AMENDMENT TO CASH COLLATERAL USE AGREEMENT
This AMENDMENT TO CASH COLLATERAL USE AGREEMENT (this "Agreement") is
made and entered into as of March 11, 2003 by and among Xxxxxxxx Casting
Corporation, a Kansas corporation (the "Borrower"), Amite Foundry and Machine,
Inc., Prospect Foundry, Inc., Quaker Alloy, Inc., Xxxxxx International, Inc.,
Empire Steel Castings, Inc., La Grange Foundry Inc., The G&C Foundry Company,
Los Angeles Die Casting Inc., 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. (collectively, the "Original Guarantors"), PrimeCast Incorporated
("PrimeCast"; the Company and the Original Guarantors and PrimeCast being
hereinafter referred to collectively as the "Obligors") and Xxxxxx Trust and
Savings Bank ("Xxxxxx"), Commerce Bank, N.A., U.S. Bank National Association,
Key Bank National Association, Comerica Bank, Hibernia National Bank, National
Westminster Bank Plc, Xxxxx Fargo Bank, National Association (collectively, the
"Banks") and Teachers Insurance and Annuity Association of America ("TIAA"; the
Banks and TIAA being hereinafter collectively referred to as the "Lenders") and
Xxxxxx in its capacity as agent for the Banks (the "Bank Agent") and as
collateral agent for the Lenders (the "Collateral Agent").
WITNESSETH:
WHEREAS, the Obligors, the Lenders, the Bank Agent and the Collateral
Agent entered into a Cash Collateral Use Agreement dated as of December 18, 2001
(such Cash Collateral Use Agreement, as the same has been amended, waived, or
otherwise modified prior to the date hereof, being referred to herein as the
"Cash Agreement"). All capitalized terms used herein without definition shall
have the same meanings herein as such terms have in the Cash Agreement.
WHEREAS, contemporaneously herewith the Lenders and the Obligors have
entered into certain forbearance arrangements (collectively, the "Forbearance
Extensions"), pursuant to which, among other things, the Lenders have agreed to
extend the periods during which they forebear from certain enforcement actions
as to the Financing Agreements until April 3, 2003 or such earlier date as is
set forth in such Forbearance Extensions (the "Forbearance End Date").
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, TIAA, the Collateral Agent and each of the
Banks agree as follows:
SECTION 1. AMENDMENTS.
Subject to the terms and conditions of this Amendment, the Cash
Agreement is hereby amended as follows:
(a) The fourth sentence of Section 4.1 of the Cash Agreement
is hereby amended in its entirety to read as follows:
"In addition, the Collateral Agent shall be free in its sole
discretion to elect not to transfer money to the Disbursement
Accounts:
(i) for any proposed item that is not reflected in
the Operating Period Budget;
(ii) if on a monthly basis an actual itemized
individual expense or category of expenditure exceeds that set
forth in the Operating Period Budget by: (A) 25%, in the case
of expenditures for a given week and (B) 10%, in the case of
expenditures for a given month and (C) $500,000 for aggregate
expenditures during the forecast period from December 1, 2002
through April 3, 2003; or
(iii) upon the occurrence of the Forbearance End
Date.
For purposes of the foregoing clause (ii), La Grange Foundry
Inc., Canadian Steel Foundries, Ltd., Empire Steel Castings,
Inc. and PrimeCast, Inc. shall be excluded from the variance
calculations."
SECTION 2. CONDITIONS OF EFFECTIVENESS.
This Amendment shall become effective when and only when the Collateral
Agent shall have received counterparts of this Amendment executed by the
Obligors and the Requisite Lenders.
SECTION 3. EXPENSES.
The Borrower agrees to pay on demand all costs and expenses of the
Lenders, the Bank Agent and the Collateral Agent incurred in connection with the
negotiation, preparation, execution, and delivery of this Amendment and the
administration of the Cash Agreement (as amended hereby) and the transactions
contemplated by the Cash Agreement (as amended hereby), including the reasonable
fees and expenses of counsel to the Lenders, the Bank Agent and the Collateral
Agent.
SECTION 4. CASH AGREEMENT REMAINS EFFECTIVE.
Except as expressly set forth in this Amendment, the Cash Agreement
remains unchanged and in full force and effect. Without limiting the foregoing,
the Obligors shall comply with all of the terms, conditions, and provisions of
the Cash Agreement (as modified hereby) except to the extent such compliance is
irreconcilably inconsistent with the express provisions of this
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Amendment. All references in the Cash Agreement to the term "Forbearance End
Date" shall mean the Forbearance End Date as defined herein.
SECTION 5. INTEGRATION.
This Amendment is intended by the parties which are signatories hereto
as a final expression of their agreement as to the subject matter hereof and is
intended as a complete and exclusive statement of the terms and conditions of
that agreement.
SECTION 6. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each
which shall be deemed an original, but all of which together shall constitute
but one instrument.
SECTION 7. GOVERNING LAW.
This Amendment shall be deemed to be executed and has been delivered
and accepted in Chicago, Illinois by signing and delivering it there. Any
dispute between the parties hereto arising out of, connected with, related to,
or incidental to this Amendment, and whether arising in contract, tort, equity,
or otherwise shall be resolved in accordance with the internal laws and not the
conflicts of law provisions of the State of Illinois.
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This Amendment is entered into between the parties hereto as of the
date and year first above written.
XXXXXXXX CASTING CORPORATION
AMITE FOUNDRY AND MACHINE, INC.
PROSPECT FOUNDRY, INC.
QUAKER ALLOY, INC.
XXXXXX INTERNATIONAL, INC.
EMPIRE STEEL CASTINGS, INC.
LAGRANGE FOUNDRY INC.
THE G&C FOUNDRY COMPANY
LOS ANGELES DIE CASTING INC.
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.
By /s/ Xxxxx X. XxXxxxxx
Title: Vice President
PRIMECAST INCORPORATED
By /s/ Xxxxxxx Xxxxx
Title: Vice President
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TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Ho Xxxxx Xxx
Title: Associate Director
Special Situations
XXXXXX TRUST AND SAVINGS BANK, in its individual
capacity as a Bank, as Agent and as Collateral
Agent
By: /s/ Xxxxxxxx Xxxxxxx
Title: Vice President
COMMERCE BANK, N.A.
By: /s/ Xxxxxx X. Block
Title: Senior Vice President
U.S. BANK NATIONAL
ASSOCIATION (f/k/a
Firstar Bank N.A.)
(f/k/a Firstar Bank
Midwest, N.A.)
(f/k/a Mercantile
Bank)
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
Title: Senior Vice President
HIBERNIA NATIONAL BANK
By:
Title:
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NATIONAL WESTMINSTER BANK PLC
Nassau Branch
By:
Title:________________________________________________
New York Branch
By:
Title:________________________________________________
XXXXX FARGO BANK,
NATIONAL
ASSOCIATION
(successor by
merger to Norwest
Bank Minnesota,
N.A.)
By:
Title:________________________________________________
KEY BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
Title: Senior Vice President
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