EX-10.11



 





Exhibit 10.11




     SECOND AMENDMENT dated as of January 18, 2006 (“Amendment”), to the FINANCING
AGREEMENT, dated as of July 15, 2005 (as amended, modified or supplemented from time to time, the
“Financing Agreement”), and First Amendment to the Post-Closing Letter (as defined in the
Financing Agreement), among HORSEHEAD CORP. (f/k/a Horsehead Acquisition Corp.), a Delaware
corporation (the “Company”), HORSEHEAD INTERMEDIARY CORP., a Delaware corporation
(“Horsehead Intermediary”), CHESTNUT RIDGE RAILROAD CORP., a Delaware corporation (together
with the Company and Horsehead Intermediary, the “Credit Parties”), THE CIT GROUP/BUSINESS
CREDIT, INC. (“CIT”), PNC BANK, NATIONAL ASSOCIATION (“PNC” and together with CIT,
collectively, the “Lenders”), and CIT, as agent for the Lenders (the “Agent”).
Terms which are capitalized in this Amendment and not otherwise defined shall have the meanings
ascribed to such terms in the Financing Agreement.



     WHEREAS, the Credit Parties have requested that the Agent and Lenders amend certain provisions
of the Financing Agreement and the Post-Closing Letter, and the Agent and Lenders are willing to
amend such provisions of the Financing Agreement and the Post-Closing Letter on the terms and
subject to the conditions set forth herein.



     NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:



     Section One.  Amendments to Financing Agreement. Effective as of the
Effective Date (as defined below), the Financing Agreement is hereby amended as follows:



          (a) (i) On the Effective Date, the Lenders, pro rata in accordance with their
respective Pro Rata Percentages, severally (and not jointly) agree to make a term loan to the
Company in the original principal amount of Seven Million Dollars ($7,000,000) (the “Special
Accommodation Advance”). The Special Accommodation Advance shall be repaid in eleven (11)
consecutive monthly installments each in the amount of Five Hundred Eighty-Three Thousand Three
Hundred Thirty-Three and 33/100 Dollars ($583,333.33) commencing February 1, 2006 and continuing on
the first day of each calendar month thereafter with a final payment of all outstanding principal
and accrued interest and the unpaid balance of the Special Accommodation Advance Fee (as defined
below) due and payable on January 1, 2007. No payments of the Special Accommodation Advance may be
reborrowed. The Special Accommodation Advance shall be evidenced by one or more secured promissory
notes (collectively, the “Special Accommodation Advance Notes”) substantially in the form
executed in connection with this Amendment, which notes shall be deemed to constitute Promissory
Notes.




               (ii) The Company may make voluntary prepayments of the Special Accommodation Advance from time
to time upon not less than five (5) days’ prior written notice to the Agent and Lenders in the
minimum principal amount of Five Hundred Thousand Dollars ($500,000) or a whole multiple of One
Hundred Thousand Dollars ($100,000) in excess thereof (or, if less, the entire principal amount
thereof then outstanding). Any such voluntary



 









 




prepayment shall be applied against the remaining installments of principal in the inverse
order of their maturities until the Special Accommodation Advance is repaid in full.




               (iii) The interest rate applicable to the outstanding principal balance of the Special
Accommodation Advance shall be determined in the same manner (and using the same interest rate
margins) as the interest rate applicable to the Revolving Loans under the Financing Agreement (and
the Special Accommodation Advance or any applicable portion thereof shall be deemed to constitute a
Chase Bank Rate Loan or LIBOR Loan, as applicable). Interest on the outstanding principal balance
of the Special Accommodation Advance shall accrue, and shall be due and payable, in the same manner
as interest on the outstanding principal balance of the Revolving Loans under the Financing
Agreement.



               (iv) Each payment (including each prepayment) on account of the principal of and interest on
the Special Accommodation Advance or on account of the Special Accommodation Advance Fee shall be
applied pro rata in accordance with the respective Pro Rata Percentages of the Lenders.



               (v) The proceeds of the Special Accommodation Advance shall be used solely to repay the Zinc
Contract Loan (as defined below).



               (vi) To induce the Agent and Lenders to enter into this Amendment and to extend to the Company
the Special Accommodation Advance, the Company agrees to pay to the Agent, for the ratable benefit
of the Lenders, a fee in the amount of One Hundred Seventy-Five Thousand Dollars ($175,000) (the
“Special Accommodation Advance Fee”), which shall be fully earned on the Effective Date and
payable as follows: (i) Eighty-Seven Thousand Five Hundred Dollars ($87,500) on the Effective Date
and (ii) Eighty-Seven Thousand Five Hundred Dollars ($87,500) on July 1, 2006.



               (vii) Without limiting the Agent’s right to charge the Revolving Loan Account for any other
purpose under the Financing Agreement, the Company authorizes the Agent to charge the Revolving
Loan Account: (i) to make all payments of the Special Accommodation Advance and interest thereon
and the Special Accommodation Advance Fee as and when such payments are due and payable, and (ii)
to fund Out-of-Pocket Expenses incurred in connection with the negotiation, documentation and
closing of this Amendment.



               (viii) All obligations of the Company under or in connection with the Special Accommodation
Advance shall constitute part of the Obligations, shall be absolutely and unconditionally
guarantied by the Credit Parties and shall be secured by the Collateral.



          (b) Notwithstanding anything to the contrary contained in the definition of “Consolidated
Fixed Charges” contained in Section 1.1 of the Financing Agreement, neither the payment of the Zinc
Contract Loan Obligations (as defined below) nor the repayment of the Special Accommodation Advance
shall constitute part of the Consolidated Fixed Charges.




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          (c) The definition of “Required Lenders” contained in Section 1.1 of the Financing Agreement
is amended by deleting both references to the words “under the Revolving Line of Credit” contained
in clause (b) of such definition.




          (d) Notwithstanding anything to the contrary contained in Section 3.5(c) or 10.4 of the
Financing Agreement, if an Event of Default shall have occurred and remain outstanding, in applying
the Proceeds of Collateral and the other payments received by the Agent to the payment of the
Obligations in accordance with Section 10.4, the Agent shall be entitled to apply such Proceeds and
payments to the payment of the Obligations relating to the Revolving Loans, on one hand, and to the
payment of the Obligations relating to the Special Accommodation Advance, on the other hand, in
such order at the Agent shall determine in its sole discretion; provided, however,
that until the exercise by the Agent of its rights under Section 10.2(a) of the Financing
Agreement, the Agent shall (i) apply to the Special Accommodation Advance principal payments
received from the Company and designated by the Company for application to the Special
Accommodation Advance, and (ii) to the extent an Overadvance exists, apply to the Revolving Loans
principal payments received from the Company and designated by the Company for application to the
Revolving Loans.




          (e) Section 8.16(b) of the Financing Agreement is amended such that any Lender to be replaced
in accordance with Section 8.16 shall be entitled to receive payment of an amount equal to its
pro rata share (in accordance with the respective Pro Rata Percentages of the Lenders) of
the outstanding principal balance of the Special Accommodation Advance, accrued interest thereon
and the unpaid balance of the Special Accommodation Advance Fee, together with all other amounts
described in Section 8.16(b), prior to the effectiveness of such Lender’s assignment in accordance
with Section 8.16.




          (f) Section 14.10(a) of the Financing Agreement is amended such that any amendment reducing
the principal of, or rate of interest on, the Special Accommodation Advance, or any amendment
reducing the Special Accommodation Advance Fee, shall require the prior written consent of all
Lenders.




     Section Two.  Amendment to the Post-Closing Letter. Effective as of the
Effective Date (as defined below), Section 1(b) of the Post-Closing Letter is amended by deleting
the words “January 15, 2006” contained therein and replacing the same with the words “March 31,
2006”.



     Section Three.  Consent. On the Effective Date, the Agent and Lenders
consent to (i) the Company’s incurrence of a loan from Sun Capital in the original principal amount
of Seven Million Two Hundred Ninety Thousand Dollars ($7,290,000), the proceeds of which were used
to enable the Company to enter into a certain zinc put option contract (the “Zinc Contract
Loan”), and the related Zinc Contract Loan Obligations, notwithstanding any prohibition on the
incurrence of the Zinc Contract Loan contained in Sections 7.4(b) or (h) of the Financing
Agreement, and (ii) the repayment in full of the Zinc Contract Loan, together with interest thereon
at a rate not to exceed ten percent (10%) per annum (together with the Zinc Contract Loan,
collectively, the “Zinc Contract Loan Obligations”), on or substantially contemporaneous
with the Effective Date, notwithstanding any prohibition on such repayment



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contained in Section 7.4(i) of the Financing Agreement. On the Effective Date, the consent
contained in the preceding clause (i) shall be deemed to be retroactively effective to December 23,
2005 (i.e., the funding date of the Zinc Contract Loan).




     Section Four.  Representations and Warranties. Each of the Credit Parties
warrants and represents to the Agent and each Lender as follows:



          (a) the execution, delivery and performance of this Amendment and the other documents
described herein by such Credit Party is within its corporate powers, has been duly authorized by
all necessary corporate action, and such Credit Party has received all necessary consents and
approvals (if any shall be required) for the execution and delivery of this Amendment and such
other documents;




          (b) upon the execution of this Amendment and the other documents described herein, this
Amendment and such other documents shall constitute the legal, valid and binding obligation of such
Credit Party, enforceable against such Credit Party in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’
rights generally and (ii) general principles of equity;




          (c) no Default or Event of Default has occurred and is continuing; and




          (d) each Credit Party confirms, reaffirms and restates to the Agent and each Lender, as of the
Effective Date, the representations and warranties set forth in the Financing Agreement, except to
the extent that such representations and warranties solely relate to a specific earlier date in
which case each Credit Party confirms, reaffirms and restates such representations and warranties
as of such earlier date.




     Section Five.  Conditions Precedent. The effectiveness of the amendments and
other provisions hereof are subject to the following conditions precedent, including, where
applicable, that the Agent shall have received the following documents and other items (all such
documents and other items to be in form and substance satisfactory to the Agent):



          (a) This Amendment duly executed by authorized representatives of the Credit Parties and the
Lenders;




          (b) A Special Accommodation Advance Note in favor of each Lender duly executed by an
authorized representative of the Company;




          (c) The First Amendment to the Intercreditor Agreement duly executed by an authorized
representative of Contrarian;




          (d) An amendment to the Contrarian Financing Documents covering such matters as may be
reasonably satisfactory to the Agent duly executed by authorized representatives of the Credit
Parties and Contrarian;




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          (e) Evidence that the execution, delivery and performance of this Amendment by each of the
Credit Parties have been duly authorized by all necessary action, and that no amendment or other
modification to the articles or certificate of incorporation or bylaws of any Credit Party has been
made since the date of the original delivery thereof to the Agent and that such documents (in the
form delivered to the Lender) remain in full force and effect; and




          (f) A written opinion of counsel for the Credit Parties addressed to the Agent and the Lenders
covering such matters as may be reasonably requested by the Agent.




     The date which all of the conditions precedent set forth in this Section 5 hereof shall have
been satisfied is referred to herein as the “Effective Date”.



     Section Six.  General Provisions.



          (a) Except as herein expressly amended, the Financing Agreement, the Post-Closing Letter and
all other agreements, documents, instruments and certificates executed in connection therewith, are
ratified and confirmed in all respects and shall remain in full force and effect in accordance with
their respective terms.




          (b) All references to the Financing Agreement and the Post-Closing Letter in the Financing
Agreement and each other Loan Document shall mean the Financing Agreement and the Post-Closing
Letter as amended hereby and as hereafter amended, supplemented and modified from time to time.




          (c) This Amendment embodies the entire agreement between the parties hereto with respect to
the subject matter hereof and supercedes all prior agreements, commitments, arrangements,
negotiations or understandings, whether written or oral, of the parties with respect thereto.




          (d) This Amendment shall be governed by and construed in accordance with the internal laws of
the State of New York, without regard to the conflicts of law principles thereof.




          (e) By its signature below, PNC also hereby confirms its consent to the execution and delivery
by the Agent of the First Amendment to the Intercreditor Agreement.




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     IN WITNESS WHEREOF, the parties to this Amendment have signed below to indicate their
agreement with the foregoing and their intent to be bound thereby.



	 	 	 	 	 	 	 
	 	 	HORSEHEAD CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Robert D. Scherich	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Robert D. Scherich	 	 
	 	 	Title: Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	HORSEHEAD INTERMEDIARY CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Robert D. Scherich	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Robert D. Scherich	 	 
	 	 	Title: Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	CHESTNUT RIDGE RAILROAD CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Robert D. Scherich	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Robert D. Scherich	 	 
	 	 	Title: Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	THE CIT GROUP/BUSINESS CREDIT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Anthony Lavinio	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Anthony Lavinio	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Douglas A. Hoffman	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Douglas A. Hoffman	 	 
	 	 	Title: Vice President