Exhibit 4.1(L)
TENTH AMENDMENT AND
FORBEARANCE AGREEMENT
This Tenth Amendment and Forbearance Agreement ("AGREEMENT") is entered
into as of April 13, 2001, between Atchison Casting Corporation, a Kansas
corporation (the "BORROWER"), Harris Trust and Savings Bank ("HARRIS"), as Agent
(Harris 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 hereto and the Agent entered into an
Amended and Restated Credit Agreement dated as of April 3, 1998 (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"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
B. The Borrower and Teachers Insurance and Annuity Association of
America ("TIAA") executed and delivered that certain Note Purchase Agreement,
dated July 29, 1994 (such Note Agreement, as the same has been amended, waived
or otherwise modified prior to the date hereof, being referred to herein as the
"NOTE AGREEMENT"), pursuant to which TIAA purchased $20,000,000 in aggregate
principal amount of the Borrower's 8.44% Senior Notes due July 29, 2004
("TEACHERS' NOTES").
C. The Borrower, TIAA, the Bank Group, and Harris entered into that
certain Intercreditor and Collateral Agency Agreement (the "INTERCREDITOR
AGREEMENT"), dated February 15, 2000, pursuant to which Harris was appointed as
collateral agent (Harris, in such capacity, being the "COLLATERAL AGENT").
D. As of the date hereof, the Borrower is not in compliance with the
Credit Agreement as described on Schedule I attached hereto (collectively, the
"EXISTING DEFAULTS").
E. The Borrower has requested that the Bank Group 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 as the "STANDSTILL PERIOD") ending on July 30, 2001 (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. FORBEARANCE. Subject to the terms and conditions of this Agreement,
unless and until a Standstill Termination occurs:
(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 the Existing Defaults.
2. MAXIMUM EXPOSURE. During the Standstill Period, the Borrower must
not at any time permit the aggregate principal amount outstanding on the Loans
(including Swing Loans) and Letters of Credit to exceed $77,272,727.27 (the
"MAXIMUM EXPOSURE CAP"). The Banks agree that the temporary increase in
Commitments (shown, for convenience, on Schedule II attached hereto) under
Section 1.14 of the Credit Agreement shall continue in effect during the
Standstill Period in the percentages set forth in clause (b) of the last
sentences of Section 1.14 of the Credit Agreement. The Borrower shall
immediately make such payments as are necessary to assure that the outstanding
Loans (including Swing Loans) and Letters of Credit do not exceed the Maximum
Exposure Cap.
3. INTEREST AND COMMITMENT FEES. Nothwithstanding anything in any
Credit Document to the contrary, but subject to the further provisions of this
Agreement:
(a) Interest shall accrue on Loans made available as Domestic
Rate Loans (x) through the Standstill Period at the rate per annum
determined by adding the Domestic Rate Spread to the Domestic Rate as
from time to time in effect (payable monthly on the last day of each
calendar month) and (y) after the Standstill Period until paid at the
rate per annum determined by adding 2% to the Domestic Rate from time
to time in effect plus the Domestic Rate Spread (payable on demand).
(b) Interest shall accrue on Loans made available as Eurodollar
Loans (x) through the Standstill Period at the rate per annum
determined by adding the Eurocurrency Spread to the Eurocurrency Rate
as from time to time in effect (payable on the last day of the
relevant Interest Period, but in no event less often than monthly, as
set forth in the Credit Agreement) and (y) after the Standstill Period
until paid at the rate per annum determined by adding 2% to the
Eurocurrency Rate as from time to time in effect plus the Eurocurrency
Rate Spread (payable on demand).
(c) For purposes of the Credit Agreement and this Agreement, the
term "DOMESTIC RATE SPREAD" shall mean (x) 1.75% on Domestic Rate
Loans to the extent not in excess of the difference between
$70,000,000 and the Letters of Credit then outstanding and (y) 1.25%
on Domestic Rate Loans ("EXCESS DOMESTIC RATE LOANS") in excess of
such difference; PROVIDED, HOWEVER, that the Domestic Rate Spread on
Excess Domestic Rate Loans shall be subject to reduction pursuant to
paragraph 6 below. Also for purposes of the Credit Agreement and this
Agreement, the term "EURODOLLAR SPREAD"
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shall mean 4.25%; PROVIDED, HOWEVER, that the Eurodollar Spread shall
be subject to reduction pursuant to paragraph 6 below.
(d) No Loan shall be advanced as a Eurocurrency Loan unless prior
to giving effect to such Loan, the aggregate principal amount
outstanding on Domestic Rate Loans and Letters of Credit is at least
$70,000,000.
(e) The commitment fee shall continue to accrue and continue to
be payable in respect to the Commitments (as the Commitments have been
increased by prior Amendments to the Credit Agreement and shown, for
convenience, on Schedule II attached hereto, at the rates (0.375% per
annum) and times set forth in the Credit Agreement except that the
commitment fee to accrue on that portion of the Commitments in excess
of $70,000,000 shall (effective and including October 1, 2000)
continue to be 0.50% per annum for the PRO RATA benefit of the Banks
providing the temporary increase in Commitments under Section 1.14 of
the Credit Agreement.
4. SALE OF PENNSYLVANIA STEEL AND PRIMECAST FACILITIES. The Borrower
has informed the Banks of its desire to sell the equipment and other fixed
assets at the Pennsylvania Steel Foundry and PrimeCast Foundry to Industrial
Assets Revitalization, Inc. ("IAR") as described in a March 9, 2001 transmittal
letter from April Farrington of IAR to Tom Armstrong of the Borrower (such sale
as so described being hereinafter referred to as the "PENN STEEL/PRIMECAST
SALE"). In that connection, the Borrower requested that the Banks consent to the
Penn Steel/PrimeCast Sale and agree to release their Liens under the Collateral
Documents on the Property so sold. Accordingly, consent is hereby given to the
Penn Steel/PrimeCast Sale and agreement is hereby made to the release of such
Liens on the Property so sold, if and only if: (i) the Penn Steel/PrimeCast Sale
is consummated during the Standstill Period, (ii) TIAA consents to the Penn
Steel/PrimeCast Sale and concurrently releases its Liens under the Collateral
Documents on the Property so sold, (iii) at least one other third party
auctioneer (not an Affiliate of IAR) reasonably acceptable to the Agent opines
in form and substance reasonably satisfactory to the Agent and Required Lenders
that the cash consideration to the Company for the Penn Steel/PrimeCast Sale is
in an amount representative of the fair market value of the Property so sold and
(iv) the Agent receives, out of the proceeds of such sale, for application to
the Obligations as contemplated by paragraph 7 of this Agreement, an amount
equal to the sum of (i) $1,264,800 plus (ii) 93.6% of the amount (if any) by
which the net proceeds of the Penn Steel/PrimeCast Sale exceed $1,300,000 ("NET
PROCEEDS" for such purposes to mean the gross proceeds of the Penn
Steel/PrimeCast Sale less only those ordinary and necessary capital gains taxes
and out-of-pocket transaction expenses in each case directly incurred and
payable by the Borrower and its Subsidiaries as a result of such sale).
5. U.S. REAL ESTATE COLLATERAL. As a condition to the effectiveness of
this Agreement, the Borrower and its Subsidiaries shall have granted the
Collateral Agent a valid, perfected and enforceable Lien on any real estate of
the Borrower and its Subsidiaries located in the United States (except for the
real estate of the Company in Atchison, Kansas and St. Joseph, Missouri commonly
known respectively as the Atchison Foundry and St. Joseph Machine Shop if and so
long as the Company's existing financing with General Electric Capital
Corporation prohibits the granting of such Lien), together within all
improvements thereon and rents therefrom. The
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Borrower acknowledges and agrees that the Liens on such real and related
property shall be granted to the Collateral Agent for the ratable benefit of
the Bank Group and TIAA in accordance with the terms of the Intercreditor
Agreement and shall be valid and perfected first priority Liens subject,
however, to any prior Liens on such real property permitted by the Credit
Agreement, in each case pursuant to one or more Collateral Documents from such
Persons, each in form and substance satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, as a condition to such
effectiveness, the Borrower and its Subsidiaries shall have paid all taxes,
costs and expenses incurred by the Collateral Agent in recording each mortgage
or deed of trust (as the case may be) granting such Lien. The Borrower shall
supply to the Collateral Agent at the Borrower's cost and expense (x) no later
than April 30, 2001, a hazard insurance policy and a mortgagee's policy of
title insurance from a title insurer acceptable to the Collateral Agent
insuring the validity of each such mortgage or deed of trust and its status as
a first Lien (subject to such permitted Liens) on the real property encumbered
thereby and (y) no later than May 31, 2001, a survey and environmental report
on such real estate.
6. CANADIAN REAL ESTATE COLLATERAL. No later than April 30, 2001, the
Borrower and its Subsidiaries shall grant the Collateral Agent a valid,
perfected and enforceable Lien on any real estate of the Borrower and its
Subsidiaries located in Canada, together with all improvements thereon and rents
therefrom. The Borrower acknowledges and agrees that the Liens on such real and
related property shall be granted to the Collateral Agent for the ratable
benefit of the Bank Group and TIAA in accordance with the terms of the
Intercreditor Agreement and shall be valid and perfected first priority Liens
subject, however, to any prior Liens on such real property permitted by the
Credit Agreement, in each case pursuant to one or more Collateral Documents from
such Persons, each in form and substance satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, the Borrower and its
Subsidiaries shall on or before such date pay all taxes, costs and expenses
incurred by the Collateral Agent in recording the mortgage or deed of trust (as
the case may be) granting such Lien. No later than May 31, 2001, the Borrower
shall supply to the Collateral Agent at the Borrower's cost and expense a
survey, environmental report, hazard insurance policy, and a mortgagee's policy
of title insurance from a title insurer acceptable to the Collateral Agent
insuring the validity of each such mortgage or deed of trust and its status as a
first Lien (subject to such permitted Liens) on the real property encumbered
thereby. Upon satisfaction of the requirements contained in this paragraph 6 as
determined by the Agent in its sole discretion, the Domestic Rate Spread on
Excess Domestic Rate Loans and the Eurocurrency Spread shall each be reduced by
0.25% per annum.
7. REDUCTION IN COMMITMENTS. A portion of the Commitments shall
terminate on the Business Day on which the Borrower or any of its Subsidiaries
receives (i) the proceeds of any sale, transfer or other disposition (whether
voluntary or involuntary) by the Borrower or any of its Subsidiaries of any
asset or on account any of damage, destruction or condemnation of any asset
(other than sales, transfers or other dispositions of inventory in the ordinary
course of business), (ii) the proceeds of any insurance policy or any insurance
settlements, or (iii) any tax refund (the sums described in the immediately
proceeding clauses (i), (ii) and (iii) being hereinafter referred to
collectively as "LIQUIDATION PROCEEDS"), in each case by an amount equal to
43.6% of such Liquidation Proceeds; PROVIDED, HOWEVER, that no such termination
in the Commitments shall be made with respect to the first $750,000 of net
proceeds (with "NET
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PROCEEDS" determined for such purposes as in paragraph 4 above) to the Borrower
from the Penn Steel/PrimeCast Sale. All reductions in the Commitments required
by this paragraph 7 shall be applied first to terminate the temporary increase
in Commitments under Section 1.14 of the Credit Agreement of each Bank whose
Commitment was so temporarily increased PRO RATA in accordance with the
respective amounts of such Banks' temporary increases and then applied to
terminate the remaining Commitments of each Bank PRO RATA in accordance with
such remaining Commitments (with a reduction in the Swing Line Commitment, as
necessary, such that it never exceeds Harris Bank's Commitment). If the
aggregate principal amount of the outstanding Loans (including Swing Loans) and
Letters of Credit exceed the Commitments as reduced by this paragraph 7, the
Borrower shall immediately and without notice or demand, pay the amount of such
excess to the Agent as a prepayment of the Loans and, if necessary, a
prefunding of Letters of Credit (with such payment applied to the Obligations
as required by the Credit Agreement (after giving effect to, among other
things, this Amendment).
8. REVOLVING LOAN MECHANIZATION. No later than the effectiveness of
this Agreement, the Borrower shall make such arrangements ("MECHANIZATION
ARRANGEMENTS") as shall be necessary or appropriate to (i) arrange for the
administration of the Loans on the Agent's asset-based lending system and (ii)
in connection therewith, assure that tax refunds, insurance settlements,
proceeds of the sale of assets, and proceeds of accounts receivable and
inventory of the Borrower and its Subsidiaries (except for the share of
Liquidation Proceeds (but in any event excluding the first $750,000 of net
proceeds of the Penn Steel/PrimeCast Sale), not to exceed 6.4% thereof, which is
remitted to Teachers for application in reduction of Teachers' Notes) are
deposited (in the same form as received) in bank deposit accounts maintained
with, and under the dominion and control of, the Agent, such deposit accounts to
constitute special restricted accounts. Upon commencement of the Mechanization
Arrangements:
(a) Balances in such special restricted accounts shall be
transferred daily to a single remittance account maintained with the
Agent (the "CONCENTRATION ACCOUNT") under its exclusive dominion and
control. All collected funds on deposit in the general operating
accounts of the Borrower and its Subsidiaries on the date of such
commencement will be transferred on such date to the concentration
account.
(b) No amounts deposited in the concentration account shall be
released to the Borrower. Instead, the full amount on deposit in the
concentration account, to the extent the Agent deems those funds to be
collected in accordance with its standard and customary practices
regarding funds availability, will on a daily basis be applied to, or
otherwise held as collateral security for, the Obligations (with such
amounts to be applied during the Standstill Period to the Obligations
as required by the Credit Agreement after giving effect to, among
other things, this Amendment), with new Loans available to the
Borrower during the Standstill Period on and subject to the terms and
conditions of this Agreement. Except as otherwise specifically
provided for in this Agreement, the Borrower and its Subsidiaries
irrevocably waive the right to direct the application of proceeds of
Collateral at any time so received by the Agent.
(c) If and to the extent the Agent shall so request, the Borrower
shall utilize the Swing Line in order to minimize the frequency with
which settlements of advances
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and repayments of Revolving Loans must occur with the Banks (it being
understood and agreed however, that such settlement shall occur no
less often than weekly).
The Borrower and (by their acceptance of this Agreement) its Subsidiaries
acknowledge that the Agent has (and is hereby granted to the extent it does not
already have) a Lien on such special restricted bank accounts (including the
concentration account) and all funds contained therein to secure the
Obligations. Notwithstanding the foregoing, Mechanization Arrangements need not
be made with respect to (i) proceeds of accounts receivable and inventory of
Fonderie d'Autun and Subsidiaries organized and doing business in the United
Kingdom and (ii) up to $500,000 in the aggregate of funds on deposit in local
petty cash, payroll and similar operating accounts maintained with commercial
banks by the Borrower and its Subsidiaries in proximity to their operations (and
which accounts have been disclosed in writing to the Agent) for the purpose of
paying expenses (as opposed to receiving collections on accounts receivable and
other payments for inventory).
9. INFORMATION. The Borrower and its Subsidiaries shall furnish to the
Bank Group such information as any member of the Bank Group may reasonably
request regarding the Borrower or any Subsidiary and its business, operations,
and financial condition, as and when reasonably requested by any member of the
Bank Group, and without any such request, the Borrower shall furnish to the Bank
Group:
(a) as soon as available, and in any event no later than 30 days
after the close of each calendar month (commencing February 2001), a
consolidated balance sheet of the Borrower as at the close of such
month and a consolidated income statement and consolidated statement
of cash flows of the Borrower for the month and for the fiscal
year-to-date then ended, each in the same form as the monthly
financial statements currently furnished by the Borrower without
request;
(b) as soon as available, and in any event no later than thirty
days after the close of each calendar month (commencing February
2001), a compliance certificate showing performance as of the close of
such month against the financial covenants set forth in Sections
7.15(b), (c) and (d) of the Credit Agreement and paragraph 10 of this
Agreement, in substantially the same form as the quarterly compliance
certificates currently submitted by the Borrower (except for the
additional reporting of compliance herewith);
(c) as soon as available, and in any event no later than the 3rd
Business Day at each week a report on accounts receivable and
inventory containing weekly updates of receivable balances and rolling
monthly updates of inventory, prepared in reasonable detail by the
Borrower in a form acceptable to the Agent and certified by the
Borrower's chief financial officer;
(d) as soon as available, and in any event not later than the
20th day of each month an inventory certificate and an accounts
receivable and accounts payable aging report, each prepared in
reasonable detail by the Borrower in a form acceptable to the Agent
and certified to by the Borrower's chief financial officer; and
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(e) as soon as available, and in any event no later than the time
periods set forth in the Credit Agreement, all other reports and
financial information required to be delivered by the Borrower under
Section 7.6 of the Credit Agreement.
10. MINIMUM CUMULATIVE EBITDA. The Borrower shall maintain EBITDA
(which is calculated without giving effect to Fonderie d'Autun) for each period
commencing on February 1, 2001 on a date set forth below at not less than the
amount set forth below immediately to the right of such period:
CUMULATIVE EBITDA MUST
FOR PERIOD ENDED: EQUAL OR EXCEED:
February 28, 2001 ($86,000)
March 31, 2001 $1,011,000
April 30, 2001 $2,337,000
May 31, 2001 $4,217,000
June 30, 2001 $6,662,000
For purposes of this paragraph 10 only, EBITDA for each monthly period shall be
adjusted as follows: (a) by adding thereto, to the extent deducted when
calculating consolidated net income for such period, non-recurring shut-down
expense incurred by the Borrower in connection with (i) the closing of the
Pennsylvania Steel Foundry, to the extent such amounts do not exceed $4,000,000
in the aggregate for all such periods and (ii) the closing of the PrimeCast
Foundry, to the extent such amounts do not exceed $550,000 in the aggregate for
all such periods; and (b) by excluding therefrom, to the extent otherwise
included when calculating consolidated net income for such period, any
unrealized losses and unrealized gains for such period resulting from
mark-to-market under Financial Accounting Standard Number 133 of derivatives
instruments entered into by the Borrower and its Subsidiaries in the ordinary
course of their business to hedge against the risk on their then existing
purchase orders from fluctuation in commodity prices and exchange rates.
11. DIVIDENDS AND REDEMPTIONS. Neither the Borrower nor any Subsidiary
shall declare, pay or otherwise make any dividend or other distribution in
respect of, or otherwise acquire or retire, any of its capital stock; PROVIDED,
HOWEVER, that the foregoing shall neither apply to nor operate to prevent Wholly
Owned Subsidiaries from declaring and paying dividends to the Borrower or any
domestic Subsidiary during the Standstill Period.
12. 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.
13. INSPECTION. The Agent shall have the right, at the Borrower's
expense, to conduct, or retain (either directly by the Agent or through the
Agent's legal counsel) third parties to
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conduct, such field audits and other inspections and analyses of the Collateral
and financial condition and prospects of the Borrower and its Subsidiaries as
the Required Banks in good faith deem appropriate including, without
limitation, a review and opinion on the integrity of the Borrower's financial
reports and records and on the reasonableness of the Borrower's fiscal 2001 and
fiscal 2002 operating plan. The Borrower and its Subsidiaries shall cooperate
with the parties conducting such audits, inspections and analyses to assure
that such report shall be delivered to the Agent and the Banks no later than
June 1, 2001. The Borrower acknowledges and agrees that the Agent's legal
counsel and TIAA's legal counsel have retained the firm of BBK, Ltd. for such
purposes and that the Borrower is fully responsible for the payment when due of
the expense to such counsel of retaining such firm.
14. ASSIGNMENTS. Assignments (whether during or after the Standstill
Period) by the Banks of their interests in the Obligations may be effected
without the Borrower's consent if they otherwise comply with Section 11.12 of
the Credit Agreement.
15. STANDSTILL TERMINATION. As used in this Agreement, "STANDSTILL
TERMINATION" means the occurrence of the Standstill Expiration Date, or, if
earlier, the occurrence of any one or more of the following events: (a) any
Event of Default occurs other than the Existing Defaults; (b) any failure (other
than any failure constituting an Existing Default) by the Borrower or any
Subsidiary for any reason to comply with any term, condition, or provision
contained in this Agreement or any other Credit Document executed by it; (c) any
holder of the Teachers' Notes or any other holder of Debt of the Borrower or any
Subsidiary shall commence any action to accelerate such Debt or begin any
enforcement action for the collection of such Debt; (d) any forbearance or
similar arrangements TIAA enters into with the Borrower shall terminate; (e) any
representation made by or on behalf of the Borrower or any Subsidiary in this
Agreement or any other Credit Document executed by it or in any other document
delivered by it pursuant thereto proves to be incorrect or misleading in any
material respect when made (other than any such misrepresentation constituting
an Existing Default); or (f) the refinancing and payment or other satisfaction
of the Teachers' Notes without a corresponding refinancing or satisfaction of
the Obligations. The occurrence of any Standstill Termination shall be deemed an
Event of Default under the Credit Agreement. Upon the occurrence of a Standstill
Termination, the Standstill Period is automatically terminated and the Bank
Group is then permitted and entitled, among other things, to enforce collection
of the Obligations, to enforce its liens on the Collateral, and to exercise any
and all other rights and remedies that may be available under the Loan Documents
or applicable law.
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16. 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
TYPE OF CREDIT: AMOUNT OUTSTANDING:
Revolving Loans $69,992,355.03
Swing Loans $0
Letters of Credit $7,280,372.24
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 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 instrument
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 the Liens
interests created and provided for thereby as to the obligations which would be
secured thereby prior to giving effect to this Agreement.
17. RELEASE. In consideration of the Required Bank's 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 member's 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
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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.
18. 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.
19. 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.
20. EFFECTIVENESS. This Agreement shall take effect upon (i) its
acceptance (without modification) by the Required Banks and the Borrower on or
before April 13, 2001, in the spaces provided for that purpose below and (ii)
the recording of all such mortgages and deeds of trust as were required to be
delivered on the real estate of the Borrower and its Subsidiaries located in the
United States (except for the real estate of the Company in Atchison, Kansas and
St. Joseph, Missouri commonly known respectively as the Atchison Foundry and St.
Joseph Machine Shop if and so long as the Company's existing financing with
General Electric Capital Corporation prohibits the granting of such Lien) and
the payment of all taxes, costs and expenses incurred by the Collateral Agent in
recording such mortgages and deeds of trust. By its acceptance hereof, the
Borrower and each Guarantor hereby represents that it has duly considered the
consequences of this Agreement after consultation with counsel and such other
advisors as it deems appropriate under the circumstances, it has the necessary
power and authority to execute, deliver, and perform the undertakings contained
herein, and that the same does bind it hereto.
21. 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
-10-
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.
22. 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)
-11-
This Tenth Amendment and Forbearance Agreement is entered into between
the parties hereto as of the date and year first above written.
ATCHISON CASTING CORPORATION
By: /s/ Kevin T. McDeremd
------------------------------------
Name: Kevin T. McDermed
------------------------------------
Title: V.P. & Treasurer
------------------------------------
HARRIS TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as Agent
By: /s/ Len E. Meyer
------------------------------------
Title: Vice President
------------------------------------
COMMERCE BANK, N.A.
By: /s/ Mark Eagleton
------------------------------------
Title: Senior Vice President
------------------------------------
FIRSTAR BANK, N.A., OVERLAND PARK, (f/k/a
Firstar Bank Midwest, N.A. f/k/a Mercantile
Bank)
By: /s/ Craig Buckley
------------------------------------
Title: Vice President
------------------------------------
KEY BANK NATIONAL ASSOCIATION
By: /s/ George Adams
------------------------------------
Title: Vice President
------------------------------------
-12-
COMERICA BANK
By: /s/ Andrew R. Craig
------------------------------------
Title: Vice President
------------------------------------
HIBERNIA NATIONAL BANK
By: ________________________________________
Title: _____________________________________
NATIONAL WESTMINSTER BANK PLC
Nassau Branch
By: ________________________________________
Title: _____________________________________
New York Branch
By: ________________________________________
Title: _____________________________________
WELLS FARGO BANK, NATIONAL
ASSOCIATION (successor by merger to
Norwest Bank Minnesota, N.A.)
By: /s/ Steve Ashley
------------------------------------
Title: Senior Vice President
------------------------------------
-13-
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 minimum Fixed Charge Coverage Ratio set
forth in Section 7.15(e) of the Credit Agreement.
5. Noncompliance with maximum Senior Debt to EBITDA ratio set forth in
Section 7.15(f)(i) of the Credit Agreement.
6. Noncompliance with maximum Total Debt to EBITDA ratio set forth in
Section 7.15(f)(ii) of the Credit Agreement.
7. 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.
8. 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.
SCHEDULE II
COMMITMENTS*
"original "temporary
commitments" increases" Commitments
----------- --------- -----------
Harris Trust and Savings Bank $17,500,000.00 $3,863,636.36 $21,363,636.36
Commerce Bank, N.A. 9,545,454.55 1,363,636.36 10,909,090.91
Firstar Bank Midwest 9,545,454.55 1,363,636.36 10,909,090.91
Key Bank National Association 9,545,454.55 0.00 9,545,454.55
Comerica Bank 6,363,636.36 0.00 6,363,636.36
Hibernia National Bank 6,363,636.36 0.00 6,363,636.36
National Westminster Bank Plc 6,363,636.36 0.00 6,363,636.36
Wells Fargo Bank, National Association 4,772,727.27 681,818.18 5,454,545.45
------------- ----------- -------------
70,000,000.00 7,272,727.26 77,272,727.26