EXECUTION
AMENDMENT NO. 5 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT ("Amendment No.
5"), dated as of January 26, 2001, is by and among The Doe Run Resources
Corporation, a New York corporation ("Doe Run"), Fabricated Products, Inc., a
Delaware corporation ("Fabricated Products", and together with Doe Run,
collectively, "Borrowers") and Congress Financial Corporation, a Delaware
corporation ("Lender").
W I T N E S S E T H:
WHEREAS, Lender has entered into financing arrangements with Borrowers
pursuant to which Lender has made and may make loans and advances and provide
other financial accommodations to Borrowers as set forth in the Loan and
Security Agreement, dated March 12, 1998, by and among Lender and Borrowers, as
amended pursuant to Amendment No. 1 to Loan and Security Agreement, dated
September 1, 1998, Amendment No. 2 to Loan and Security Agreement, dated as of
January 13, 1999, Amendment No. 3 to Loan and Security Agreement, dated as of
February 1, 1999, and Amendment No. 4 to Loan and Security Agreement, dated as
of June 11, 1999 (as further amended hereby and as the same may hereafter be
further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and the agreements, documents and instruments
referred to therein or at any time executed and/or delivered in connection
therewith or related thereto (all of the foregoing, together with the Loan
Agreement, as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements");
WHEREAS, Borrowers have requested certain amendments to the Loan
Agreement and Lender is willing to agree to such amendments, subject to the
terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements and covenants set forth herein, and for other good and valuable
consideration, the adequacy and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. DEFINITIONS.
1.1 ADDITIONAL DEFINITIONS. As used herein, the following
terms shall have the respective meanings given to them below and the Loan
Agreement shall be deemed and is hereby amended to include, in addition and not
in limitation of, each of the following definitions:
(a) "Amendment No. 5" shall mean this Amendment No. 5
to Loan and Security Agreement by and among Borrowers and Lender, as the same
now exists and may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced.
(b) "Capital Expenditures" shall mean for any period,
without duplication, all expenditures by Borrowers for, or contracts for
expenditures for, any fixed or capital assets or improvements, or for
replacements, substitutions or additions thereto (excluding repairs and
maintenance in the ordinary course of business), which have a useful life of
more than one (1) year, including, but not limited to, the direct or indirect
acquisition of such assets by way of offset items or otherwise and Capitalized
Lease Obligations incurred in respect of such fixed or capital assets during
such period.
(c) "EBITDA" shall mean, as to any Person, with
respect to any period, an amount equal to (i) the Consolidated Net Income (and
as to Doe Run, excluding for such purpose Doe Run Cayman and its Subsidiaries)
of such Person and its Subsidiaries for such period determined in accordance
with GAAP, PLUS, (ii) depreciation, amortization and other non-cash charges for
such period (to the extent deducted in the computation of Consolidated Net
Income of such Person), all in accordance with GAAP, PLUS, (iii) Net Interest
Expense for such period (to the extent deducted in the computation of
Consolidated Net Income of such Person), PLUS, (iv) charges for Federal, State,
local and foreign income taxes for such period (to the extent deducted in the
computation of Consolidated Net Income of such Person), PLUS (v) the amount
equal to: (A) all payments from Doe Run Cayman and its Subsidiaries received by
Borrowers in cash or other immediately available funds during such period MINUS
(B) all payments made by Borrower to or for the benefit of Doe Run Cayman and
its Subsidiaries during such period, excluding from (A) and (B) of this clause
(v), any payments for the purchase or sale of goods and services in the ordinary
course of business to the extent permitted under Section 6.6(a) of the Loan
Agreement (to the extent not included in the computation of Consolidated Net
Income of such Person), and PLUS or MINUS (as may be applicable to negate the
effect, if any, of the adjustments referred to in the following clause (vi) on
Consolidated Net Income) (vi) the amount of any adjustments made by such Person
in accordance with Financial Accounting Standards Board Statement No. 133.
(d) "Net Interest Expense" shall mean, for any
period, as to any Person and its Subsidiaries, all of the following as
determined in accordance with GAAP: (a) total interest expense, whether paid or
accrued (including the interest component of Capitalized Lease Obligations for
such period), including, without limitation, all bank fees, commissions,
discounts and other fees and charges owed with respect to letters of credit,
banker's acceptances or similar instruments, but excluding (i) amortization of
discount and amortization of deferred financing fees and closing costs paid in
cash in connection with the transaction contemplated hereby, (ii) interest paid
in property other than cash, and (iii) any other interest expense not payable in
cash MINUS (b) any net payments received during such period as interest income
received in respect of its investments in cash and Cash Equivalents.
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1.2 AMENDMENTS TO DEFINITION. The definition of the term
"Consolidated Net Worth" as set forth in the Loan Agreement is hereby amended to
insert the following phrase in the fourth line of such Section after the
parenthetical and before the comma as follows:
"exclusive of any adjustments made by such Person in
accordance with Financial Accounting Standards Board Statement
No. 133"
1.3 INTERPRETATION. For purposes of this Amendment, all terms
used herein, including but not limited to, those terms used or defined in the
recitals hereto shall have the respective meanings assigned thereto in the Loan
Agreement.
2. AMENDMENTS.
2.1 RESERVES. Section 2.4 of the Loan Agreement is hereby
amended such that the current text of such Section shall be referred to as
Section 2.4(a) and a new Subsection 2.4(b) shall be added on to the end of such
section as follows:
"(b) In addition to any other rights of Lender under
this Agreement with respect to the establishment of reserves
or otherwise, and in addition to any other reserves at any
time established by Lender, Lender shall, effective on the
date of Amendment No. 5, establish a reserve reducing the
amount of Loans otherwise available to Borrowers in the amount
of $5,000,000."
2.2 SERVICING FEE. Section 2.8 of the Loan Agreement is
hereby amended to delete the reference to "$10,000" in such Section and
substitute "$12,000" therefor.
2.3 CONSOLIDATED NET WORTH. Section 6.10(b) of the Loan
Agreement is deleted and replaced and the following substituted therefor:
"6.10 Consolidated Net Worth. Doe Run shall, at all
times, maintain a Consolidated Net Worth of not less than the
amount set forth below for the period indicated:
Period Amount
------ ------
(b) Through and including January 31, 2001 ($ 20,000,000)
(c) From February 1, 2001 through and
including February 28, 2001
($25,000,000)
(d) From March 1, 2001 through and
including March 31, 2001
($28,500,000)
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(e) From April 1, 2001 through and
including April 30, 2001 ($30,500,000)
(f) From May 1, 2001 through and
including May 31, 2001
($33,500,000)
(g) From June 1, 2001 through and
including July 31, 2001
($36,000,000)
(h) From August 1, 2001 through and
including August 31, 2001
($38,000,000)
(i) From September 1, 2001 and
at all times thereafter
($40,000,000)"
2.4 CAPITAL EXPENDITURES. Section 6 of the Loan Agreement is
amended to add a new Section 6.23 thereto as follows:
"6.23 CAPITAL EXPENDITURES. Borrowers and their
Subsidiaries (other than Doe Run Cayman and its Subsidiaries),
shall not, directly or indirectly, make or commit to make,
whether through purchase, capital leases or otherwise, Capital
Expenditures on a non-cumulative basis (such that, if Capital
Expenditures permitted to be made or committed to be made in
any one fiscal year pursuant to this Section 6.23 exceeds the
amount actually made or committed to be made during such
fiscal year, such excess may not be carried over to be made or
committed to be made in any following fiscal year), in excess
of a total aggregate amount of $15,000,000 in any fiscal year
of Borrowers."
2.5 EDITDA. Section 6 of the Loan Agreement is amended to add
a new Section 6.24 thereto as follows:
"6.24 EBITDA. Borrowers shall, for each date listed
below, have EBITDA for the twelve months ending on such date
specified below of not less than the amount listed opposite
each such date:
Month Ending Minimum EBITDA
------------ --------------
January 31, 2001 $ 9,000,000
February 28, 2001 $10,000,000
March 31, 2001 $11,000,000
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April 30, 2001 $11,000,000
May 31, 2001 $14,000,000
June 30, 2001 $17,000,000
July 31, 2001 $17,000,000
August 30, 2001 $18,500,000
September 30, 2001 $19,000,000
October 30, 2001 and all
months thereafter $19,500,000."
2.6 EFFECTIVE DATE; TERMINATION; COSTS. Section 9 of the
Loan Agreement is hereby amended as follows:
(a) TERM. Section 9.1 (a) of the Loan Agreement is
hereby amended to delete the phrase "on the date three (3) years from the date
hereof " in the first sentence of such Section and to substitute "January 15,
2003" therefor.
(b) TERM. Section 9.1(e) of the Loan Agreement is
hereby amended to delete Sections 9.1(e)(i), (ii) and (iii) and substitute the
following therefor:
"(i) one and one-half (1 1/2%) percent of $75,000,000, if
such termination is effective on or prior to the
first anniversary of Amendment No. 5; or
(ii) one (1%) percent of $75,000,000, if such termination
is effective after the first anniversary of Amendment
No. 5 but prior to January 15, 2003, or if the
Agreement continues for any renewal term thereafter,
if such termination is effective prior to the last
day of such renewal term."
(c) EXPENSES AND ADDITIONAL FEES. Section 9.2(a)
of the Loan Agreement is hereby amended to delete the reference to "$650"
contained in Section 9.2(a)(vi) and to replace it with "$750".
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers to Lender pursuant to the other Financing Agreements, each of
Borrowers, jointly and severally, hereby represents, warrants and covenants with
and to Lender as follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof and shall be
incorporated into and made a part of the Financing Agreements):
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3.1 This Amendment has been duly executed and delivered by
Borrowers and is in full force and effect as of the date hereof and the
agreements and obligations of Borrowers contained herein constitute legal, valid
and binding obligations of Borrowers enforceable against Borrowers in accordance
with their respective terms.
3.2 No Event of Default or act, condition or event, which with
notice or passage of time or both would constitute an Event of Default, exists
or has occurred and is continuing.
4. CONDITIONS PRECEDENT. The effectiveness of the terms and conditions
contained herein shall be subject to the satisfaction of each of the following
conditions, in form and substance satisfactory to Lender:
4.1 an original of this Amendment, duly authorized, executed
and delivered by Borrowers to Lender;
4.2 Lender shall have received the fee referred to in Section
5 hereof; and
4.3 no Event of Default exists on the date hereof after giving
effect to the amendment to the Loan Agreement made by the provisions of this
Amendment.
5. AMENDMENT FEE. In consideration of the amendments set forth herein,
Borrowers shall on the date hereof, pay to Lender, and Lender may, at its
option, charge the account of Borrowers maintained by Lender, a fee in the
amount of $375,000, which fee shall constitute part of the Obligations and is
fully earned as of the date hereof.
6. MISCELLANEOUS.
6.1 ADDITIONAL EVENT OF DEFAULT. The parties hereto
acknowledge, confirm and agree that the failure of Borrowers to comply with the
covenants, conditions and agreements contained herein shall constitute an Event
of Default under the Financing Agreements.
6.2 EFFECT OF THIS AMENDMENT. Except as modified pursuant
hereto, no other consents, changes or modifications to the Financing Agreements
are intended or implied, and in all other respects, the Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of
effective date hereof. Any acknowledgment or consent contained herein shall not
be construed to constitute a consent to any other or further action by Borrower
or to entitle Borrowers to any other consent. The Loan Agreement and this
Amendment shall be read and construed as one agreement. To the extent of
conflict between the terms of this Amendment and the other Financing Agreements,
the terms of this Amendment shall control.
6.3 FURTHER ASSURANCES. The parties hereto shall execute and
deliver such additional documents and take such additional actions as may be
necessary to effectuate the
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provisions and purposes of this Amendment.
6.4 GOVERNING LAW. The rights and obligations hereunder of
each of the parties hereto shall be governed by and interpreted and determined
in accordance with the laws of the State of New York (without giving effect to
principals of conflict of laws).
6.5 BINDING EFFECT. This Amendment shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
6.6 COUNTERPARTS. This Amendment may be executed in any number
of counterparts, but all of such counterparts shall together constitute but one
and the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the date and year
first above written.
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Title: VP
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THE DOE RUN RESOURCES
CORPORATION
By: /s/ X. X. Xxxxxx
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Title: VP & CFO
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FABRICATED PRODUCTS, INC.
By: /s/ X. X. Xxxxxx
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Title: VP & CFO
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