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EXHIBIT 10.48
AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is dated as of August 5, 1999 and is entered into by and among the financial
institutions listed on the signature pages hereof (individually, a "Lender" and
collectively, the "Lenders"), Bank of America, National Association, formerly
BankAmerica Business Credit, Inc., as agent for the Lenders (in its capacity as
agent, the "Agent"), and XxXxxxx Steel Company, XxXxxxx International, Inc.,
Xxxxxx Forge Company, Erie Bronze & Aluminum Company, American Handling, Inc.,
Northern Steel Company, Micafil, Inc. and Eballoy Glass Products Company
(individually, a "Borrower" and collectively, the "Borrowers"). All capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to
them in the Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, the Lenders, the Agent and the Borrowers have entered into
that certain Loan and Security Agreement dated as of February 25, 1999, as
amended, supplemented or otherwise modified prior to the date hereof (the
"Agreement"); and
WHEREAS, the Borrowers desire to amend the Agreement and the Lenders
and the Agent are willing to do so, subject to the terms and conditions stated
herein;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as
follows:
SECTION 1. Amendment to the Agreement. The Agent, the Lenders and the
Borrowers agree that the Agreement shall be amended, effective as of the date
hereof, as follows:
(a) Clause (g) of the definition of "Eligible Accounts"
appearing in Section 1.1 of the Agreement is hereby amended and
restated to read in its entirety as follows:
"(g) owed by an Account Debtor which: (i) does not maintain its
chief executive office in the United States or Canada; or (ii)
is not organized under the laws of the United States or any
state thereof or Canada; or (iii) is the government of any
foreign country or sovereign state, or of any state, province,
municipality, or other political subdivision thereof, or of any
department, agency, public corporation, or other instrumentality
thereof; except to the extent that such Account is secured or
payable by a letter of credit or foreign credit insurance, all
in form and substance and assigned in a manner satisfactory to
the Agent in its discretion; provided that the aggregate of all
Accounts included in Eligible Accounts due to such foreign
credit insurance shall not exceed $750,000.00;"
(b) Clause (d) of Section 6.7 of the Agreement is hereby amended
and restated to read in its entirety as follows:
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"(d) on a monthly basis, by the 25th day of each month for the
prior month (or more frequently if requested by the Agent),
Inventory reports by category, with additional detail showing
additions to and deletions from the Inventory;"
(c) Section 9.29 of the Agreement is hereby amended and restated
to read in its entirety as follows:
"9.29 Unused Availability. The Borrower shall
maintain Availability, with all its obligations with customary
terms within the industry, (a) on the average for each
calendar month, in an amount no less than $500,000, (b) on
each day in September, 1999, in an amount no less than
$100,000, (c) on each day in October, 1999, in an amount no
less than $200,000, (d) on each day in November, 1999, in an
amount no less than $300,000, and (e) on December 1, 1999 and
each day thereafter, in an amount no less than $350,000."
SECTION 2. Overadvance. The Agent and the Lenders hereby agree that,
during the period from and including August 5, 1999 through and including August
18, 1999, the Aggregate Revolver Outstandings on any day may exceed the
Availability in effect on such day (with the Availability for this purpose
calculated as if the Aggregate Revolver Outstandings were zero) by an aggregate
amount up to (but not exceeding) $500,000, provided that in no event shall the
Aggregate Revolver Outstandings exceed the Maximum Revolver Amount, and provided
further that on and after August 19, 1999 the Aggregate Revolver Outstandings
shall no longer be permitted to exceed the Availability (with the Availability
for this purpose calculated as if the Aggregate Revolver Outstandings were zero)
in effect on such day or thereafter, and the Borrowers shall immediately pay to
the Agent, for the account of the Lenders, the amount of any such excess. The
Agent's and the Lenders' agreement contained in this Section 2 shall not be
deemed to change the limits of the Maximum Revolver Amount or to otherwise
change the limits of the Availability or to make the Agent and the Lenders
obligated to exceed such limits on any other occasion.
This agreement is only applicable and shall only be effective for the
specific instance, for the specific purpose, and for the specific period for
which given. Such agreement is expressly limited to the facts and circumstances
referred to herein and shall not operate (a) as a waiver of or consent to
non-compliance with any section of the Agreement or any other Loan Document, (b)
as a waiver of, or a restriction on or prejudice with respect to, any right,
power or remedy of the Agent or any Lender under the Agreement or any other Loan
Document, or (c) as a waiver of or consent to any Event of Default or Default
under the Agreement or any other Loan Document.
SECTION 3. Conditions. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) Amendment. Fully executed copies of this Amendment signed
by the Borrowers, the Lenders and the Agent and ratifications signed by
the Corporate Guarantors shall be delivered to the Agent.
(b) Resolutions from the Borrowers. A certificate executed by
the Secretary or Assistant Secretary of each Borrower certifying that
such Borrower's Board of Directors has
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adopted resolutions authorizing the execution, delivery and performance
by such Borrower of this Amendment shall be delivered to the Agent.
(c) Resolutions from the Corporate Guarantors. A certificate
executed by the Secretary or Assistant Secretary of each Corporate
Guarantor certifying that such Corporate Guarantor's Board of Directors
has adopted resolutions authorizing the execution, delivery and
performance by such Corporate Guarantor of the ratification of this
Amendment shall be delivered to the Agent.
(d) Fee. The Borrowers shall have paid the Agent, for the
account of the Lenders, an amendment fee in the amount of $20,000,
which fee shall be earned upon execution of this Amendment and shall be
non-refundable upon such payment to the Agent. The Agent, the Lenders
and the Borrowers agree that such fee shall be financed by the Lenders
as a Revolving Loan.
(e) Other Documents. The Borrowers shall have executed and
delivered to the Agent such other documents and instruments as the
Agent may request.
SECTION 4. Miscellaneous.
(a) Survival of Representations and Warranties. All
representations and warranties made in the Agreement or any other
document or documents relating thereto, including, without limitation,
any Loan Document furnished in connection with this Amendment, shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Agent or any Lender or any
closing shall affect the representations and warranties or the right of
the Agent or such Lender to rely thereon.
(b) Reference to Agreement. The Agreement, each of the Loan
Documents, and any and all other agreements, documents or instruments
now or hereafter executed and delivered pursuant to the terms hereof,
or pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference therein to the Agreement shall mean a
reference to the Agreement as amended hereby.
(c) Agreement Remains in Effect. The Agreement and the Loan
Documents remain in full force and effect, and each Borrower ratifies
and confirms its agreements and covenants contained therein. Each
Borrower hereby confirms that, after giving effect to this Amendment,
no Event of Default or Default exists as of such date.
(d) Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall
not impair or invalidate the remainder of this Amendment and the effect
thereof shall be confined to the provision so held to be invalid or
unenforceable.
(e) APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE
AND TO BE PERFORMABLE IN THE STATE OF ILLINOIS
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AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS.
(f) Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Agent, the Lenders and the Borrowers
and their respective successors and assigns; provided, however, that no
Borrower may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Agent and the
Lenders.
(g) Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be
an original, but all of which when taken together shall constitute one
and the same instrument.
(h) Headings. The headings, captions and arrangements used in
this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
(i) Expenses of the Agent. The Borrowers jointly and severally
agree to pay on demand all costs and expenses incurred by the Agent in
connection with the preparation, negotiation and execution of this
Amendment and the other Loan Documents executed pursuant hereto and any
and all subsequent amendments, modifications, and supplements hereto or
thereto, including, without limitation, the costs and fees of the
Agent's legal counsel and the allocated cost of the Agent's in-house
counsel.
[signatures continued on following pages]
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first written above.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Chief Financial Officer/Treasurer
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XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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XXXXXX FORGE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President/Treasurer
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ERIE BRONZE & ALUMINUM COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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AMERICAN HANDLING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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NORTHERN STEEL COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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MICAFIL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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EBALLOY GLASS PRODUCTS COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer
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"AGENT":
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as the Agent
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: V.P./Sr. Account Executive
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"LENDERS":
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: V.P./Sr. Account Executive
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CONSENTS AND REAFFIRMATIONS
The undersigned hereby consent to the terms and conditions of that
Amendment No. 2 to the Loan and Security Agreement dated as of February 25,
1999, among the financial institutions listed on the signature pages thereto
(individually, a "Lender" and collectively, the "Lenders"), Bank of America,
National Association, formerly BankAmerica Business Credit, Inc., as agent for
the Lenders (in its capacity as agent, the "Agent"), and XxXxxxx Steel Company,
XxXxxxx International, Inc., Xxxxxx Forge Company, Erie Bronze & Aluminum
Company, American Handling, Inc., Northern Steel Company, Micafil, Inc. and
Eballoy Glass Products Company, and reaffirm their obligations under those
certain Guaranty of Payment Agreements each dated as of February 25, 1999
(collectively, the "Corporate Guaranties") made by the undersigned in favor of
the Agent and the Lenders, and acknowledge and agree that the Corporate
Guaranties and all other Loan Documents remain in full force and effect.
Dated as of Xxxxxx 0, 0000
XXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Chief Financial Officer
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XXXXXXX SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Secretary/Treasurer
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LASALLE EXPLORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Treasurer/Assistant Secretary
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