**Exhibit4.4**

 

 

EXECUTION COPY

 

SECOND AMENDMENT

 

to the

 

RESTRUCTURING AGREEMENT

 

 

between

 

EARLE M. JORGENSENHOLDING COMPANY, INC.

 

 

and

 

 

KELSO

INVESTMENT ASSOCIATES IV,L.P.

 

 

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Dated as of May 22, 2002

 

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Table of Contents

 
| 1.        | Cancellation of  the Existing Notes and Issuance of the New Holding Notes |
|-----------|---------------------------------------------------------------------------|
|      | 1.1.                                                                      | Cancellation  of the Existing Notes and Issuance of the New Notes |
|      | 1.2.                                                                      | Prepayment  of Holding Notes |
|      |                                                                      |   |
| 2.        | Closing                                                                   |
|      |                                                                      |
| 3.        | Conditions  to Closing                                                    |
|      | 3.1.                                                                      | Representations and  Warranties |
|      | 3.2.                                                                      | Performance;  No Default |
|      | 3.3.                                                                      | Compliance  Certificate |
|      | 3.4.                                                                      | Absence  of Litigation |
|      | 3.5.                                                                      | Indenture |
|      | 3.6.                                                                      | Proceedings |
|      |                                                                      |   |
| 4.        | Representations  and Warranties of Holding                                |
|      | 4.1.                                                                      | Organization, Standing, Etc |
|      | 4.2.                                                                      | Qualification |
|      | 4.3.                                                                      | Authorization |
|      | 4.4.                                                                      | No Violation; Conflicts |
|      | 4.5.                                                                      | Governmental  Consent |
|      | 4.6.                                                                      | Compliance with  Margin Regulations |
|      |                                                                      |   |
| 5.        | Terms of New  Notes, Etc                                                  |
|      | 5.1.                                                                      | Terms of New Notes |
|      |                                                                      |   |
| 6.        | Definitions                                                               |
|      |                                                                      |
| 7.        | Survival of  Representations and Warranties                               |
|      |                                                                      |
| 8.        | Parties                                                                   |
|      |                                                                      |
| 9.        | Notices, Etc                                                              |
|      |                                                                      |
| 10.       | Further  Assurances                                                       |
|      |                                                                      |
| 11.       | Miscellaneous                                                             |
|      |                                                                      |
| 12.       | Savings Clause                                                            |
|      |                                                                      |
| 13.       | Severability                                                              |
|      |                                                                      |
| EXHIBITS  |
|      |
| Exhibit A | Form of Holding Note                                                      |

 

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**SECONDAMENDMENT TO THE RESTRUCTURING AGREEMENT**

 

THIS SECOND AMENDMENT TO THE RESTRUCTURING AGREEMENT(this “Second Amendment”) is made and entered into as of May 22, 2002, betweenEarle M. Jorgensen Holding Company, Inc., a Delaware corporation (“Holding”),and Kelso Investment Associates IV, L.P., a Delaware limited partnership (“KIAIV”).

 

WITNESSETH:

 

WHEREAS, Holding is the sole stockholder of Earle M.Jorgensen Company, a Delaware corporation (the “Company”);

 

WHEREAS, pursuant to that certain RestructuringAgreement, dated as of March 3, 1993 (the “Restructuring Agreement”) betweenHolding and KIA IV, KIA IV agreed to acquire from Holding, and Holding agreedto issue to KIA IV, $55,000,000 in aggregate principal amount of Series AVariable Rate Senior Notes (the “Series A Notes”) and certain warrants for thepurchase of shares of common stock of Holding;

 

WHEREAS, pursuant to that certain Indenture, dated asof March 24, 1998 (the “Prior Indenture”) between the Company and the UnitedStates Trust Company of New York, and as set forth in that certain OfferingMemorandum of the Company, dated March 19, 1998 (the “Prior Offering”), theCompany issued $105,000,000 in aggregate principal amount of 9.5% Senior Notesdue 2005 (the “Old Senior Notes”);

 

WHEREAS, concurrently with the closing of the PriorOffering, the Company entered into (i) the Special Term Loan Agreement (ashereinafter defined) pursuant to which the Company borrowed $100,000,000, and(ii) the Amended and Restated Credit Agreement (as hereinafter defined)pursuant to which the Company refinanced its existing credit facility providingup to $220,000,000 in revolving credit and letter of credit availability;

 

WHEREAS, the Company used a portion of the netproceeds of the Prior Offering, and borrowings under the Special Term LoanAgreement and the Amended and Restated Credit Agreement, to pay a dividend toHolding in the amount of $45,419,439.60, thereby enabling Holding to make aprepayment of a portion of the Series A Notes and to make a payment of unpaidinterest accrued from January 1, 1998 to the March 24, 1998 on the Series ANotes;

 

WHEREAS, concurrent with Holding’s redemption of suchSeries A Notes and its payment of such accrued and unpaid interest, Holding andKIA IV agreed, pursuant to that certain Amendment to the RestructuringAgreement, dated as of March 24, 1998 (the “First Amendment”), to extend thematurity of the remaining Series A Notes to March 20, 2006 and issued new notesin replacement thereof (the “Existing Holding Notes”) and to make such otherincidental amendments to the Restructuring Agreement as were necessary for theCompany to comply with the terms of the Indenture, the Special Term LoanAgreement and the Amended and Restated Credit Agreement.

 

WHEREAS, pursuant to that certain Indenture, dated asof May 22, 2002 (the “Indenture”) between the Company and The Bank of New York**,**andas set forth in that certain

 

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Offering Circular of the Company, dated May 17, 2002 (the “CurrentOffering”), the Company intends to issue $250,000,000 in aggregate principalamount of its 9 3⁄4% Senior Secured Notes due 2012 (the “Senior Secured Notes”);

 

WHEREAS, the net proceeds of the Current Offering willbe used to provide for (i) the redemption of $105,000,000 in aggregateprincipal amount of the outstanding Old Senior Notes together with premium andaccrued interest thereon to the date of redemption, (ii) the payment of$96,000,000 in aggregate principal amount of the Special Term Loan, plusaccrued interest and (iii) pay a dividend to Holding in the amount of$25,000,000 to enable Holding to (x) possibly pay principal and accrued intereston its Existing Holding Notes (which were issued as interest paid in kind onthe Existing Holding Notes and are to be exchanged for the New Notes (asdefined below)), and/or (y) to redeem or repurchase capital stock of Holding,subject to the terms of the Restructuring Agreement.

 

NOW, THEREFORE, in consideration of the mutualpromises, covenants, representations and warranties made herein and of themutual benefits to be derived herefrom, the parties hereto agree as follows:

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# 1.             Cancellation of the Existing Notes andIssuance of the New Holding Notes.

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## 1.1.          Cancellation of the Existing Notesand Issuance of the New Notes. Subject to the terms and conditions hereof, at the Closing:

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### (a)           KIAIV shall deliver to Holding all of the then outstanding Existing Holding Notes,free and clear of any Lien, and Holding shall cancel all such Existing HoldingNotes; and

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### (b)           Holdingshall issue and deliver to KIA IV $178,481,266.68 in aggregate principal amountof new notes, substantially in the form of the note attached hereto as ExhibitA (the “Holding Note”), dated as of the Closing Date and registered in thename of KIA IV (or in the name of its nominee).  (Holding Note No. R-22 and Holding Note No. R-23, insubstantially the form attached hereto as Exhibits B and C,respectively, together with any Secondary Notes (as defined), shall hereinafterbe referred to as the “New Notes”).

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## 1.2.          Prepayment of Holding Notes.  Holding and KIA IV covenant and agree todiscuss the application of the dividend received by Holding, including thepossible application of all or a portion of such amount to the prepayment of aportion of the New Notes and/or the payment of accrued interest or the NewNotes.  Notwithstanding the foregoing, theapplication of such dividend will be in accordance with the terms of theRestructuring Agreement unless KIA IV consents in writing to a differentapplication.

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# 2.             Closing.  The closing of the transactions described inSection 1 (the “Closing”) shall take place at the offices of Kelso &Company, 320 Park Avenue, 24th Floor, New York, New York 10022, at 10:00 a.m.,Eastern Standard Time, on May 22, 2002 or at such other place, time or date asmay be mutually agreed upon by the parties hereto (the “Closing Date”).

 

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# 3.             Conditions to Closing.  The obligation of KIA IV to consummate thetransactions contemplated hereby is subject to the fulfillment to itssatisfaction, prior to or at the Closing, of the following conditions:

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## 3.1.          Representations and Warranties.  The representations and warranties ofHolding contained in this Second Amendment and those otherwise made in writingby or on behalf of Holding in connection with the transactions contemplated bythis Second Amendment shall be correct on and as of the date hereof and shallbe repeated and shall be true and correct on and as of the Closing Date withthe same effect as though made on and as of such date.

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## 3.2.          Performance; No Default.  Holding shall have performed and compliedwith all agreements and conditions contained in this Second Amendment requiredto be performed or complied with by it prior to or at the Closing and at thetime of the Closing no Default shall have occurred and be continuing.

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## 3.3.          Compliance Certificate.  Holding shall have delivered to KIA IV anOfficers’ Certificate, dated as of the Closing Date, certifying that theconditions specified in Sections 3.1 and 3.2 have been fulfilled.

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## 3.4.          Absence of Litigation.  No litigation or proceeding shall exist withrespect to any of the aforementioned agreements or this Second Amendment or anyother agreements, documents or transactions related thereto or hereto, whichwould in the opinion of KIA IV be reasonably likely to have a material adverseeffect on the ability of Holding to perform its obligations under this SecondAmendment or the New Notes or on the validity or enforceability of this SecondAmendment or the New Notes.

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## 3.5.          Indenture. KIA IV shall be reasonably satisfied with the terms of theIndenture.  The Indenture shall havebeen duly executed and delivered by all parties thereto and there shall notexist any default or event of default thereunder.

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## 3.6.          Proceedings. All corporate and other proceedings taken or to be taken in connectionwith the transactions contemplated hereby and all documents incident theretoshall be satisfactory in form and substance to KIA IV and its counsel, and KIAIV shall have received such other documents relating thereto as KIA IV mayreasonably request.

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# 4.             Representations and Warranties ofHolding.  Holding represents andwarrants to KIA IV as follows:

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## 4.1.          Organization, Standing, Etc.  Holding is a corporation duly organized,validly existing and in good standing under the laws of the State of Delawareand has all requisite corporate power and authority to own and operate itsproperties and to carry on its business as now conducted and as proposed to beconducted.

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## 4.2.          Qualification. Holding is duly qualified and in good standing as a foreign corporationauthorized to do business in each jurisdiction (other than the jurisdiction ofits incorporation) in which the nature of its activities or the character ofthe properties it owns or leases makes such qualification necessary.

 

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## 4.3.          Authorization. Holding has the corporate power and authority and the legal right tomake, deliver and perform its obligations under this Second Amendment and theNew Notes and has taken all necessary corporate action to authorize thetransactions contemplated hereby and thereby. This Second Amendment has been, and on or prior to the Closing Date theNew Notes shall have been, duly authorized, executed and delivered byHolding.  This Second Amendmentconstitutes, and when executed and delivered the New Notes shall constitute,legal, valid and binding obligations of Holding, enforceable against Holding inaccordance with their respective terms.

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## 4.4.          No Violation; Conflicts.  The execution and delivery of this SecondAmendment and the New Notes and the performance by Holding of their respectiveterms will not (a) violate any law or regulation or any order or decree of anycourt or governmental instrumentality applicable to Holding or any of theSubsidiaries; (b) conflict with or constitute a material default under, or giverise to any right of termination or acceleration under, any material indenture,mortgage, deed of trust or loan agreement, or any other material agreement,lease or other instrument, to which Holding or any of the Subsidiaries is aparty or by which any of their property or assets are bound or to which theymay be subject; or (c) violate any provision of the Certificate ofIncorporation or By-Laws of Holding or any of the Subsidiaries.

##  

## 4.5.          Governmental Consent.  No consent, approval or authorization of, ordeclaration or filing with, any Governmental Authority on the part of Holdingor any of the Subsidiaries is required for the valid execution and delivery ofthis Second Amendment, the New Notes, the valid offer and issuance of the NewNotes pursuant to this Second Amendment or the consummation of the transactionscontemplated by this Second Amendment or the New Notes.

##  

## 4.6.          Compliance with Margin Regulations.  The issuance of the New Notes hereunder andthe consummation of the transactions contemplated hereby will not violate or beinconsistent with Regulation G, T, U or X of the Board of Governors of theFederal Reserve System or any other regulation of such Board of Governors.

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# 5.             Terms of New Notes, Etc.

##  

## 5.1.          Terms of New Notes.  The terms of the New Notes, including the payments required uponthe maturity thereof, the interest rates applicable thereon, and mandatory andoptional prepayments with respect thereto, are contained in the form of suchNew Notes set forth in Exhibit A.

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# 6.             Definitions.  The definitions contained in Section 12 ofthe Restructuring Agreement are supplemented and amended as follows:

 

“**Second Amended and Restated Credit Agreement**”refers to the Second Amended and Restated Credit Agreement, dated as of March3, 1993, amended and restated as of March 24, 1998 and further amended andrestated as of April 12, 2002, among Holding, the Company, various financialinstitutions specified therein, and Bankers Trust Company, as agent, andDeutsche Bank Securities, Inc. as lead arranger and sole book runner, and allsecurity agreements and ancillary agreements referred to therein, in each caseas such agreements may be amended, restated, supplemented or otherwise modifiedfrom time to time, including any

 

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amendment extending the maturity of or effecting a refinancing orrestructuring of the indebtedness of the Company thereunder.

 

“**Indenture**” refers to the Indenture, datedas of May 22, 2002, between the Company and The Bank of New York, as specifiedin the third recital to this Second Amendment.

 

“**New Notes**” refers to Holding Note No. R-22,Holding Note No. R-23 and the Secondary Notes, as specified in Section 1.1.

 

“**Second Amendment**” refers to this SecondAmendment to the Restructuring Agreement, together with all exhibits hereto, asamended from time to time.

 

“**Special Term Loan Agreement**” refers to theSpecial Term Loan Agreement, dated as of March 24, 1998, among the Company, DLJCapital Funding, Inc., as syndication agent, and Fleet National Bank, asadministrative agent, and the lenders party thereto, and all securityagreements and ancillary agreements referred to therein, in each case as suchagreements may be amended, restated, supplemented or otherwise modified fromtime to time.

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# 7.             Survival of Representations andWarranties.  All representationsand warranties contained in this Second Amendment or made in writing by or onbehalf of Holding in connection with the transactions contemplated by thisSecond Amendment shall survive the execution and delivery of this SecondAmendment, any investigation at any time made by KIA IV or on KIA IV’s behalf,the issuance of the New Notes to KIA IV under this Second Amendment and anydisposition or payment of the New Notes. All statements contained in any certificate or other instrumentdelivered by or on behalf of Holding pursuant to this Second Amendment or inconnection with the transactions contemplated by this Second Amendment shall bedeemed representations and warranties of Holding under this Second Amendment.

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# 8.             Parties.  This Second Amendment shall inure to thebenefit of and be binding upon the parties hereto, each subsequent holder of aNew Note and each of their respective successors and assigns.  Nothing expressed or mentioned in thisSecond Amendment is intended or shall be construed to give any Person, otherthan the parties hereto, each subsequent holder of a New Note and theirrespective successors and assigns, any legal or equitable right, remedy orclaim under or in respect of this Second Amendment or any provisions hereincontained.  This Second Amendment andall conditions and provisions hereof are intended to be for the sole andexclusive benefit of the parties hereto, any subsequent holder of a New Noteand each of their respective successors and assigns, and for the benefit of noother Person.

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# 9.             Notices,Etc.  Except as otherwise providedin this Second Amendment and the Restructuring Agreement, notices and othercommunications under this Second Amendment and the Restructuring Agreementshall be in writing and shall be delivered by hand, or mailed certified orregistered mail with postage prepaid, or faxed, addressed, (a) if to Holding,c/o Earle M. Jorgensen Company, 3050 East Birch Street, Brea, California92621, fax number:  (714) 577-3765 tothe attention of Mr. William Johnson, Vice President and Chief FinancialOfficer, or at such other address or to the attention of such other officer asHolding shall have furnished to KIA IV in writing with a copy to Mark A. Conley,Katten Muchin Zavis Rosenman, 2029 Century Park East, Suite 2600, Los Angeles,California 90067, fax number:

 

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(310) 712-8225 or(b) if to KIA IV, c/o Kelso & Company, Inc., 320 Park Avenue, 24th Floor,New York, New York 10022, fax number: (212) 223-2379 to the attention of Mr. Matelich with a copy to JamesConnors, II, Kelso & Company, Inc., 320 Park Avenue, 24th Floor, New York,New York 10022, fax number: (212) 223-2379 or at such other address, or to theattention of such other officer, as KIA IV shall have furnished to Holding inwriting or (c) if to any other holder of any New Note, at such address orsuch fax number as such other holder shall have furnished to Holding inwriting, or, until any such other holder so furnishes to Holding an address orfax number, then to and at the address of the last holder of such New Note whohas furnished an address to Holding. Any notice so addressed shall be deemed to be given three Business Daysafter being mailed by certified or registered mail or on the next Business Dayafter being faxed.

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# 10.           Further Assurances.  At any time or from time to time upon the request of KIA IV,Holding shall execute and deliver, and shall cause the Subsidiaries to executeand deliver, such further documents and do such other acts as KIA IV mayreasonably request in order to effect fully the purpose of this SecondAmendment and the New Notes and to provide for payment with respect to the NewNotes in accordance with the terms of this Second Amendment and the New Notes.

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# 11.           Miscellaneous.  This Second Amendment shall be binding uponand inure to the benefit of and be enforceable by the respective successors andassigns of the parties hereto, whether so expressed or not, and, in particular,shall inure to the benefit of and be enforceable by any holder or holders atthe time of the New Notes or any part thereof. This Second Amendment and the New Notes shall be construed and enforcedin accordance with and governed by the law of the State of New York withoutregard to the conflicts of law rules of such state.  The headings in this Second Amendment are for purposes ofreference only and shall not limit or otherwise affect the meaning hereof.  Except as otherwise indicated, references toany “Section” mean a “Section” of this Second Amendment.  This Second Amendment may be executed in anynumber of counterparts, each of which shall be an original, but all of whichtogether shall constitute one instrument.

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# 12.           SavingsClause.  Except as amendedherein, each provision of the Restructuring Agreement and the Stock PledgeAgreement and the Warrants shall continue valid, binding and in full force andeffect and the New Notes shall be entitled to the full benefit and protectionof the Stock Pledge Agreement.

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# 13.           Severability.  If any provision of this Second Amendmentshall be held invalid or unenforceable by any court of competent jurisdiction,the other provisions of this Second Amendment shall remain in full force andeffect.  Any provisions of this SecondAmendment held invalid or unenforceable only in part or degree shall remain infull force and effect to the extent not held invalid or unenforceable.

 

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IN WITNESS WHEREOF, the undersigned have caused thisSecond Amendment to be duly executed as of the date first above written.

 
|   |   | EARLE M. JORGENSEN  HOLDING COMPANY,  INC., a Delaware corporation     |
|--------|--------|------------------------------------------------------------------------|
|   |   |                                                                   |   |
|   |   |                                                                   |   |
|   |   | By:                                                                    | /s/WILLIAM S. JOHNSON |   |
|   |   | Name:                                                                  | William S. Johnson |
|   |   | Its:                                                                   | Vice President, Chief  Financial Officer  and Secretary |
|   |   |                                                                   |   |
|   |   |                                                                   |   |
|   |   | KELSO INVESTMENT  ASSOCIATES IV, L.P., a  Delaware limited partnership |
|   |   |                                                                   |   |
|   |   | By:                                                                    | Kelso Partners IV,  L.P., a Delaware limited  partnership |
|   |   | Its:                                                                   | General Partner |
|   |   |                                                                   |   |
|   |   |                                                                   | By: | /s/DAVID I. WAHRHAFTIG |   |
|   |   |                                                                   | Name: | David I. Wahrhaftig |
|   |   |                                                                   | Its: | General Partner |
|        |        |                                                                        |  |  |  |  |

 

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Exhibit A

 

Form of Holding Note

 

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Exhibit B

 

New Holding Note R-22

 

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Exhibit C

 

NewHoldingNoteR-23

 

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