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Exhibit
10.2
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
(this “Agreement”) is made and entered into this 24
th
day of December, 2007, by and
among Precision Flamecutting and Steel, L.P., a Texas limited
partnership (“PFS”), Precision GP Holding, LLC, a
Delaware limited liability company (“NewLLC”; NewLLC
and PFS 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”), Smith Pipe & Steel Company, an
Arizona corporation (“Smith”), 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”), Metals Supply Company,
Ltd., a Texas limited partnership (“Metals Supply”),
and MSC Management, Inc., a Texas corporation (“MSC”;
PNA, Smith, Infra-Metals, Feralloy, Delta Steel, Delta GP, Delta
LP, Delnor, 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,
collectively “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”).
Recitals
:
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. Each New Borrower is executing this Agreement
to become a party 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:
1) Definitions; Certain
Matters of Construction . Each capitalized term used in
this Agreement, unless otherwise defined herein, shall have the
meaning ascribed to such term in the Credit Agreement. The terms
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular section,
paragraph or subdivision. Each reference to any Person shall mean
and include the successors and permitted assigns of such Person.
Each reference 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 word
“including” shall appear in this Agreement, such word
shall be understood to mean “including, without
limitation.”
2) Addition of New
Borrowers . By its execution and delivery of this
Agreement, each New Borrower (a) acknowledges and agrees that,
as of the Agreement Effective Date (as hereinafter
defined), it is a “Borrower”
under the Credit Agreement with the same force and effect as if
originally named therein as a “Borrower,”
(b) covenants with Administrative Agent and Lenders that it
will observe and perform the terms and provisions of the Credit
Agreement to the same extent as if it were an original party
thereto, and (c) confirms that it has received a copy of the
Credit Agreement. The parties hereto agree that each reference in
the Credit Agreement and the other Credit Documents to
“Borrower,” “Borrowers” or terms of similar
import shall be deemed to include New Borrowers.
3) Joint and Several
Liability; Borrower Agent . Each New Borrower acknowledges
that it has requested Lenders to extend financial accommodations to
it and to the other Borrowers on a combined basis in accordance
with the provisions of the Credit Agreement, as hereby amended. In
accordance with the terms of the Credit Agreement, each New
Borrower acknowledges and agrees that, as of the Agreement
Effective Date (as hereinafter defined), it shall be jointly and
severally liable for any and all Loans and other Obligations
heretofore or hereafter made or extended by Administrative Agent
and Lenders to any and all of the Borrowers and for all interest,
fees and other charges payable in connection therewith. Each New
Borrower hereby irrevocably appoints and designates PNA, and PNA
agrees to act, as the agent and representative of such New Borrower
for all purposes under the Credit Agreement, including requesting
Borrowings, selecting whether any Loan or portion thereof is to
bear interest as a Base Rate Loan or a LIBOR Loan, and receiving
account statements and other notices and communications to
Borrowers (or any of them) from Administrative Agent.
4) Grant of Security
Interest . 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;
(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;
2
(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.
5) Acknowledgments and
Stipulations . To induce Administrative Agent and Lenders
to enter into this Agreement, each Borrower hereby 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.
6) Ratification and
Reaffirmation . To induce Administrative Agent and Lenders
to enter into this Agreement, each Borrower hereby ratifies and
reaffirms the Obligations, each of the Credit Documents to which it
is a party, and all of such Borrower’s covenants, duties,
indebtedness and liabilities under the Credit Documents to which it
is a party.
7) Representations and
Warranties . To induce Administrative Agent and Lenders to
enter into this Agreement, each Borrower hereby makes the following
representations and warranties to Administrative Agent and Lenders,
which representations and warranties shall survive the delivery of
this Agreement and the making of additional Loans under the Credit
Agreement as amended hereby:
(a) Authorization of
Agreements . Each Borrower has the right and power, and has
taken all necessary action to authorize it, to execute, deliver and
perform this Agreement and each other agreement contemplated hereby
to which it is a party in accordance with their respective terms.
This Agreement and each other such agreement contemplated hereby to
which it is a party has been duly executed and delivered by the
duly authorized officers of such Borrower and each is, or each when
executed and delivered in accordance with this Agreement will be, a
legal, valid and binding obligation of such Borrower, enforceable
in accordance with its terms.
(b) Compliance of
Agreements with Laws . The execution, d
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