EXHIBIT 10.1
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (the
"Second Amendment") is made as of March 31, 2005, between Congress Financial
Corporation (Central) ("Lender") and Fansteel Inc., a Delaware corporation
("Fansteel") and Xxxxxxx Dynamics Corporation, a Delaware corporation
("Xxxxxxx"; Fansteel and Xxxxxxx are collectively "Borrowers" and each
individually a "Borrower").
RECITALS
WHEREAS, Borrowers and Lender are parties to that certain Loan
and Security Agreement dated January 23, 2004 (as the same has been amended,
supplemented or otherwise modified, the "Loan Agreement") and various other
documents, instruments and agreements (as amended, supplemented or otherwise
modified from time to time, the "Financing Agreements");
WHEREAS, Borrowers have requested that the Lender agree to
modify the minimum EBITDA covenant set forth in the Loan Agreement; and
WHEREAS, Lender has agreed to such request on and subject to
the terms and conditions hereof;
NOW THEREFORE, in consideration of the provisions set forth
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the same meanings herein as given to such terms in
the Loan Agreement.
2. Amendment to Loan Agreement. Subject to the satisfaction of
the conditions set forth herein, the Loan Agreement is amended as follows:
(a) Clause (a) of Section 9.17 of the Loan Agreement is
amended and restated in its entirety, as follows:
"(a) EBITDA Covenant.
Borrowers shall maintain EBITDA for each period set forth
below of at least the amount set forth opposite such period:
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Period Amount
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Six (6) months ended June 30, 2004 ($100,000)
Nine (9) months ended September 30, 2004 $550,000
Twelve (12) months ended December 31, 2004 $1,950,000
Twelve (12) months ended March 31, 2005 and the twelve (12)
months ended on the last day of each calendar quarter $1,900,000"
thereafter
3. Condition. This Second Amendment shall be effective upon
its execution and delivery by all parties hereto.
4. Representations and Warranties. To induce the Lender to
enter into this Second Amendment, each Borrower hereby represents and warrants
to the Lender as follows:
(a) The execution, delivery and performance by such Borrower
of this Amendment and each of the other agreements, instruments and documents
contemplated hereby are within its power, have been duly authorized by all
necessary action, have received all necessary governmental approval (if any
shall be required), and do not and will not contravene or conflict with any
provision of law applicable to such Borrower, the organizational documents of
such Borrower, any order, judgment or decree of any court or governmental
agency, or any agreement, instrument or document binding upon such Borrower or
any of its property;
(b) Each of the Loan Agreement and the other Financing
Agreements, as amended by this Amendment, are the legal, valid and binding
obligation of such Borrower enforceable against such Borrower in accordance with
its terms, except as the enforcement thereof may be subject to (i) the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditor's rights generally, and (ii) general principles of
equity;
(c) The representations and warranties contained in the Loan
Agreement and the other Financing Agreements are true and accurate as of the
date hereof with the same force and effect as if such had been made on and as of
the date hereof, except to the extent that any such representation or warranty
expressly relates solely to an earlier date (in which case any such
representation or warranty shall be true and correct on and as of such earlier
date); and
(d) Such Borrower has performed all of its obligations under
the Loan Agreement and the Financing Agreements to be performed by it on or
before the date hereof and as of the date hereof, such Borrower is in compliance
with all applicable terms and provisions of the Loan Agreement, and each of the
Financing Agreements to be observed and performed by it, and no Default or Event
of Default is in existence.
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5. Miscellaneous.
(a) Expenses. Borrowers agree to pay, on demand, all costs and
expenses of Lender (including the fees and expenses of outside counsel for
Lender) in connection with the preparation, negotiation, execution, delivery and
administration of this Second Amendment and all other instruments or documents
provided for herein or delivered or to be delivered hereunder or in connection
herewith. All obligations provided in this Section 5(a) shall survive any
termination of the Loan Agreement as amended hereby.
(b) Governing Law. This Second Amendment shall be a contract
made under and governed by the internal laws of the State of Illinois.
(c) Counterparts. This Second Amendment may be executed in any
number of counterparts, and by the parties hereto on the same or separate
counterparts, and each such counterpart, when executed and delivered, shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same amendment.
(d) Successors. This Second Amendment shall be binding upon
Borrowers and Lender and their respective successors and assigns, and shall
inure to the benefit of Borrowers, Lender and their respective successors and
assigns.
(e) Ratification. Except as herein amended, the Loan Agreement
shall remain unchanged and in full force and effect, and is hereby ratified in
all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized
and delivered at Chicago, Illinois as of the date first above written.
LENDER BORROWERS
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CONGRESS FINANCIAL CORPORATION (CENTRAL) FANSTEEL INC.
By /S/ Xxxxx Xxxxxx By /s/ R. Xxxxxxx XxXxxxx
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Title Assistant Vice President Title Vice President and Chief
------------------------------ Financial Officer
XXXXXXX DYNAMICS CORPORATION
By /s/ R. Xxxxxxx XxXxxxx
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Title Vice President
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