EXHIBIT 4.3
AMENDMENT NO. 2
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "AMENDMENT") is dated as
of February 13, 2002, by and among METAL MANAGEMENT, INC., a Delaware
corporation ("MTLM") and each of the corporations and other entities signatories
hereto as borrowers (MTLM and each of such corporations and other entities
sometimes hereinafter are referred to individually as a "BORROWER" and
collectively as the "BORROWERS"); MTLM, acting in its capacity as funds
administrator for itself and the other Borrowers (in such capacity, the "FUNDS
ADMINISTRATOR"); DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation, f/k/a Bankers Trust Company, acting in its capacity as agent (in
such capacity, hereinafter referred to as the "AGENT") for itself and the other
financial institutions from time to time parties to the Credit Agreement
referred to herein below as lenders thereunder (such financial institutions
hereinafter are referred to individually as a "LENDER" and collectively as the
"LENDERS"); and the Lenders signatories hereto. Capitalized terms used herein
but not otherwise defined herein shall have the respective meanings assigned to
such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrowers, the Funds Administrator, the Agent and the
Lenders have entered into that certain Credit Agreement dated as of June 29,
2001, as amended by that certain letter agreement dated as of November 26, 2002
(as so amended, the "CREDIT AGREEMENT"), pursuant to which the Lenders have
agreed to make certain loans and other financial accommodations to or for the
account of the Borrowers; and
WHEREAS, the Borrower, the Agent and the Lenders have agreed to further
amend the Credit Agreement on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Effective as of the date hereof, upon
satisfaction of the conditions precedent set forth in SECTION 2 below, and in
reliance upon the representations and warranties of the Funds Administrator and
the Borrowers set forth herein and in the Credit Agreement, as amended hereby,
the Credit Agreement is hereby amended as follows:
1.1 SECTION 1.1 of the Credit Agreement is hereby amended by deleting
the definition of the term "Expiration Date" set forth therein in its entirety
and substituting therefor the following language:
EXPIRATION DATE means the earlier to occur of (I) January 1,
2004 and (II) the date on which this Credit Agreement is terminated
pursuant to SECTION 9.2(B).
1.2 SECTION 1.1 of the Credit Agreement is hereby amended by deleting
the definition of the term "Line of Credit" set forth therein in its entirety
and substituting therefor the following language:
LINE OF CREDIT means the aggregate revolving line of credit
extended pursuant to this Credit Agreement by the Lenders to the
Borrowers for Revolving Loans and Letters of Credit, in an amount up to
$115,000,000, as such amount may be reduced from time to time pursuant
to the terms and provisions hereof.
1.3 SECTION 1.1 of the Credit Agreement is hereby amended by deleting
the definition of the term "Revolving Loan" set forth therein in its entirety
and substituting therefor the following language:
REVOLVING LOAN means with respect to any Lender, any amount
advanced by such Lender to the Borrowers pursuant to SECTION 2.1 or any
other provision of this Credit Agreement.
1.4 SECTION 1.1 of the Credit Agreement is hereby amended by inserting
the following defined terms therein in the appropriate alphabetical order:
SECOND AMENDMENT means that certain Amendment No. 2 to this
Credit Agreement dated as of February 13, 2003, among the Funds
Administrator, the Borrowers, the Agent and the Lenders.
SECOND AMENDMENT EFFECTIVE DATE means the date on which the
Second Amendment shall become effective pursuant to the terms of
SECTION 2 thereof.
1.5 The first sentence of SECTION 2.1 of the Credit Agreement is hereby
deleted in its entirety and the following language is hereby substituted
therefor:
Subject to the terms and conditions set forth in this Credit Agreement,
and in reliance on the representations and warranties of the Borrowers
set forth herein, each Lender severally agrees: (A) to continue as
Revolving Loans of such Lender hereunder its Proportionate Share of the
aggregate principal balance of all Revolving Loans outstanding on the
Second Amendment Effective Date and (B) on and after the Second
Amendment Effective Date and to but excluding the Expiration Date, to
make Revolving Loans to the Borrowers on a joint and several basis in
an amount not to exceed at any time its Proportionate Share of the
lesser at such time of (I) the Line of Credit and (II) the Borrowing
Base MINUS, in the case of both clauses (I) and (II) above, the then
outstanding Letter of Credit Obligations.
1.6 ANNEX I to the Credit Agreement is hereby deleted in its entirety
and ANNEX I attached hereto is hereby substituted therefor.
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2. CONDITIONS PRECEDENT. This Amendment shall become effective as of
the date hereof, upon satisfaction in full of each of the following conditions
precedent:
(a) receipt by the Agent of a copy of this Amendment, duly
executed and delivered by each of the Lenders, each of the Borrowers
and the Funds Administrator; and
(b) receipt by the Agent in immediately available Dollars for
the account of the Lenders in accordance with their respective
Proportionate Shares of an amount equal to $287,500.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Each of the Borrowers and the Funds Administrator hereby represents
and warrants to the Agent and each of the Lenders that, before and after giving
effect to this Amendment:
(a) all representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects on and as of the date of this Amendment, in each case
as if then made, other than representations and warranties that
expressly relate solely to an earlier date (in which case such
representations and warranties remain true and correct in all material
respects on and as of such earlier date);
(b) no Default or Event of Default has occurred which is
continuing;
(c) this Amendment, and the Credit Agreement, as amended
hereby, constitute legal, valid and binding obligations of the
Borrowers and the Funds Administrator, respectively, and are
enforceable against each of the Borrowers and the Funds Administrator
in accordance with their respective terms; and
(d) the execution and delivery by the Borrowers and the Funds
Administrator of this Amendment and any other Credit Documents
contemplated hereby (I) do not and will not contravene, conflict with,
violate or constitute a default under the certificate or articles of
incorporation or bylaws of any Credit Party, or any applicable law,
rule, regulation, judgment, decree or order or any agreement, indenture
or instrument to which any Credit Party is a party or is bound or which
is binding upon or applicable to all or any portion of any Credit
Party's property, and (II) do not require the consent or approval of
any Person, except for any such consents or approvals which have been
obtained and remain in full force and effect.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
4.1 Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import, and each reference in each of the other Credit Documents to the
"Credit Agreement" shall
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in each case mean and be a reference to the Credit Agreement as amended hereby.
4.2 Except as expressly set forth herein, (A) the execution and
delivery of this Amendment shall in no way affect any of the respective rights,
powers or remedies of the Agent or any of the Lenders with respect to any
Default or Event of Default nor constitute a waiver of any provision of the
Credit Agreement or any of the other Credit Documents and (B) all of the
respective terms and provisions of the Credit Agreement, the other Credit
Documents and all other documents, instruments, amendments and agreements
executed and/or delivered by any of the Borrowers and/or the Funds Administrator
pursuant thereto or in connection therewith shall remain in full force and
effect and are hereby ratified and confirmed in all respects. The execution and
delivery of this Amendment by Agent and the respective Lenders shall in no way
obligate the Agent or any of the Lenders, at any time hereafter, to consent to
any other amendment or modification of any term or provision of the Credit
Agreement or any of the other Credit Documents, whether of a similar or
different nature.
4.3 Each Borrower (and each other Credit Party, if any, which executed
an acknowledgement hereof, by such execution), in its respective capacities
under each of the Credit Documents to which it is a party (including the
capacities of obligor, grantor, mortgagor, pledgor, guarantor, indemnitor and
assignor, as applicable, and each other similar capacity, if any, in which such
Credit Party has granted Liens on all or any part of the properties or assets of
such Credit Party, or otherwise acts as an accommodation party, guarantor,
indemnitor or surety with respect to all or any part of the Obligations), hereby
(A) agrees that the terms and provisions hereof shall not affect in any way any
payment, performance, observance or other obligations or liabilities of such
Credit Party under the Credit Agreement or any of the other Credit Documents,
all of which obligations and liabilities shall remain in full force and effect
and extend to the further loans, extensions of credit and other Obligations
provided for thereunder, and each of which obligations and liabilities are
hereby ratified, confirmed and reaffirmed in all respects; (B) to the extent
such Credit Party has granted Liens on any of its properties or assets pursuant
to any of the Credit Documents to secure the prompt and complete payment,
performance and/or observance of all or any part of the Obligations,
acknowledges, ratifies, confirms and reaffirms such grant of Liens, and
acknowledges and agrees that all of such Liens are intended and shall be deemed
and construed to secure to the fullest extent set forth therein all now existing
and hereafter arising Obligations under and as defined in this Credit Agreement,
as amended, restated, supplemented and otherwise modified and in effect from
time to time; and (C) acknowledges and agrees that, as of the date hereof, Agent
and each of the Lenders has fully performed all obligations to the respective
Credit Parties.
5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS
OF THE STATE OF NEW YORK.
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6. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7. COUNTERPARTS. This Amendment may be executed or otherwise
authenticated in any number of counterparts and by the different parties hereto
in separate counterparts, each of which when so executed or otherwise
authenticated and delivered shall be an original, but all of which shall
together constitute one and the same instrument. Any such counterpart which may
be delivered by facsimile, email or similar electronic transmission shall be
deemed the equivalent of an originally signed counterpart and shall be fully
admissible in any enforcement proceedings regarding this Amendment.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the date first set forth above.
METAL MANAGEMENT, INC.,
in its respective capacities as Funds
Administrator and a Borrower
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Chief Financial Officer
-------------------------------
Amendment No. 2 to MTLM Credit Agreement
ADDITIONAL BORROWERS:
CIM TRUCKING, INC.
FIRMA, INC.
FIRMA PLASTIC CO., INC.
MAC LEOD METALS CO.
MTLM ARIZONA, INC.
METAL MANAGEMENT AEROSPACE, INC.
METAL MANAGEMENT ALABAMA, INC.
METAL MANAGEMENT ARIZONA, L.L.C.
METAL MANAGEMENT CONNECTICUT, INC.
METAL MANAGEMENT INDIANA, INC.
METAL MANAGEMENT GULF COAST, INC.
METAL MANAGEMENT MEMPHIS, L.L.C.
METAL MANAGEMENT MIDWEST, INC.
METAL MANAGEMENT MISSISSIPPI, L.L.C.
METAL MANAGEMENT NORTHEAST, INC.
METAL MANAGEMENT OHIO, INC.
METAL MANAGEMENT PITTSBURGH, INC.
METAL MANAGEMENT REALTY, INC.
METAL MANAGEMENT SERVICES, INC.
METAL MANAGEMENT STAINLESS & ALLOY, INC.
METAL MANAGEMENT WEST, INC.
METAL MANAGEMENT WEST COAST HOLDINGS, INC.
METAL MANAGEMENT S&A HOLDINGS, INC.
XXXXXX.XXX, INC.
PROLER SOUTHWEST INC.
TROJAN TRADING CO.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
Amendment No. 2 to MTLM Credit Agreement
RESERVE IRON & METAL LIMITED
PARTNERSHIP
By: METAL MANAGEMENT OHIO, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
Amendment No. 2 to MTLM Credit Agreement
AGENT AND LENDER:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, in its respective capacities as
Agent and a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------------
Title: Director
-----------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
-------------------------------
Title: Senior Vice President
------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
XXXXXX FINANCIAL, INC.
By: /s/ W. Xxxxxx XxXxxxxxx
--------------------------------
Name: W. Xxxxxx XxXxxxxxx
-------------------------------
Title:
------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
PNC BUSINESS CREDIT CORPORATION
By: /s/ Xxx XxXxxx
--------------------------------
Name: Xxx XxXxxx
-------------------------------
Title: Vice President
------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
WHITEHALL BUSINESS CREDIT CORPORATION
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
Amendment No. 2 to MTLM Credit Agreement
LENDER:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
-------------------------------
Title: Vice President
------------------------------
Amendment No. 2 to MTLM Credit Agreement
ANNEX I
TO
AMENDMENT NO. 2 TO CREDIT AGREEMENT
DATED AS OF FEBRUARY 13, 2003
LIST OF LENDERS; COMMITMENT
AMOUNTS; APPLICABLE LENDING OFFICES
--------------------------------------------------------------------------------
1. DEUTSCHE BANK TRUST COMPANY AMERICAS
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
COMMITMENT AMOUNT:
$15,835,000.00
--------------------------------------------------------------------------------
2. PNC BUSINESS CREDIT CORPORATION
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
COMMITMENT AMOUNT: $17,500,000.00
--------------------------------------------------------------------------------
3. FLEET CAPITAL CORPORATION
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
COMMITMENT AMOUNT:
$15,832,500.00
--------------------------------------------------------------------------------
4. LASALLE BANK NATIONAL
ASSOCIATION
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000 XX
Xxxxxxx, XX 00000
COMMITMENT AMOUNT: $15,832,500.00
--------------------------------------------------------------------------------
5. U.S. BANK NATIONAL ASSOCIATION (FORMERLY
KNOWN AS FIRSTAR BANK N.A.)
7th and Washington
0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
COMMITMENT AMOUNT: $15,000,000.00
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Amendment No. 2 to MTLM Credit Agreement
A-1
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6. CONGRESS FINANCIAL CORPORATION
(CENTRAL)
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
$15,000,000.00
COMMITMENT AMOUNT:
--------------------------------------------------------------------------------
7. XXXXXX FINANCIAL, INC., a GE Company
0 Xxxx Xxxxx Xxxx
Xxxxxxxx 0X
Xxxxxxxx, Xxxxxxxxxxx 00000
$12,500,000.00
COMMITMENT AMOUNT:
--------------------------------------------------------------------------------
8. WHITEHALL BUSINESS CREDIT
CORPORATION
Xxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
$7,500,000.00
COMMITMENT AMOUNT:
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Amendment No. 2 to MTLM Credit Agreement
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