sif-20240927FALSE000009016800000901682022-03-232022-03-23
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) – September 27, 2024
SIFCO Industries, Inc.
(Exact name of registrant as specified in its charter)
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Ohio | | 1-5978 | | 34-0553950 |
(State or other jurisdiction of incorporation) | | (Commission File Number) | | (IRS Employer Identification No.) |
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970 East 64th Street, Cleveland Ohio | | 44103 |
(Address of principal executive offices) | | (ZIP Code) |
Registrant’s telephone number, including area code: (216) 881-8600
N.A.
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Common Shares | | SIF | | NYSE American |
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| Item 1.01 | Entry into Material Definitive Agreements. |
Amendment to Share Purchase Agreement.
On September 27, 2024, SIFCO Irish Holdings Ltd., a wholly-owned subsidiary of SIFCO Industries, Inc. (“Seller”) entered into the Amendment (the “Amendment to Share Purchase Agreement”) to the Share Purchase Agreement (the “Share Purchase Agreement”) by and between Seller and TBS S.r.l. (“Buyer) related to the sale of SIFCO’s C Blade business as reported on the Form 8-K filed on August 6, 2024. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Share Purchase Agreement.
The Amendment to Share Purchase Agreement amends the Share Purchase Agreement to, among other things (a) reflect the agreement of Buyer and Seller to extend the outside Closing Date of the transactions contemplated thereby from September 30, 2024 to November 6, 2024 to take into account the Golden Power authorization of the transaction that remains pending as of the date of the Amendment to Share Purchase Agreement; (b) memorialize the agreement of Buyer and Seller (i) that the Conditions provided for in Schedule 1 of the Share Purchase Agreement, except for the grant of the Golden Power authorization, have been duly satisfied as of the date of the Amendment to Share Purchase Agreement, or waived by the Buyer in accordance with Clause 2.1 thereof; and (ii) that the Parties intend to proceed to Closing as quickly as possible upon the release of Golden Power authorization, within two (2) Business Days from the grant of such authorization in a date and time to be agreed between the Parties in good faith; (c) authorize a credit in the amount of €100,000 in favor of Seller to be remitted in the event the Closing Date shall not occur by October 4, 2024; (d) require the payment of interest on the Purchase Price at a daily rate of sixteen percent (16%) per annum starting from October 5, 2024 and up to and including the Closing Date, which interest shall be paid by Buyer to Seller in cash at Closing; and (e) reflect the agreement of Buyer and Seller that the Agreement shall automatically terminate and cease to have effect (subject to the provisions of Clause 2.3 thereof) in the event no Closing occurs on or before November 6, 2024.
The foregoing description of the Amendment to Share Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment to Share Purchase Agreement, attached to this Form 8-K as Exhibit 10.1, and incorporated herein by reference.
Eleventh Amendment to Credit Agreement; Sixth Amendment to Export Credit Agreement.
On September 30, 2024, SIFCO Industries, Inc. and certain of its subsidiaries (collectively, the “borrowers”) entered into the Eleventh Amendment (the “Eleventh Amendment”) to the Credit Agreement (as previously amended, the “Credit Agreement”) and the Sixth Amendment (the “Sixth Amendment”) to the Export Credit Agreement (the “Export Credit Agreement”), in each case, with JPM Morgan Chase Bank, N.A. (the “Lender”). Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Eleventh Amendment.
The Eleventh Amendment amends the Credit Agreement to delay the maturity date from October 4, 2024 (or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms of the Credit Agreement) to November 6, 2024 or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms of the Credit Agreement or under the Ex-Im Bank Documents.
The Lender’s agreement to the Eleventh Amendment is subject to the satisfaction by borrowers of certain conditions outlined in the Eleventh Amendment, including the receipt by the Lender of fully executed copies of the Sixth Amendment and such other documents as disclosed on the closing list provided to borrowers prior to the date of the Eleventh Amendment (including, specifically, the First Amendment to the Subordination and Intercreditor Agreement and First Amendment to Subordinated Secured Promissory Note described below).
The Sixth Amendment amends the Export Credit Agreement to delay the maturity date from October 4, 2024 (or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms of the Export Credit Agreement) to November 6, 2024 or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms of the Export Credit Agreement or under the Ex-Im Bank Documents.
The Lender’s agreement to the Sixth Amendment is subject to the satisfaction by borrowers of certain conditions outlined in the Sixth Amendment, including the receipt by the Lender of fully executed copies of the Eleventh Amendment and such other documents as disclosed on the closing list provided to borrowers prior to the date of the Sixth Amendment (including, specifically, the First Amendment to the Subordination and Intercreditor Agreement and First Amendment to Subordinated Secured Promissory Note described below), and the payment by borrowers of (a) an amendment fee to the Lender in an
amount equal to $5,775.00 and (b) a fee to the Export-Import Bank of the United States of America in an amount equal to $5,454.17.
First Amendment to Subordination and Intercreditor Agreement; First Amendment to Subordinated Secured Promissory Note.
In connection with, and as a condition to the effectiveness of, the Eleventh Amendment and the Sixth Amendment, the borrowers on September 30, 2024 entered into (a) the First Amendment (the “First Amendment to Subordination Agreement”) to the Subordination and Intercreditor Agreement by and among the borrowers, Garnet Holdings Inc., a California corporation owned and controlled by Mark J. Silk (the “Subordinated Creditor”), and the Lender (the “Subordination Agreement”) and (b) the First Amendment (the “First Amendment to Subordinated Promissory Note”) to the Subordinated and Secured Promissory Note issued by the borrowers to the Subordinated Creditor (the “Subordinated Promissory Note”).
The First Amendment to Subordination Agreement amends the Subordination Agreement to permit the modifications to the Subordinated Promissory Note contemplated by the First Amendment to Subordinated Promissory Note and is conditioned on the execution and delivery thereof by the borrowers and the Subordinated Creditor.
The First Amendment to Subordinated Promissory Note amends the Subordinated Promissory Note amends the Subordinated Promissory Note to delay the maturity date of the obligations of the borrowers thereunder to the earlier of (a) November 6, 2024 and (b) the date on which the Revolving Commitment (as defined in the Credit Agreement) is reduced to zero or otherwise terminated pursuant to the terms of the Credit Agreement, unless accelerated upon the occurrence of an event of default specified therein. The First Amendment to Subordinated Promissory Note is conditioned upon the execution and delivery thereof by the borrowers and the Subordinated Creditor and the receipt by the Subordinated Creditor of copies of the fully executed Eleventh Amendment and Sixth Amendment.
The foregoing descriptions of the Eleventh Amendment, the Sixth Amendment, the First Amendment to Subordination Agreement and the First Amendment to Subordinated Promissory Note do not purport to be complete and are qualified in their entirety by reference to the full text of the Eleventh Amendment, the Sixth Amendment, the First Amendment to Subordination Agreement and the First Amendment to Subordinated Promissory Note, attached to this Form 8-K as Exhibits 10.2, 10.3, 10.4 and 10.5, respectively, and incorporated herein by reference.
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Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| | SIFCO Industries, Inc. |
| | (Registrant) |
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Date: October 2, 2024 | | |
| | /s/ Thomas R. Kubera |
| | Thomas R. Kubera |
| | Chief Financial Officer |
| | (Principal Financial Officer) |
DocumentTo:
SIFCO IRISH HOLDINGS LTD
6 Lapps Quary
1st Floor
Cork - Ireland
ATTN: Chief Financial Officer
Via email: cfosifcoirish@sifco.com
With copy to:
Avv. Nicola Paglietti
Studio Internazionale
Via Flaminia, 54-56
00196 Rome
Via certified email: n.paglietti@pec.stint.it
Milan, September 27 2024
RE: AMENDMENT TO THE SHARE PURCHASE AGREEMENT DATED 1ST AUGUST 2024
Dear Sirs,
Reference is made to the share purchase agreement entered into on 1st August 2024 (the “Agreement”) by and between Sifco Irish Holdings LTD (the “Seller”) and TB2 S.r.l. (the “Buyer”).
Capitalized terms used in this letter shall have the same meaning attributed to them in the Agreement.
In light of the fact that, with letter dated 13th September 2024, the Presidency of the Council of Ministers has communicated the suspension of the time-limits in connection with the authorization to perform the sale and purchase contemplated by the Agreement under the Golden Power rules and in light of the discussions between the Parties, the undersigned Buyer hereby proposes to amend Clauses 2.2 and 5.2 of the Agreement, as well as to modify other Clauses of the Agreement to take into account the positive development of the negotiations and the action to Closing, except for the delay due to the compelling reason of the Golden Power rules, as a force majeure event beyond the boundaries of the will of the Parties, in order to provide that:
(i)the Company shall issue a Credit Note in connection with its invoice no. CFE21000036/2021 raised on September 27, 2021 towards Sifco Industries for an amount of Euro 120.789,82 (subject to the right of the Parties, in consultation with the Company, to agree in good faith on a different payment reason), and the Company shall pay such amount plus the balance of the intercompany loan of Euro 17,331.76, for a total amount of Euro 138,121.58 to Sifco Industries on or before September 30, 2024, it being understood that such payment shall be considered as a Permitted Leakage and thus shall be considered as included, by way of amendment, in the definition of Permitted Leakage under clause 1.1 of the Agreement;
(ii)all Conditions provided for in Schedule 1, except for the grant of the Golden Power authorization, have been duly satisfied, as of the date hereof, or waived by the Buyer in
accordance with Clause 2.1, and it is the intention of the Parties to proceed to Closing as quickly as possible upon release of the Golden Power authorization, within two (2) Business Days from the grant of such authorization in a date and time to be agreed between the Parties in good faith;
(iii)in the event the Closing Date shall not occur by October 4, 2024, Sifco Industries shall be authorized to revert an amount of Euro 100,000.00 (one hundred thousand/00) of its waiver of credit occurred on June 30, 2020 (subject to the right of the Parties, in consultation with the Company, to agree in good faith on a different payment reason), with the effect that, on or before the Closing Date, the Company shall pay to Sifco Industries such amount of Euro 100,000.00 (one hundred thousand/00), it being understood that such payment shall be considered as a Permitted Leakage and thus shall be considered as included, by way of amendment, in the definition of Permitted Leakage under clause 1.1 of the Agreement;
(iv)the Parties agree that, by way of partial amendment of Clause 4.2 of the Agreement, starting from October 5, 2024 and up to (and including) the Closing Date, the interest amount on the Purchase Price will accrue daily at a rate of sixteen (16)% per annum and shall be paid by the Buyer to the Seller in cash at Closing;
(v)the Parties agree that Clause 5.2(a)(ii) of the Agreement shall be modified replacing the date of September 30, 2024 with November 6, 2024, with the effect that, without prejudice to the preceding, under no circumstances the Closing Date can be extended beyond November 6, 2024, it being understood that in case no Closing occurs on or before November 6, 2024, then the Agreement, as hereby amended, shall automatically terminate and cease to have effect, subject however to the provisions of Clause 2.3, which shall remain in full force and effect unamended.
The Parties hereby acknowledge and agree that (i) this amendment no. 1 (the “Amendment”) together with the Agreement constitute one and the same agreement and (ii) unless expressly provided for under the above paragraphs, this Amendment shall not have any modificative effect on the terms and conditions of the Agreement which shall remain in full force and effect unamended.
Best regards
TB2 S.r.l.
_/s/_______________
Edoardo Barboni
Sole Director
For full and unconditional acceptance
Date: September 27, 2024
SIFCO Irish Holdings Ltd.
___/s/___________________
Tom Kubera
Director
DocumentExecution Version
ELEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of September 30, 2024 (this “Amendment”), is by and among SIFCO Industries, Inc., an Ohio corporation (“SIFCO”), and Quality Aluminum Forge, LLC, an Ohio limited liability company (“Quality Forge” and, together with SIFCO, collectively, the “Borrowers” and each, individually, a “Borrower”), any other Loan Parties party hereto, and JPMorgan Chase Bank, N.A., a national banking association (the “Lender”).
RECITALS
A. The Borrowers, any other Loan Parties party thereto, and the Lender are parties to a Credit Agreement dated as of August 8, 2018 (as amended and as it may be further amended or modified from time to time, the “Credit Agreement”).
B. The Borrowers and any other Loan Parties desire to amend the Credit Agreement, and the Lender is willing to do so in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:
ARTICLE 1. AMENDMENTS. Upon fulfillment of the conditions set forth in Article III hereof, the Credit Agreement shall be amended effective as of the date hereof as follows:
1.1 Section 2 of the Terms Schedule to the Credit Agreement is hereby amended and restated as follows:
2. Maturity Date (Definitions Schedule):
November 6, 2024, or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof.
ARTICLE II. REPRESENTATIONS. Each Loan Party represents and warrants to the Lender that:
2.1 This Amendment has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
2.2 After giving effect to this Amendment, the representations and warranties contained in Article III of the Credit Agreement and in the other Loan Documents are true in all material respects on and as of the date hereof with the same force and effect as if made on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects).
2.3 After giving effect to this Amendment, no Default exists or has occurred and is continuing, and no Default will be caused after giving effect to this Amendment.
2.4 All certifications, representations and other statements made in each Borrower’s Officer’s Certificate dated as of August 8, 2018 and delivered to Lender are true on and as of the date hereof with the same force and effect as if made on and as of the date hereof and all resolutions and other statements referenced therein are in full force and effect, have not been rescinded and authorize the execution, delivery and performance of this Amendment.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective as of the date hereof when each of the following conditions is satisfied:
3.1 The Loan Parties and the Lender shall have signed this Amendment.
3.2 The Lender shall have received a copy of the fully executed Sixth Amendment to the Export Credit Agreement dated as of the date hereof.
3.3 The Lender shall have received such other documents as disclosed on the closing list provided to the Loan Parties prior to the date hereof.
ARTICLE IV. MISCELLANEOUS.
4.1 No amendment fee shall be incurred upon the execution of this Amendment, provided that the Lender receives payment in full of the Secured Obligations (excluding certain Letter of Credit obligations and continuing Banking Services Obligations that the Lender agrees can be cash collateralized) by October 19, 2024. If the Secured Obligations (excluding certain Letter of Credit obligations and continuing Banking Services Obligations that the Lender agrees can be cash collateralized) are not paid in full by October 19, 2024, the Borrowers will incur an amendment fee in an amount equal to $100,000. This amendment fee shall be due and payable by the Borrowers to the Lender upon the earlier of (i) the final payoff of the Secured Obligations (excluding certain Letter of Credit obligations and continuing Banking Services Obligations that the Lender agrees can be cash collateralized) or (ii) November 6, 2024.
4.2 References in the Credit Agreement or in any other Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby, as amended previously and as further amended from time to time.
4.3 Except as expressly amended hereby, each of the Loan Parties agrees that the Credit Agreement and the other Loan Documents are ratified and confirmed, as amended hereby, and shall remain in full force and effect in accordance with their terms and that they are not aware of any set off, counterclaim, defense or other claim or dispute with respect to any of the foregoing. Each of the Loan Parties further (i) acknowledges and agrees that the Collateral Documents continue to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (ii) confirms its grant of security interests pursuant to the Collateral Documents to which it is a party in all Collateral and securing all Secured Obligations, and (iii) acknowledges that all Liens granted (or purported to be granted) pursuant to the Collateral Documents remain and continue in full force and effect in respect of, and to secure, the Secured Obligations. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. Nothing herein shall be deemed to entitle any Loan Party to any future consent to, or waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
4.4 Each Loan Party represents and warrants that it is not aware of any claims or causes of action against the Lender or any of its affiliates, successors or assigns, and that it has no defenses, offsets or counterclaims with respect to the Secured Obligations. Notwithstanding this representation and as further consideration for the agreements and understandings herein, each Loan Party, on behalf of itself and its employees, agents, executors, heirs, successors and assigns (the “Releasing Parties”), hereby releases the Lender and its predecessors, officers, directors, employees, agents, attorneys, affiliates, subsidiaries, successors and assigns (the “Released Parties”), from any liability, claim, right or cause of action which now exists or hereafter arises as a result of acts, omissions or events occurring on or prior to the date hereof, whether known or unknown, including but not limited to claims arising from or in any way related to this Agreement, the other Loan Documents, all transactions relating to this Agreement or any of the other Loan Documents or the business relationship among, or any other transactions or dealings among, the Releasing Parties or any of them and the Released Parties or any of them.
4.5 Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement. This Amendment is a Loan Document. This Amendment may be signed
upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Among other provisions of the Credit Agreement, this Amendment is subject to Sections 8.06, 8.09 and 8.10 of the Credit Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be duly executed and delivered as of the day and year first above written.
BORROWERS:
SIFCO INDUSTRIES, INC.
By:____/s/____________________________________
Name: Thomas R. Kubera
Title: Chief Financial Officer
QUALITY ALUMINUM FORGE, LLC
By:_____/s/___________________________________
Name: Thomas R. Kubera
Title: Treasurer & Chief Financial Officer
SIFCO Eleventh Amendment Signature Page
LENDER:
JPMORGAN CHASE BANK, N.A.
By:____/s/____________________________________
Name: Karson Malecky
Title: Authorized Officer
SIFCO Eleventh Amendment Signature Page
Execution Version
SIXTH AMENDMENT TO EXPORT CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO EXPORT CREDIT AGREEMENT, dated as of September 30, 2024 (this “Amendment”), is by and among SIFCO Industries, Inc., an Ohio corporation (“SIFCO”), and Quality Aluminum Forge, LLC, an Ohio limited liability company (“Quality Forge” and, together with SIFCO, collectively, the “Borrowers” and each, individually, a “Borrower”), any other Loan Parties party hereto, and JPMorgan Chase Bank, N.A., a national banking association (the “Lender”).
RECITALS
A. The Borrowers, any other Loan Parties party thereto, and the Lender are parties to an Export Credit Agreement dated as of December 17, 2018 (as amended and as it may be further amended or modified from time to time, the “Credit Agreement”).
B. The Borrowers and any other Loan Parties desire to amend the Credit Agreement, and the Lender is willing to do so in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in Article III hereof, the Credit Agreement shall be amended effective as of the date hereof as follows:
1.1 Section 2 of the Terms Schedule to the Credit Agreement is hereby amended and restated as follows:
2. Maturity Date (Definitions Schedule):
November 6, 2024, or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof or under the Ex-Im Bank Documents.
ARTICLE II. REPRESENTATIONS. Each Loan Party represents and warrants to the Lender that:
2.1 This Amendment has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
2.2 After giving effect to this Amendment, the representations and warranties contained in Article III of the Credit Agreement and in the other Loan Documents are true in all material respects on and as of the date hereof with the same force and effect as if made on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects).
2.3 After giving effect to this Amendment, no Default exists or has occurred and is continuing, and no Default will be caused after giving effect to this Amendment.
2.4 All certifications, representations and other statements made in each Borrower’s Officer’s Certificate dated as of December 17, 2018 and delivered to Lender are true on and as of the date hereof with the same force and effect as if made on and as of the date hereof and all resolutions and other statements referenced therein are in full force and effect, have not been rescinded and authorize the execution, delivery and performance of this Amendment.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective as of the date hereof when each of the following conditions is satisfied:
3.1 The Loan Parties and the Lender shall have signed this Amendment.
3.2 The Lender shall have received a copy of the fully executed Eleventh Amendment to the Domestic Credit Agreement dated as of the date hereof.
3.3 The Borrower shall have paid (1) an amendment fee to the Lender in an amount equal to $5,775.00 and (2) a fee to the Export-Import Bank of the United States of America in an amount equal to $5,454.17.
3.4 The Lender shall have received such other documents as disclosed on the closing list provided to the Loan Parties prior to the date hereof.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement or in any other Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby, as amended previously and as further amended from time to time.
4.2 Except as expressly amended hereby, the Loan Parties agree that the Credit Agreement and all other Loan Documents are ratified and confirmed, as amended hereby, and shall remain in full force and effect in accordance with their terms and that they have no set off, counterclaim, defense or other claim or dispute with respect to any of the foregoing. The amendment contained herein shall not be construed as a waiver or amendment of any other provision of the Credit Agreement or the other Loan Documents or for any purpose except as expressly set forth herein.
4.3 Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement. This Amendment shall be governed by and construed in accordance with the internal laws and not the law of conflicts of the State of Ohio, but giving effect to federal laws applicable to national banks. This Amendment is a Loan Document. This Amendment may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument, and telecopied signatures or signatures sent by other electronic imaging shall be effective as originals.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be duly executed and delivered as of the day and year first above written.
BORROWERS:
SIFCO INDUSTRIES, INC.
By:______/s/__________________________________
Name: Thomas R. Kubera
Title: Chief Financial Officer
QUALITY ALUMINUM FORGE, LLC
By:_____/s/___________________________________
Name: Thomas R. Kubera
Title: Treasurer & Chief Financial Officer
SIFCO Sixth Amendment (Export Credit Agreement) Signature Page
LENDER:
JPMORGAN CHASE BANK, N.A.
By:____/s/____________________________________
Name: Karson Malecky
Title: Authorized Officer
JPMORGAN CHASE BANK, N.A.
Global Trade Services
By:____/s/____________________________________
Name: Elise B. Murphy
Title: Vice President
SIFCO Sixth Amendment (Export Credit Agreement) Signature Page
FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS FIRST AMENDMENT TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Amendment”) is made and entered into as of September 30, 2024 by and among SIFCO Industries, Inc., an Ohio corporation (“SIFCO”), and Quality Aluminum Forge, LLC, an Ohio limited liability company (“Quality Forge” and, together with SIFCO, collectively, the “Borrowers” and each, individually, a “Borrower”), Garnet Holdings Inc., a California corporation (“Subordinated Creditor”), and JPMorgan Chase Bank, N.A. (“Senior Creditor”).
RECITALS
A. The Borrowers, the Subordinated Creditor and the Senior Creditor are parties to a Subordination and Intercreditor Agreement dated December 21, 2023 (as amended, supplemented or otherwise modified from time to time, the “Subordination Agreement”).
B. The Borrowers, the Subordinated Creditor and the Senior Creditor desire to amend the Subordination Agreement as set forth herein.
TERMS
In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:
ARTICLE 1.
AMENDMENTS.
The Subordination Agreement is amended as follows:
1.1 Section 1.1 of the Subordination Agreement is amended and restated as follows:
3.2 Modifications to Subordinated Debt Documents. Until the Senior Debt has been Paid in Full, and notwithstanding anything to the contrary contained in the Subordinated Debt Documents, Subordinated Creditor shall not, without the prior written consent of Senior Creditor, amend, modify, restate or supplement the Subordinated Promissory Note or any other Subordinated Debt Document; provided that the Subordinated Promissory Note may be amended on September 30, 2024 pursuant to the First Amendment to Subordinated Promissory Note in the form of Exhibit A hereto, but my not be otherwise modified.
1.2 Exhibit A attached hereto is added to the Subordination Agreement as Exhibit A thereto.
ARTICLE 2.
REPRESENTATIONS.
In order to induce the Senior Creditor to enter into this Amendment, each of the Borrowers and the Subordinated Creditor represents and warrants to the Senior Creditor, that the following statements are true, correct and complete:
2.1 The execution, delivery and performance of this Amendment are within its powers and have been duly authorized by it. This Amendment is the legal, valid and binding obligation of it, enforceable against it in accordance with the terms hereof, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
2.2 After giving effect to the amendments herein contained, the representations and warranties contained in the Subordination Agreement and the Senior Credit Agreement are true in all material respects on and as of the date hereof with the same force and effect as if made on and as of the date hereof.
ARTICLE 3.
CONDITIONS PRECEDENT.
This Amendment shall be effective as of the date hereof when the following condition is satisfied:
3.1 This Amendment shall be executed by each of the Company, the Borrower, the Subordinated Creditor and the Senior Creditor.
ARTICLE 4.
MISCELLANEOUS.
4.1 Except as expressly amended hereby, each Borrower, Senior Creditor and the Subordinated Creditor agrees that the Subordination Agreement is ratified and confirmed and shall remain in full force and effect and that it has no set off, counterclaim, defense or other claim or dispute with respect thereto. Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Subordination Agreement. This Amendment may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page of this Agreement or any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require Senior Creditor to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent Senior Creditor has agreed to accept any Electronic Signature, Senior Creditor shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of Subordinated Creditor or any Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature, and (b) upon the request of Senior Creditor, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, Senior Creditor, Subordinated Creditor and each Loan Party hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring,
enforcement of remedies, bankruptcy proceedings or litigation among any of the parties hereto, Electronic Signatures transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) Senior Creditor may, at its option, create one or more copies of this Agreement and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of its business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement and/or such Ancillary Document based solely on the lack of paper original copies of this Agreement and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against Senior Creditor or any Related Party of Senior Creditor for any losses, claims (including intraparty claims), demands, damages or liabilities of any kind arising solely from Senior Creditor’s reliance on or use of Electronic Signatures and/or transmission by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any such liabilities arising as a result of the failure of Senior Creditor, Subordinated Creditor or any Loan Party to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
4.2 This Amendment shall be construed in accordance with and governed by the laws of the State of New York, without regard to conflict of law principles thereunder.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.
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SUBORDINATED CREDITOR:
GARNET HOLDINGS INC.
By: /s/
Name: Mark J. Silk
Title: President
|
(Signature Page to First Amendment to Subordination and Intercreditor Agreement)
| | |
LOAN PARTIES:
SIFCO INDUSTRIES, INC.
By: /s/
Name: Thomas R. Kubera
Title: Chief Financial Officer
|
QUALITY ALUMINUM FORGE, LLC
By: /s/
Name: Thomas R. Kubera
Title: Treasurer & Chief Financial Officer
|
(Signature Page to First Amendment to Subordination and Intercreditor Agreement)
| | |
SENIOR CREDITOR:
JPMORGAN CHASE BANK, N.A.,
as Senior Creditor
By: /s/
Name:
Title: |
(Signature Page to First Amendment to Subordination and Intercreditor Agreement)
EXHIBIT A
See attached copies of the First Amendment to Subordinated Promissory Note
DocumentExecution Version
FIRST AMENDMENT TO SUBORDINATED SECURED PROMISSORY NOTE
THIS FIRST AMENDMENT TO SUBORDINATED SECURED PROMISSORY NOTE, dated as of September 30, 2024 (this “Amendment”), is by and among SIFCO Industries, Inc., an Ohio corporation (“SIFCO”), and Quality Aluminum Forge, LLC, an Ohio limited liability company (“Quality Forge” and, together with SIFCO, collectively, the “Makers” and each, individually, a “Maker”), and Garnet Holdings Inc., a California corporation (“Holder”).
RECITALS
A. The Makers and Holder are parties to that certain Subordinated Secured Promissory Note dated as of December 21, 2023 (the “Note”).
B. The Makers and Holder desire to amend the Note, and Holder is willing to do so in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in Article III hereof, the Note shall be amended effective as of the date hereof as follows:
1.1Section 1 of the Note is hereby amended and restated as follows:
“1. Payment of Principal. The Obligations (as defined in Section 9) shall be due and payable in immediately available funds on the earlier of (a) November 6, 2024 and (b) the date on which the Revolving Commitment (as defined in the JPM Credit Agreement) is reduced to zero or otherwise terminated pursuant to the terms of the JPM Credit Agreement (such earlier date, the “Maturity Date”) unless payment by the Makers of the Obligations is accelerated by Holder pursuant to Section 10 hereof. Once any Principal Amount of this Note has been repaid, it may not be re-borrowed.
ARTICLE II. REPRESENTATIONS. Each Maker represents and warrants to Holder that:
2.1 This Amendment has been duly executed and delivered by such Maker and constitutes a legal, valid and binding obligation of such Maker, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
2.2 After giving effect to this Amendment, the representations and warranties contained in Section 7 of the Note and in the other Note Documents are true in all material respects on and as of the date hereof with the same force and effect as if made on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects).
2.3 After giving effect to this Amendment, no Event of Default exists or has occurred and is continuing, and no Event of Default will be caused after giving effect to this Amendment.
2.4 All certifications, representations and other statements made in each Maker’s Officer’s Certificate dated as of December 21, 2023 and delivered to Holder are true on and as of the date hereof with the same force and effect as if made on and as of the date hereof and all resolutions and other statements referenced therein are in full force and effect, have not been rescinded and authorize the execution, delivery and performance of this Amendment.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective as of the date hereof when each of the following conditions is satisfied:
3.1 The Makers and Holder shall have signed this Amendment.
3.2 The Holder shall have received copies of the fully executed (a) Sixth Amendment to the Export Credit Agreement and (b) Eleventh Amendment to the Credit Agreement, in each case, dated as of the date hereof and among the Makers, the other Loan Parties listed on the signature pages thereto, and JPMorgan Chase Bank, N.A.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Note or in any other Note Document shall be deemed to be references to the Note as amended hereby and as further amended from time to time.
4.3 Except as expressly amended hereby, each of the Makers agrees that the Note and the other Note Documents are ratified and confirmed, as amended hereby, and shall continue to be in full force and effect in accordance with their terms and are not impaired or adversely affected in any manner whatsoever and that they are not aware of any set off, counterclaim, defense or other claim or dispute with respect to any of the foregoing. Each of the Makers further (i) confirms its grant of security interests pursuant to the Note Documents to which it is a party in all Collateral and securing all Obligations and (ii) acknowledges that all liens granted (or purported to be granted) pursuant to the Note Documents remain and continue in full force and effect in respect of, and to secure, the Obligations. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Holder under any of the Note Documents, nor constitute a waiver of any provision of any of the Note Documents. Nothing herein shall be deemed to entitle any Maker to any future consent to, or waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants
or agreements contained in the Note or any other Note Document in similar or different circumstances.
4.4 Each Maker represents and warrants that it is not aware of any claims or causes of action against Holder or any of its affiliates, successors or assigns, and that it has no defenses, offsets or counterclaims with respect to the Obligations. Notwithstanding this representation and as further consideration for the agreements and understandings herein, each Maker, on behalf of itself and its employees, agents, executors, heirs, successors and assigns (the “Releasing Parties”), hereby releases Holder and its predecessors, officers, directors, employees, agents, attorneys, affiliates, subsidiaries, successors and assigns (the “Released Parties”), from any liability, claim, right or cause of action which now exists or hereafter arises as a result of acts, omissions or events occurring on or prior to the date hereof, whether known or unknown, including but not limited to claims arising from or in any way related to this Agreement, the other Note Documents, all transactions relating to this Agreement or any of the other Note Documents or the business relationship among, or any other transactions or dealings among, the Releasing Parties or any of them and the Released Parties or any of them.
4.5 Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Note. This Amendment is a Note Document. This Amendment may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Among other provisions of the Note, this Amendment is subject to Sections 18 and 25 of the Note.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be duly executed and delivered as of the day and year first above written.
MAKERS:
SIFCO INDUSTRIES, INC.
By:___/s/__________________________________
Name: Tom Kubera
Title: Chief Financial Officer
QUALITY ALUMINUM FORGE, LLC
By:___/s/__________________________________
Name: Tom Kubera
Title: Treasurer
[Signature Page to First Amendment to Subordinated Secured Promissory Note (Garnet)]
HOLDER:
GARNET HOLDINGS INC.
By:___/s/__________________________________
Name: Mark J. Silk
Title: President
[Signature Page to First Amendment to Subordinated Secured Promissory Note (Garnet)]