Exhibit 4.1
CONSENT AND AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT
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CONSENT AND AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT (this
"Amendment No. 8"), dated as of March 31, 2006, by and among Handy & ▇▇▇▇▇▇, a
New York corporation ("H&H"), OMG, Inc., a Delaware corporation formerly known
as Olympic Manufacturing Group, Inc. ("OMG"), Continental Industries, Inc., an
Oklahoma corporation ("Continental"), Maryland Specialty Wire, Inc., a Delaware
corporation ("Maryland Wire"), Handy & ▇▇▇▇▇▇ Tube Company, Inc., a Delaware
corporation ("H&H Tube"), Camdel Metals Corporation, a Delaware corporation
("Camdel"), ▇▇▇▇▇▇▇▇ Metal Coating Corporation, a Delaware corporation
("Canfield"), Micro-Tube Fabricators, Inc., a Delaware corporation
("Micro-Tube"), Indiana Tube Corporation, a Delaware corporation ("Indiana
Tube"), ▇▇▇▇▇-▇▇▇▇▇▇▇▇, Inc., a Wisconsin corporation ("▇▇▇▇▇"), Handy & ▇▇▇▇▇▇
Electronic Materials Corporation, a Florida corporation ("H&H Electronic"),
Sumco Inc., an Indiana corporation ("Sumco" and together with H&H, OMG,
Continental, Maryland Wire, H&H Tube, Camdel, ▇▇▇▇▇▇▇▇, Micro-Tube, Indiana
Tube, ▇▇▇▇▇ and H&H Electronic, each individually, a "Borrower" and
collectively, "Borrowers"), Handy & ▇▇▇▇▇▇ of Canada, Limited, an Ontario
corporation ("H&H Canada"), ele Corporation, a California corporation ("ele"),
Alloy Ring Service Inc., a Delaware corporation ("Alloy"), ▇▇▇▇▇▇ Radiator
Corporation, a Texas corporation ("▇▇▇▇▇▇"), H&H Productions, Inc., a Delaware
corporation ("H&H Productions"), Handy & ▇▇▇▇▇▇ Automotive Group, Inc., a
Delaware corporation ("H&H Auto"), Handy & ▇▇▇▇▇▇ International, Ltd., a
Delaware corporation ("H&H International"), Handy & ▇▇▇▇▇▇ Peru, Inc., a
Delaware corporation ("H&H Peru"), KJ-VMI Realty, Inc., a Delaware corporation
("KVR"), ▇▇▇-▇▇▇▇ Realty, Inc., a Delaware corporation ("▇▇▇-▇▇▇▇"), 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, ▇▇▇▇▇▇, H&H Productions,
H&H Auto, H&H International, H&H Peru, KVR, ▇▇▇-▇▇▇▇, 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"). Capitalized terms used herein which are
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Loan Agreement.
W I T N E S S E T H:
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WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and may make loans and advances and provide other financial
accommodations to Borrowers as set forth in the Loan and Security Agreement,
dated as of March 31, 2004, by and among Agent, Lenders, Borrowers and
Guarantors (as amended by Consent and Amendment No. 1 to Loan and Security
Agreement, dated as of August 31, 2004, Amendment No. 2 to Loan and Security
Agreement, dated as of October 29, 2004, Amendment No. 3 to Loan and Security
Agreement, dated as of December 29, 2004, 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 and Consent and Amendment No.
7 and Waiver to Loan and Security Agreement, dated as of January 24, 2006 and as
the same may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement"), and the other agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto (all of the foregoing,
together with the Loan Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
agree to make certain amendments and provide certain consents to the Loan
Agreement, and Agent and Lenders are willing to agree to such amendments and to
provide such consents, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Agent and
Lenders desire and intend to evidence such consents and amendments;
NOW THEREFORE, in consideration of the foregoing, and the respective
agreements and covenants contained herein, the parties hereto agree as follows:
1. 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:
(a) "Amendment No. 8" shall mean Consent and Amendment
No. 8 to Loan and Security Agreement by and among Borrowers,
Guarantors, Agent and the Lenders, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
(b) "Amendment No. 8 Effective Date" shall mean the first
date on which all of the conditions precedent to the effectiveness of
Amendment No. 8 shall have been satisfied or waived.
2. INDEBTEDNESS. Section 9.9(f)(i) of the Loan Agreement is
hereby amended by deleting "$81,000,000" and replacing it with "$91,000,000".
3. CONSENT TO PREPAYMENT AND AMENDMENT OF WHX SUBORDINATED NOTE.
Subject to the terms and conditions contained herein and notwithstanding
anything to the contrary contained in Section 9.9(j) of the Loan Agreement, in
the WHX Subordination Agreement or in the WHX Subordinated Note, Agent and
Lenders hereby consent to the prepayment by Parent of $10,000,000 of the
principal amount of Indebtedness of Parent to WHX evidenced by the WHX
Subordinated Note and the related amendment to the WHX Subordinated Note solely
to permit such prepayment; PROVIDED, THAT, (a) immediately prior to such
prepayment, Borrowers shall have received cash proceeds of loans made by the
Tranche B Term Loan Lenders, on or after the Amendment No. 8 Effective Date, in
the aggregate amount of $10,000,000 (the "New Tranche B Loans"), which loans
arise from Indebtedness permitted under Section 9.9(f) of the Loan Agreement,
(b) Agent shall have received true, correct and complete copies of the Tranche B
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Term Loan Lender Agreements and the amendment to the WHX Subordinated Note (to
the extent not previously delivered to Agent), which shall be in form and
substance satisfactory to Agent, as duly authorized, executed and delivered by
the parties thereto, (c) such prepayment shall be made on, or within five (5)
Business Days after, the Amendment No. 8 Effective Date, and (d) Borrowers shall
provide same day notice to Agent of receipt of the proceeds of the New Tranche B
Loans.
4. CONSENT TO PAYMENT OF A ONE-TIME CASH DIVIDEND. Subject to the
terms and conditions contained herein and notwithstanding anything to the
contrary contained in Section 9.11 of the Loan Agreement, Agent and Lenders
hereby consent to the payment of a one-time cash dividend by Borrowers to Parent
in an amount equal to the cash proceeds of the New Tranche B Loans received by
Borrowers; PROVIDED, THAT, (a) such dividend shall be paid immediately after
Borrowers receive the cash proceeds of the New Tranche B Loans, (b) Parent shall
immediately apply the proceeds of such dividend to prepay the principal amount
of Indebtedness of Parent to WHX evidenced by the WHX Subordinated Note, and (c)
such dividend shall be paid with funds legally available therefor.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Borrower and
Guarantor hereby represents, warrants and covenants to Agent and Lenders the
following (which shall survive the execution and delivery of this Amendment No.
8), 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) this Amendment No. 8 and each other agreement or
instrument to be executed and delivered by Borrowers and Guarantors in
connection herewith (collectively, together with this Amendment No. 8,
the "Amendment Documents") have been duly authorized, executed and
delivered by all necessary action on the part of each of the Borrowers
and Guarantors which is a party hereto and thereto and, if necessary,
their respective stockholders and is in full force and effect as of the
date hereof and the agreements and obligations of each of the Borrowers
and Guarantors contained herein and therein constitute the legal, valid
and binding obligations of each of the Borrowers and Guarantors,
enforceable against them in accordance with their terms, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the enforcement of
creditors' rights generally and except to the extent that availability
of the remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding therefor may
be brought;
(b) the execution, delivery and performance of this
Amendment No. 8 and the other Amendment Documents, (a) are all within
each Borrower's and Guarantor's corporate powers and (b) are not in
contravention of law or the terms of any Borrower's or Guarantor's
certificate or articles of incorporation, by laws, or other
organizational documentation, or any indenture, agreement or
undertaking (including, without limitation, the Tranche B Term Loan
Agreement) to which any Borrower or Guarantor is a party or by which
any Borrower or Guarantor or its property are bound;
(c) no Default or Event of Default exists or has occurred
and is continuing;
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(d) the Tranche B Amendment (as defined below) has been
executed and delivered by all parties thereto and is in full force and
effect;
(e) all of the representations and warranties set forth
in the Loan Agreement and the other Financing Agreements, each as
amended hereby, are true and correct in all material respects on and as
of the date hereof, as if made on the date hereof, except to the extent
any such representation or warranty is made as of a specified date, in
which case such representation or warranty shall have been true and
correct as of such date.
6. 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 No. 8, duly
authorized, executed and delivered by Borrowers, Guarantors and
Required Lenders;
(b) Agent shall have received an amendment to the Tranche
B Term Loan Agreement (the "Tranche B Amendment"), in form and
substance satisfactory to Agent, duly authorized, executed and
delivered by each of the parties thereto, which Tranche B Amendment
shall be in full force and effect;
(c) Agent shall have received a true and correct copy of
any consent, waiver or approval to or of this Amendment No. 8 or any
other Amendment Documents which any Borrower or Guarantor is required
to obtain from any other Person, and such consent, waiver or approval
shall in form and substance satisfactory to Agent; and
(d) no Default or Event of Default shall exist or have
occurred and be continuing.
7. EFFECT OF THIS AGREEMENT. Except as expressly amended pursuant
hereto and except for the consents expressly granted herein, no other changes or
modifications to the Financing Agreements are intended or implied, and in all
other respects the Financing Agreements are hereby specifically ratified,
restated and confirmed by all parties hereto as of the Amendment No. 8 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 No.
8, the provisions of this Amendment No. 8 shall control.
8. FURTHER ASSURANCES. Borrowers and Guarantors shall execute and
deliver such additional documents and take such additional action as may be
requested by Agent to effectuate the provisions and purposes of this Amendment
No. 8.
9. GOVERNING LAW. The validity, interpretation and enforcement of
this Amendment No. 8 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.
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10. BINDING EFFECT. This Amendment No. 8 shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
11. HEADINGS. The headings listed herein are for convenience only
and do not constitute matters to be construed in interpreting this Amendment No.
8.
12. COUNTERPARTS. This Amendment No. 8 may be executed in any
number of counterparts, each of which shall be an original, but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment No. 8 by telefacsimile or other
electronic method of transmission shall have the same force and effect as the
delivery of an original executed counterpart of this Amendment No. 8. Any party
delivering an executed counterpart of this Amendment No. 8 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 No. 8.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 8
to be executed on the day and year first above written.
AGENT BORROWERS
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WACHOVIA BANK, NATIONAL HANDY & ▇▇▇▇▇▇
ASSOCIATION, as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ---------------------------
----------------------- Title: VP CFO
Title: Director ------------------------
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OMG, INC.
LENDERS
------- By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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WACHOVIA BANK, NATIONAL Title: VP
ASSOCIATION ------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CONTINENTAL INDUSTRIES, INC.
------------------------
Title: Director By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- ---------------------------
Title: VP
TEXTRON FINANCIAL CORPORATION ------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ MARYLAND SPECIALTY WIRE, INC.
------------------------
Title: Sr. Account Executive By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- ---------------------------
Title: VP
BANK OF AMERICA, N.A. ------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇▇ HANDY & ▇▇▇▇▇▇ TUBE COMPANY, INC.
------------------------
Title: SVP By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- ---------------------------
Title: VP
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CAMDEL METALS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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▇▇▇▇▇▇▇▇ METAL COATING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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MICRO-TUBE FABRICATORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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INDIANA TUBE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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HANDY & ▇▇▇▇▇▇ ELECTRONIC MATERIALS
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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SUMCO INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
GUARANTORS
HANDY & ▇▇▇▇▇▇ OF CANADA, LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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ELE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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ALLOY RING SERVICE INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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▇▇▇▇▇▇ RADIATOR CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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H&H PRODUCTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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HANDY & ▇▇▇▇▇▇ AUTOMOTIVE GROUP,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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HANDY & ▇▇▇▇▇▇ INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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HANDY & ▇▇▇▇▇▇ PERU, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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KJ-VMI REALTY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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▇▇▇-▇▇▇▇ REALTY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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PLATINA LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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SWM, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
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WILLING B WIRE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP
------------------------