Exhibit 4.2
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment No. 2"),
dated as of October 29, 2004, by and among Handy & Xxxxxx, a New York
corporation ("H& H"), 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 & Xxxxxx Tube Company, Inc., a Delaware corporation
("H& H Tube"), Camdel Metals Corporation, a Delaware corporation ("Camdel"),
Xxxxxxxx Metal Coating Corporation, a Delaware corporation ("Canfield"),
Micro-Tube Fabricators, Inc., a Delaware corporation ("Micro-Tube"), Indiana
Tube Corporation, a Delaware corporation ("Indiana Tube"), Xxxxx-Xxxxxxxx, Inc.,
a Wisconsin corporation ("Xxxxx"), Handy & Xxxxxx Electronic Materials
Corporation, a Florida corporation ("H& H Electronic"), Sumco Inc., an Indiana
corporation ("Sumco" and together with H& H, Olympic, Continental, Maryland Wire,
H& H Tube, Camdel, Xxxxxxxx, Micro-Tube, Indiana Tube, Xxxxx and H& H Electronic,
each individually, a "Borrower" and collectively, "Borrowers"), Handy & Xxxxxx
of Canada, Limited, an Ontario corporation ("H& H Canada"), ele Corporation, a
California corporation ("ele"), Alloy Ring Service Inc., a Delaware corporation
("Alloy"), Xxxxxx Radiator Corporation, a Texas corporation ("Xxxxxx"), H& H
Productions, Inc., a Delaware corporation ("H& H Productions"), Handy & Xxxxxx
Automotive Group, Inc., a Delaware corporation ("H& H Auto"), Handy & Xxxxxx
International, Ltd., a Delaware corporation ("H& H International"), Handy &
Xxxxxx Peru, Inc., a Delaware corporation ("H& H Peru"), KJ-VMI Realty, Inc., a
Delaware corporation ("KVR"), Xxx-Xxxx Realty, Inc., a Delaware corporation
("Xxx-Xxxx"), 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, Xxxxxx,
H& H Productions, H& H Auto, H& H International, H& H Peru, KVR, Xxx-Xxxx, Platina,
Sheffield and SWM, each individually, a "Guarantor" and collectively,
"Guarantors"), Congress Financial Corporation, a Delaware corporation, in its
capacity as agent pursuant to the Loan Agreement (as hereinafter defined) acting
for the financial institutions party thereto as lenders (in such capacity,
together with its successors and assigns, "Agent") and the financial
institutions party thereto as lenders (collectively, "Lenders").
W I T N E S S E T H
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and may make loans and advances and provide other financial
accommodations to Borrowers as set forth in the Loan and Security Agreement,
dated as of March 31, 2004, by and among Agent, Lenders, Borrowers and
Guarantors (as amended by Consent and Amendment No. 1, dated as of August 31,
2004, and as the same may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced, the "Loan Agreement"), and the other
agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
agree to certain amendments to the Loan Agreement and the other Financing
Agreements, and Agent and Lenders are willing to agree to such amendments,
subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment Xx. 0, Xxxxxxxxx, Xxxxxxxxxx, Agent and Lenders
desire and intend to evidence such consents and amendments;
NOW THEREFORE, in consideration of the foregoing, and the respective
agreements and covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) AMENDMENT TO DEFINITIONS.
(i) The definition of "Intercreditor Agreement" in Section 1.66 of
the Loan Agreement is hereby amended by deleting "dated of even date herewith"
and replacing it with "dated on or about October 29, 2004".
(ii) The definition of "Leverage Ratio" in Section 1.76 of the Loan
Agreement is hereby amended by deleting such definition and replacing it with
the following:
"1.76 `Leverage Ratio' shall mean, as of any date, the ratio of (a)
the aggregate principal amount of the Loans outstanding on such date
plus the aggregate principal amount of all other Indebtedness
(including the amount of all contingent liabilities in respect of
undrawn Letter of Credit Accommodations and other 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."
(iii) The definition of "Tranche B Term Loan Agent" in Section 1.134
of the Loan Agreement is hereby amended by deleting "Ableco Finance LLC, a
Delaware limited liability company" and replacing it with "Canpartners
Investments IV, LLC, a California limited liability company" (as successor in
interest to Ableco Finance LLC).
(iv) The definition of "Tranche B Term Loan Agreement" in Section
1.135 of the Loan Agreement is hereby amended by deleting such definition and
replacing it with the following:
"1.135 `Tranche B Term Loan Agreement' shall mean the Loan and
Security Agreement, dated March 31, 2004, by and among Tranche B Term
Loan Agent, Tranche B Term Loan Lenders, Borrowers and Guarantors, as
amended by Consent to Loan and Security Agreement, dated as of August
31, 2004, the Loan and Security Agreement Amendment, dated as of
October 29, 2004, and as the same may hereafter be further amended,
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modified, supplemented, extended, renewed, restated or replaced,
including any agreements with respect to Refinancing Indebtedness."
(v) The definition of "Tranche B Term Loan Lenders" in Section 1.138
of the Loan Agreement is hereby amended by deleting "Ableco Finance LLC" and
replacing it with "Canpartners Investments IV, LLC".
(b) INTERPRETATION. All references to the term "Financing Agreements" in
the Loan Agreement shall be deemed, and each such reference is hereby amended to
include, in addition and not in limitation, this Amendment No. 2 and all other
agreements, documents and instruments at any time executed and/or delivered by
Borrowers, Guarantors or any other person supplemented, extended, renewed,
restated or replaced. Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Loan
Agreement.
2. INDEBTEDNESS. Section 9.9(f) of the Loan Agreement is hereby amended by
deleting the phrase "as in effect on the date hereof" from each place it appears
in such Section and replacing it with "as in effect on October 29, 2004".
3. NEW INTERCREDITOR AGREEMENT. Each Lender (a) authorizes Agent to
terminate the Intercreditor Agreement, dated as of March 31, 2004, by and
between Agent and Ableco Finance LLC, as agent, (b) authorizes Agent to enter
into the Intercreditor Agreement, dated on or about the date hereof (the "New
Intercreditor Agreement"), by and between Agent and Canpartners Investments IV,
LLC, as agent for the Tranche B Term Loan Lenders, and (iii) agrees that it will
be bound (as a Lender) by the terms and conditions of the New Intercreditor
Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Borrower and Guarantor
hereby represents and warrants to Agent and Lenders the following (which shall
survive the execution and delivery of this Amendment No. 2), the truth and
accuracy of which are a continuing condition of the making of Loans and
providing Letter of Credit Accommodations to Borrowers:
(a) This Amendment No. 2 and each other agreement or instrument to be
executed and delivered by Borrowers and Guarantors in connection herewith have
been duly authorized, executed and delivered by all necessary action on the part
of each of the Borrowers and Guarantors which is a party hereto and thereto and,
if necessary, their respective stockholders and is in full force and effect as
of the date hereof, as the case may be, and the agreements and obligations of
each of the Borrowers and Guarantors, as the case may be, contained herein and
therein constitute the legal, valid and binding obligations of each of the
Borrowers and Guarantors, enforceable against them in accordance with their
terms, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
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(b) The execution, delivery and performance of this Amendment No. 2 (a)
are all within each Borrower's and Guarantor's corporate or limited liability
company powers and (b) are not in contravention of law or the terms of any
Borrower's or Guarantor's certificate or articles of incorporation, by laws, or
other organizational documentation, or any indenture, agreement or undertaking
to which any Borrower or Guarantor is a party or by which any Borrower or
Guarantor or its property are bound.
(c) No Default or Event of Default exists or has occurred and is
continuing.
(d) All of the Tranche B Term Loan Debt (as defined in the Loan Agreement
before giving effect to this Amendment No. 2) has been assigned to Canpartners
Investments IV, LLC.
(e) Ableco Finance LLC has resigned as the Tranche B Term Loan Agent, and
Canpartners Investments IV, LLC is the Tranche B Term Loan Agent.
(f) All of the representations and warranties set forth in the Loan
Agreement and the other Financing Agreements, each as amended hereby, are true
and correct in all material respects on and as of the date hereof, as if made on
the date hereof, except to the extent any such representation or warranty is
made as of a specified date, in which case such representation or warranty shall
have been true and correct as of such date.
5. CONDITIONS PRECEDENT. The provisions contained herein shall be effective
upon Agent's receipt of each of the following:
(a) this Amendment No. 2, duly authorized, executed and delivered by
Borrowers, Guarantors and Lenders;
(b) the Assignment and Acceptance Agreement, dated as of October 29,
2004, by and between Ableco Finance LLC and Canpartners Investments IV, LLC, the
Assignment and Acceptance Agreement, dated as of October 29, 2004, by and
between Fortress Credit Opportunities I LP and Canpartners Investments IV, LLC
and the Assignment and Acceptance Agreement, dated as of October 29, 2004, by
and between Fortress Credit Opportunities II LP and Canpartners Investments IV,
LLC, each in form and substance reasonably satisfactory to Agent and each duly
authorized, executed and delivered by the parties thereto;
(c) a letter agreement, in form and substance reasonably satisfactory to
Agent, which terminates the Intercreditor Agreement (as defined in the Loan
Agreement before giving effect to this Amendment), duly authorized, executed and
delivered by Ableco Finance LLC, as agent, and acknowledged by Borrowers and
Guarantors; and
(d) the New Intercreditor Agreement, in form and substance satisfactory
to Agent, duly authorized, executed and delivered by Agent and Canpartners
Investments IV, LLC, as agent for the Tranche B Term Loan Lenders and
acknowledged by Borrowers and Guarantors.
6. EFFECT OF THIS AGREEMENT. Except as expressly amended pursuant hereto,
no other changes or modifications to the Financing Agreements are intended or
implied, and, in all other respects, the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent that any provision of the Loan Agreement or
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any of the other Financing Agreements are inconsistent with the provisions of
this Amendment No. 2, the provisions of this Amendment No. 2 shall control.
7. FURTHER ASSURANCES. Borrowers and Guarantors shall execute and deliver
such additional documents and take such additional action as may be requested by
Agent to effectuate the provisions and purposes of this Amendment No. 2.
8. GOVERNING LAW. The validity, interpretation and enforcement of this
Agreement and the other Financing Agreements (except as otherwise provided
therein) and any dispute arising out of the relationship between the parties
hereto, whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of New York but excluding any principles of conflicts
of law or other rule of law that would cause the application of the law of any
jurisdiction other than the laws of the State of New York.
9. BINDING EFFECT. This Amendment No. 2 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
10. HEADINGS. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment No. 2.
11. COUNTERPARTS. This Amendment No. 2 may be executed in any number of
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Amendment No. 2 by telefacsimile shall have the same force
and effect as the delivery of an original executed counterpart of this Amendment
No. 2. Any party delivering an executed counterpart of this Amendment No. 2 by
telefacsimile shall also deliver an original executed counterpart, but the
failure to do so shall not affect the validity, enforceability or binding effect
of such agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be executed on the day and year first above written. BORROWERS
AGENT BORROWERS
----- ---------
CONGRESS FINANCIAL CORPORATION,
as Agent HANDY & XXXXXX
/s/ Xxxxxx X. Xxxxx /s/ X.X. Xxxxx
-------------------------- ---------------------------------------
By: Xxxxxx X. Xxxxx By: X.X. Xxxxx
Title: Vice President Title:Sr. VP, General Counsel
& Secretary
OLYMPIC MANUFACTURING GROUP, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
LENDERS Title:Vice President & Scretary
-------
CONGRESS FINANCIAL CORPORATION CONTINENTAL INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxxx /s/ X.X. Xxxxx
------------------------- --------------
By: Xxxxxx X. Xxxxx By: X.X. Xxxxx
Title: Vice President Title:Vice President & Scretary
TEXTRON FINANCIAL CORPORATION MARYLAND SPECIALTY WIRE, INC.
/s/ Xxxx Kalliomoa /s/ X.X. Xxxxx
------------------------ --------------
By: Xxxx Kalliomoa By: X.X. Xxxxx
Title: Senior Account Executive Title:Vice President & Scretary
BANK OF AMERICA, N.A. HANDY & XXXXXX TUBE COMPANY, INC.
/s/ Xxx Xxxxxx /s/ X.X. Xxxxx
---------------------- --------------
By: Xxx Xxxxxx By: X.X. Xxxxx
Title: Authorized Officer Title:Vice President & Scretary
CAMDEL METAL COATING CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
XXXXXXXX METAL COATING CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title: Secretary
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
MICRO-TUBE FABRICATORS, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
INDIANA TUBE CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
XXXXX-XXXXXXXX, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
HANDY & XXXXXX ELECTRONIC MATERIALS
CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
SUMCO INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
GUARANTORS
HANDY & XXXXXX OF CANADA, LIMITED
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
ELE CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
ALLOY RING SERVICE INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
XXXXXX RADIATOR CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
H& H PRODUCTIONS, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
HANDY & XXXXXX AUTOMOTIVE GROUP, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
HANDY & XXXXXX INTERNATIONAL, LTD.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
HANDY & XXXXXX PERU, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
KJ-VMI REALTY, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
XXX-XXXX REALTY, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
PLATINA LABORATORIES, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
[SIGNATURE PAGES CONTINUE ON NEXT PAGE]
[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
SHEFFIELD STREET CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
SWM, INC.
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
WILLING B WIRE CORPORATION
/s/ X.X. Xxxxx
--------------
By: X.X. Xxxxx
Title:Vice President & Scretary
