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Exhibit (4)(c)
AMENDMENT NO. 2
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 dated as of July ___, 1999 (this "Amendment") is
entered into among BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("B of
A"), as successor to BANKAMERICA BUSINESS CREDIT, INC., a Delaware corporation,
BNY FINANCIAL CORPORATION, a New York corporation ("BNY") formerly known as Bank
of New York Commercial Corporation, NATIONSBANK, N.A., a national banking
association ("NB") (B of A, BNY and NB and their respective successors and
assigns being sometimes hereinafter referred to collectively as the "Lenders"
and each of B of A, BNY and NB and its successors and assigns being sometimes
hereinafter referred to individually as a "Lender"), B of A (as successor to
BANKAMERICA BUSINESS CREDIT, INC.), as agent for the Lenders (in such capacity
as agent, the "Agent"), LACLEDE STEEL COMPANY, a Delaware corporation, as debtor
and debtor-in-possession (the "Parent"), with an office at One Metropolitan
Square, 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, LACLEDE CHAIN
MANUFACTURING COMPANY, a Delaware corporation, as debtor and
debtor-in-possession ("Laclede Chain"), with an office at One Metropolitan
Square, 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, and LACLEDE MID
AMERICA INC., an Indiana corporation, as debtor and debtor-in-possession
("Laclede Mid America"), with an office at One Metropolitan Square, 000 Xxxxx
Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000 (the Parent, Laclede Chain and Laclede
Mid America being sometimes hereinafter referred to collectively as the
"Borrowers" and each of the Parent, Laclede Chain and Laclede Mid America being
sometimes hereinafter referred to individually as a "Borrower").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Agent are parties to a certain
Loan and Security Agreement dated as of December 1, 1998, as amended (the "Loan
Agreement," capitalized terms used herein without definition having the meanings
given such terms in the Loan Agreement, as amended by this Amendment); and
WHEREAS, the Borrowers, the Lenders and the Agent have agreed to amend the
Loan Agreement on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrowers, the Lenders and the Agent hereby agree as
follows:
Section 1. Amendment of the Loan Agreement. Subject to the fulfillment of
the conditions precedent set forth in Section 2 below, the Loan Agreement is
amended as follows:
(a) Section 1.1 is amended by adding the following new definitions:
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"Electrode Settlement" means funds received by the Borrowers in respect of
any settlements, adjudications, or other resolutions of litigation or
proceedings of antitrust, price-fixing, or related (by fact or law) claims
asserted by, or on behalf of, any of the Borrowers arising out of any of
the Borrower's or any other party's purchase of graphite electrodes (or
other items for which liability is asserted in the same or related
litigation or proceedings), including, without limitation, in AmeriSteel
Corp. v. the Carbide/Graphite Group, Inc., Civil Action No. 98-CV-1693,
pending in the Eastern District of Pennsylvania, or any litigation or
proceedings related thereto, except that the term Electrode Settlement
shall not include items (a) or (b) of Exhibit D.
"Electrode Settlement Reserve" means a reserve against the Maximum Revolver
Amount in an amount equal to the excess, if any, of the Net Proceeds of the
Electrode Settlement over $1,500,000, such reserve to be eliminated when
the Agent has received all proceeds of the 1999 Tax Refund, provided that
the proceeds of such 1999 Tax Refund is equal to or in excess of
$1,500,000.
"1999 Tax Refund" means the refund of federal income taxes with respect to
the Borrowers' 1998 tax return, to be filed for in July 1999.
"Net Eligible Inventory" means, at any time, Eligible Inventory at such
time minus $1,153,000.
(b) Section 1.1 is further amended by amending and restating the
definition of "Additional Facility" as follows:
"Additional Facility" means an amount equal to $5,100,000, such amount to
be reduced (a) at the time of sale or disposition of, or other realization
upon, any Additional Facility Related Item, in an amount equal to the Net
Proceeds of such sale, disposition or realization, and (b) at the time of
receipt of any Net Proceeds of the Electrode Settlement, in an amount equal
to the excess, if any, of all Net Proceeds of the Electrode Settlement over
$2,500,000.
(c) Section 1.1 is further amended by amending the definition of "Maximum
Revolver Amount" by (1) deleting "Eligible Inventory" in clause (ii)(B)(1)
thereof and substituting "Net Eligible Inventory" therefor, (2) deleting
"$12,769,000" in the proviso of clause (ii)(B)(2) thereof and substituting
"$9,715,000" therefor, and (3) by adding the following as a new subclause (iii)
to clause (b) of the definition, and renumbering the existing clause (iii) as
clause (iv):
"(iii) the Electrode Settlement Reserve, if any; and"
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(d) Section 1.1 is further amended by amending and restating the
definition of "Net Proceeds" as follows:
"Net Proceeds" means, with respect to any sale or disposition of Fixed
Assets, or any sale or disposition of or other realization upon any
Additional Facility Related Items or the Electrode Settlement, the face
amount of the sale or disposition price, settlement, or other realization,
received by the Borrowers, whether paid in cash or otherwise, minus the
applicable Borrower's reasonable expenses of sale or disposition and any
sales or other conveyance taxes incurred by any Borrower in connection
therewith.
(e) Section 4.2 is amended and restated as follows:
4.2 Mandatory Prepayments of the Term Loans. Prepayments on the Term Loans
shall be required to be made as provided in Sections 5.11(c), 8.5(c),
8.6(b) and 8.9(b). In addition, after the Additional Facility has been
reduced to zero, (1) if any amounts are received with respect to items (a),
(b), or (f) on Exhibit D, then 50% of such amounts shall be applied to the
prepayment of the Term Loans, applying such amounts ratably to the
installments of the Term Loans in the inverse order of maturity, and (2) if
any Net Proceeds of the Electrode Settlement are received such that the
amount of all Net Proceeds of the Electrode Settlement at such time is in
excess of $2,500,000, then 100% of such excess Net Proceeds shall be
applied to the prepayment of the Term Loans, applying such amounts ratably
to the installments of the Term Loans in the inverse order of maturity.
(f) Section 8.22 is amended and restated as follows:
8.22 Capital Expenditures. Neither the Parent nor any of its Subsidiaries
shall make or incur any Capital Expenditure (a) other than for maintenance
or repair of Equipment, or Capital Expenditures by Laclede Mid-America in
an amount not to exceed $1,500,000 in connection with the addition of a
production line at its Fremont, Indiana plant consistent with its Motion
for approval of such capital expenditures filed with the Bankruptcy Court
on June 9, 1999, and (b) if, after giving effect thereto, the aggregate
amount of all Capital Expenditures by the Parent and its Subsidiaries on a
consolidated basis after the Petition Date would exceed $6,500,000.
Section 2. Conditions to Amendment. This Amendment shall become
effective upon (a) the receipt by the Agent by facsimile transmission of a
counterpart of this Amendment executed by each Borrower and each Lender, and
execution of this Amendment by the Agent (provided, that each Borrower and each
Lender shall promptly execute six applicable signature pages hereof and deliver
such pages to the Agent), and (b) receipt by the Agent of evidence satisfactory
to it that the Borrowers have filed a request for the 1999 Tax Refund in an
amount
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equal to or in excess of $1,500,000; and (c) entry by the Bankruptcy Court of a
final order acceptable to the Agent approving the terms hereof, and no objection
to such order having been filed by the time required by such order, or any
objection having been fully and finally overruled to the satisfaction of the
Agent, and such order being in full force and effect and not having been
reversed, stayed, modified, amended, or appealed.
Section 3. Representations and Warranties. Each Borrower hereby
represents and warrants that (i) this Amendment constitutes a legal, valid and
binding obligation of such Borrower, enforceable against such Borrower in
accordance with its terms, (ii) the representations and warranties contained in
the Loan Agreement are correct in all material respects as though made on and as
of the date of this Amendment, and (iii) no Event of Default has occurred and is
continuing. In addition, each Borrower represents and warrants that the
definition of "Electrode Settlement" is sufficient to incorporate all of the Net
Proceeds which the Borrowers have indicated to the Agent will be subject to the
relevant provisions of this Amendment.
Section 4. Reference to and Effect on the Loan Agreement.
(a) Upon the effectiveness of this Amendment, each reference in the Loan
Agreement to "this Agreement", "hereunder", "hereof", "herein", or words of like
import shall mean and be a reference to the Loan Agreement, as amended hereby,
and each reference to the Loan Agreement in any other document, instrument or
agreement executed and/or delivered in connection with the Loan Agreement shall
mean and be a reference to the Loan Agreement, as amended hereby.
(b) Except as specifically amended above, the Loan Agreement and all other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent or the Lenders
under the Loan Agreement, nor constitute a waiver of any provision of the Loan
Agreement, except as specifically set forth herein.
Section 5. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
Section 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
laws provisions) of the State of Illinois.
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Section 7. Section Titles. The section titles contained in this
Amendment are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
Section 8. Parties, Successors and Assigns. This Amendment shall be
binding upon and shall inure to the benefit of the Borrowers, the Agent, each
Lender, and their respective successors and assigns.
Section 9. Severability. To the extent any provision of this Amendment
is not enforceable under applicable law, such provision shall be deemed null and
void and shall have no effect on the remaining portions of the Amendment.
Section 10. Construction of Amendment. Each party hereto has cooperated
in the drafting and preparation of this Amendment and, as a result, this
Amendment shall not be construed against any party. This Amendment may be
amended or modified only by a written agreement signed by the parties hereto.
This Amendment may be executed in counterparts, each of which when so executed
and delivered shall be deemed an original but all such counterparts together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of July ___, 1999.
LACLEDE STEEL COMPANY, as
Debtor and Debtor-in-Possession
By:
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Vice President
LACLEDE CHAIN MANUFACTURING COMPANY, as
Debtor and Debtor-in-Possession
By:
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Vice President
LACLEDE MID AMERICA INC., as
Debtor and Debtor-in-Possession
By:
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Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
(as successor to BANKAMERICA BUSINESS
CREDIT, INC.), as the Agent
By:
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Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
(as successor to BANKAMERICA BUSINESS
CREDIT, INC.), as a Lender
By:
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Vice President
S-2
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BNY FINANCIAL CORPORATION, (as successor
to THE BANK OF NEW YORK COMMERCIAL
CORPORATION), as a Lender
By:
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Vice President
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NATIONSBANK, N.A., as a Lender
By:
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Vice President
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