EX-10.32 4 j3760_ex10d32.htm EX-10.32 SECOND AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT
Exhibit 10.32
SECOND AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT (this “Amendment”) is made and entered into on March 13, 2002, but effective as of December 31, 2001, by and among THE CIT GROUP/BUSINESS CREDIT, INC. a New York corporation (hereinafter “CITBC”), in its individual capacity and as Agent (hereinafter the “Agent”) for itself and any other party hereafter becoming a Lender pursuant to Section 13 of the Agreement (as hereinafter defined), each individually sometimes referred to as a “Lender” and collectively the “Lenders”), Lone Star Technologies, Inc. (herein “Parent”), a Delaware corporation, Lone Star Steel Company (herein “LSSC”), a Delaware corporation, Fintube Technologies, Inc. (herein “FTI”), an Oklahoma corporation, Lone Star Logistics, Inc., a Texas corporation (“Logistics”), T&N Lone Star Warehouse Co., a Texas corporation (“T&N Warehouse”), Texas & Northern Railway Company, a Texas corporation (“T&N Railway”), Fintube Canada, Inc., a Delaware corporation (“FCI”) and Bellville Tube Company, L.P., a Texas limited partnership, as successor in interest by conversion to Bellville Tube Corporation, a Texas corporation (“BTCLP”), (herein Parent, LSSC, FTI, Logistics, T&N Warehouse, T&N Railway, FCI and BTCLP each individually a “Company” and collectively as the “Companies”), Environmental Holdings, Inc., a Delaware corporation (“EHI”), Zinklahoma, Inc., a Delaware corporation (“Zinklahoma”), Lone Star Steel International, Inc., a Delaware corporation (“Steel International”), Lone Star Steel Sales Company, a Delaware corporation (“Steel Sales”), Rotac, Inc., a Texas corporation (“Rotac”), Lone Star ST Holdings, Inc., a Delaware corporation (“ST Holdings”), Bellville Tube General, LLC, a Nevada limited liability company (“BTG”) and Bellville Tube Limited, LLC, a Nevada limited liability company (“BTL”) (herein EHI, Zinklahoma, Steel International, Steel Sales, Rotac, ST Holdings, BTG and BTL each individually as “Guarantor” and collectively as the “Guarantors”).
A. WHEREAS, pursuant to the terms and subject to the conditions of that certain Amended and Restated Financing Agreement dated as of October 8, 2001 between the Agent, the Companies and the Guarantors (such Amended and Restated Financing Agreement, as the same is hereby amended and may hereafter be amended from time to time, being hereinafter referred to as the “Agreement”), the Companies were granted a $100,000,000 revolving line of credit which included a letter of credit facility;
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1.01. Capitalized terms used in this Amendment are defined in the Agreement, as amended hereby, unless otherwise stated.
ARTICLE II AMENDMENTS TO AGREEMENT
Effective as of the respective date herein indicated, the Agreement is hereby amended as follows:
2.01. Clause (b)(xi) of the definition of Eligible Accounts Receivable set forth in Section 1 of the Agreement is hereby amended to read “(xi) sales not payable in United States currency (except up to $7,500,000 in the aggregate at any one time of accounts receivable of all of the Companies payable in Canadian currency); and”.
2.02. Clause (a) of the definition of Fixed Charge Coverage Ratio set forth in Section 1 of the Agreement is hereby amended to read “(a) EBITDA less cash taxes for such period”.
2.03. Subparagraphs 7.10(c) (Leverage Ratio) and 7.10(d) (Senior Leverage Ratio) of Section 7 of the Agreement are deleted in their entirety.
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2.04. Paragraph 7.11 of Section 7 of the Agreement is hereby amended to change the last line thereof (everything after the colon) to read as follows: “$26,000,000 for the Fiscal Year ending December 31, 2001 and $22,000,000 for each Fiscal Year thereafter.”
ARTICLE III CONDITIONS PRECEDENT
(a) Agent shall have received each of the following, each in form and substance satisfactory to Agent, in its sole discretion, and, where applicable, each duly executed by each party thereto, other than Agent:
(i) This Amendment, duly executed by Companies and the Guarantors; and
(ii) Certified copies of the resolutions of the Board of Directors or Executive Committee of each of the Companies and the Guarantors, authorizing the execution, delivery and performance of this Amendment and any and all other Loan Documents executed by any of the Companies or the Guarantors in connection therewith, along with a certificate of incumbency certified by the secretary of each of the Companies and the Guarantors if there has been any change from the most recent incumbency certificates delivered by any of the Companies or Guarantors, with specimen signatures of the officers of the Companies or the Guarantors who are authorized to sign such documents, all in form and substance satisfactory to the Agent;
(iii) Opinion from Fulbright & Xxxxxxxx L.L.P. opining, in form and substance satisfactory to Agent, which shall cover such matters incident to the transactions contemplated by this Amendment as Agent may reasonably require and the Companies and the Guarantors hereby authorize and direct such counsel to deliver such opinions to Agent; and
(iv) All other documents Agent may request with respect to any matter relevant to this Amendment or the transactions contemplated hereby.
(b) The representations and warranties contained herein and in the Agreement and the other documents executed in connection with the Agreement (herein referred to as “Loan Documents”), as each is amended hereby, shall be true and correct as of the date hereof, as if made on the date hereof, except for such representations and warranties as are by their express terms limited to a specific date.
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(c) No Default or Event of Default shall have occurred and be continuing, unless such Default or Event of Default has been otherwise specifically waived in writing by Agent.
(d) All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be satisfactory to Agent.
ARTICLE V RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
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the execution, delivery and performance of this Amendment and any and all other Loan Documents executed and/or delivered in connection herewith; (c) the representations and warranties contained in the Agreement, as amended hereby, and any other Loan Document are true and correct on and as of the date hereof and on and as of the date of execution hereof as though made on and as of each such date; (d) no Default or Event of Default under the Agreement, as amended hereby, has occurred and is continuing, unless such Default or Event of Default has been specifically waived in writing by Agent; (e) the Companies and the Guarantors are in full compliance with all covenants and agreements contained in the Agreement and the other Loan Documents, as amended hereby; and (f) the Companies and the Guarantors have not amended their Articles (or Certificates) of Incorporation or their Bylaws or similar organizational documents since the date of the Agreement, except as otherwise disclosed to Agent.
ARTICLE VI
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Companies may not assign or transfer any of their rights or obligations hereunder without the prior written consent of Agent.
6.09. Applicable Law. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6.11. Release by the Companies. THE COMPANIES HEREBY ACKNOWLEDGE THAT THEY HAVE NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE “OBLIGATIONS” OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT. THE COMPANIES HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE AGENT, THE OTHER LENDERS, AND THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE COMPANIES MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE
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OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY “LOANS”, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
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COMPANIES:
LONE STAR TECHNOLOGIES, INC. FINTUBE TECHNOLOGIES, INC. LONE STAR STEEL COMPANY LONE STAR LOGISTICS, INC. T&N LONE STAR WAREHOUSE CO. TEXAS & NORTHERN RAILWAY COMPANY FINTUBE CANADA, INC.
By: |
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/s/ Xxxxxx X. Xxxxxx |
Name: |
Xxxxxx X. Xxxxxx | |
Title: |
Vice President of each of the | |
|
foregoing companies |
BELLVILLE TUBE COMPANY, L.P. as successor in interest by conversion to Bellville Tube Corporation
By: Bellville Tube General, LLC, its general partner
By: |
|
/s/ Xxxxxx X. Xxxxxx |
Name: |
Xxxxxx X. Xxxxxx | |
Title: |
Vice President |
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GUARANTORS:
ENVIRONMENTAL HOLDINGS, INC. ZINKLAHOMA, INC. LONE STAR STEEL INTERNATIONAL, INC. LONE STAR STEEL SALES COMPANY ROTAC, INC. LONE STAR ST HOLDINGS, INC.
By: |
|
/s/ Xxxxxx X. Xxxxxx |
Name: |
Xxxxxx X. Xxxxxx | |
Title: |
Vice President of each of the | |
|
foregoing companies |
BELLVILLE TUBE GENERAL, LLC BELLVILLE TUBE LIMITED, LLC
By: |
|
/s/ Xxxxxx X. Xxxxxx |
Name: |
Xxxxxx X. Xxxxxx | |
Title: |
Vice President of each of the | |
|
foregoing limited liability companies |
LENDERS:
THE CIT GROUP/BUSINESS CREDIT, INC. as Agent and Lender
By: |
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/s/ Xxxx Xxxxxx | |
Name: |
Xxxx Xxxxxx | ||
Title: |
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Vice President | |
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