Exhibit 10.3.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
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AMENDMENT dated as of October 22, 1998 by and among Lodestar Energy, Inc.,
a Delaware corporation ("Borrower"), Lodestar Holdings, Inc., a Delaware
corporation ("Guarantor"), the financial institutions from time to time parties
to the Loan Agreement (as hereinafter defined) as lenders (individually, a
"Lender" and collectively, the "Lenders"), Congress Financial Corporation, a
Delaware corporation, in its capacity as administrative agent and collateral
agent for the Lenders (in such capacity, the "Agent") and The CIT Group/Business
Credit, Inc., a New York corporation, in its capacity as co-agent for Lenders
(in such capacity, the "Co-Agent").
W I T N E S S E T H
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WHEREAS, Agent, Co-Agent, Lenders, Borrower and Guarantor have entered into
financing arrangements pursuant to which Lenders, or Agent on behalf of Lenders,
have made and may make loans and advances and provide other financial
accommodations to Borrower as set forth in the Amended and Restated Loan and
Security Agreement, dated May 15, 1998, by and among Agent, Co-Agent, Lenders,
Borrower and Guarantor (as amended by this Amendment and as the same may be
further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and the agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto
(collectively, together with the Loan Agreement, the "Financing Agreements");
WHEREAS, Borrower has requested that Lenders and Agent agree to an
amendment to the Loan Agreement;
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 is hereby acknowledged, the parties hereto
agree as follows:
1. INTERPRETATION. For purposes of this Amendment, all terms used herein,
including but not limited to, those terms used and/or defined in the recitals
hereto shall have the respective meanings assigned thereto in the Loan
Agreement.
2. AMENDMENT.
2.1 CONSOLIDATED NET WORTH.
(a) Section 7.10(a) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(a) From the date hereof through
and including October 30, 1998 ($35,000,000)"
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lenders and Agent pursuant to the other Financing
Agreements, Borrower hereby represents, warrants and covenants with and to
Lenders and Agent 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):
3.1. NO DEFAULT. No Event of Default exists on the date of this Amendment
(after giving effect to the Amendment to the Loan Agreement made by the
Amendment).
3.2. CORPORATE POWER AND AUTHORITY. This Amendment has been duly executed
and delivered by Borrower and is in full force and effect as of the date hereof
and the agreements and obligations of Borrower contained herein constitute
legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms.
4. EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto, no other
waivers, 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. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control.
5. FURTHER ASSURANCES. The parties hereto shall execute and deliver such
additional documents and take such additional actions as may be necessary to
effectuate the provisions and purposes of this Amendment.
6. 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.
7. 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. 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
Borrower to any other consent. The Loan Agreement and this Amendment shall be
read and construed as one agreement.
8. 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.
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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.
Very truly yours,
LODESTAR ENERGY, INC.
By: /s/ Michael Donohue
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Title: CFO
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LODESTAR HOLDINGS, INC.
By: /s/ John W. Hughes
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Title: President
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AGENT:
CONGRESS FINANCIAL CORPORATION, for
itself and as Agent
By: /s/ Lawrence S. Forte
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Title: FIRST VICE PRESIDENT
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THE CIT GROUP/BUSINESS CREDIT, INC., for
itself and as Agent
By: /s/ Christopher Hill
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Title: Assistant Vice President
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