Exhibit 4.1
AMENDMENT NO. 24 TO LOAN AND
SECURITY AGREEMENT
AMENDMENT NO. 24 TO LOAN AND SECURITY AGREEMENT
(this “Amendment”), dated as of July 31, 2009, by and
among Handy & Harman, 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 &
Harman Tube Company, Inc., a Delaware corporation (“H&H
Tube”), Camdel Metals Corporation, a Delaware corporation
(“Camdel”), Canfield Metal Coating Corporation, a
Delaware corporation (“Canfield”), Micro-Tube
Fabricators, Inc., a Delaware corporation
(“Micro-Tube”), Indiana Tube Corporation, a Delaware
corporation (“Indiana Tube”), Lucas-Milhaupt, Inc., a
Wisconsin corporation (“Lucas”), Handy & Harman
Electronic Materials Corporation, a Florida corporation
(“H&H Electronic”), Sumco Inc., an Indiana
corporation (“Sumco”), OMG Roofing, Inc., a Delaware
corporation (“OMG Roofing”), OMNI Technologies
Corporation of Danville, a New Hampshire corporation
(“OMNI” and together with Parent, OMG, Continental,
Maryland Wire, H&H Tube, Camdel, Canfield, Micro-Tube, Indiana
Tube, Lucas, H&H Electronic, Sumco and OMG Roofing, each
individually, a “Borrower” and collectively,
“Borrowers”), Handy & Harman of Canada, Limited, an
Ontario corporation (“H&H Canada”), ele
Corporation, a California corporation (“ele”), Alloy
Ring Service Inc., a Delaware corporation (“Alloy”),
Daniel Radiator Corporation, a Texas corporation
(“Daniel”), H&H Productions, Inc., a Delaware
corporation (“H&H Productions”), Handy & Harman
Automotive Group, Inc., a Delaware corporation (“H&H
Auto”), Handy & Harman International, Ltd., a Delaware
corporation (“H&H International”), Handy &
Harman Peru, Inc., a Delaware corporation (“H&H
Peru”), KJ-VMI Realty, Inc., a Delaware corporation
(“KVR”), Pal-Rath Realty, Inc., a Delaware corporation
(“Pal-Rath”), 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”),
The 7 Orne Street Nominee Trust, a Massachusetts nominee trust
(“Orne Street Trust”), The 28 Grant Street Nominee
Trust, a Massachusetts nominee trust (“28 Grant Street
Trust”), 20 Grant Street Nominee Trust, a Massachusetts
nominee trust (“20 Grant Street Trust” and together
with H&H Canada, ele, Alloy, Daniel, H&H Productions,
H&H Auto, H&H International, H&H Peru, KVR, Pal-Rath,
Platina, Sheffield, Willing, Orne Street Trust and 28 Grant Street
Trust, each a “Guarantor” and collectively,
“Guarantors”), Wachovia Bank, National
Association, a national banking association that is successor by
merger to Congress Financial Corporation, in its capacity as agent
pursuant to the Loan Agreement (as hereinafter defined) acting for
the financial institutions party thereto as lenders (in such
capacity, together with its successors and assigns,
“Agent”), and the financial institutions party thereto
as lenders (collectively, “Lenders”).
W I T N E S S E T
H:
WHEREAS, Agent, Lenders, Borrowers and
Guarantors have entered into financing arrangements pursuant to
which Lenders (or Agent on behalf of Lenders) have made and
provided and may hereafter make and provide loans, advances and
other financial accommodations to Borrowers as set forth in the
Loan and Security Agreement, dated March 31, 2004, by and among
Agent, Lenders, Borrowers and Guarantors, as amended by Consent and
Amendment No. 1 to Loan and Security Agreement, dated as of August
31, 2004, Amendment No. 2 to Loan and Security Agreement, dated as
of October 29, 2004, Amendment No. 3 to Loan and Security
Agreement, dated as of December 29, 2004, Amendment No. 4 to Loan
and Security Agreement, dated as of May 20, 2005, Amendment
No. 5 to Loan and Security Agreement, dated as of September 8,
2005, Amendment No. 6 and Waiver to Loan and Security Agreement,
dated as of December 29, 2005, Consent and Amendment No. 7 to Loan
and Security Agreement, dated as of January 24, 2006, Consent and
Amendment No. 8 to Loan and Security Agreement, dated as of March
31, 2006, Amendment No. 9 to Loan and Security Agreement, dated as
of July 18, 2006, Amendment No. 10 to Loan and Security Agreement,
dated as of October 30, 2006, Amendment No. 11 and Waiver to Loan
and Security Agreement, dated as of December 28, 2006, Amendment
No. 12 and Consent to Loan and Security Agreement, dated as of
December 28, 2006, Amendment No. 13 and Waiver to Loan and Security
Agreement, dated as of March 29, 2007, Amendment No. 14 to Loan and
Security Agreement, dated as of July 20, 2007, Amendment No. 15 to
Loan and Security Agreement, dated as of September 10, 2007,
Amendment No. 16 to Loan and Security Agreement, dated as of
November 5, 2007, Amendment No. 17 to Loan and Security Agreement,
dated as of January 11, 2008, Amendment No. 18 to Loan and
Security Agreement, dated as of February 14, 2008, Amendment No. 19
to Loan and Security Agreement, dated as of February 14, 2008,
Amendment No. 20 to Loan and Security Agreement, dated as of
September 26, 2008, Amendment No. 21 to Loan and Security
Agreement, dated as of October 29, 2008, Amendment No. 22 to Loan
and Security Agreement, dated as of March 12, 2009, and
Amendment No. 23 to Loan and Security Agreement, dated as of May 8,
2009 (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 have requested that Agent and
Lenders make certain amendments to the Loan Agreement and the
other Financing Agreements, and Agent and Lenders are willing to
make such amendments, subject to terms and conditions set forth
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.
24” shall mean Amendment No. 24 to Loan and Security
Agreement, dated as of July 31, 2009, 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. 24
Effective Date” shall mean the first date on which all of the
conditions precedent to the effectiveness of Amendment No. 24 shall
have been satisfied or shall have been waived by Agent.
(iii) “Specified AIG
Insurance Proceeds” shall mean the insurance proceeds which
may be received by Parent and/or one of its Subsidiaries after the
Amendment No. 24 Effective Date in connection with the settlement
of litigation commenced by Parent against AIG for coverage of
remediation and legal expenses under an environmental insurance
policy Parent purchased in 2004 in connection with the Fairfield,
Connecticut remediation project.
(iv) “Specified Chubb
Insurance Proceeds” shall mean the insurance proceeds in the
amount of $3,000,000 received by Parent on or about July 31, 2009
in connection with a settlement agreement with Chubb for
reimbursement of remediation expenses for five sites where Parent
and/or its subsidiaries had incurred environmental remediation
expenses.
(b) Amendment to Definitions
.
(i) Consolidated Net
Income . The definition of “Consolidated Net
Income” in Section 1.26 of the Loan Agreement is hereby
amended by deleting the second parenthetical appearing in such
definition in its entirety and replacing it with the
following:
“(excluding to the extent included therein
any extraordinary or non-recurring gains or any non-cash
losses)”.
(ii) 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 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) non cash accruals for
such period for environmental liabilities (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 previously added back pursuant to this clause
(e) and which remain accruals does not exceed $3,000,000),
minus (f) cash expenses incurred during such period in
connection with environmental liabilities to the extent accruals
relating to such environmental liabilities were added back pursuant
to clause (e) of this definition, plus (g) the one-time
environmental remediation cash expenses (not to exceed $1,000,000)
incurred by Borrowers on or after January 1, 2010 in connection
with the Shpack landfill site located in Attleboro, Massachusetts,
plus (h) 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),
minus (i) 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).”
(iii) Intercreditor
Agreement . The definition of “Intercreditor
Agreement” in Section 1.66 of the Loan Agreement is hereby
amended by deleting such definition in its entirety and replacing
it with the following:
“1.66 ‘Intercreditor
Agreement’ shall mean the Intercreditor and Subordination
Agreement, dated as of February 14, 2008, as amended by
Amendment No. 1 to Intercreditor and Subordination Agreement, dated
as of October 29, 2008, Amendment No. 2 to Intercreditor and
Subordination Agreement, dated as of March 12, 2009, and Amendment
No. 3 to Intercreditor and Subordination Agreement, dated as of the
Amendment No. 24 Effective Date, by and among
Agent, Bairnco Agent and Tranche B Term Loan Agent, as
acknowledged and agreed by Borrowers and Guarantors, as the same
now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.”
(c) Interpretation
. Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto
in the Loan Agreement.
2.
Mandatory Prepayments . Section 2.4(a) of the
Loan Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(a) Upon the receipt by any
Borrower or any of its Subsidiaries of any Extraordinary Receipts,
Borrowers shall immediately prepay the Obligations as set forth
below, in an amount equal to 100% of such Extraordinary Receipts,
net of any reasonable expenses incurred in collecting such
Extraordinary Receipts;
(i) if such Extraordinary Receipts are the
proceeds of Inventory or Accounts, then such proceeds shall be
applied, first , to the outstanding principal amount of the
Revolving Loans, second , to the outstanding principal
amount of the Term Loans, and third , to the outstanding
principal amount of the Term B Loan;
(ii) if such Extraordinary Receipts are
the proceeds of any Collateral (other than Inventory, Accounts, the
Specified Chubb Insurance Proceeds or the Specified AIG Insurance
Proceeds), then such proceeds shall be applied, first , to
the outstanding principal amount of the Term Loans, and
second , at Borrowers’ option, to either (A) the
outstanding principal amount of the Term B Loan or (B) the
outstanding principal amount of the Revolving Loans so long as (in
the case of this clause (B) only) Agent establishes and
maintains a permanent Reserve in an amount equal to the amount of
such Net Proceeds that are so applied by the prepayment of the
Revolving Loans;
(iii) if such Extraordinary Receipts are
the Specified Chubb Insurance Proceeds, then such proceeds shall be
applied to the outstanding principal amount of the Term Loans;
and
(iv) if such Extraordinary Receipts are
the Specified AIG Insurance Proceeds, then such proceeds shall be
applied, first , to the outstanding principal amount of the
Term B Loan in an amount not to exceed $1,000,000, second
, to the outstanding principal amount of the Term
