FIFTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING LOAN
AND SECURITY AGREEMENT (the "Fifth Amendment") is entered into as of February 3,
2000, by and between KEYSTONE CONSOLIDATED INDUSTRIES, INC., a Delaware
corporation ("Borrower"), and CONGRESS FINANCIAL CORPORATION (CENTRAL), an
Illinois corporation ("Lender"). Except for terms which are expressly defined
herein, all capitalized terms used herein shall have the meaning subscribed to
them in the Loan Agreement (as defined below).
RECITALS
WHEREAS, Borrower and Lender are parties to that certain
Amended and Restated Revolving Loan and Security Agreement dated as of December
29, 1995 (as amended, supplemented or otherwise modified from time to time, the
"Loan Agreement").
WHEREAS, Borrower desires to amend the terms of the Loan
Agreement.
WHEREAS, Lender is willing to amend the Loan Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
I. AMENDMENTS TO THE LOAN AGREEMENT
A. Subsection (d) of the definition of "Eligible Borrower
Inventory" in Section 1 of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
(d) supplies used or consumed in Borrower's
business (other than (i) steel used or
consumed by Borrower in the process of
manufacturing Inventory, and (ii) electrical
supplies, electrodes, lead, zinc, metals
(other than steel), operations process
supplies and refractory materials used or
consumed by Borrower in the process of
manufacturing Inventory not to exceed
$4,500,000 in the aggregate);
II. CONDITIONS TO EFFECTIVENESS OF FIFTH AMENDMENT. This Fifth Amendment
shall become effective on the date (the "Effective Date") when Borrower
shall satisfy all of the following conditions:
A. FIFTH AMENDMENT. Borrower and Lender shall have duly executed and
delivered this Fifth Amendment.
B. ADDITIONAL MATTERS. Lender shall have received such other
certificates, opinions, UCC financing statements, documents and
instruments relating to the obligations or the transactions
contemplated hereby as may have been reasonably requested by
Lender, and all corporate and other proceedings and all other
documents and all legal matters in connection with the
transactions contemplated hereby shall be reasonably satisfactory
in form and substance to Lender.
IV. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to enter into
this Fifth Amendment, Borrower represents and warrants to Lender, upon
the effectiveness of this Fifth Amendment, which representations and
warranties shall survive the execution and delivery of this Fifth
Amendment, that:
A. Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation;
B. the execution, delivery and performance of this Fifth Amendment
by Borrower are within its corporate powers and have been duly
authorized by all necessary corporate action;
C. this Fifth Amendment constitutes a legal, valid and binding
obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally,
and by general principles of equity; and
D. all of the representations and warranties contained in the Loan
Agreement and in the other Financing Agreements (other than those
which speak expressly only as of a different date) are true and
correct as of the date of this Fifth Amendment after giving
effect to this Fifth Amendment.
V. MISCELLANEOUS.
A. EFFECT; RATIFICATION. The amendments set forth herein are
effective solely for the purpose 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 the Loan Agreement
or of any other Financing Agreements or (ii) prejudice any right
or rights that Lender may now have or may have in the future
under or in connection with the Loan Agreement or any other
Financing Agreements. Each reference in the Loan Agreement to
"this Agreement", "herein", "hereof" and words of like import and
each reference in the other Financing Agreements to the Loan
Agreement shall mean the Loan Agreement as amended hereby. This
Fifth Amendment shall be construed in connection with and as part
of the Loan Agreement and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan
Agreement and each other Financing Agreement, except as herein
amended or waived, are hereby ratified and confirmed and shall
remain in full force and effect.
B. COSTS AND EXPENSES. Borrower shall pay to Lender on demand all
reasonable out-of-pocket costs, ------------------ expenses,
title fees, filing fees and taxes paid or payable in connection
with the preparation, negotiation, execution, delivery,
recording, administration, collection, liquidation, enforcement
and defense of the Obligations, Lender's rights in the
Collateral, this Fifth Amendment, the Loan Agreement, the other
Financing Agreements and all other documents related hereto or
thereto, including any amendments, supplements or consents which
may hereafter be contemplated (whether or not executed) or
entered into in respect hereof and thereof, including, but not
limited to: (a) all costs and expenses of filing or recording
(including Uniform Commercial Code financing statement filing
taxes and fees, documentary taxes, intangibles taxes and mortgage
recording and title insurance taxes and fees, if applicable); (b)
costs and expenses and fees for title insurance and other
insurance premiums, environmental audits, surveys, assessments,
engineering reports and inspections, appraisal fees and search
fees; (c) costs and expenses of remitting loan proceeds,
collecting checks and other items of payment; (d) charges, fees
or expenses charged by any bank or issuer in connection with the
Letter of Credit Accommodations; (e) costs and expenses of
preserving and protecting the Collateral; (f) costs and expenses
paid or incurred in connection with obtaining payment of the
Obligations, enforcing the security interests and liens of
Lender, selling or otherwise realizing upon the Collateral, and
otherwise enforcing the provisions of this Fifth Amendment, the
Loan Agreement and the other Financing Agreements or defending
any claims made or threatened against Lender arising out of the
transactions contemplated hereby and thereby (including, without
limitation, preparations for and consultations concerning any
such matters); and (g) the fees and disbursements of counsel
(including legal assistants) to Lender in connection with the
foregoing.
C. CERTAIN WAIVERS; RELEASE. Although Borrower does not believe that
it has any claims against ------------------------ Lender, it is
willing to provide Lender with a general and total release of all
such claims in consideration of the benefits which Borrower will
receive pursuant to this Fifth Amendment. Accordingly, Borrower
for itself and any successor of Borrower hereby knowingly,
voluntarily, intentionally and irrevocably releases and
discharges Lender and its respective officers, directors, agents
and counsel (each a "Releasee") from any and all actions, causes
of action, suits, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
extents, executions, losses, liabilities, costs, expenses, debts,
dues, demands, obligations or other claims of any kind
whatsoever, in law, admiralty or equity, which Borrower ever had,
now has or hereafter can, shall or may have against any Releasee
for, upon or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the date of this Fifth
Amendment.
D. COUNTERPARTS. This Fifth Amendment may be executed in any number
of counterparts, each such counterpart constituting an original
but all together constituting one and the same instrument.
E. SEVERABILITY. Any provision contained in this Fifth Amendment
that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining
provisions of this Fifth Amendment in that jurisdiction or the
operation, enforceability or validity of that provision in any
other jurisdiction.
F. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ILLINOIS.
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IN WITNESS WHEREOF, the parties hereto have executed this
Fifth Amendment as of the date first above written.
CONGRESS FINANCIAL CORPORATION (CENTRAL)
BY
NAME:
TITLE:
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
BY
NAME:
TITLE:
CONSENT
By Guarantee dated September 27, 1996 (as amended, the "Guarantee"),
the undersigned (the "Guarantor") guaranteed to Lender (as defined therein),
subject to the terms, conditions and obligations set forth therein, the prompt
payment and performance of all of the Guaranteed Obligations (as defined
therein). The Guarantor consents to Borrower's execution of the foregoing Fifth
Amendment to Loan Agreement (the "Amendment;" capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Amendment) and
acknowledges the continued validity, enforceability and effectiveness of the
Guarantee with respect to all loans, advances and extensions of credit to
Borrower, whether heretofore or hereafter made, together with all interests
thereon and all expenses in connection therewith.
XXXXXXX WIRE COMPANY
BY
NAME:
TITLE:
CONSENT
By Confirmation Agreement dated September 27, 1996, relating to that Amendment,
Ratification and Confirmation of Secured Guaranty Agreement dated December 29,
1995, relating to, among other things the Secured Guaranty Agreement dated
October 16, 1987 (collectively, the "Guarantee"), the undersigned (the
"Guarantor") guaranteed to Lender (as defined therein), subject to the terms,
conditions and obligations set forth therein, the prompt payment and performance
of all of the Obligations (as defined therein). The Guarantor consents to
Borrower's execution of the foregoing Fifth Amendment to Loan Agreement (the
"Amendment;" capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Amendment) and acknowledges the continued
validity, enforceability and effectiveness of the Guarantee with respect to all
loans, advances and extensions of credit to Borrower, whether heretofore or
hereafter made, together with all interests thereon and all expenses in
connection therewith.
XXXXXXX WIRE OF XXXXXXXX, INC.
BY
NAME:
TITLE:
CONSENT
By Confirmation Agreement dated September 27, 1996, relating to that
Guarantee and Waiver and Rider No. 1 to Guarantee and Waiver, each dated
December 30, 1993 (as amended, collectively, the "Guarantee"), the undersigned
(the "Guarantor") guaranteed to Lender (as defined therein), subject to the
terms, conditions and obligations set forth therein, the prompt payment and
performance of all of the Obligations (as defined therein). The Guarantor
consents to Borrower's execution of the foregoing Fifth Amendment to Loan
Agreement (the "Amendment;" capitalized terms not otherwise defined herein shall
have the meaning ascribed to them in the Amendment) and acknowledges the
continued validity, enforceability and effectiveness of the Guarantee with
respect to all loans, advances and extensions of credit to Borrower, whether
heretofore or hereafter made, together with all interests thereon and all
expenses in connection therewith.
FOX VALLEY STEEL AND WIRE COMPANY
BY
NAME:
TITLE:
