Amendatory Agreement"), is among HANDY & XXXXXX, a New York
corporation (the "Borrower"), certain financial institutions signatories hereto
(the "Lenders"), THE BANK OF NOVA SCOTIA, THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank) and THE BANK OF NEW YORK, as the co-agents (collectively
referred to herein as the "Co-Agents"), and THE BANK OF NOVA SCOTIA, as
administrative agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Co-Agents and the Administrative
Agent are parties to a Revolving Credit Agreement, dated as of September 28,
1994 (as amended or otherwise modified to the date hereof, the "Existing Credit
Agreement"); and
WHEREAS, the parties hereto have agreed, subject to the conditions and
terms hereinafter set forth, to amend the Existing Credit Agreement in certain
respects as herein provided (the Existing Credit Agreement, as so amended by
this Amendatory Agreement, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"Administrative Agent" is defined in the preamble.
"Amendatory Agreement" is defined in the preamble.
"Borrower" is defined in the preamble.
"Co-Agents" is defined in the preamble.
"Credit Agreement" is defined in the second recital.
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"Existing Credit Agreement" is defined in the first recital.
"Lenders" is defined in the preamble.
"Third Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided in
the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II; except as so amended, the Existing Credit Agreement shall
continue in full force and effect.
SUBPART 2.1. Amendments to Article I. Article I of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.1.1 through 2.1.2.
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"1996 Transaction" means the sale of gold by the Borrower on or
before December 31, 1996 and certain other events, as more specifically
described in the letter, dated October 2, 1996, from the Borrower to the
Lenders, the Co-Agents and the Administrative Agent.
"Third Amendment" means the Third Amendment, dated as of October 11,
1996, to this Agreement among the Borrower, the Lenders party thereto, the
Co-Agents and the Administrative Agent.
"Third Amendment Effective Date" means the Third Amendment Effective
Date as defined in Subpart 3.1 of the Third Amendment.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is further
amended by
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(a) amending clause (b)(i) of the definition of "Consolidated
Tangible Net Worth" in its entirety to read as follows:
"(i) treasury stock (excluding the amount, not to exceed
$45,000,000, of cash consideration expended for the repurchase
and/or redemption of the Borrower's outstanding common stock
in accordance with the 1996 Transaction that results in an
increase in such treasury stock), subscribed but unissued
stock, unamortized debt discount and expense, good will,
trademarks, trade names, patents and other intangible assets
(but not deferred charges) of the Borrower, and"; and
(b) the definition of "Designated Debt" is amended in its entirety
to read as follows:
"`Designated Debt' means the aggregate amount of (i)
Current Debt, and (ii) outstanding Loans and Letter of Credit
Outstandings; provided, that from the Third Amendment
Effective Date until the first anniversary thereof, Designated
Debt shall exclude outstanding Loans and Letter of Credit
Outstandings and outstanding Loans under (and as defined in)
the Short Term Credit Agreement in up to an aggregate maximum
outstanding principal amount of $64,500,000, as such amount is
reduced Dollar for Dollar by the amount of Debt not
constituting Designated Debt incurred during such period."
SUBPART 2.2. Amendments to Article II. Section 2.2.2 of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
"SECTION 2.2.2. Mandatory Reduction of Commitments. Immediately upon
the sale, lease, transfer, contribution or conveyance of an asset pursuant
to clause (c) of Section 7.2.11 (other than in connection with the 1996
Transaction), the Loan Commitment Amount shall be automatically reduced by
an amount equal to the aggregate Net Disposition Proceeds of such sale,
lease, transfer, contribution or conveyance."
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SUBPART 2.3. Amendments to Article VII. Article VII of the Existing Credit
Agreement is hereby amended in accordance with Subpart 2.3.1.
SUBPART 2.3.1. Clauses (c) and (d) of Section 7.2.11 of the Existing
Credit Agreement are hereby amended by:
(a) amending clause (c) of such Section in its entirety to read as
follows:
"(c) such sale, transfer, lease, contribution or
conveyance is (i) in connection with the 1996 Transaction
(provided, that the Market Value of the gold sold or otherwise
disposed of in connection therewith shall not exceed an
aggregate amount equal to $45,000,000), or (ii) if not in the
ordinary course of business, or not otherwise permitted
hereunder, the assets are sold for fair value (as determined
by the Board of Directors of the Borrower or the Subsidiary
owning such assets) and the Commitments of the Lenders are
reduced by an amount equal to the Net Disposition Proceeds of
such sale, transfer, lease, contribution or conveyance; or";
and
(b) amending clause (d) of such Section by deleting the words
"Effective Date" wherever appearing therein and inserting the words "Third
Amendment Effective Date" in each case in place thereof.
SUBPART 2.4. Amendment to Exhibit E. Attachments 1 and 4 of Exhibit E
(Compliance Certificate) to the Existing Credit Agreement are hereby amended in
their entirety to read as set forth on Exhibit A hereto.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Third Amendment Effective Date. This Amendatory Agreement
shall become effective on the date first set forth above (the "Third Amendment
Effective Date") when each of the conditions set forth in this Subpart 3.1 shall
have been satisfied.
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SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendatory Agreement, duly executed on behalf
of the Borrower and the Required Lenders.
SUBPART 3.1.2. Short Term Credit Agreement Amendment No. 3. The conditions
to the effectiveness of the Third Amendment to the Short Term Credit Agreement,
also dated as of the date hereof ("ST Amendment No. 3") (other than the
effectiveness of this Amendatory Agreement) shall have been satisfied and such
ST Amendment No. 3 shall, concurrently with the effectiveness of this Amendatory
Agreement, have been declared effective by the Administrative Agent.
SUBPART 3.1.3. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendatory Agreement shall be satisfactory to
the Administrative Agent and its counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendatory Agreement to
any Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 4.2. Loan Document Pursuant to Existing Credit Agreement. This
Amendatory Agreement is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement.
SUBPART 4.3. Successors and Assigns. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.4. Counterparts. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
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SUBPART 4.5. Representations, No Default, etc. As of the date of
effectiveness of this Amendatory Agreement, the Borrower hereby represents and
warrants to the Agents and the Lenders that
(a) the representations and warranties set forth in Article VI of
the Existing Credit Agreement (excluding, however, those contained in
Section 6.7 thereof) are true and correct in all material respects (unless
stated to relate solely to an earlier date, in which case such
representations and warranties were true and correct as of such earlier
date);
(b) except as disclosed by the Borrower to the Administrative Agent
and the Lenders pursuant to Section 6.7 of the Existing Credit Agreement,
(i) no litigation, arbitration or governmental investigation
or proceeding is pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries which may
reasonably be expected to materially adversely affect the
Borrower's, or the Borrower and its Subsidiaries' taken as a whole,
financial condition, operations, assets, businesses, properties or
prospects or which purports to affect the legality, validity or
enforceability of the Existing Credit Agreement, the Notes or any
other Loan Document; and
(ii) no development has occurred in any litigation,
arbitration or governmental investigation or proceeding disclosed
pursuant to Section 6.7 of the Existing Credit Agreement which may
reasonably be expected to materially adversely affect the financial
condition, operations, assets, businesses, properties or prospects
of the Borrower or the Borrower and its Subsidiaries, taken as a
whole; and
(c) no Default has occurred and is continuing.
SUBPART 4.6. Limited Waiver, etc. No amendment, waiver or approval by the
Agents or any Lender under this Amendatory Agreement shall, except as may be
otherwise stated in this Amendatory Agreement, be applicable to subsequent
transactions. No amendment, waiver or approval hereunder shall require any
similar or dissimilar amendment, waiver or approval to be granted after the date
hereof, and except as expressly modified by this Amendatory Agreement, the
provisions of the Existing Credit Agreement shall remain in full force and
effect, without amendment or other modification.
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SUBPART 4.7. Governing Law. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective authorized officers as of the day
and year first above written.
HANDY & XXXXXX
By ____________________________________
Title:
THE BANK OF NOVA SCOTIA,
in its capacity as Administrative
Agent, Co-Agent and Lender
By ____________________________________
Title:
THE BANK OF NEW YORK,
in its capacity as
Co-Agent and Lender
By ____________________________________
Title:
THE CHASE MANHATTAN BANK (formerly known
as Chemical Bank), in its capacity as
Co-Agent and Lender
By ____________________________________
Title:
FLEET PRECIOUS METALS INC.
By ____________________________________
Title:
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THE FIRST NATIONAL BANK OF CHICAGO
(formerly known as NBD Bank)
By ____________________________________
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By ____________________________________
Title:
LTCB TRUST COMPANY
By ____________________________________
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By ____________________________________
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By ____________________________________
Title:
THE SUMITOMO BANK, LIMITED
By ____________________________________
Title:
By ____________________________________
Title:
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XXX XXXX XXXX, XXXXXXX,
XXX XXXX BRANCH
By ____________________________________
Title:
ABN AMRO BANK N.V. NEW YORK BRANCH
By ____________________________________
Title:
By ____________________________________
Title:
COMERICA BANK
By ____________________________________
Title:
YASUDA TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By ____________________________________
Title:
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EXHIBIT A
TO THIRD AMENDMENT
ATTACHMENT 1
(to __/__/__ Compliance Certificate)
ADJUSTED CONSOLIDATED TANGIBLE NET WORTH
(________ __, 19__)
Adjusted Consolidated
Tangible Net Worth:
A. The par value (or value stated on
the books of the Borrower) of the
capital stock of all classes of the
Borrower................................................$_________
B. The amount of the consolidated
surplus, whether capital or earned,
of the Borrower and its
and its Subsidiaries................................... $_________
C. The sum (or difference, in the
case of a surplus deficit in
Item 1.B) of Items 1.A and 1.B......................... $_________
D. The aggregate amount of treasury
stock (excluding the amount, not to
exceed $45,000,000, of cash
consideration expended for the
repurchase and/or redemption of the
of the Borrower's outstanding
common stock in accordance with the
1996 Transaction), subscribed but
unissued stock, unamortized debt
discount and expense, good will,
trademarks, trade names, patents
and other intangible assets (but
not deferred charges) of the
Borrower and its Subsidiaries...........................$_________
E. The aggregate amount of all write-
ups in the book value of any assets
owned by the Borrower or its
Subsidiaries subsequent to March
16, 1992, other than write-ups of
assets (and assets of Subsidiaries)
acquired by the Borrower and/or its
Subsidiaries (exclusive of
goodwill) that are made in
connection with the
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acquisition thereof.....................................$_________
F. Sum of Items 1.D through 1.E............................$_________
G. Consolidated Tangible Net Worth:
The excess of Item 1.C over Item 1.F................... $_________
H. 40% of the excess of the Market
Value of the Borrower's and its
Subsidiaries' owned precious metal
holdings over the LIFO cost of such
holdings as set forth in the
Borrower's most recent consolidated
financial statements delivered
pursuant to clause (a) or clause
(b) of Section 7.1.1 of the
Credit Agreement....................................... $_________
I. ADJUSTED CONSOLIDATED TANGIBLE NET WORTH:
The sum of Items 1.G and 1.H............................$_________
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ATTACHMENT 4
(to __/__/__ Compliance
Certificate)
DESIGNATED DEBT
(as of _________ __, 19__)
Designated Debt:
A. Current Debt: The aggregate amount
of current maturities of the
consolidated Debt of the Borrower
and its Subsidiaries, determined in
accordance with GAAP....................................$_________
B. The sum of the aggregate
outstanding principal amount of all
Loans plus Letter of Credit
Outstandings (as such terms are
defined in the Long Term
Credit Agreement).......................................$_________
C. The sum of Item 4.A and Item 4.B
(excluding, from the Third
Amendment Effective Date until the
first anniversary thereof, Loans
and Letter of Credit Outstandings
and Loans under (and as defined in)
the Short Term Credit Agreement in
up to a maximum principal amount of
$64,500,000, as such amount is
reduced Dollar for Dollar by the
amount of Debt not constituting
Designated Debt incurred
during such period).....................................$_________
D. 90% of the Market Value of the
gold, silver and platinum group
metals and the gold, silver and
platinum group metals' content of
alloys then owned by the Borrower
and its Subsidiaries in inventory
and not held in consignment.............................$_________
E. 75% of the Eligible Receivables of
the Borrower and its Subsidiaries
as computed on Attachment 5 hereto......................$_________
F. The aggregate amount of cash and
Cash Equivalent Investments of the
Borrower and its Subsidiaries, but
only to the extent that such cash
and Cash Equivalent Investments are
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not subject to any Lien and (if
held or owned by a Subsidiary) are
transferable to the Borrower
without the consent or approval of
any other Person........................................$_________
G. The sum of Items 4.D through 4.F........................$_________
H. The excess of Item 4.C over Item 4.G....................$_________
