Exhibit 4.4
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
----------------------------------------------
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (this "Amendment No.
3"), dated as of December 29, 2004, by and among Handy & Xxxxxx, a New York
corporation ("H&H"), Olympic Manufacturing Group, Inc., a Delaware corporation
("Olympic"), 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" and together with H&H, Olympic, Continental, Maryland Wire,
H&H Tube, Camdel, Xxxxxxxx, Micro-Tube, Indiana Tube, Xxxxx and H&H Electronic,
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") and Willing B Wire Corporation, a Delaware
corporation ("Willing" and together with each of 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"), Congress Financial Corporation, a Delaware 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 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, and Amendment No. 2 to Loan and Security
Agreement, dated as of October 29, 2004, 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 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 Xx. 0, Xxxxxxxxx, Xxxxxxxxxx, 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. DEFINITIONS.
(a) AMENDMENT TO DEFINITIONS.
(i) The definition of "Applicable Margin" in Section 1.8 of
the Loan Agreement is hereby amended by deleting such definition and replacing
it with the following:
"1.8 'Applicable Margin' shall mean, at any
time, as to the Interest Rate for Prime Rate Loans
and the Interest Rate for Eurodollar Rate Loans,
the applicable percentage (on a per annum basis)
set forth below if the Quarterly Average Excess
Availability for the immediately preceding fiscal
quarter is at or within the amounts indicated for
such percentage:
Applicable Prime Applicable Eurodollar
Rate Margin Rate Margin
----------- -----------
Revolving Revolving Term
Excess Availability Loans Term Loans Loans Loans
------------------- ----- ---------- ---------- -----
(a) $12,500,000 or more 0% .25% 1.75% 2.00%
(b) Equal to or greater .25% .50% 2.00% 2.25%
than $10,000,000 but
less than $12,500,000
(c) Less than $10,000,000 .50% .75% 2.25% 2.50%
PROVIDED, THAT, the Applicable Margin shall be calculated and
established once each fiscal quarter (commencing with the fiscal
quarter beginning January 1, 2005)."
(ii) The definition of "Continuing Reserves" in Section 1.27
of the Loan Agreement is hereby amended by deleting "5,000,000" and replacing it
with "$2,500,000."
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(iii) The definition of "Eligible Accounts" in Section 1.33
of the Loan Agreement is hereby amended by:
(A) inserting the following provision immediately
before the semicolon at the end of clause (e) of such definition: "; PROVIDED,
THAT, the chief executive office of the account debtor with respect to such
Accounts may be located outside of the United States of America or Canada
without the need to comply with the other requirements of this clause (e) so
long as the aggregate amount of all such Accounts does not exceed $1,000,000 at
any time" and
(B) deleting "fifteen (15%) percent" from clause
(m) of such definition and replacing it with "twenty-five (25%) percent."
(iv) The definition of "Interest Rate" in Section 1.69 of the
Loan Agreement is hereby amended by deleting clauses (a) and (b) of such
definition and replacing it with the following:
"(a) Subject to clauses (b) and (c) of this
definition below:
(i) as to Revolving Loans which are
Prime Rate Loans, a rate equal to one-half of one
(.50%) percent per annum in excess of the Prime Rate,
(ii) as to Revolving Loans which are
Eurodollar Rate Loans, a rate equal to two and
one-quarter (2.25%) percent per annum in excess of the
Adjusted Eurodollar Rate (in each case, based on the
Eurodollar Rate applicable for the Interest Period
selected by a Borrower, or by Administrative Borrower
on behalf of such Borrower, as in effect three (3)
Business Days after the date of receipt by Agent of
the request of or on behalf of such Borrower for such
Eurodollar Rate Loans in accordance with the terms
hereof, whether such rate is higher or lower than any
rate previously quoted to any Borrower or Guarantor).
(iii) as to Term Loans which are Prime
Rate Loans, a rate equal to three-quarters of one
(.75%) percent per annum in excess of the Prime Rate,
and
(iv) as to Term Loans which are
Eurodollar Rate Loans, a rate equal to two and
one-half (2.50%) percent per annum in excess of the
Adjusted Eurodollar Rate (in each case, based on the
Eurodollar Rate applicable for the Interest Period
selected by a Borrower, or by Administrative Borrower
on behalf of such Borrower, as in effect three (3)
Business Days after the date of receipt by Agent of
the request of or on behalf of such Borrower for such
Eurodollar Rate Loans in accordance with the terms
hereof, whether such rate is higher or lower than any
rate previously quoted to any Borrower or Guarantor).
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(b) Subject to clause (c) of this definition
below, effective as of the first (1st) day of the
second (2nd) month of each fiscal quarter (commencing
with the fiscal quarter beginning on or about January
1, 2005), the Interest Rate payable by Borrowers with
respect to Loans shall be increased or decreased, as
the case may be, (i) as to Revolving Loans which are
Prime Rate Loans, to the rate equal to the Applicable
Margin on a per annum basis in excess of the Prime
Rate, (ii) as to Revolving Loans which are Eurodollar
Rate Loans, to the rate equal to the Applicable Margin
on a per annum basis in excess of the Adjusted
Eurodollar Rate, (iii) as to Term Loans which are
Prime Rate Loans, to the Rate equal to the Applicable
Margin on a per annum basis in excess of the Prime
Rate and (iv) as to Term Loans which are Eurodollar
Rate Loans, to the rate equal to the Applicable Margin
on a per annum basis in excess of the Adjusted
Eurodollar Rate."
(v) The definition of "Specified Account Debtor" in Section
1.125 of the Loan Agreement is hereby amended by deleting such definition and
replacing it with the following:
"1.25 'Specified Account Debtors' shall mean,
collectively, (a) Carlyle Syntec, (b) Therma-Tru
Corp., (c) US Gympsum, (d) Whirlpool Corporation, (e)
Delphi Automotive, (f) Teradyne Corp., (g) Xxxx Corp.,
(h) Kyphon, Inc., (i) US Surgical, and (j) General
Electric Corporation."
(vi) The definition of "Specified Concentration Limit
Percentage" in Section 1.126 of the Loan Agreement is hereby amended by deleting
such definition and replacing it with the following:
"1.126 'Specified Concentration Limit
Percentage' shall mean, for any Specified Account
Debtor (a) thirty (30%) percent for each of US Gypsum,
Carlyle Syntec, and General Electric Corporation, (b)
forty (40%) percent for Kyphon, Inc., (c) fifty (50%)
percent for Therma-Tru Corp. and US Surgical, and (d)
sixty (60%) percent for each of Delphi Automotive,
Teradyne Corp., Whirlpool Corporation and Xxxx Corp."
(b) ADDITIONAL DEFINITIONS. As used herein, the following terms
shall have the following meanings given to them below and the Loan Agreement is
hereby amended to include, in addition and not in limitation, the following:
(i) "Amendment No. 3" shall mean Amendment No. 3 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.
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(ii) "Amendment No. 3 Effective Date" shall mean the first
date on which all of the conditions precedent to the effectiveness of Amendment
No. 3 shall have been satisfied or waived.
(iii) "Olympic Expansion Project" shall mean the expansion to
Olympic's facility located at 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx.
2. LETTER OF CREDIT FEE. Section 2.2(b) of the Loan Agreement is
hereby amended by deleting such Section and replacing it with the following:
"(b) In addition to any charges, fees or
expenses charged by any bank or issuer in connection
with the Letter of Credit Accommodations, Borrowers
shall pay to Agent, for the benefit of Lenders, a
letter of credit fee at a per annum rate equal to one
and three-quarters (1.75%) percent per annum on the
daily outstanding balance of the Letter of Credit
Accommodations for the immediately preceding month (or
part thereof), payable in arrears as of the first day
of each succeeding month, except that Agent may, and
upon the written direction of Required Lenders shall,
require Borrowers to pay to Agent for the benefit of
Lenders such letter of credit fee, at a rate equal to
three and three-quarters (3.75%) percent per annum on
such daily outstanding balance for: (i) the period
from and after the date of termination hereof until
Agent and Lenders have received full and final payment
of all Obligations (notwithstanding entry of a
judgment against any Borrower) and (ii) the period
from and after the date of the occurrence of an Event
of Default for so long as such Event of Default is
continuing as determined by Agent. Such letter of
credit fee shall be calculated on the basis of a three
hundred sixty (360) day year and actual days elapsed
and the obligation of Borrowers to pay such fee shall
survive the termination of this Agreement."
3. CONDITIONS TO CERTAIN LOANS AND LETTER OF CREDIT ACCOMMODATIONS.
Section 4 of the Loan Agreement is hereby amended by adding the following at the
end of such Section:
"4.3 CONDITIONS PRECEDENT TO REVOLVING LOANS
AND LETTER OF CREDIT ACCOMMODATIONS RELATING TO THE
OLYMPIC EXPANSION PROJECT. Each of the following is an
additional condition precedent to making each
Revolving Loan and/or providing each letter of Credit
Accommodations which will be used to finance (or
support) any of the costs or expenses associated with
the Olympic Expansion Project:
(a) All conditions precedent contain in
section 4.2 of the Loan Agreement shall
have been satisfied;
5
(b) Agent shall have received a
certificate, substantially in the form
of Exhibit E hereto, duly authorized,
executed and delivered by the chief
financial officer of Parent; and
(c) Agent shall have received, in form
and substance reasonably satisfactory to
Agent, a valid and effective endorsement
to the title insurance policy insuring
the lien created by the Mortgage
encumbering the Real Property in Agawam,
Massachusetts, issued by a company and
agent acceptable to Agent."
4. USE OF PROCEEDS. Section 6.6 of the Loan Agreement is hereby
amended by adding the following after the period at the end of such Section:
"None of the proceeds of the Revolving Loans or Letter of Credit Accommodations
will be used to finance any of the costs or expenses associated with the Olympic
Expansion Project unless the conditions contained in Section 4.3 hereof are
satisfied."
5. COLLATERAL REPORTING. Section 7.1(a) of the Loan Agreement is
hereby amended as follows:
(a) Section 7.1(a)(i) of the Loan Agreement is hereby amended by
deleting such Section and replacing it with the following:
"(i) on each Business Day, schedules of sales
made, credits issued and cash received; PROVIDED,
THAT, Borrowing Base Parties shall not be required to
comply with the terms of this clause (i) unless an
Event of Default shall have occurred or Excess
Availability was less than $4,500,000 for three (3)
consecutive days;"
(b) Section 7.1(a)(ii) of the Loan Agreement is hereby amended
by deleting such Section and replacing it with the following:
"(ii) on a weekly basis or more frequently as
Agent may request in good faith, (A) precious metal
inventory reports (broken down by Precious Metals
Inventory that is owned and Precious Metals Inventory
that is on consignment) by location, type and category
(and including the amounts of such Inventory and the
value thereof at any leased location and at premises
of warehouses, processors or third parties) and (B) a
Borrowing Base Certificate setting forth the
calculation of the Borrowing Base as of the last
Business Day of the immediately preceding week as to
Accounts and Precious Metals Inventory and as of the
last Business Day of the immediately preceding month
as to Inventory (other than Precious Metals
Inventory), duly completed and executed by the chief
6
financial officer of Administrative Borrower, together
with all schedules required pursuant to the terms of
the Borrowing Base Certificate duly completed
(including a schedule of all Accounts of each
Borrowing Base Party created, collections received and
credit memos issued on a daily basis);"
(c) Section 7.1(a)(iii)(E) is hereby amended by deleting such
Section and replacing it with the following:
"(E) [Intentionally Deleted],"
6. SCHEDULES AND EXHIBITS TO LOAN AGREEMENT. The Loan Agreement is
hereby amended by adding a new Exhibit E to the Loan Agreement in the form of
Exhibit A attached to this Amendment No. 3.
7. SIGNATURE PAGES. The signature pages to the Loan Agreement are
hereby amended by deleting "CAMDEL METAL COATING CORPORATION" and replacing it
with "CAMDEL METALS CORPORATION".
8. AMENDMENT FEE. In addition to all other fees, charges, interest
and expenses payable by Borrowers to Agent and Lenders under the Loan Agreement
and other Financing Agreements, Borrowers shall pay to Agent, for the account of
Lenders, an amendment fee in the amount of $75,000, which shall be fully earned,
due and payable as of the date hereof and which may be charged directly to any
loan account of Borrowers maintained by Agent.
9. 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.
3), the truth and accuracy of which are a continuing condition of the making of
Loans and providing Letter of Credit Accommodations to Borrowers:
(a) This Amendment No. 3 and each other agreement or instrument
to be executed and delivered by Borrowers and Guarantors in connection herewith
(collectively, together with this Amendment No. 3, 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, as the case may be, and the agreements and obligations of
each of the Borrowers and Guarantors, as the case may be, 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 generally the
enforcement of creditors' rights 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. 3 (a) are all within each Borrower's and Guarantor's corporate or limited
liability company powers and (b) are not in contravention of law or the terms of
7
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 Indenture or 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.
(d) The Intercreditor Amendment (as defined below) has been
executed and delivered by all parties thereto and is in full force and effect.
(e) All structures and other improvements constructed in
connection with the Olympic Expansion Project have been or will be constructed
in compliance with all set back requirements and within the boundaries of the
Real Property located at 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Agawam
Real Property"), which is encumbered by the Mortgage made by Olympic in favor of
Agent.
(f) Borrowers shall deliver or cause to be delivered to Agent
(i) promptly upon substantial completion of the Olympic Expansion Project, an as
built survey of the structure and other improvements constructed in connection
with the Olympic Expansion Project (the "New Structures"), (ii) promptly upon
the Borrowers' receipt thereof, copies of temporary certificates of occupancy
with respect to the New Structures issued by a Governmental Authority, (iii)
promptly upon completion of the New Structures, a permanent certificate of
occupancy with respect to the New Structures issued by a Governmental Authority,
and (iv) promptly upon completion of the New Structures, such endorsements to
the existing title policy as may be reasonably requested by Agent.
(g) 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.
10. 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. 3, duly
authorized, executed and delivered by Borrowers, Guarantors and Lenders;
(b) Agent shall have received an amendment to the Intercreditor
Agreement (the "Intercreditor Amendment"), in form and substance satisfactory to
Agent, duly authorized, executed and delivered by Tranche B Term Loan Agent and
acknowledged by Borrowers and Guarantors, which Intercreditor 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. 3 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;
8
(d) Agent shall have received the construction schedule relating
to the Olympic Expansion Project, the plans and specifications for the Olympic
Expansion Project, and the project cost estimate for the Olympic Expansion
Project; and
(e) no Default or Event of Default shall exist or have occurred
and be continuing.
11. EFFECT OF THIS AGREEMENT. Except as expressly amended pursuant
hereto, 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 effective date hereof. 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. 3, the provisions of this Amendment No. 3 shall
control.
12. 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. 3.
13. GOVERNING LAW. The validity, interpretation and enforcement of
this Agreement 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.
14. BINDING EFFECT. This Amendment No. 3 shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
15. HEADINGS. The headings listed herein are for convenience only
and do not constitute matters to be construed in interpreting this Amendment No.
3.
16. COUNTERPARTS. This Amendment No. 3 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. 3 by telefacsimile shall have the same force
and effect as the delivery of an original executed counterpart of this Amendment
No. 3. Any party delivering an executed counterpart of this Amendment No. 3 by
telefacsimile shall also deliver an original executed counterpart, but the
failure to do so shall not affect the validity, enforceability or binding effect
of such agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 3 to be executed on the day and year first above written.
AGENT BORROWERS
----- ---------
CONGRESS FINANCIAL CORPORATION, HANDY & XXXXXX
as Agent
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- -----------------------------------
Title: First Vice President Title: Vice President - CFO
OLYMPIC MANUFACTURING GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
LENDERS
-------
CONGRESS FINANCIAL CORPORATION CONTINENTAL INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- -----------------------------------
Title: First Vice President Title: Vice President
TEXTRON FINANCIAL CORPORATION MARYLAND SPECIALTY WIRE, INC.
By: /s/ Xxxx Kalliomoa By: /s/ Xxxxxx X. Xxxxx
-------------------------- -----------------------------------
Title: Senior Account Executive Title: Vice President
BANK OF AMERICA, N.A. HANDY & XXXXXX TUBE COMPANY, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- -----------------------------------
Title: Authorized Officer Title: Vice President
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
CAMDEL METALS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
XXXXXXXX METAL COATING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Secretary
MICRO-TUBE FABRICATORS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
INDIANA TUBE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
XXXXX-XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
HANDY & XXXXXX ELECTRONIC MATERIALS
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
SUMCO INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
GUARANTORS
----------
HANDY & XXXXXX OF CANADA, LIMITED
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
ELE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
ALLOY RING SERVICE INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
XXXXXX RADIATOR CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
H&H PRODUCTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
HANDY & XXXXXX AUTOMOTIVE GROUP,
INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
HANDY & XXXXXX PERU, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
KJ-VMI REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
XXX-XXXX REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
PLATINA LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
SHEFFIELD STREET CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
SWM, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
WILLING B WIRE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
Exhibit A to
Amendment No. 3
Exhibit E
OFFICER'S CERTIFICATE
To: Congress Financial Corporation, as Agent
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I hereby certify to you pursuant to Section 4.3 of the Loan
Agreement (as defined below) as follows:
1. I am the duly elected Chief Financial Officer of Handy & Xxxxxx,
a New York corporation ("Parent"). Capitalized terms used herein without
definition shall have the meanings given to such terms in the Loan and Security
Agreement, dated March 31, 2004, by and among Congress Financial Corporation, as
agent for the financial institutions party thereto as lenders (in such capacity,
"Agent"), the financial institutions party thereto as lenders (collectively,
"Lenders"), Parent and certain of its affiliates (as such Loan and Security
Agreement is amended, modified or supplemented, from time to time, the "Loan
Agreement").
2. I am familiar with the matters relating to the Olympic Expansion
Project and the construction of the structure located at 000 Xxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxxxx (the "Property").
3. This Certificate is being delivered in connection with a
Revolving Loan or a Letter of Credit Accommodation which will be used to finance
(or support) costs or expenses associated with the Olympic Expansion Project
(such Loan or Letter of Credit Accommodation is hereinafter referred to as a
"Specified Extension of Credit").
4. The Specified Extension of Credit shall be used solely for the
purpose of continuing the construction and/or completion of the Olympic
Expansion Project in accordance with plans and specifications plans and
specifications therefor which have been previously submitted to Agent (the
"Plans"). No material changes or amendments to the Plans have been made except
as previously disclosed to Agent in writing. The Olympic Expansion Project is to
be completed in accordance with a construction schedule relating to the Olympic
Expansion Project previously submitted to Agent (the "Construction Schedule")
and the project cost estimate for the Olympic Expansion Project previously
submitted to Agent (the "Project Cost Estimate"), except as disclosed to Agent
in writing.
5. As of the date hereof, all approvals required to be received from
any Governmental Authority with respect to the Olympic Expansion Project are in
full force and effect.
6. As of the date hereof, all work for which funds under the
Specified Extension of Credit are requested has been completed in accordance
with Plans and the Project Cost Statement.
7. As of the date hereof, lien waivers from payees under requests
for funds under any previous Specified Extensions of Credit are attached hereto;
8. As of the date hereof, there are sufficient funds remaining in
the Project Cost Estimate to complete the construction of the Olympic Expansion
Project.
9. As of the date hereof, construction of the Olympic Expansion
Project complies with all applicable laws, rules, restrictions, orders and
regulations;
10. As of the date hereof, the Olympic Expansion Project can be
completed in accordance with the Construction Schedule.
The foregoing certifications are made and delivered this day of
___________, 20__.
Very truly yours,
HANDY & XXXXXX
By:_______________________
Title:_____________________