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EXHIBIT 10.11.3
AMENDMENT NO. 5 TO
LOAN AND SECURITY AGREEMENT
XXXXX INDUSTRIES, INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
August 10, 1999
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation ("Lender") and Xxxxx Industries, Inc.
("Borrower") have entered into certain financing arrangements pursuant to the
Loan and Security Agreement, dated as of August 4, 1993, between Lender and
Borrower, as amended pursuant to Amendment No. 1 to Loan and Security Agreement,
dated January 31, 1996, Amendment No. 2 to Loan and Security Agreement, dated
July 3, 1996, Amendment No. 3 to Loan and Security Agreement, dated August 28,
1997 and Amendment No. 4 to Loan and Security Agreement, dated January 19, 1999
(as further amended hereby and as the same may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement", and
together with all agreements, documents and instruments at any time executed
and/or delivered in connection therewith or related thereto, collectively, the
"Financing Agreements").
Borrower has requested and certain additional amendments to the Loan
Agreement and Lender is willing to agree to such amendments, subject to the
terms and conditions contained herein. By this Amendment, Lender and Borrower
desire and intend to evidence such extension and amendments. All capitalized
terms used herein shall have the meaning assigned thereto in the other Financing
Agreements, unless otherwise defined herein.
In consideration of the foregoing, and the respective agreements and
covenants contained herein, the parties hereto agree as follows:
1. Transactions with Affiliates.
(a) Section 6.6(b) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
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"(b) Borrower may (i) pay any dividend or any other
distribution on account of any shares of any class of capital stock of
Borrower now or hereafter outstanding, and (ii) make any loans or
advance money or property to any such persons, (iii) guarantee, assume,
endorse, or otherwise become responsible for (directly or indirectly)
the Indebtedness, performance, obligations or dividends of any such
person and (iv) make any payments in respect of any Indebtedness owing
to Renco Metals (whether arising pursuant to payments made by Renco
Metals on behalf of Borrower or otherwise); PROVIDED, THAT, in each
case as to any of the foregoing, each of the following conditions is
satisfied as determined by Lender:
(A) no Event of Default, or act, condition or event which
with notice or passage of time or both would constitute an Event of
Default shall have occurred and be continuing at the time of or
after giving effect to any such payments or incurring any such
obligations,
(B) any dividends or other distributions as described in
Section 6.6(b)(i) above shall be out of funds legally available
therefor, and
(C) as of the date of any such payments or the incurrence
of any such obligations, as the case may be, and after giving effect
thereto, the aggregate amount of all such payments made or such
obligations incurred after July 3, 1996 shall not exceed the amount
equal to fifty (50%) percent of: (1) the cumulative Consolidated Net
Income of Renco Metals (or if the cumulative Consolidated Net Income
shall be a loss, minus one hundred (100%) percent of such loss)
earned subsequent to July 3, 1996 and prior to the date the payment
occurs or the obligation is incurred (treating such period as a
single accounting period) MINUS (2) all payments made or obligations
incurred by Magcorp during the same period and of the same type or
nature described in Sections 6.6(b)(i), 6.6 (b)(ii) and 6.6(b)(iii)
above or Section 6.6(i) below and all payments made by Borrower
pursuant to Section 6.6(i) below for federal, state and local income
taxes based on the taxable income of the immediately preceding
fiscal year,"
(b) Section 6.6(c) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"(c) Borrower may make payments to Renco Group or an affiliate
of Renco Group on behalf of Renco Metals pursuant to the tax sharing
arrangement between Renco Metals and Renco Group (as in effect on the
date hereof); PROVIDED, THAT, (i) Borrower is included in the
consolidated federal income tax return filed by Renco Group or an
affiliate of Renco Group as to which Borrower is making such payments
for the 1998 tax year or any prior year, or for any taxable period
during which Borrower joins with Renco Group or an affiliate of Renco
Group in filing any combined or consolidated (or similar) state or
local income tax return for a jurisdiction which does not recognize
Renco Metals and its Subsidiaries as QSSS (as defined in Section
6.6(i)hereof), (ii) the payments in any year shall not exceed the
federal income tax liability that Borrower and its Subsidiaries would
have been liable for if Borrower and its Subsidiaries had filed its tax
returns on a
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stand-alone basis except that Borrower will not have the benefit of any
of its tax loss carryforwards and any intercompany items shall, for tax
liability purposes, be recorded on a cash basis rather than on an
accrual basis, and (iii) such payments shall be made by Borrower no
earlier than five (5) days prior to the date on which Renco Group or an
affiliate of Renco Group is required to make its payments to the
Internal Revenue Service or to a state or local jurisdiction described
in Section 6.6(c)(i) hereof,"
(c) The following is hereby added as a new Section 6.6(i) to
the Loan Agreement:
"(i) With respect to any year that Renco Metals and its
Subsidiaries have effectively been designated as qualified Subchapter S
subsidiary companies ("QSSS") under the Code, Borrower may pay cash
dividends to Renco Metals, from legally available funds therefor, to
the extent taxable income of Borrower is required to be included in the
taxable income shown by Renco Group as reported in its subchapter S tax
returns ("Form 1120S"), subject to the following:
(A) Such cash dividends shall be in any such period, in an
amount up to the product of (1) the taxable income of Borrower and
its Subsidiaries for such period which is the basis for Renco Group
being required to include such taxable income in its Form 1120S, as
amended or modified or determined by audit, and the required
estimated taxable income related thereto and the comparable state
and local reports and estimated taxable income, multiplied by (2)
the corporate Federal, State and local tax rates, whether calculated
on regular taxable income or alternative minimum taxable income, as
applicable, in effect for the taxable period applicable to Borrower
and its Subsidiaries using the rates that would be applicable if
Borrower and its Subsidiaries were not QSSS and calculated in
accordance with the tax sharing arrangement between Renco Metals and
Renco Group (as in effect on the date hereof),
(B) Borrower may pay such cash dividends for any period so
long as(1) in such period, Renco Metals and its Subsidiaries are
effectively designated QSSS, (2) the product of the taxable income
of Borrower and its Subsidiaries for such period multiplied by the
applicable tax rates as described above shall be reduced by any
applicable tax credits or deductions calculated in accordance with
the tax sharing arrangement between Renco Metals and Renco Group (as
in effect on the date hereof) available to Borrower and its
Subsidiaries which would reduce the amount of the income taxes
payable by Borrower and its Subsidiaries, (3) any such dividends
shall be paid no more than five (5) days prior to the date that
Renco Group's shareholders are required to make payment of the taxes
based on the taxable income of Renco Metals and its Subsidiaries,
(4) not less than five (5) days prior to the payment of any such
dividends, Lender shall have received a certificate signed by an
officer of Borrower, in form and substance satisfactory to Lender,
stating the calculation of the amount which is the basis for tax
distributions permitted hereunder through such period (if any) and
providing full information and computations with respect thereto and
(5) such dividend shall not be in violation of applicable law or any
other agreement to which Renco Metals or Borrower are a party or by
which Borrower or its assets are bound, and
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(C) In no event shall dividends be paid to Renco Metals
based on taxable income of Borrower and its Subsidiaries for
jurisdictions which do not recognize Renco Metals and its
Subsidiaries as QSSS and where (1) Borrower and its Subsidiaries are
required to file and pay their individual taxes and (2) Renco Group
is not required to pay, or by virtue of a consolidated (or similar)
tax return does not make payments in respect of, the tax liabilities
of Borrower or any of its Subsidiaries in such jurisdiction."
2. Dividends. Section 6.7(b) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"(b) Borrower may pay dividends to Renco Metals to the extent
permitted under Sections 6.6 (b) and 6.6 (i) hereof."
3. Conditions Precedent. The effectiveness of the other terms and
provisions contained herein shall be subject to the receipt by Lender of an
original of this Amendment, duly authorized, executed and delivered by Borrower.
4. Effect of this Agreement. Except as modified pursuant hereto, no
other changes or modifications in the Loan Agreement or the other Financing
Agreements are intended or implied and the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
affective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control.
5. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York.
6. 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.
7. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
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8. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Agreement.
Very truly yours,
XXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxx
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Title: Vice President
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AGREED: CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx X. Last
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Title: First Vice President
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