Exhibit 4.3(iv)
FOURTH AMENDMENT
TO
FINANCING AGREEMENT
Fourth Amendment, dated as of October 3, 1996 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 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 deleting subclause (xv) thereof
and substituting in lieu thereof:
"(xv) repurchases and/or redemptions by LSI
of its common stock for an aggregate
consideration not exceeding $40,000,000."
3. Restricted Payments. Section 7.14(h) of the
Financing Agreement is hereby amended by deleting subclause (iv)
thereof and substituting in lieu thereof:
"(iv) LSI may repurchase or redeem its
common stock for an aggregate
consideration not exceeding $40,000,000."
4. 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.
5. 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.
(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.
6. 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 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 Amendment, 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.
7. Consent. The Lender hereby consents to LSI's
abandonment of the trademark "Pyrament" in all countries except
for Canada, Mexico and the United States.
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, LLP, counsel to the Lender.
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
Title: Vice President
NEW YORK TRAP ROCK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
LENDER
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxxx Xxxxxxxx
Title: Vice President
