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EXHIBIT 10.49
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Agreement")
is dated as of September 22, 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");
WHEREAS, the Borrowers have requested that the Lender provide advances
under the Revolving Loans (as that term is defined in the Agreement) in excess
of that would be otherwise available under the Agreement; and
WHEREAS, the Lenders and the Agent agree to the Borrowers' request,
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. Overadvance. The Agent and the Lenders hereby agree that,
during the period from and including September 22, 1999 through and including
October 31, 1999 (the "Overadvance Period"), 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 after October 31,
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.
At all times during the Overadvance Period not less than $500,000 of
Revolving Loans shall be Base Rate Revolving Loans. During the Overadvance
Period (and, if the Aggregate Revolver Outstandings exceed Availability
immediately following the end of the Overadvance Period, continuing after the
Overadvance Period until Aggregate Revolver Outstandings no longer exceed
Availability),
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the Applicable Margin shall be 2% for the outstanding principal balance of Base
Rate Revolving Loans up to $500,000. The Agent's and the Lenders' agreement
contained in this Section 1 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 Section 1 is only applicable and shall only be effective for the
specific instance, for the specific purpose, and for the specific period for
which given. This Section 1 is expressly limited to the facts and circumstances
referred to in this Agreement and shall not operate (a) as a waiver of or
consent to non-compliance with any other 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 2. Conditions. The effectiveness of this Agreement is subject
to the satisfaction of the following conditions precedent:
(a) Execution by Parties. Fully executed copies of this
Agreement signed by the Borrowers, the Lenders and the Agent and
ratifications signed by the Corporate Guarantors shall be delivered to
the Agent.
(b) Fee. The Borrowers shall have paid the Agent, for the
account of the Lenders, an amendment fee in the amount of $50,000,
which fee shall be earned upon execution of this Agreement 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.
(c) Other Documents. The Borrowers shall have executed and
delivered to the Agent such other documents and instruments as the
Agent may request.
(d) Appraisals. The Borrowers acknowledge and agree by signing
below that (a) Section 6.5 of the Agreement requires that whenever a
Default or Event of Default exists, the Borrower shall, at its expense
and upon the Agent's request, provide the Agent with appraisals or
updates thereof of any or all of the Collateral on terms further
described in Section 6.5, (b) the Agent has requested such appraisals
from the Borrowers even though to the best of Borrowers' knowledge no
Default or Event of Default exists, and (c) in order to induce Agent
and the Lenders to enter into this Agreement, the Borrowers shall
provide such appraisals.
SECTION 3. 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 Agreement, shall
survive the execution and delivery of this Agreement and the other Loan
Documents, and no
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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 modified hereby. This Agreement is one of
the Loan Documents and a default of by the Borrowers of their
agreements hereunder shall be an Event of Default under the Agreement.
(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 Agreement,
no Event of Default or Default exists as of such date.
(d) Severability. Any provision of this Agreement held by a
court of competent jurisdiction to be invalid or unenforceable shall
not impair or invalidate the remainder of this Agreement and the effect
thereof shall be confined to the provision so held to be invalid or
unenforceable.
(e) APPLICABLE LAW. THIS WAIVER AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN THE STATE OF ILLINOIS AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
(f) Successors and Assigns. This Waiver 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 Waiver 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 Agreement are for convenience only and shall not affect the
interpretation of this Agreement.
(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
Agreement and the other Loan Documents executed pursuant hereto and any
and all subsequent amendments, modifications, waivers, 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"BORROWERS":
XXXXXXX STEEL COMPANY
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. Three 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 September 22, 1999
CENTRUM 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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