EXHIBIT 10.2(a)
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
This Amendment No. 2 to Loan and Security Agreement (this "Amendment")
dated December 9, 2005, is by and among Borrowers (as defined below), the
undersigned Lenders and Bank of America, N.A., successor to Fleet Capital
Corporation, as Agent for the Lenders who are from time to time party to that
certain Loan and Security Agreement (as amended from time to time, and as
amended hereby, the "Loan Agreement") dated as of October 8, 2003, by and among
Neenah Foundry Company, a Wisconsin corporation ("Neenah"), as a Borrower, the
Subsidiaries of Neenah that are party thereto as Borrowers (Neenah and such
Subsidiaries are collectively, "Borrowers" and each, a "Borrower"), Fleet
Capital Corporation, as Agent and as a Lender, Wachovia Capital Finance
Corporation (Central), f/k/a Congress Financial Corporation (Central), as
Syndication Agent and as a Lender, General Electric Capital Corporation, as
Documentation Agent and as a Lender, and the other Lenders party thereto. All
capitalized terms used in this Amendment and not otherwise defined in this
Amendment shall have the same meanings herein as in the Loan Agreement.
Borrowers have requested that Agent and Lenders agree to amend the
definition of the term EBITDA contained in the Loan Agreement, as more
particularly set forth herein.
Subject to each of the terms and conditions set forth herein, Agent
and the undersigned Lenders have agreed to the request described above.
Now, therefore, the parties hereto hereby agree as follows:
1. Amendment. Subject to the prior satisfaction of the conditions set
forth in Section 2 of this Amendment, and in reliance on the representations and
warranties set forth in Section 3 of this Amendment, the parties hereto agree to
amend and restate the definition of the term EBITDA contained in Exhibit 8.3 to
the Loan Agreement in its entirety as follows:
"EBITDA - with respect to any period, the sum of net earnings (or
loss) before interest expense, income taxes, depreciation and amortization
for such period (but excluding any extraordinary gains for such period),
all as determined for Parent, Borrowers and the Borrowers' Subsidiaries on
a Consolidated basis and in accordance with GAAP; plus amounts deducted in
determining net earnings (or loss) in respect of: (a) the fees, costs and
expenses actually incurred in connection with the consummation of the Plan
of Reorganization, and the closing of the Agreement and the transactions
contemplated thereby, in the actual amounts and during the actual fiscal
periods incurred, (b) non-recurring, non-cash items, (c) one-time cash
expenses relating to the closing of the facility of Dalton Corporation,
Kendallville Manufacturing Facility located at 200 West Ohio Street,
Kendallville, Indiana of up to a maximum aggregate amount of $4,000,000 and
(d) one-time charges incurred in connection with the settlement of the
litigation matter JD Holdings LLC v. Neenah Foundry Company, relating to
the possible sale of Mercer Forge Corporation, in the amount of up to a
maximum aggregate of $6,500,000 during the actual fiscal periods incurred;
and minus the amount of any cash items not otherwise deducted in
determining net income (or loss) to the extent that such items were
previously added back to EBITDA as non-recurring, non-cash items on a prior
measurement date."
2. Conditions to Effectiveness. The effectiveness of this Amendment
shall be subject to the prior satisfaction of the following conditions:
(a) Agent shall have received an execution version of this Amendment
signed by the parties hereto; and
(b) no Default or Event of Default shall be in existence.
3. Representations and Warranties. To induce Agent and the Lenders
party hereto to execute and deliver this Amendment, each Borrower hereby
represents and warrants to Lenders that, after giving effect to this Amendment:
(a) All representations and warranties contained in the Loan Agreement
and the other Loan Documents are true and correct in all material respects on
and as of the date of this Amendment, in each case as if then made, other than
representations and warranties that expressly relate solely to an earlier date
(in which case such representations and warranties were true and accurate on and
as of such earlier date);
(b) No Default or Event of Default has occurred and is continuing; and
(c) The execution and delivery by such Borrower of this Amendment does
not require the consent or approval of any Person, except such consents and
approvals as have been obtained.
4. Scope. This Amendment shall have the effect of amending the Loan
Agreement and the other Loan Documents as appropriate to express the agreements
contained herein. In all other respects, the Loan Agreement and the other Loan
Documents shall remain in full force and effect in accordance with their
respective term.
5. Reaffirmation and Confirmation. Each Borrower hereby ratifies,
affirms, acknowledges and agrees that the Loan Agreement and the other Loan
Documents represent the valid, enforceable and collectible obligations of such
Borrower, and each Borrower further acknowledges that there are no existing
claims, defenses, personal or otherwise, or rights of setoff whatsoever with
respect to the Loan Agreement or any of the Loan Documents. Each Borrower hereby
agrees that this Amendment in no way acts as a release or relinquishment of the
Liens and rights securing payments of the Obligations. The Liens and rights
securing payment of the Obligations are hereby ratified and confirmed by each
Borrower in all respects.
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6. Counterparts. This Amendment may be executed in counterpart and by
different parties hereto in separate counterparts, each of which, when taken
together, shall constitute but one and the same instrument.
7. Expenses. All of Agent's reasonable costs and expenses, including,
without limitation, attorney's fees, incurred in connection with the preparation
of this Amendment and all related documents shall be paid by Borrowers upon the
request of Agent.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first above written.
BORROWERS:
NEENAH FOUNDRY COMPANY
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
DEETER FOUNDRY INC.
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
MERCER FORGE CORPORATION
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
DALTON CORPORATION
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
DALTON CORPORATION, STRYKER
MACHINING FACILITY CO.
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
Signature Page to Amendment No. 2 to Loan and Security Agreement
DALTON CORPORATION, WARSAW
MANUFACTURING FACILITY
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
ADVANCED CAST PRODUCTS, INC.
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
GREGG INDUSTRIES, INC.
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
A & M SPECIALTIES, INC.
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
NEENAH TRANSPORT, INC.
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
DALTON CORPORATION, KENDALLVILLE
MANUFACTURING FACILITY
By /s/ GARY LaChey
-------------------------------------
Its Corporate Vice President - Finance
and Chief Financial Officer
Signature Page to Amendment No. 2 to Loan and Security Agreement
BANK OF AMERICAN A., successor to FLEET
CAPITAL CORPORATION, as Agent and as a
Lender
By /s/ Robert Lund
-------------------------------------
Its Senior Vice President
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), f/k/a CONGRESS
FINANCIAL CORPORATION (CENTRAL), as a
Lender
By /s/ Laura Wheeland
-------------------------------------
Its Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By /s/ Bond Harberts
-------------------------------------
Its Duly Authorized Signatory
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By /s/ Eustachio Bruno
-------------------------------------
Its AVP
Signature Page to Amendment No. 2 to Loan and Security Agreement