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Exhibit 4.3(ii)
SECOND AMENDMENT
TO
FINANCING AGREEMENT
Second Amendment, dated as of November 14, 1995 to the Financing
Agreement, dated as of April 13, 1994 (as amended, the "Financing Agreement"),
by and among Lone Star Industries, Inc., a Delaware corporation ("LSI") and New
York Trap Rock Corporation, a Delaware corporation ("Trap Rock" and together
with LSI, each a "Company" and collectively, the "Companies") and The CIT
Group/Business Credit, Inc. (the "Lender").
The Companies and the Lender desire to (i) increase the amount of
capital expenditures permitted to be made by the Companies during 1996, and (ii)
permit certain additional Restricted Payments (as defined in the Financing
Agreement), in each case on the terms and conditions hereinafter set forth.
Accordingly, the Companies and the Lender hereby agree as follows:
1. Definitions. All capitalized terms used herein and not
otherwise defined herein are used herein as defined in the Financing Agreement.
2. Investments. Section 7.14(g) of the Financing Agreement is
hereby amended by (i) deleting the word "or" at the end of subclause (xiii)
thereof and substituting in lieu thereof "," and (ii) adding the following at
the end of subclause (xiv) thereof:
"and (xv) repurchases and/or redemptions by LSI of its common
stock for an aggregate consideration not exceeding
$20,000,000."
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3. Restricted Payments. Section 7.14(h) of the Financing
Agreement is hereby amended by (i) deleting the word "and" at the end of
subclause (ii) thereof and substituting in lieu thereof "," and (ii) adding the
following at the end of subclause (iii) of Section 7.14(h):
"and (iv) LSI may repurchase or redeem its common stock for
aggregate consideration not exceeding $20,000,000."
4. Capital Expenditures. Section 7.15 of the Financing Agreement
is hereby amended by deleting the amount "$25,000,000" in subclause C of clause
(ii) thereof and substituting in lieu thereof "$50,000,000."
5. Conditions to Effectiveness. This Amendment shall become
effective only upon satisfaction in full of the following conditions precedent
(the first date upon which all such conditions have been satisfied being herein
called the "Effective Date"):
(i) The Lender shall have received counterparts of this
Amendment which bear the signatures of Companies.
(ii) All legal matters incident to this Amendment shall be
satisfactory to the Lender and its counsel.
6. Representations and Warranties. Each of the Companies
represents and warrants to the Lender as follows:
(a) Each Company (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (ii)
has all requisite corporate power, authority and legal right to execute, deliver
and perform this Amendment, and to perform the Financing Agreement, as amended
hereby.
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(b) The execution, delivery and performance by the Companies of
this Amendment and the performance by the Companies of the Financing Agreement
as amended hereby (i) have been duly authorized by all necessary corporate
action, (ii) do not and will not violate or create a default under either
Company's charter or by-laws, any such applicable law or any contractual
restriction binding on or otherwise affecting either Company or any of such
Company's properties, and (iii) except as provided in the Loan Documents, do not
and will not result in or require the creation of any lien, security interest or
other charge or encumbrance upon or with respect to either Company's property.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or other regulatory body is
required in connection with the due execution, delivery and performance by
either Company of this Amendment and the performance by the Companies of the
Financing Agreement as amended hereby.
(d) This Amendment and the Financing Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Companies,
enforceable against the Companies in accordance with their terms.
(e) The representations and warranties contained in Section 6 of
the Financing Agreement are correct on and as of the Effective Date as though
made on and as of the Effective Date (except to the extent such representations
and warranties expressly relate to an earlier date), and no Event of Default or
Potential Default, has occurred and is continuing on and as of the Effective
Date.
7. Continued Effectiveness of Financing Agreement. Each of the
Companies hereby (i) confirms and agrees that each Loan Document to which it is
a party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all
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respects except that on and after the Effective Date of this Amendment all
references in any such Loan Document to "the Financing Agreement", "thereto",
thereof", "thereunder" or words of like import referring to the Financing
Agreement shall mean the Financing Agreement as amended by this Agreement, and
(ii) confirms and agrees that to the extent that any such Loan Document purports
to assign or pledge to the Lender, or to grant to the Lender a security interest
in or lien on, any collateral as security for the Obligations of the Companies
from time to time existing in respect of the Financing Agreement and the Loan
Documents, such pledge, assignment and/or grant of the security interest or lien
is hereby ratified and confirmed in all respects.
8. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) The Companies will pay on demand all fees, costs and expenses
of the Lender in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees, disbursements and
other charges of Xxxxxxx Xxxx & Xxxxx, counsel to the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
COMPANIES
LONE STAR INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
NEW YORK TRAP ROCK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
LENDER
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
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