EX-10.13 16 dex1013.htm JOINDER AGREEMENT AND SUPPLEMENT TO AMENDED AND RESTATED CREDIT AGMT JOINDER AGREEMENT AND SUPPLEMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
Exhibit 10.13
JOINDER AGREEMENT AND SUPPLEMENT TO
AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
THIS JOINDER AGREEMENT AND SUPPLEMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (“Agreement”) is made and entered into as of August 10, 2006, by and among DELNOR PROPERTY, LLC, a Delaware limited liability company (“DelnorProp”), DELTA STEEL PROPERTY, LLC, a Delaware limited liability company (“DeltaProp”), FERALLOY PROPERTY, LLC, a Delaware limited liability company (“FeralloyProp”), INFRA-METALS PROPERTY, LLC, a Delaware limited liability company (“InfraProp I”), INFRA-METALS PROPERTY II, LLC, a Delaware limited liability company (“InfraProp II”), METALS SUPPLY PROPERTY, LLC, a Delaware limited liability company (“MetalsProp”), and XXXXX PIPE & STEEL PROPERTY, LLC, a Delaware limited liability company (“SmithProp”; DelnorProp, DeltaProp, FeralloyProp, InfraProp I, InfraProp II, MetalsProp and SmithProp are hereinafter referred to collectively as “New Borrowers” and each individually as a “New Borrower”); PNA GROUP, INC., a Delaware corporation and successor by merger to Travel Merger Corporation (“PNA”), XXXXX PIPE & STEEL COMPANY, an Arizona corporation (“Xxxxx”), INFRA-METALS CO., a Georgia corporation (“Infra-Metals”), FERALLOY CORPORATION, a Delaware corporation (“Feralloy”), DELTA STEEL, L.P., a Texas limited partnership (“Delta Steel”), DELTA GP, L.L.C., a Texas limited liability company (“Delta GP”), DELTA LP, L.L.C., a Delaware limited liability company (“Delta LP”), DELNOR CORPORATION, a Texas corporation (“Delnor”), TRAVEL MAIN CORPORATION, a Delaware corporation (“Travel Main”), XXXXXXXX ACQUISITION, LLC, a Delaware limited liability company (“Xxxxxxxx”), XXXXXXX & XXXXXXXX, LTD., a Texas limited partnership (“C&L”), METALS SUPPLY COMPANY, LTD., a Texas limited partnership (“Metals Supply”), and MSC MANAGEMENT, INC., a Texas corporation (“MSC”; PNA, Xxxxx, Infra-Metals, Feralloy, Delta Steel, Delta GP, Delta LP, Delnor, Travel Main, Xxxxxxxx, C&L, Metals Supply and MSC are hereinafter referred to collectively as “Existing Borrowers” and each individually as an “Existing Borrower”; New Borrowers and Existing Borrowers are hereinafter referred to collectively as “Borrowers” and each individually as a “Borrower”); the various financial institutions party from time to time to the Credit Agreement (as hereinafter defined) as lenders (together with their respective successors and assigns, “Lenders”); and BANK OF AMERICA, N.A., a national banking association, in its capacity as collateral and administrative agent for the Lenders (together with its successors in such capacity, “Administrative Agent”).
Administrative Agent, Lenders, Existing Borrowers and the other Agents named therein are parties to a certain Amended and Restated Credit and Security Agreement, dated as of May 9, 2006 (as at any time amended, restated, supplemented, or otherwise modified, the “Credit Agreement”), pursuant to which Lenders have made certain Revolver Loans, Term Loans and letter of credit accommodations to Existing Borrowers. New Borrowers are executing this Agreement to become parties to the Credit Agreement and in order to induce Lenders to continue to extend credit under the Credit Agreement and as consideration for the financial accommodations previously made.
Accordingly, in consideration of the Credit Agreement, for Ten Dollars ($10.00) in hand paid and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties hereto, Administrative Agent, Lenders, Existing Borrowers and New Borrowers agree as follows:
Agreement as a whole and not to any particular section, paragraph or subdivision. All references to any Person shall mean and include the successors and permitted assigns of such Person. All references to any of the Credit Documents shall include any and all amendments or modifications thereto and any and all restatements, extensions or renewals thereof. Wherever the phrase “including” shall appear in this Agreement, such word shall be understood to mean “including, without limitation.”
4) Grant of Security Interest.
(a) To secure the prompt payment and performance of all of the Obligations and subject to the terms of Section 7.7 of the Credit Agreement, each New Borrower hereby grants to Administrative Agent, for the benefit of Secured Parties, a continuing security interest in and Lien upon all personal property of such New Borrower, including all of the following Property and interests in Property of such New Borrower, whether now owned or existing or hereafter created, acquired or arising and wheresoever located:
(i) all Accounts;
(ii) all Goods, including all Inventory and Equipment;
(iii) all Instruments;
(iv) all Commercial Tort Claims;
(v) all Supporting Obligations;
(vi) all Chattel Paper, including Electronic Chattel Paper and Tangible Chattel Paper;
(vii) all Documents;
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(viii) all General Intangibles, including Payment Intangibles and Software;
(ix) all Intellectual Property;
(x) all Deposit Accounts;
(xi) all Investment Property (but excluding any portion thereof that constitutes Margin Stock unless otherwise expressly provided in any Security Documents);
(xii) all Letter-of-Credit Rights;
(xiii) all monies now or at any time or times hereafter in the possession or under the control of an Agent or a Lender or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral in the Cash Collateral Account;
(xiv) all accessions to, substitutions for and all replacements, products and cash and non-cash proceeds of (i) through (xiii) above, including proceeds of and unearned premiums with respect to insurance policies insuring any of the Collateral and claims against any Person for loss of, damage to or destruction of any of the Collateral; and
(xv) all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs, and other computer materials and records) of such Borrower pertaining to any of (i) through (xiv) above.
6) Acknowledgments and Stipulations.
(a) Each Borrower acknowledges and stipulates that all of the Obligations are owing and payable without defense, offset or counterclaim (and to the extent there exists any such defense, offset or counterclaim on the date hereof, the same is hereby waived by such Borrower) and that the security interests and Liens granted by each Borrower in favor of Administrative Agent are duly perfected, first priority security interests and Liens.
(b) Each Borrower acknowledges and stipulates that each respective owned and leasehold real property, including any fixtures thereon, transferred by any Borrower to any New Borrower in connection with the “Proposed Transactions” contemplated by that certain Third Consent Letter and Fourth Amendment to Amended and Restated Credit and Security Agreement, of even date herewith, among Administrative Agent, Lenders, and Existing Borrowers (the “Third Consent”), is acquired by such New Borrower as grantee expressly subject to the existing Mortgage in favor of Administrative Agent, for itself and for the benefit of the Secured Parties encumbering said real property and fixtures. Each New Borrower hereby ratifies, assumes and agrees to perform all of the obligations of the mortgagor or grantor under each Mortgage encumbering any of the owned and leasehold real property transferred to such New Borrower in connection with the Proposed Transactions.
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(i) require any Governmental Approval (other than the filing of UCC financing statements and the recordation of mortgages, deeds to secure debt or deeds of trust, as applicable) that has not been obtained or violate any Applicable Law relating to such Borrower or any of its Subsidiaries;
(ii) conflict with, result in a breach of or constitute a default under the articles or certificate of incorporation or by-laws or other constituent documents or any shareholders’ or members’ agreement of such Borrower or any of its Subsidiaries, any material provisions of any indenture, agreement or other instrument to which such Borrower, any of its Subsidiaries or any of such Borrower’s or such Subsidiaries’ Property may be bound or any Governmental Approval relating to such Borrower or any of its Subsidiaries; or
(iii) result in or require the creation or imposition of any Lien upon or with respect to any Property now owned or hereafter acquired by such Borrower other than the security interests and Liens granted to Administrative Agent.
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12) Effectiveness of Agreement; Governing Law. The provisions of this Agreement shall become effective as of the date hereof on the first date (the “Agreement Effective Date”) on which Administrative Agent shall have received duly executed and delivered counterparts of this Agreement from each of the Borrowers. Upon effectiveness, this Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia.
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of Administrative Agent and Lenders, from any and all liabilities, claims, demands, actions or causes of action of any kind or nature (if there be any), whether absolute or contingent, disputed or undisputed, at law or in equity, or known or unknown, that such Borrower now has or ever had against Administrative Agent or any Lender arising under or in connection with any of the Credit Documents or otherwise. Each Borrower represents and warrants to Administrative Agent and Lenders that such Borrower has not transferred or assigned to any Person any claim that such Borrower ever had or claimed to have against Administrative Agent or any Lender.
[Signatures commence on following page]
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NEW BORROWERS: | ||
DELNOR PROPERTY, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
DELTA STEEL PROPERTY, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
FERALLOY PROPERTY, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
INFRA-METALS PROPERTY, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
INFRA-METALS PROPERTY II, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
METALS SUPPLY PROPERTY, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary |
XXXXX PIPE & STEEL PROPERTY, LLC | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
EXISTING BORROWERS: | ||
XXXXX PIPE & STEEL COMPANY | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
INFRA-METALS CO. | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
FERALLOY CORPORATION | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
DELTA GP, L.L.C. | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
DELTA LP, L.L.C. | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary |
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DELTA STEEL, L.P. | ||||
By: | Delta GP, L.L.C., its general partner | |||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
By: | Delta LP, L.L.C., its limited partner | |||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
PNA GROUP, INC. | ||||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
DELNOR CORPORATION | ||||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
TRAVEL MAIN CORPORATION | ||||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
XXXXXXXX ACQUISITION, LLC | ||||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary |
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CLINTON & XXXXXXXX, LTD. | ||||
By: | PNA Group, Inc., its general partner (before giving effect to the “Proposed Transactions” contemplated by the Third Consent Letter and Fourth Amendment to Amended and Restated Credit and Security Agreement of even date herewith) | |||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
Affirmed by: | ||||
Travel Main Corporation, its general partner (after giving effect to the “Proposed Transactions” contemplated by the Third Consent Letter and Fourth Amendment to Amended and Restated Credit and Security Agreement of even date herewith) | ||||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
Consented to: | ||||
By: | Xxxxxxxx Acquisition, LLC, its limited partner | |||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
METALS SUPPLY COMPANY, LTD. | ||||
By: | MSC Management, Inc., its general partner | |||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary | |||
By: | PNA Group, Inc., its limited partner | |||
By: | /s/ Xxx X. Xxxxxxxx | |||
Name: | Xxx X. Xxxxxxxx | |||
Title: | Vice President and Secretary |
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MSC MANAGEMENT, INC. | ||
By: | /s/ Xxx X. Xxxxxxxx | |
Name: | Xxx X. Xxxxxxxx | |
Title: | Vice President and Secretary | |
ADMINISTRATIVE AGENT: | ||
BANK OF AMERICA, N.A. | ||
By: | /s/ Xxxxxx X. Xxxxx | |
Name: | Xxxxxx X. Xxxxx | |
Title: | Senior Vice President |
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