Exhibit 10.5.3
AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
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January 13, ▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇ Resources Corporation
Fabricated Products, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Congress Financial Corporation ("Lender") has entered into financing
arrangements with The Doe Run Resources Corporation ("Doe Run") and
Fabricated Products, Inc. ("Fabricated Products", and together with Doe Run,
collectively "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 the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement") and other agreements, documents and instruments referred to
therein or at any time executed and/or delivered in connection therewith or
related thereto, including this letter agreement (all of the foregoing,
including the Loan Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced,
being collectively referred to herein as the "Financing Agreements"). All
capitalized terms used herein shall have the meaning assigned thereto in the
Loan Agreement, unless otherwise defined herein.
Borrowers have requested that Lender consent to: (a) the formation
of DR Land Holdings, LLC, a Delaware limited liability company ("DR Land")
whose sole member is and shall be Doe Run; (b) the assignment by Doe Run to
DR Land of all of Doe Run's right, title and interest in and to a Mineral
Lease, dated as of January 1, 1969, by and between ▇▇▇ ▇. ▇▇▇▇ and ▇▇▇ ▇.
▇▇▇▇, as lessors, and ASARCO, Inc. ("ASARCO"), as successor in interest to
Ozark Lead Company ("Ozark"), as lessee, as amended and recorded in ▇▇▇▇▇▇▇▇
County, Missouri at Book 194, Page 223 (the "▇▇▇▇ Lease"); (c) the Operating
Agreement, dated as of January 13, 1999, by and between Doe Run and DR Land
(the "Operating Agreement"), as the same exists on the date hereof, by Doe
Run and DR Land, pursuant to which Doe Run will perform mining operations on
the real property which is leased to DR Land pursuant to the ▇▇▇▇ Lease; (d)
the pledge of the membership interest of Doe Run in DR Land to the Secured
Note Trustee; and (e) the guarantee by DR Land of the Indebtedness of Doe Run
evidenced by the Senior Notes and the Senior Secured Notes.
The ▇▇▇▇ Lease was purchased by Doe Run from ASARCO (the successor in
interest to Ozark) pursuant to the ASARCO Purchase Agreements.
Subject to the terms and conditions contained herein, Lender consents
to: (a) the formation of DR Land; (b) the assignment by Doe Run to DR Land of
Doe Run's interest in the ▇▇▇▇ Lease; (c) the Operating Agreement; (d) the
pledge of the membership interest of Doe Run in DR Land to the Senior Secured
Note Trustee as security for the Senior Secured Notes; and (e) the guarantee
by DR Land of the Indebtedness of Doe Run evidenced by the Senior Notes and
the Senior Secured Notes; PROVIDED, THAT, all of the foregoing have occurred
by no later than January 29, 1999.
The definition of "Senior Secured Note Guarantors" in the Loan
Agreement is hereby amended to include, in addition and not in limitation, DR
Land.
Schedule 5.1(b) to the Loan Agreement is hereby amended by adding
thereto the material set forth on Exhibit A hereto.
The consents set forth above shall be subject to each of the
following, and Borrowers hereby jointly and severally represent, warrant and
covenant 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 part of the Financing Agreements):
(a) DR Land's sole purpose shall be to hold the right, title and
interest in the ▇▇▇▇ Lease, to enter into the Operating
Agreement and to realize the benefits of the ▇▇▇▇ Lease and
the Operating Agreement, and the only assets of DR Land shall
be the interest of DR Land in the ▇▇▇▇ Lease and the
Operating Agreement and all rights and proceeds associated
therewith; provided, however, such assets shall not include
any minerals at any time extracted from any of the property
subject to the ▇▇▇▇ Lease all of which shall only be
transferred to Doe Run immediately upon extraction;
(b) DR Land shall not conduct any business or engage in any
commercial activities except to the extent required by and as
specified in the Operating Agreement as in effect on the date
hereof;
(c) each Borrower shall not, and shall not permit any Subsidiary
to, directly or indirectly, make any loan or advance money or
property to DR Land, or invest in (by capital contribution,
dividend or otherwise) DR Land or make any other payment to
DR Land or transfer any assets or properties to DR Land or
guarantee or otherwise become liable in any respect for any
obligations of DR Land, other than the transfer to DR Land of
Doe Run's right, title and interest in and to the ▇▇▇▇ Lease
and Doe Run providing the Services (as such term is defined
in the Operating Agreement as in effect on the date hereof)
to DR
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Land in accordance with the terms of the Operating Agreement
(as in effect on the date hereof) and to make the payments
required under the ▇▇▇▇ Lease on behalf of DR Land as
provided for in the Operating Agreement (as in effect on the
date hereof), but only to the extent that Doe Run has been
reimbursed by the transfer by DR Land to Doe Run of minerals
mined and extracted pursuant to the ▇▇▇▇ Lease (which
transfer shall be free and clear of any liens, security
interests, claims and other encumbrances) and; PROVIDED,
THAT, any payment by Doe Run to DR Land or made by Doe Run on
behalf of DR Land shall only be made when due under the terms
of the ▇▇▇▇ Lease and shall only exceed the amounts required
to be paid to the lessors under the ▇▇▇▇ Lease as set forth
in the Operating Agreement as in effect on the date hereof;
(d) a true, correct and complete copy of the Operating Agreement
is annexed hereto as Exhibit B;
(e) promptly after the end of each fiscal quarter, DR Land shall
make a distribution to its sole member, Doe Run, of
substantially all of its tangible assets (including any cash
or cash equivalents) other than its interest in the ▇▇▇▇
Lease and the Operating Agreement;
(f) Lender shall have received true, correct and complete copies
of all the documents relating to the formation of DR Land,
the transfer to DR Land of the ▇▇▇▇ Lease, and the pledge of
the membership interest of Doe Run in DR Land to the Secured
Note Trustee; EXCEPT, THAT, in the case of such pledge,
Lender shall have received true, correct and complete copies
of such documents within five (5) days hereof and such
documents shall be in form and substance similar to the draft
pledge documents received by Lender as of the date hereof;
(g) Lender shall have received, in form and substance
satisfactory to Lender, the guarantee by DR Land of the
Obligations of Borrowers in favor of Lender, duly authorized,
executed and delivered by DR Land;
(h) Lender shall have received, in form and substance
satisfactory to Lender, the Manager's Certificate of Member's
and Manager's Resolutions, Operating Agreement, Incumbency
and Member's Consent duly authorized, executed and delivered
by Doe Run; and
(i) Lender shall have received an original of this letter
agreement duly authorized, executed and delivered by
Borrowers.
The terms herein shall not limit or otherwise affect in any manner
whatsoever the rights of the Lender to require Borrowers to execute and
deliver or cause to be executed, delivered or obtained any further
agreements, documents or instruments as provided in the Financing Agreements.
The parties hereto acknowledge, confirm and agree that the failure of
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Borrowers to comply with the representations, warranties and covenants set
forth herein shall constitute an Event of Default under the Loan Agreement.
This letter agreement may be executed in counterparts, but all of
such counterparts shall together constitute but one and the same agreement.
In making proof of this letter agreement, it shall not be necessary to
produce or account for more than one counterpart thereof signed by each of
the parties thereto.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Assistant Vice President
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ACKNOWLEDGED:
THE DOE RUN RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President/CFO
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FABRICATED PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President/CFO
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