Exhinit 4.3
LOAN AND SECURITY AGREEMENT AMENDMENT
by and among
HANDY & ▇▇▇▇▇▇ AND ITS SUBSIDIARIES NAMED
HEREIN AS BORROWERS,
as Borrowers,
and
EACH OF ITS SUBSIDIARIES THAT ARE SIGNATORIES
HERETO AS GUARANTORS,
as Guarantors,
and
CANPARTNERS INVESTMENTS IV, LLC
Dated: October 29, 2004
LOAN AND SECURITY AGREEMENT AMENDMENT
This LOAN AND SECURITY AGREEMENT AMENDMENT (this "Amendment") dated as of
October 29, 2004 is entered into by and among Handy & ▇▇▇▇▇▇, a New York
corporation ("Parent"), 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 & ▇▇▇▇▇▇ Tube Company, Inc., a Delaware corporation ("H& H Tube"),
Camdel Metals Corporation, a Delaware corporation ("Camdel"), ▇▇▇▇▇▇▇▇ Metal
Coating Corporation, a Delaware corporation ("Canfield"), Micro-Tube
Fabricators, Inc., a Delaware corporation ("Micro-Tube"), Indiana Tube
Corporation, a Delaware corporation ("Indiana Tube"), ▇▇▇▇▇-▇▇▇▇▇▇▇▇, Inc., a
Wisconsin corporation ("▇▇▇▇▇"), Handy & ▇▇▇▇▇▇ Electronic Materials
Corporation, a Florida corporation ("H& H Electronic"), Sumco Inc., an Indiana
corporation ("Sumco", and together with Parent, Olympic, Continental, Maryland
Wire, H& H Tube, Camdel, ▇▇▇▇▇▇▇▇, Micro-Tube, Indiana Tube, ▇▇▇▇▇ and H& H
Electronic, each individually a "Borrower" and collectively, "Borrowers"), Handy
& ▇▇▇▇▇▇ of Canada, Limited, an Ontario corporation ("H& H Canada"), ele
Corporation, a California corporation ("ele"), Alloy Ring Service Inc., a
Delaware corporation ("Alloy"), ▇▇▇▇▇▇ Radiator Corporation, a Texas corporation
("▇▇▇▇▇▇"), H& H Productions, Inc., a Delaware corporation ("H& H Productions"),
Handy & ▇▇▇▇▇▇ Automotive Group, Inc ., a Delaware corporation ("H& H Auto"),
Handy & ▇▇▇▇▇▇ International, Ltd., a Delaware corporation ("H& H
International"), Handy & ▇▇▇▇▇▇ Peru, Inc., a Delaware corporation ("H& H Peru"),
KJ-VMI Realty, Inc., a Delaware corporation ("KVR"), ▇▇▇-▇▇▇▇ Realty, Inc., a
Delaware corporation ("▇▇▇-▇▇▇▇"), 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, ▇▇▇▇▇▇, H& H Productions, H& H Auto, H& H International, H& H
Peru, KVR, ▇▇▇-▇▇▇▇, Platina, Sheffield and SWM, each individually, a
"Guarantor" and collectively, "Guarantors"), and Canpartners Investments IV,
LLC, a California limited liability company ("Canpartners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Ableco Finance LLC, a Delaware limited liability company
("Ableco"), in its capacity as Agent pursuant to the Loan and Security Agreement
(as hereinafter defined) acting for and on behalf of the parties thereto as
lenders (in such capacity, "Existing Agent"), and Ableco, Fortress Credit
Opportunities I LP, a Delaware limited partnership ("Fortress I"), and Fortress
Credit Opportunities II LP, a Delaware limited partnership ("Fortress II"), each
as parties to the Loan and Security Agreement (as hereinafter defined) as
lenders (individually, each "Existing Lender" and collectively, "Existing
Lenders") entered into financing agreements pursuant to which Existing Agent and
Existing Lenders made loans to the Borrowers as set forth in the Loan and
Security Agreement, dated March 31, 2004, by and among Borrowers, Existing Agent
and Existing Lenders (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, the "Loan and
Security Agreement"); and
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WHEREAS, Canpartners has indicated its willingness to assume the
obligations of Existing Agent and Existing Lenders under the Loan and Security
Agreement, subject to this Amendment becoming effective on the Amendment
Effective Date (as defined herein);
WHEREAS, Canpartners wishes to amend, and Borrowers have agreed to amend,
the Fee Letter to include, among other things, payment of an Anniversary Fee (as
such term is defined therein);
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein have
the meanings assigned to them in the Loan and Security Agreement.
2. AMENDMENTS. As of the Amendment Effective Date (as defined in SECTION 4
hereof), the following Financing Agreements shall be amended as
2.1 Section 1.17 of the Loan and Security Agreement defining "Cash
Collateral Agreement" shall be deleted in its entirety. Section 1.17 shall read
as follows:
1.17 Intentionally Omitted.
2.2 Section 1.48 of the Loan and Security Agreement shall be amended by
deleting "the Cash Collateral Agreement," and restated in its entirety to read
as follows:
1 .48 "Financing Agreements" shall mean, collectively, this
Agreement, the Loan and Security Agreement Amendment dated October
29, 2004, the WHX Subordination Agreement and all notes, guarantees,
security agreements, deposit account control agreements, investment
property control agreements, intercreditor agreements and all other
agreements, documents and instruments now or at any time hereafter
executed and/or delivered by any Borrower or Obligor in connection
with this Agreement.
2.3 Section 1.62(a) of the Loan and Security Agreement shall be amended
and restated in its entirety to read as follows:
(a) Subject to clause (b) of this definition below, (i) for all
periods ending prior to October 29, 2004, a rate equal to eight
percent (8%) per annum in excess of the Prime Rate and (ii) for all
periods ending on or after October 29, 2004, a rate equal to four
percent (4%) per annum in excess of the Prime Rate.
2.4 Section 1.68 of the Loan and Security Agreement shall be amended and
restated in its entirety to read as follows:
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1 .68 "Leverage Ratio" shall mean, as of any date, the ratio of (a)
the aggregate principal amount of the Loan outstanding on such date
plus the aggregate principal amount of all other Indebtedness
(including the amount of all contingent liabilities in respect of
undrawn letters of credit) of the Parent and its Subsidiaries on such
date; to (b) EBITDA of the Parent and its Subsidiaries for the period
of four (4) consecutive fiscal quarters ended on such date.
2.5 Section 11.3 of the Loan and Security Agreement shall be amended and
restated by the addition of Section 11.3(e) as follows:
(e) Lender will be paid covenant waiver fees on the same basis, and
will agree to substantially the same waivers to the extent applicable
to the Loan that are negotiated and payable to Congress.
2.6 Section 13.3 of the Loan and Security Agreement shall be amended and
restated in its entirety to read as follows:
13 .3 Notices. All notices, requests and demands hereunder shall be
in writing and deemed to have been given or made: if delivered in
person, immediately upon delivery; if by telex, telegram or facsimile
transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with
instructions to deliver the next Business Day, one (1) Business Day
after sending; and if by certified mail, return receipt requested,
five (5) days after mailing. All notices, requests and demands upon
the parties are to be given to the following addresses (or to such
other address as any party may designate by notice in accordance with
this Section):
If to any Borrower or Guarantor : ▇/▇ ▇▇▇▇▇
& ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Avenue Rye, New
York 10580 Attention : Chief Financial
Officer Telephone No . : (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to :
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq .
Telephone No .: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Agent:
Canpartners Investments IV, LLC
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c/o Canyon Capital Advisors, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to :
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
2.7 The Loan and Security Agreement shall be amended as follows:
REGISTRATION OF INTERESTS IN THE LOAN.
-------------------------------------
(a) The Borrowers hereby acknowledge and make the Loan a registered
obligation for United States withholding tax purposes. The Borrowers
shall be the registrar for the Loan (the "Registrar") with full power
of substitution, and hereby appoint the Agent to act as the initial
Registrar. In the event the Agent becomes unable or unwilling to act
as registrar under this Agreement, the Borrowers shall reasonably
designate a successor Registrar. Each Lender who is a foreign person,
by its acceptance of its Loan or any interest therein, hereby agrees
to provide the Borrowers with a completed Internal Revenue Service
Form W-8BEN (Certificate of Foreign Status) or a substantially
similar form for such Lender, participants or other affiliates who
are holders of beneficial interests in the Loan. Notwithstanding any
contrary provision contained in this Agreement or any of the other
Loan Documents, neither the Loan nor any interests therein may be
sold, transferred, hypothecated, participated or assigned to any
Person except upon satisfaction of the conditions specified in this
Section. Each Lender, by its acceptance of its interest in the Loan,
agrees to be bound by the provisions of this Section.
(b) The Registrar shall keep at its principal executive office (or an
office or agency designated by it by notice to the last Registrar) a
ledger, in which, subject to such reasonable regulations as it may
prescribe, but at its expense (except as specified below), it shall
provide for the registration and transfer of the Loan or interests
therein (the "Register"). No sale, transfer, hypothecation,
participation or assignment of any interest in the Loan shall be
effective for any purpose until it shall be entered on the Register.
Prior to the registration of assignment or sale of any interest in
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the Loan, the Registrar shall treat the Person in whose name such
Loan is registered as the owner thereof for the purpose of receiving
all payments thereon and for all other purposes, notwithstanding
notice to the contrary. In the event of a sale, transfer,
hypothecation, participation or assignment of the Loan or any
interest therein, the Lender prior to such sale, transfer,
hypothecation, participation or assignment of such interest therein
shall provide the Registrar with notice of such transaction at the
time of such transaction. The Registrar shall record the transfer of
the Loan on the Register maintained for this purpose upon receipt by
the Registrar at the office or agency designated by the Registrar of
(i) a written assignment of the Loan being assigned (or the
applicable interest therein), (ii) funds sufficient to pay any
transfer taxes payable upon the making of such transfer as well as
the cost of reviewing the documents presented to the Registrar, and
(iii) such evidence of due execution as the Registrar shall
reasonably require. The Registrar shall record the transfer of the
Loan on the books maintained for such purpose at the cost and expense
of the assignee.
(c) In the event that any Lender sells participations in the Loan,
such Lender shall maintain a register on which it enters the names of
all participants in the Loan held by it (the "Participation
Register"). A Loan may be participated in whole or in part only by
registration of such participation on the Participation Register, and
any participation of such Loan or transfer of such participation may
be effected only by the registration of such participation on the
Participant Register. The Participation Register shall be provided to
the Registrar by such Lender within ten (10) days of a change in the
interest of any participant in the Loan, and the Registrar shall
enter any such change in the Participation Register.
2.8 Section 3 of the Fee Letter shall be amended and restated in its
entirety to read as follows:
3. ANNIVERSARY FEE. So long as any portion of the Loan is outstanding
on June 30 of any year, Borrowers shall pay to Agent, for the account
of the Lenders, a fee in an amount equal to $1,065,000 (the
"Anniversary Fee"); PROVIDED, HOWEVER, that if any portion of the
Loan is outstanding on March 31, 2007, the Anniversary Fee due in
2007 shall be fully earned as of and payable on March 31, 2007.
3. REPRESENTATIONS AND WARRANTIES. Borrowers and Guarantors hereby jointly and
severally represent and warrant to Canpartners that, as of the Amendment
Effective Date and after giving effect to this Amendment:
3.1. All of the representations and warranties of Borrowers and Guarantors
contained in this Amendment, the Loan and Security Agreement and the other
Financing Agreements are true and correct on and as of the Amendment Effective
Date, as if then made;
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3.2. No Default or Event of Default has occurred or is continuing;
3.3. Since December 31, 2003, (i) no event or condition has occurred or is
existing which could reasonably be expected to have a Material Adverse Effect;
(ii) there has been no material adverse change in the industry in which
Borrowers or Guarantors operate; (iii) no litigation has been commenced which,
if successful, would have a Material Adverse Effect or could challenge any of
the transactions contemplated by the Amendment, the Loan and Security Agreement
or the other Financing Agreements; and (iv) there has been no material increase
in liabilities, liquidated or contingent, and no material decrease in assets of
Borrowers or Guarantors (or their predecessors in interest);
3.4. The execution and delivery by Borrowers and Guarantors of this
Amendment (a) are within each Borrower's and each Guarantor's corporate power,
and (b) have been duly authorized by all necessary or proper corporate and
shareholder action; and
3.5. This Amendment constitutes the legal, valid and binding obligation of
Borrowers and Guarantors enforceable against each of them in accordance with its
terms.
If any of the representations or warranties contained in this Section 3 are
untrue or incorrect in any material respect, such untruthfulness or inaccuracy
shall constitute an Event of Default under the Loan and Security Agreement and
the other Financing Agreements.
4. AMENDMENT EFFECTIVE DATE. This Amendment shall become effective as of the
date first written above (the "Amendment Effective Date") upon the satisfaction
of each of the following conditions:
4.1. Canpartners shall have received counterparts hereof executed by
Borrowers, Guarantors, and Canpartners;
4.2. Canpartners shall also have received the following each in form and
substance satisfactory to Canpartners:
(a) Existing Agent's letter of resignation in favor of Canpartners as
new Agent under the Loan and Security Agreement (in its capacity as
such, "New Agent") executed by Existing Agent, Borrowers, Guarantors,
and Canpartners;
(b) An Assignment and Acceptance Agreement dated the Amendment
Effective Date from each Existing Lender executed by Existing Lender
and Canpartners pursuant to which such Existing Lender assigns its
entire interest in the Loan and Security Agreement to Canpartners;
(c) A Notice of Assignment and Acceptance dated the Amendment
Effective Date from each Existing Lender executed by such Existing
Lender, Canpartners and Existing Agent;
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(d) Assignment of Security Interest in Patent Collateral dated on or
about October 29, 2004 in favor of New Agent executed by Existing
Agent, Borrowers, Guarantors and New Agent;
(e) Assignment of Security Interest in Trademark Collateral dated
October 29, 2004 in favor of New Agent executed by Existing Agent,
Borrowers, Guarantors and New Agent;
(f) Intercreditor Agreement dated October 29, 2004 executed by
Working Capital Agent and Canpartners, and acknowledged and consented
to by Borrowers and Guarantors.
4.3 Canpartners shall have received a complete set of Financing
Agreements as executed and/or delivered on March 31, 2004 or at any time
thereafter by any Borrower or Guarantor in connection with the Loan and Security
Agreement, together with a complete set of all other documents, instruments and
certificates delivered to Existing Agent pursuant to Section 4 of the Loan and
Security Agreement.
4.4 All of the representations and warranties of Borrowers and Guarantors
contained in this Amendment, the Loan and Security Agreement and the other
Financing Agreements shall be true and correct in all material respects on and
as of the Amendment Effective Date, as if then made;
4.5. Canpartners shall have received from Borrowers an officer's
certificate, in form and substance satisfactory to Canpartners, certifying the
satisfaction of the conditions precedent set forth in this Section 4, the truth
and accuracy of the representations and warranties of Borrowers and Guarantors
contained in this Amendment, the Loan and Security Agreement and the other
Financing Agreements including but not limited to the Information Certificate,
and that no Default or Event of Default, has occurred and is continuing or would
result from the execution of this Amendment.
4.6 Canpartners shall have received, in form and substance satisfactory
to Canpartners, (i) all releases, terminations and such other documents as
Canpartners may request to evidence and effectuate the assignment by the
Existing Lenders and Existing Agent of their respective financing arrangements
with Borrowers and Guarantors and the assignment and release by it or them, as
the case may be, of any interest in and to any assets and properties of each
Borrower and Guarantor, duly authorized, executed and delivered by it or each of
them, including, but not limited to, (A) UCC assignment statements for all UCC
financing statements previously filed by it or any of them or their
predecessors, as secured party and any Borrower or Guarantor, as debtor; (B)
PPSA assignments for all PPSA financing statements previously filed by it or any
of them or their predecessors as secured party and any Borrower or Guarantor, as
debtor; and (C) assignment of any mortgages, deeds of trust or deeds to secure
debt or any other lien, security interest or preferential arrangement by any
Borrower or Guarantor in favor of it or any of them, in form acceptable for
recording with the appropriate Governmental Authority, and (ii) evidence that
one or more of the Borrowers has acquired good and marketable title to the
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precious metals included in the collateral reports previously delivered to
Existing Agent, free and clear of all liens and encumbrances (except those in
favor of Existing Agent);
4.7 Canpartners shall have received records, satisfactory in form and
substance to Canpartners, of all requisite corporate action and proceedings in
connection with this Amendment and the other Financing Agreements, such
documents to be certified by appropriate corporate officers or (as appropriate)
Governmental Authority (and including a copy of the certificate of incorporation
and certificate of good standing of each Borrower and Guarantor certified by the
Secretary of State (or equivalent Governmental Authority) dated no earlier than
14 days prior to the Amendment Effective Date which shall set forth the same
complete corporate name of such Borrower or Guarantor as is set forth herein and
such document as shall set forth the organizational identification number of
each Borrower or Guarantor, if one is issued in its jurisdiction of
incorporation);
4.8 No material adverse change shall have occurred in the assets,
business or condition (financial or otherwise) of Borrowers since December 31,
2003, and no change or event shall have occurred which would impair the ability
of any Borrower or Guarantor to perform its obligations hereunder or under any
of the other Financing Agreements to which it is a party or of Canpartners to
enforce the Obligations or realize upon the Collateral;
4.9 Canpartners shall have received, in form and substance satisfactory
to Canpartners, all consents, waivers, acknowledgments and other agreements from
third persons which Canpartners may deem necessary or desirable in order to
permit, protect and perfect its security interests in and liens upon the
Collateral or to effectuate the provisions or purposes of this Agreement and the
other Financing Agreements, including, without limitation, Collateral Access
Agreements;
4.10 The Excess Availability as determined by the Working Capital Agent,
as of the date hereof, shall be not less than $10,000,000 after giving effect to
(i) the Loan to be made in connection with the transactions hereunder and (ii)
the initial Loans (as defined in the Working Capital Loan Agreement) made or to
be made and Letter of Credit Accommodations (as defined in the Working Capital
Loan Agreement) issued or to be issued in connection with the initial
transactions under the Working Capital Loan Agreement;
4.11 Canpartners shall have received, in form and substance satisfactory
to Canpartners, Deposit Account Control Agreements by and among Working Capital
Agent, Existing Agent, each Borrower and Guarantor, as the case may be and each
bank where such Borrower (or Guarantor) has a deposit account listed in Schedule
4.11 hereto, in each case, duly authorized, executed and delivered by such bank
and Borrower or Guarantor, as the case may be; provided, however, that if
permission of the bank is required in order to assign the Deposit Account
Control Agreement, Canpartners shall have received, in form and substance
satisfactory to Canpartners, such written permission from such bank;
4.12 Canpartners shall have received the WHX Subordination Agreement, in
form and substance satisfactory to Canpartners, duly authorized, executed and
delivered by the parties thereto;
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4.13 Canpartners shall have received evidence, in form and substance
satisfactory to Canpartners, that Canpartners has a valid perfected first
priority security interest in all of the Collateral, subject (as to priority)
only to (i) the liens of the Working Capital Agent pursuant to the Working
Capital Lender Agreements and (ii) the liens expressly permitted under Sections
9.8(b) through (g) of the Loan and Security Agreement;
4.14 Canpartners shall have received lien and judgment search results, in
form and substance satisfactory to Canpartners, and dated no earlier than one
month prior to the Amendment Effective Date, for the jurisdiction of
organization of each Borrower and Guarantor, the jurisdiction of the chief
executive office of each Borrower and Guarantor and all jurisdictions in which
assets of Borrowers and Guarantors are located;
4.15 Canpartners shall have received environmental audits of the Real
Property to be subject to the Mortgages conducted by an independent
environmental engineering firm acceptable to Canpartners, and in form, scope and
methodology satisfactory to Canpartners, confirming that (i) each Borrower and
Guarantor is in compliance with all material applicable Environmental Laws and
(ii) the absence of any material potential or actual liabilities of Borrowers or
Guarantors with respect to remediation of such Real Property and the absence of
any material environmental problems;
4.16 Canpartners shall have received, in form and substance satisfactory to
Canpartners, a valid and effective title insurance policy issued by a company
and agent acceptable to Canpartners: (i) insuring the priority, amount and
sufficiency of the Mortgages, (ii) insuring against matters that would be
disclosed by surveys and (iii) containing any legally available endorsements,
assurances or affirmative coverage requested by Canpartners for protection of
its interests;
4.17 Canpartners shall have received, in form and substance satisfactory
to Canpartners, a certificate, dated of even date herewith, of the chief
financial officer of Parent, stating that immediately after giving effect to the
transactions contemplated to occur under this Agreement and the Working Capital
Loan Agreement on the date hereof, each Borrower and H& H Canada (on a
stand-alone basis) is Solvent;
4.18 Canpartners shall have received (i) true, correct and complete copies
of the Working Capital Lender Agreements as duly authorized, executed and
delivered by the parties thereto, which shall each be on terms and conditions
acceptable to Canpartners and (ii) evidence that the transactions contemplated
under the Working Capital Loan Agreement have been consummated prior to or
contemporaneously with the execution of this Agreement;
4.19 Borrowers shall have issued the WHX Subordinated Note and all other
agreements, instruments and documents related thereto, which shall be in form
and substance satisfactory to Canpartners, duly authorized, executed and
delivered by the parties thereto;
4.20 Canpartners shall have received copies of the shares of the stock
certificates representing all of the issued and outstanding shares of the
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Capital Stock of each Borrower and Guarantor (other than Parent) and owned by
any Borrower or Guarantor, in each case together with stock powers duly executed
in blank with respect thereto, and shall have received evidence satisfactory to
Canpartners that the originals of such stock certificates and stock powers have
been delivered to the Working Capital Agent;
4.21 Canpartners shall have received evidence of insurance and loss payee
endorsements required hereunder and under the other Financing Agreements, in
form and substance satisfactory to Canpartners, and certificates of insurance
policies and/or endorsements naming Canpartners as additional insured or loss
payee as its interests may appear, as applicable;
4.22 Canpartners shall have received, in form and substance satisfactory to
Canpartners, such opinion letters of United States and Canadian counsel to
Borrowers and Guarantors with respect to the Financing Agreements and such other
matters as Canpartners may request;
4.23 The other Financing Agreements and all instruments and documents
hereunder and thereunder shall have been duly executed and delivered to
Canpartners, in form and substance satisfactory to Canpartners;
4.24 Canpartners shall have received the most recent audited financial
statements of Parent and the most recent interim financial statement of Parent;
and
4.25 No law, regulation, order, judgment or decree of any Governmental
Authority shall exist, and no action, suit, investigation, litigation or
proceeding shall be pending or threatened in any court or before any arbitrator
or Governmental Authority, which (i) purports to enjoin, prohibit, restrain or
otherwise affect (A) the making of the Loan, or (B) the consummation of the
transactions contemplated pursuant to the terms hereof or the other Financing
Agreements or (ii) has or has a reasonable likelihood of having a Material
Adverse Effect.
5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
5.1. Upon the Amendment Effective Date, each reference in the Loan and
Security Agreement to "this Agreement", "hereunder", "hereof" or words of like
import, and each reference in the Financing Agreements to the "the Agreement" or
"the Loan and Security Agreement" or "the Term Loan and Security Agreement"
shall mean and be a reference to the Loan and Security Agreement as amended
hereby.
5.2. This Amendment shall be limited solely to the matters expressly set
forth herein and shall not (a) constitute an amendment or waiver of any term or
condition of the Loan and Security Agreement or any other Financing Agreement,
except as expressly provided in Section 2 above, (b) prejudice any right or
rights which Canpartners together with its successors and assigns may now have
or may have in the future under or in connection with the Loan and Security
Agreement or any other Financing Agreement, (c) require Canpartners together
with its successors and assigns to agree to a similar transaction on a future
occasion or (d) create any rights herein to another Person or other beneficiary
or otherwise.
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5.3. Except to the extent specifically amended pursuant to Section 2 above,
the respective provisions of the Loan and Security Agreement and the other
Financing Agreements shall not be amended, modified, waived, impaired or
otherwise affected hereby, and such documents and the Obligations under each of
them are hereby confirmed as being in full force and effect.
6. MISCELLANEOUS. This Amendment is a Loan Document. The headings herein are for
convenience of reference only and shall not alter or otherwise affect the
meaning hereof.
7. COUNTERPARTS AND FACSIMILE/ELECTRONIC MAIL. All documents delivered in
connection with this Amendment and the assumption of obligations under the Loan
and Security Agreement by Canpartners contemplated hereby (i) may be executed in
any number of separate counterparts, each of which shall collectively and
separately constitute one agreement, and (ii) may be delivered by facsimile or
electronic mail and each such document if so delivered shall be deemed an
originally executed counterpart thereof.
8. GOVERNING LAW. THIS AMENDMENT, AND ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE HEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
9. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in the
negotiation and drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Amendment.
IN WITNESS WHEREOF, Borrowers, Guarantors, and Canpartners have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
CANPARTNERS INVESTMENTS IV, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Managing Partner
BORROWERS
HANDY & ▇▇▇▇▇▇
12
By: /s/ ▇.▇. ▇▇▇▇▇
-----------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Sr. Vice President, General Counsel and Secretary
OLYMPIC MANUFACTURING GROUP, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
CONTINENTAL INDUSTRIES, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
MARYLAND SPECIALTY WIRE, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
HANDY & ▇▇▇▇▇▇ TUBE COMPANY, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
CAMDEL METALS CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
13
▇▇▇▇▇▇▇▇ METAL COATING CORPORATION
By: ▇.▇. ▇▇▇▇▇
-------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Secretary
MICRO-TUBE FABRICATORS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
INDIANA TUBE CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
HANDY & ▇▇▇▇▇▇ ELECTRONIC MATERIALS CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
14
SUMCO INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
GUARANTORS
HANDY & ▇▇▇▇▇▇ OF CANADA, LIMITED
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
ELE CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
ALLOY RING SERVICE INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇▇▇ RADIATOR CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
15
H& H PRODUCTIONS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
HANDY & ▇▇▇▇▇▇ AUTOMOTIVE GROUP, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
HANDY & ▇▇▇▇▇▇ INTERNATIONAL, LTD.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
HANDY & ▇▇▇▇▇▇ PERU, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
KJ-VMI REALTY, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
16
▇▇▇-▇▇▇▇ REALTY, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
PLATINA LABORATORIES, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
SHEFFIELD STREET CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
SWM, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
WILLING B WIRE CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Secretary
