Exhibit 10.1
AMENDMENT NO. 5 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT dated and effective as
of June 30, 2005 by and among Titanium Metals Corporation, a Delaware
corporation ("Timet") and Titanium Hearth Technologies, Inc., a Delaware
corporation ("THT", and together with Timet, each individually, a "Borrower"
and, collectively, "Borrowers"), TIMET Millbury Corporation, an Oregon
corporation ("TIMET Millbury"), TIMET Castings Corporation, a Delaware
corporation ("TIMET Castings"), TIMET Finance Management Company, a Delaware
corporation ("TIMET Finance"), TMCA International, Inc., a Delaware corporation
("TMCA", and together with TIMET Millbury, TIMET Castings and TIMET Finance,
each individually, a "Guarantor" and, collectively, "Guarantors"), and Wachovia
Bank, National Association, successor by merger to Congress Financial
Corporation (Southwest) ("Lender").
W I T N E S S E T H
WHEREAS, Lender, Borrowers and Guarantors have entered into financing
arrangements pursuant to which Lender has made and may make loans and advances
and provide other financial accommodations to Borrowers as set forth in the Loan
and Security Agreement, dated February 25, 2000, by and among Lender and
Borrowers (as amended by Amendment No. 1 to Loan and Security Agreement dated
September 7, 2001, Amendment No. 2 to Loan and Security Agreement dated as of
October 23, 2002, Amendment No. 3 to Loan and Security Agreement dated as of
March 18, 2004 and Amendment No. 4 to Loan and Security Agreement dated as of
June 2, 2004 and as amended hereby and as the same may hereafter be further
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement") and the agreements, documents and instruments at any time
executed and/or delivered in connection therewith or related thereto
(collectively, together with the Loan Agreement, the "Financing Agreements");
and
WHEREAS, Borrowers and Guarantors have requested that Lender agree to
certain amendments to the Loan Agreement and Lender is willing to agree to such
amendments, subject to the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
and covenants set forth herein, and for other good and valuable consideration,
the adequacy and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions.
1.1 Additional Definition. As used herein, the following term shall have
the meaning given to it below and the Loan Agreement shall be deemed and is
hereby amended to include, in addition and not in limitation, the following
definition:
557873.3
"Amendment No. 5" shall mean this Amendment No. 5 to the Loan and
Security Agreement by and among Borrowers, Guarantors, and Lender, as the
same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
1.2 Amendment to Definitions.
(a) The definition of "Inventory Loan Limit" set forth in Section 1.55
of the Loan Agreement is hereby deleted in its entirety and replaced with
the following:
"1.55 `Inventory Loan Limit' shall mean $95,000,000."
(b) The definition of "Maximum Credit" set forth in Section 1.60 of
the Loan Agreement is hereby deleted in its entirety and replaced with the
following:
"1.60 `Maximum Credit' shall mean $125,000,000."
1.3 Interpretation. For purposes of this Amendment, all terms used herein,
including but not limited to, those terms used and/or defined herein or in the
recitals hereto shall have the respective meanings assigned thereto in the Loan
Agreement as amended by this Amendment No. 5.
Section 2. Amendment to Loan Agreement.
2.1 Indebtedness. Section 9.9(d)(iii) is hereby amended by deleting all
references to "$25,000,000" in clause (A) of such Section and replacing each
reference with "$10,000,000".
2.2 Dividends and Redemptions. Section 9.11(k) of the Loan Agreement is
hereby amended by deleting all of the references to "$25,000,000" and replacing
each reference with "$10,000,000".
2.3 Excess Availability. Section 9.22 of the Loan Agreement is hereby
amended in its entirety to read as follows:
"9.22 Excess Availability. Borrowers shall have at all times Excess
Availability of not less than 10,000,000."
Section 3. Representations and Warranties. In addition to the continuing
representations and warranties heretofore or hereafter made by Borrowers and
Guarantors to Lender pursuant to the other Financing Agreements, each Borrower
and Guarantor hereby represents and warrants to Lender as follows (the truth and
accuracy of such representations and warranties are a continuing condition of
the making of Loans and providing Letter of Credit Accommodations by Lender,
shall survive the execution and delivery of Amendment No. 5, and shall be
incorporated into and made a part of the Financing Agreements:
3.1 No Default. No Event of Default or act, condition or event which with
notice or passage of time or both would constitute an Event of Default exists or
has occurred and is continuing on the date of this Amendment No. 5.
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3.2 Corporate Power and Authority. This Amendment No. 5 has been duly
executed and delivered by each Borrower and Guarantor and, if necessary,
approved by their respective shareholders, and is in full force and effect as of
the date of this Amendment No. 5. The agreements and obligations of each
Borrower and Guarantor contained in this Amendment No. 5 constitute legal, valid
and binding obligations of such Borrower and Guarantor enforceable against such
Borrower and Guarantor in accordance with their respective terms.
3.3 Consents. No action of, or filing with, or consent of any governmental
authority and no approval or consent of any other party, is required to
authorize, or is otherwise required in connection with, the execution, delivery
and performance of Amendment No. 5.
Section 4. Conditions Precedent. The effectiveness of this Amendment No. 5 shall
be subject to, Lender having received, in form and substance satisfactory to
Lender, each duly authorized, executed and delivered by the parties thereto (if
applicable):
4.1 an original of this Amendment No. 5; and
4.2 an original of the letter agreement, dated of even date herewith, by
and among Borrowers, Guarantors and Lender in the form of the letter agreement
attached as Exhibit A.
Section 5. Provisions of General Application.
5.1 Effect of this Amendment. Except as modified 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 of conflict between the terms of this Amendment No. 5 and the other
Financing Agreements, the terms of this Amendment No. 5 shall control. The Loan
Agreement and this Amendment No. 5 shall be read and construed as one agreement.
5.2 Additional Events of Default. The parties hereto acknowledge, confirm
and agree that the failure of Borrowers or Guarantors to comply with the
covenants, conditions and agreements contained herein shall constitute an Event
of Default under the Financing Agreements (subject to the applicable notice and
cure period, if any, with respect thereto provided for in the Loan Agreement as
in effect on the date hereof).
5.3 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 Amendment No. 5.
5.4 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 Texas.
5.5 Binding Effect. This Amendment No. 5 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
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5.6 Survival of Representations and Warranties. All representations and
warranties made in this Amendment No. 5 or any other document furnished in
connection with this Amendment No. 5 shall survive the execution and delivery of
this Amendment No. 5 and the other documents, and no investigation by Lender or
any closing shall affect the representations and warranties or the right of
Lender to rely upon them.
5.7 Counterparts. This Amendment No. 5 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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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 to
be duly executed and delivered by their authorized officers as of the date and
year first above written.
TITANIUM METALS CORPORATION
By: /s/ Bruce P. Inglis
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Title: Vice President Finance and Corporate
Controller
TITANIUM HEARTH TECHNOLOGIES, INC.
By: /s/ Bruce P. Inglis
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Title: Vice President and Treasurer
TMCA INTERNATIONAL, INC.
By: /s/ Bruce P. Inglis
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Title: Vice President and Treasurer
TIMET MILLBURY CORPORATION
By: /s/ Bruce P. Inglis
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Title: Vice President and Treasurer
TIMET CASTINGS CORPORATION
By: /s/ Bruce P. Inglis
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Title: Vice President and Treasurer
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
TIMET FINANCE MANAGEMENT
COMPANY
By: /s/ Greg Swalwell
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Title: Vice President
AGREED TO:
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WACHOVIA BANK, NATIONAL ASSOCIATION,
successor by merger to Congress Financial Corporation (Southwest)
By: /s/ M. Galovic Jr.
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Title: Vice President
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EXHIBIT A
TO
AMENDMENT NO. 5
Amendment No. 5 Fee Letter
[See Attached]
557873.3
B-1