SECOND REINSTATEMENT AND MODIFICATION OF THE
FOURTEENTH AMENDMENT AND FORBEARANCE AGREEMENT
This Second Reinstatement and Modification of the Fourteenth Amendment
and Forbearance Agreement ("Agreement") is entered into as of April 3, 2003,
between Xxxxxxxx Casting Corporation, a Kansas corporation (the "Borrower"),
Xxxxxx Trust and Savings Bank ("Xxxxxx"), as Agent (Xxxxxx in such capacity
being hereinafter referred to as the "Agent"), and each Bank currently party to
the Credit Agreement hereinafter identified and defined (the term "Bank Group"
as used herein to mean each Bank now and from time to time hereafter party to
the Credit Agreement and the Agent under the Credit Agreement for such Banks).
BACKGROUND
A. The Borrower, the Banks party thereto and the Agent entered into an
Amended and Restated Credit Agreement dated as of April 3, 1998 as the same has
been amended, waived, or otherwise modified prior to the date hereof by various
instruments and documents including without limitation that certain Fourteenth
Amendment and Forbearance Agreement dated as of October 17, 2002 (such Credit
Agreement, as the same has been amended, waived, or otherwise modified prior to
the date hereof, being referred to herein as the "Credit Agreement" and such
Fourteenth Amendment, as amended, modified, or reinstated prior to the date
hereof, being referred to herein as the "Fourteenth Amendment"). All capitalized
terms used herein without definition shall have the same meanings herein as such
terms have in the Fourteenth Amendment.
B. On March 17, 2003, a Standstill Termination occurred due to the
failure to pay down the Obligations and the Teachers' Notes pro rata by not less
than an aggregate amount (including all payments made since October 17, 2002) of
$11,000,000 and the occurrence of such Standstill Termination rendered
ineffective the Fourteenth Amendment.
C. The Borrower has requested that the Bank Group reinstate the
Fourteenth Amendment, extend the Termination Date (as defined in the Credit
Agreement) to April 11, 2003 and temporarily waive, or at least temporarily
forbear from enforcing its rights and remedies with respect to, the Existing
Defaults during the period (such period, as the same may be terminated earlier
pursuant to the terms hereof, being hereinafter referred to as the "Standstill
Period") ending on April 11, 2003 (the "Standstill Expiration Date"), on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, upon the mutual promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Borrower and the Bank Group agree as follows:
1. Reinstatement and Forbearance. Subject to the terms and conditions
of this Agreement, the Fourteenth Amendment is hereby reinstated and, unless and
until a Standstill Termination occurs after the date hereof:
(a) credit shall remain available under and subject to the
Credit Agreement as modified hereby to the Borrower; and
(b) the Bank Group will not enforce collection of the
Obligations or enforce its Liens on the Collateral or exercise any
other right or remedy available under the Loan Documents or otherwise
against the Borrower or any Subsidiary by virtue of (i) the Existing
Defaults and (ii) continued noncompliance with the covenants therein
referenced.
2. Amendments. Upon the satisfaction of the conditions precedent to
effectiveness set forth in Paragraph 13 hereof, the Credit Agreement and the
Fourteenth Amendment are hereby amended as hereinafter set forth.
3. Definition of "Termination Date". The definition of the term
"Termination Date" set forth in Section 4.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Termination Date" means April 11, 2003.
4. Schedule I to Fourteenth Amendment. Schedule I to the Fourteenth
Amendment shall be amended and restated in its entirety to read as set forth on
Annex A hereto.
5. Paragraph 9 of the Fourteenth Amendment is hereby amended in its
entirety to read as follows:
9. Mandatory Prepayments. The Borrower shall, on or prior to
January 31, 2003, pay down the Obligations and the Teachers' Notes pro
rata by not less than $4,000,000, and shall, on or prior to April 10,
2003 (or such later date as shall be approved in writing by the
Required Banks), pay down the Obligations and the Teachers' Notes pro
rata by not less than an aggregate amount (including all payments made
between the date hereof and January 31, 2003) of $11,000,000; provided,
however, that net proceeds applied to the Obligations and the Teachers'
Notes from the sale of Inverness shall not be included in determining
the Borrower's compliance with this paragraph. The Borrower and the
Bank Group acknowledge and consent to the application of $400,000 from
the Cash Collateral Account (as defined in the Cash Collateral Use
Agreement) on or about March 25, 2003 as and for a pay down on the
Obligations and the Teachers' Notes and agree that only $298,548 of
such amount shall be included in computing the aggregate amount of
mandatory prepayments made pursuant to this paragraph with the balance
applied to the Obligations and the Teachers' Notes pro rata.
Notwithstanding anything herein to the contrary, immediately upon the
Borrower's receipt of any settlement payments in connection with the
Insurance Claims, the Borrower will pay down the Obligations and the
Teachers' Notes pro rata by an amount not less than 100% of such
settlement payments net of unpaid legal and professional fees related
thereto. Any reduction in the Obligations pursuant hereto shall be
accompanied by a permanent reduction in the Commitments.
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6. Capital Expenditures. The Borrower shall not, nor shall it permit
any Subsidiary to, expend or become obligated for capital expenditures (as
defined by GAAP and which is calculated only with respect to the Borrower and
its Subsidiaries' North American operations) in the period commencing on July 1,
2002 and ending on April 30, 2003, of not more than $2,938,000.
7. Continued Cooperation. The Borrower and each Guarantor promises to
continue to fully cooperate with the Agent, any Bank, and any of their agents in
any field audits, and machine, equipment or real estate appraisals at all times
during the Standstill Period. The Borrower hereby confirms its promise to pay
when due, and each Guarantor hereby confirms its guaranty of, all costs incurred
in the above referenced audits and appraisals.
8. Loan Documents Remain Effective. Except as expressly set forth in
this Agreement, the Credit Documents remain unchanged and in full force and
effect. Without limiting the foregoing, the Borrower and its Subsidiaries shall
comply with all of the terms, conditions, and provisions of the Credit Documents
as modified hereby except to the extent such compliance is irreconcilably
inconsistent with the express provisions of this Agreement.
9. Acknowledgement of Debt; Acknowledgement of Liens. As of the date
hereof, the following aggregate principal amounts are outstanding on the
Revolving Loans, Swing Loans and Letters of Credit:
AGGREGATE PRINCIPAL AMOUNT
TYPE OF CREDIT: OUTSTANDING:
Revolving Loans $55,509,677.27
Swing Loans $0
Letters of Credit $3,967,270.00
The Borrower hereby confirms its promise to pay, and each Guarantor hereby
confirms its guaranty of repayment of, the principal of and interest on the
Obligations in accordance with the terms of the Credit Agreement, as modified by
this Agreement, without defense, set-off, counterclaim or reduction of any
nature whatsoever. The Borrower represents there are currently no Events of
Default other than the Existing Defaults. The Borrower and each Guarantor hereby
acknowledges and confirms that: (i) the Obligations will continue to be secured
by Liens on all accounts, chattel paper, instruments, documents, general
intangibles, investment property, deposits, inventory, equipment and
substantially all other assets and properties of the Borrower and Guarantors'
pursuant to the mortgages, security agreements and other instruments and
documents heretofore executed and delivered by the Borrower and the Guarantors
to or for the benefit of the Bank Group; (ii) such mortgages, security
agreements and other instruments and documents, and the rights and remedies of
the Bank Group thereunder, the obligations of the Borrower and each Guarantor
thereunder, and the Liens created and provided for thereunder, in each case
remain in full force and effect and shall not be affected, impaired or
discharged hereby; and (iii) nothing herein contained shall in any manner affect
or impair the priority of
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the Liens and security interests created and provided for thereby as to the
obligations which would be secured thereby prior to giving effect to this
Agreement.
10. Release. In consideration of the Required Banks' execution of this
Agreement and for other good and valuable consideration, receipt of which is
hereby acknowledged, (x) the Borrower and each Guarantor hereby acknowledges
that it has no defense, counterclaim, offset, cross-complaint, claim, or demand
of any kind or nature whatsoever that can be asserted to reduce or eliminate all
or any part of its liability to pay or perform any of the Obligations, or to pay
or perform any of its other obligations with respect to any other loans or other
extensions of credit or financial accommodations made available to or for its
account by any one or more members of the Bank Group, or to seek affirmative
relief or damages of any kind or nature from the Bank Group, and (y) the
Borrower and each Guarantor does hereby fully, unconditionally, and irrevocably
forever relieve, relinquish, release, waive, discharge, and hold harmless the
Bank Group and each of its members and each of its members' current and former
shareholders, directors, officers, employees, agents, attorneys, successors, and
assigns of and from any and all claims, debts, actions, causes of action,
liabilities, demands, obligations, promises, acts, agreements, costs, expenses
(including but not limited to reasonable attorneys' fees) and damages of
whatsoever kind and nature, whether now known or unknown, based upon, resulting
from, arising out of, or in connection with loans or other extensions of credit
or financial accommodations made by any one or more members of the Bank Group
from time to time to or for the account of the Borrower or any Subsidiary,
including, without limitation, any Loans made under, and Letters of Credit
issued under, the Credit Agreement or in any way connected with or related to
any other instrument or document executed or delivered in connection therewith
and/or the administration or collection thereof and/or collateral therefor or
guaranties thereof.
11. No Waiver and Reservation of Rights. The Bank Group is not waiving
the Existing Defaults, but is simply agreeing to forbear from exercising its
rights with respect to the Existing Defaults to the extent expressly set forth
in this Agreement. The Bank Group is not obligated in any way to continue beyond
the Standstill Period to forbear from enforcing its rights or remedies, and the
Bank Group is entitled to act on the Existing Defaults after the occurrence of a
Standstill Termination as if such defaults had just occurred and the Standstill
Period had never existed. The Bank Group makes no representations as to what
actions, if any, the Bank Group will take after the Standstill Period or upon
the occurrence of any Standstill Termination, an Event of Default, or an event
which with notice or lapse of time, or both, would constitute an Event of
Default, and the Bank Group must and does hereby specifically reserve any and
all rights and remedies it has (after giving effect hereto) with respect to the
Existing Defaults and each other Event of Default that may occur.
12. Integration. This Agreement is intended by the Bank Group as a
final expression of its agreement as to the subject matter hereof and is
intended as a complete and exclusive statement of the terms and conditions of
that agreement.
13. Effectiveness. This Agreement shall take effect upon the
satisfaction of the following conditions:
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(a) the acceptance (without modification) by the Banks and the Borrower
in the spaces provided for that purpose below;
(b) the execution by the Guarantors of the acknowledgment attached
hereto;
(c) the Borrower shall have delivered to the Bank Group a weekly cash
flow budget for the period from the date hereof through and including April 11,
2003 and the same shall be satisfactory to the Required Banks;
(d) TIAA shall have reinstated its standstill agreement through April
11, 2003 and consented to the application of $400,000 from the Cash Collateral
Account as and for a pay down on the Obligations and the Teachers' Notes in a
manner reasonably acceptable to the Agent; and
(e) the unpaid fees and expenses of the Agent's professionals shall
have been paid in full.
By its acceptance hereof, the Borrower and each Guarantor hereby represent that
they have duly considered the consequences of this Agreement after consultation
with counsel and such other advisors as each deems appropriate under the
circumstances, each has the necessary power and authority to execute, deliver,
and perform the undertakings contained herein, and that the same does bind each
of them hereto.
14. Submission to Jurisdiction; Waiver of Jury Trial. The Borrower and
each Guarantor hereby submits to the non-exclusive jurisdiction of the United
States District Court for the Northern District of Illinois and of any Illinois
State court sitting in the City of Chicago for purposes of all legal proceedings
arising out of or relating to this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby. The Borrower and each Guarantor
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. THE BORROWER, EACH GUARANTOR,
THE AGENT, AND EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
15. Miscellaneous. The Borrower shall pay all costs and expenses of the
Bank Group incurred in connection with the negotiation, preparation, execution,
and delivery of this Agreement and the administration of the Loan Documents and
the transactions contemplated thereby, including the reasonable fees and
expenses of counsel to the Bank Group. This Agreement shall be governed by and
construed in accordance with Illinois law (without regard to principles of
conflicts of laws).
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This Second Reinstatement and Modification of the Fourteenth Amendment
and Forbearance Agreement is entered into between the parties hereto as of the
date and year first above written.
XXXXXXXX CASTING CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: VP & Treasurer
XXXXXX TRUST AND SAVINGS BANK, in its individual
capacity as a Bank and as Agent
By: /s/ Xxxxxxxx Xxxxxxx
Title: Vice President
COMMERCE BANK, N.A.
By: /s/ Xxxxxx Xxxxx
Title: Senior Vice President
US BANK NATIONAL ASSOCIATION (f/k/a Firstar Bank, N.A.), (
f/k/a Firstar Bank, N.A. Overland
park, f/k/a Firstar Bank Midwest, N.A.,
f/k/a Mercantile Bank)
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
KEY BANK NATIONAL ASSOCIATION
By: Xxxxxx X. Xxxxxx
Title: Senior Vice President
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
Title: Senior Vice President
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
Nassau Branch
By: /s/ Xxxxx Xxxxxx
Title: Vice President
New York Branch
By: /s/ Xxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION (successor
by merger to Norwest Bank Minnesota, N.A.)
By: /s/ Xxxxx Xxxxx
Title: Vice President
ANNEX A TO SECOND REINSTATEMENT AND MODIFICATION OF THE
FOURTEENTH AMENDMENT AND FORBEARANCE AGREEMENT
SCHEDULE I
EXISTING DEFAULTS
1. Noncompliance with minimum current ratio requirement set forth in
Section 7.15(a) of the Credit Agreement.
2. Noncompliance with the minimum Stockholder's Equity requirement set
forth in Section 7.15(b) of the Credit Agreement.
3. Noncompliance with the maximum Consolidated Total Senior Debt to
Total Capitalization requirement set forth in Section 7.15 (c) of the Credit
Agreement.
4. Noncompliance with the maximum Consolidated Total Senior Debt to
Total Capitalization ratio set forth in Section 7.15(d) of the Credit Agreement.
5. Noncompliance with the minimum Fixed Charge Coverage Ratio set
forth in Section 7.15(e) of the Credit Agreement.
6. Noncompliance with the maximum Senior Debt to EBITDA ratio set
forth in Section 7.15(f)(i) of the Credit Agreement.
7. Noncompliance with the maximum Total Debt to EBITDA ratio set forth
in Section 7.15(f)(ii) of the Credit Agreement.
8. Noncompliance with Section 8.1(d) of the Credit Agreement resulting
from a default under the indebtedness permitted by Section 7.16(b) of the Credit
Agreement.
9. Noncompliance with Section 7.20 of the Credit Agreement resulting
from the $1,000,000 intercompany advance made by the Borrower to Xxxxxxxx
Casting UK Limited in August, 2001.
10. Noncompliance with the minimum EBITDA requirement set forth in
Section 10 of Tenth Amendment and Forbearance Agreement.
11. Noncompliance with the minimum cumulative EBITDA requirement set
forth in Section 11 of Twelfth Amendment and Forbearance Agreement for the
months of February through June, 2002.
12. Noncompliance with Section 8.1(d) of the Credit Agreement resulting
from a default under the indebtedness permitted by Section 7.16(d) of the Credit
Agreement.
13. Noncompliance with Section 8.1(d) of the Credit Agreement resulting
from General Electric Capital Corporation's call of the Borrower's guarantee of
Fonderie d'Autun SA's lease obligations.
14. Breach of representations and warranties reaffirmed under Section
6.2(c) of the Credit Agreement in connection with extensions of additional
credit due to the noncompliance described above.
15. Noncompliance with the minimum cumulative EBITDA requirement set
forth in Section 9 of Thirteenth Amendment and Forbearance Agreement for the
period from July 1, 2002 through July 31, 2002 and for the period from July 1,
2002 through August 31, 2002.
16. Noncompliance with Section 8(a) of the Fourteenth Amendment and
Forbearance Agreement.
17. Noncompliance with Section 7.9 of the Credit Agreement by virtue
of a lien in the amount of $27,125 on a deposit account of Quaker Alloy, Inc.
18. Noncompliance with Section 9 of the Fourteenth Amendment and
Forbearance Agreement by virtue of its failure to pay down the Obligations and
the Teachers' Notes pro rata by not less than an aggregate amount (including all
payments made since October 17, 2002) of $11,000,000 by February 28, 2003.
19. Noncompliance with Section 9 of the Fourteenth Amendment and
Forbearance Agreement by virtue of its failure to pay down the Obligations and
the Teachers' Notes pro rata by not less than an aggregate amount (including all
payments made since October 17, 2002) of $11,000,000 by March 17, 2003.
20. Noncompliance with the minimum cumulative EBITDA requirement set
forth in Section 7 of the Fourteenth Amendment and Forbearance Agreement for the
period ending February 28, 2003.
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GUARANTOR'S ACKNOWLEDGMENT AND CONSENT
Each of the undersigned has heretofore executed and delivered to the
Agent and each Bank a Guaranty Agreement. Each of the undersigned hereby
consents to the Second Reinstatement and Modification of the Fourteenth
Amendment and Forbearance Agreement as set forth above and confirms that its
Guaranty Agreement and all of its respective obligations thereunder remain in
full force and effect for the benefit of all the Obligations (as such term is
defined in the Credit Agreement and in the Guaranty Agreements, it being
understood and agreed that as so defined, such term includes the Bridge Loans).
Each of the undersigned also heretofore executed and delivered various Security
Agreements. Each of the undersigned hereby acknowledges and agrees that the
Liens created and provided for by each Security Agreement continue to secure,
among other things, the Obligations (as such term is defined in the Credit
Agreement and in the Security Agreements, it being understood and agreed that as
so defined, such term includes the Bridge Loans); and each Security Agreement
and the rights and remedies of the Secured Creditors thereunder, the obligations
of each of the undersigned thereunder, and the Liens created and provided for
thereunder remain in full force and effect and shall not be affected, impaired
or discharged hereby. Nothing herein contained shall in any manner affect or
impair the priority of liens and security interests created and provided for by
the Security Agreements as to the indebtedness which would be secured thereby
prior the giving effect to the Second Reinstatement and Modification of the
Fourteenth Amendment and Forbearance Agreement.
AMITE FOUNDRY AND MACHINE, INC.
PROSPECT FOUNDRY, INC.
QUAKER ALLOY, INC.
CANADIAN STEEL FOUNDRIES, LTD.
XXXXXX INTERNATIONAL, INC.
EMPIRE STEEL CASTINGS, INC.
LAGRANGE FOUNDRY INC.
THE G&C FOUNDRY COMPANY
LOS ANGELES DIE CASTING INC.
CASTCAN STEEL LTD.
CANADA ALLOY CASTINGS, LTD.
PENNSYLVANIA STEEL FOUNDRY & MACHINE COMPANY
SPRINGFIELD IRON CORP. (f/k/a Xxxx Foundry Corp.)
INVERNESS CASTINGS GROUP, INC.
DU-WEL PRODUCTS, INC.
XXXXX CASTING AND ASSEMBLY, INC.
CLAREMONT FOUNDRY, INC.
LONDON PRECISION MACHINE & TOOL LTD.
ACC GLOBAL CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
Title: Vice President
PRIMECAST INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
