AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
Exhibit
4.7
AMENDMENT
NO. 1 TO LOAN AND SECURITY AGREEMENT
This
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
dated as
of June 30, 2006
is
by and among Keystone Consolidated Industries, Inc., a Delaware corporation
("Keystone"), Keystone Wire Products Inc., a Delaware corporation ("KWP"),
Engineered Wire Products, Inc., an Ohio corporation ("EWP"), F V Steel and
Wire
Company, a Wisconsin corporation ("F V Steel" and, together with Keystone,
KWP
and EWP, each individually a "Borrower" and collectively, "Borrowers"), Keystone
Energy Resources, LLC, a Delaware limited liability company ("KER"), the
parties
hereto as lenders (each individually, a "Lender" and collectively, "Lenders"
as
hereinafter further defined) and Wachovia Capital Finance Corporation (Central),
an Illinois corporation, in its capacity as agent for Lenders (in such capacity,
"Agent").
RECITALS:
WHEREAS,
Borrowers, the Agent and the Lenders have entered into that certain Loan
and
Security Agreement dated as of August 31, 2005 (the "Loan
Agreement");
WHEREAS,
Borrowers have requested that Agent and Lenders agree to certain amendments
to
the Loan Agreement as set forth herein; and
WHEREAS,
Agent and Lenders have agreed to such amendments upon the terms and conditions
contained herein.
NOW,
THEREFORE, in consideration of the premises contained herein, and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section
1
Amendments
to the Loan Agreement.
Immediately upon the satisfaction of each of the conditions precedent set
forth
in Section
3
below,
the Loan Agreement is hereby amended as follows:
(a) Section
9
of the
Loan Agreement is hereby amended by adding a new Section 9.26 therein to
read as
follows:
"9.26
Keystone
Energy.
Borrowers agree not to cause Keystone Energy Resources, LLC to (a) engage
in any
business activities other than purchasing electricity and reselling to
Borrowers, (b) maintain any material assets or (c) incur any material
liabilities";
(b) KER
agrees to be bound by all the terms and conditions applicable to "Guarantors"
under the Loan Agreement, as amended from time to time.
(c) For
purposes of Section 14 to the Credit Agreement only, KER shall be deemed
to be a
"Borrower" and shall be jointly and severally liable for all Obligations;
provided that for all other purposes of the Credit Agreement, KER shall not
be a
Borrower but shall be a Guarantor.
Section
2 Limited
Waiver.
Agent
and Lenders hereby waive the restrictions set forth
in
Sections
9.7, 9.10
and
9.12
of the
Loan Agreement solely to permit (a) the formation by Keystone of KER, as
a
wholly-owned Subsidiary of Keystone, and (b) sales of electricity from KER
to
Keystone and its Subsidiaries.
Section
3 Conditions
to Effectiveness.
The
effectiveness of the amendments set forth
in
Section
1
above
are subject to the satisfaction of each of the following
conditions:
(a) Agent
shall have received a duly executed counterpart of this Amendment from
Borrowers, KER and Required Lenders; and
(b) Agent
shall have received a pledge of the limited liability company interests of
KER,
together with certificates and endorsement representing such interests, in
each
case in form and substance satisfactory to Agent.
Section
4 Representations,
Warranties and Covenants.
In order
to induce Agent and Lenders to enter into this Amendment, Borrowers and KER
represent, warrant and covenant to Agent and Lenders, upon the effectiveness
of
this Amendment, which representations, warranties and covenants shall survive
the execution and delivery of this Amendment that:
(a) No
Default; etc.
No
Default or Event of Default has occurred and is continuing after giving effect
to this Amendment or would result from the execution or delivery of this
Amendment or the consummation of the transactions contemplated
hereby.
(b) Corporate
or Limited Liability Company Power and Authority; Authorization.
Each
Borrower and KER have the power and authority to execute and deliver this
Amendment and to carry out the terms and provisions of the Financing Agreements,
as amended by this Amendment, to which they are a party and the execution
and
delivery by such Borrower and KER of this Amendment, and the performance
by such
Borrower and KER of their obligations hereunder have been duly authorized
by all
requisite action by such Borrower and R.
(c) Execution
and Delivery.
Each
Borrower and KER have duly executed and delivered this Amendment.
(d) Enforceability.
This
Amendment constitutes the legal, valid and binding obligations of each Borrower
and KER, enforceable against each Borrower and KER in accordance with its
terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' right
generally, and by general principles of equity.
(e) Representations
and Warranties.
All of
the representations and warranties contained in the Financing Agreements
(other
than those which speak expressly only as of a different date) are true and
correct as of the date hereof after giving effect to this Amendment and the
transactions contemplated hereby.
Section
5 Miscellaneous.
(a) Effect;
Ratification.
Borrowers acknowledge that all of the reasonable legal expenses incurred
by
Agent in connection herewith shall be reimbursable under Section
9.23
of the
Loan Agreement. The amendments set forth herein are effective solely for
the
purposes set forth herein and shall be limited precisely as written, and
shall
not be deemed to (i) be a consent to any amendment, waiver or modification
of
any other term or condition of any Financing Agreement or (ii) prejudice
any
right or rights that any Lender may now have or may have in the future under
or
in connection with any Financing Agreement. Each reference in the Financing
Agreements to "this Agreement", "herein", "hereof' and words of like import
shall mean such Financing Agreement as amended hereby. This Amendment shall
be
construed in connection with and as part of the Financing Agreements and
all
terms, conditions, representations, warranties, covenants and agreements
set
forth in the Financing Agreements, except as herein amended are hereby ratified
and confirmed and shall remain in full force and effect.
(b) Counterparts;
etc.
This
Amendment may be executed in any number of counterparts, each such counterpart
constituting an original but all together one and the same instrument. Delivery
of an executed counterpart of this Amendment by fax shall have the same force
and effect as the delivery of an original executed counterpart of this
Amendment. Any party delivering an executed counterpart of this Amendment
by fax
shall also deliver an original executed counterpart, but the failure to do
so
shall not affect the validity, enforceability or binding effect of this
Amendment.
(c) Governing
Law.
This
Amendment shall be deemed a Financing Agreement and shall be governed by,
and
construed and interpreted in accordance with the internal laws of the State
of
Illinois but excluding any principles of conflicts of law or other rule of
law
that would cause the application of the law of any jurisdiction other than
the
laws of the State of Illinois.
[Signature
Pages Follow]
IN
WITNESS WHEREOF,
Agent,
Required Lenders, Borrowers and KER have caused
this Amendment No. 1 to Loan and Security Agreement to be duly executed as
of
the day
and year
first above written.
[Signature
Page to Amendment No. 1 to
S-1
AGENT
AND LENDERS:
WESTERN
BANK
PUERTO RICO (BUSINESS CREDIT DIVISION), as a Lender
By:
Title:
Name:
NORTH
FORK
BUSINESS CAPITAL CORPORATION, as a Lender
By:
Title:
Name:
PNC
BANK
NATIONAL ASSOCIATION, as a Lender
By:
Title:
Name:
AGENT
AND LENDERS:
WACHOVIA
CAPITAL FINANCE CORPORATION
(CENTRAL),
as Agent and a Lender
By:
Title:
Name:
NORTH
FORK BUSINESS CAPITAL CORPORATION,
as
a
Lender
By:
Title:
Name:
PNC
BANK
NATIONAL ASSOCIATION,
as
a
Lender
By:
Title:
Name:
AGENT
AND LENDERS:
WACHOVIA
CAPITAL FINANCE CORPORATION
(CENTRAL),
as Agent and a Lender
By:
Title:
Name:
WESTERN
BANK PUERTO RICO (BUSINESS CREDIT
DIVISION),
as a Lender
By:
Title:
Name:
By:
Title:
Name:
[Signature
Page to Amendment No, 1 to
S-2
SCHEDULE
II
PLEDGE
AMENDMENT
This
Pledge Amendment, dated June 30,
2006, is
delivered pursuant to Section 6(d)
of the
Pledge Agreement referred to below. All defined terms herein shall have the
meanings ascribed,
thereto
or incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section
5
of the
Pledge Agreement are and continue to be true and correct, both as to the
promissory notes, instruments and shares pledged prior to this Pledge Amendment
and as to the promissory notes, instruments and shares pledged pursuant to
this
Pledge Amendment. The undersigned further agrees that this Pledge Amendment
may
be attached to that certain Pledge Agreement, dated August 31, 2005 among
the
undersigned, as Pledgor, and Wachovia Capital Finance Corporation (Central),
as
Agent, and the other "Pledgors" named therein (the "Pledge
Agreement")
and that
the pledged membership interest (which shall be "Pledged Shares" for all
intents
and purposes under the Pledge Agreement) listed on this Pledge Amendment
shall
be and become a part of the Pledged Collateral referred to in said Pledge
Agreement and shall secure all Secured Obligations referred to in said Pledge
Agreement. The undersigned acknowledges that any promissory notes, instruments
or shares not included in the Pledged Collateral at the discretion of Agent
may
not otherwise be pledged by Pledgor to any other Person or otherwise used
as
security for any obligations other than the Secured Obligations.
KEYSTONE
CONSOLIDATED INDUSTRIES, INC.
|
Name
and Address of Pledgor
|
Pledged
Entity
|
Class
of
Equity
Interest
|
Percentage
of
Ownership
|
|
KeystoneConsolidated
Industries, Inc.
|
Keystone
Energy Resources, LLC
|
Membership
Interests
|
100%
|
ACNOWLEDGMENT
AND CONSENT OF PLEDGED ENTITIES
Each
of
the undersigned (each a "Pledged
Entity"
and
collectively, the "Pledged Entities"),
hereby
consents and agrees to cause to be registered on the books and records of
such
Pledged Entity the pledge of the Pledged Collateral referenced in the Pledge
Agreement dated as of the date hereof as amended, supplemented or otherwise
modified from time to time (the "Pledged
Agreement")
among
Wachovia Capital Finance Corporation (Central), as agent ("Agent"), and the
"Pledgors" named therein. Each Pledged Entity acknowledges that it is familiar
with the foregoing Pledge Agreement and agrees for the benefit of Agent that
it
will be bound by the teens of the Pledge Agreement and will comply with such
terms insofar as such terms are applicable to it.
June 30,
2006
