Exhibit 4.5




 




FIRST AMENDMENT TO FORBEARANCE AGREEMENT




 




THIS FIRST AMENDMENT

TO FORBEARANCE AGREEMENT (the “Agreement”) is

made and entered into as of January 24, 2003, by and between GENERAL ELECTRIC

CAPITAL CORPORATION, for itself and as agent for certain participants (“Lender”)

and ATCHISON CASTING CORPORATION, a Kansas corporation (“Borrower”).




 




RECITALS




 




A.                                   Borrower

and Lender are parties to that certain Master Security Agreement dated as of

December 29, 1999, as amended by that certain Amendment No. 1 to Master

Security Agreement and Other Related Documents (“Amendment No. 1”) dated

as of February 25, 2000 (which, among other things, amended the effective date

of such Master Security Agreement to December 28, 1999; such Master Security

Agreement, as amended by Amendment No. 1, and as amended by that certain

Forbearance Agreement and Second Amendment to Master Security Agreement and

Note, dated as of October 17, 2002 (the “Forbearance Agreement”), and as

amended from time to time, is herein referred to as the “Master Agreement”).  Capitalized terms used herein and not

otherwise defined shall have the same definition as set forth in the

Forbearance Agreement or the Master Agreement.




 




B.                                     The

Forbearance Period has terminated as the result of a Variance Based

Termination.




 




C.                                     Lender

and Borrower desire to amend the Forbearance Agreement pursuant to the terms of

the Agreement.




 




AGREEMENT




 




In

consideration of the Recitals and of the mutual promises and covenants

contained herein, Lender and Borrower agree as follows:




 




1.                                       Amendment

to Forbearance Agreement. 

The Forbearance Agreement is amended as follows:




 




(a)  Section 1 of the Forbearance

Agreement is hereby deleted and the following is inserted therefor:




 




“1.  During the period (the “Forbearance

Period”) commencing on the Effective Date and ending on the earlier to

occur of (a) the date that any Forbearance Default (as defined in Section 7

hereof) occurs or (b) the Final Forbearance Date (as defined in Section 3

below), Lender will forbear in the exercise of its rights and remedies under

the Loan Documents with respect to the Existing Defaults and any other Events

of Default (collectively, the “Designated Defaults”), except as

set forth in the following sentence. 

Notwithstanding anything herein to the contrary, the Designated Defaults

shall not include (x) those Events of Default of the type or nature identified

in Section 7(b), (c), (e) (but only to the extent the same

relates to the maintenance or protection of Collateral), (g), (i),

(j), (k) and (m) of the Master Agreement, (y) any default

in




 





























 




the

performance of obligations of the Borrower under this Agreement, and (z) any

default under the Mortgages arising out of Borrower’s failure to maintain or

protect the Real Estate Collateral.”




 




(b)  Section 3 of the Forbearance

Agreement and all of its subsections are hereby deleted and the following is

inserted therefor:




 




“3.  Final Forbearance Date.  The term “Final Forbearance Date”, as

used in this Agreement shall mean June 29, 2003.”




 




(c)  Section 7 of the Forbearance

Agreement and all of its subsections are hereby deleted and the following is

inserted therefor:




 




“7.  Default.  Each of the following shall constitute a “Forbearance

Default” hereunder:




 




(a)                                  Events of

Default.  The existence

of any




 




(i)  Event of Default which

occurs as a result of Borrower’s (A) insolvency or bankruptcy, or (B)

failure to make any payment as and when due under or pursuant to the Master

Agreement, Note or any other Loan Document; or




 




(ii)  Event of Default or

default under any Loan Document (other than a Designated Default, and other

than those Events of Default described in Section 7(a)(i) above),

provided that any such Event of Default or default shall not constitute a

Forbearance Default if the same is capable of being cured and is cured within

thirty (30) days of the date of first occurrence; or




 




(b)                                 Harris

Facilities Become Due. 

If any of the Harris Facilities or the obligations owed to the Harris

Lenders under or pursuant to the Harris Facilities, are accelerated or

otherwise become due and payable in full for any reason.”




 




2.                                       Conditions

Precedent to Effectiveness of Agreement.  The provisions set forth in Section 1

of this Agreement shall not be effective unless and until each of the following

conditions shall have been satisfied in Lender’s sole discretion or waived by

Lender, for whose sole benefit such conditions exist:




 




(a)                                  Costs and

Expenses.  Borrower shall

have paid to the Lender by wire transfer of good funds, its costs and expenses

(including Lender’s attorneys fees) incurred in connection with the preparation

of this Agreement and any other outstanding costs and expenses owing by

Borrower to Lender under the Loan Documents as of the date this Agreement is

executed.




 




(b)                                 Execution

and Delivery.  Borrower

shall have executed and delivered this Agreement.




 




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3.                                       Representations

and Warranties.  Borrower

hereby represents and warrants to Lender as follows:




 




(a)                                  Recitals.  The Recitals in this Agreement are true and

correct in all respects.




 




(b)                                 Incorporation

of Representations.  All

representations and warranties of Borrower in the Master Agreement are

incorporated herein in full by this reference and are true and correct in all

material respects as of the date hereof; provided, however, that Schedule

2(f) of the Master Agreement is hereby replaced and updated by Schedule

2(f) attached to this Agreement.




 




(c)                                  Corporate

Power; Authorization. 

Borrower has the corporate power, and has been duly authorized by all

requisite corporate action, to execute and deliver this Agreement and to

perform its obligations hereunder and thereunder.  This Agreement has been duly executed and delivered by Borrower.




 




(d)                                 Enforceability.  This Agreement is the legal, valid and

binding obligations of Borrower, enforceable against Borrower in accordance

with its respective terms.




 




(e)                                  No

Violation.  Borrower’s

execution, delivery and performance of this Agreement does not and will not (i)

violate any law, rule, regulation or court order to which Borrower is subject;

(ii) conflict with or result in a breach of Borrower’s Articles of

Incorporation or Bylaws or any agreement or instrument to which Borrower is

party or by which it or its properties are bound; or (iii) result in the

creation or imposition of any lien, security interest or encumbrance on any

property of Borrower, whether now owned or hereafter acquired, other than liens

in favor of Lender.




 




(f)                                    Obligations

Absolute.  The obligation

of Borrower to repay the Loan, together with all interest accrued thereon, is

absolute and unconditional, and there exists no right of set off or recoupment,

counterclaim or defense of any nature whatsoever to payment of the Obligations.




 




4.                                       Effect

and Construction of Agreement. 

Except as expressly provided herein, the Loan Documents, including the

Master Agreement and the Forbearance Agreement (as amended hereby) shall remain

in full force and effect in accordance with their respective terms, and this

Agreement shall not be construed to:




 




(i)                                     impair

the validity, perfection or priority of any lien or security interest securing

the Indebtedness;




 




(ii)                                  waive

or impair any rights, powers or remedies of Lender under the Loan Documents

upon termination of the Forbearance Period, with respect to the Designated

Defaults or otherwise; or




 




(iii)                               constitute

an agreement by Lender or require Lender to extend the Forbearance Period, or

grant additional forbearance periods, or extend the term of the Note or the

time for payment of any of the Indebtedness, except as expressly set forth

herein.




 




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In the event of any

inconsistency between the terms of this Agreement and the Loan Documents, this

Agreement shall govern.  Borrower

acknowledges that it has consulted with counsel and with such other experts and

advisors as it has deemed necessary in connection with the negotiation,

execution and delivery of this Agreement. 

This Agreement shall be construed without regard to any presumption or

rule requiring that it be construed against the party causing this Agreement or

any part hereof to be drafted.




 




5.                                       Expenses.  Borrower agrees to pay all costs, fees and

expenses of Lender (including the fees of Lender’s counsel) incurred by Lender

in connection with the negotiation, preparation, administration and enforcement

of this Agreement.




 




6.                                       Miscellaneous.




 




(a)                                  Agreement

as Debt Document.  Lender

and Borrower agree that this Agreement is a Debt Document, as defined in the

Master Agreement.




 




(b)                                 Further

Assurance.  Borrower

agrees to execute such other and further documents and instruments as Lender

may request to implement the provisions of this Agreement.




 




(c)                                  Benefit

of Agreement.  This

Agreement shall be binding upon and inure to the benefit of and be enforceable

by the parties hereto, their respective successors and assigns.  No other person or entity shall be entitled

to claim any right or benefit hereunder, including, without limitation, the

status of a third-party beneficiary of this Agreement.




 




(d)                                 Integration.  This Agreement, together with the Loan

Documents, including the Master Agreement and the Forbearance Agreement,

constitutes the entire agreement and understanding among the parties relating

to the subject matter hereof, and supersedes all prior proposals, negotiations,

agreements and understandings relating to such subject matter.  In entering this Agreement, Borrower

acknowledges that it is relying on no statement, representation, warranty,

covenant or agreement of any kind made by the Lender or any employee or agent

of the Lender, except for the agreements of Lender set forth herein.




 




(e)                                  Severability.  The provisions of this Agreement are

intended to be severable.  If any

provisions of this Agreement shall be held invalid or unenforceable in whole or

in part in any jurisdiction, such provision shall, as to such jurisdiction, be

ineffective to the extent of such invalidity or enforceability without in any

manner affecting the validity or enforceability of such provision in any other

jurisdiction or the remaining provisions of this Agreement in any jurisdiction.




 




(f)                                    Governing

Law.  This Agreement

shall be governed by and construed in accordance with the internal substantive

laws of the State of New York, without regard to the choice of law principles

of such state.




 




(g)                                 VENUE;

JURISDICTION; JURY TRIAL WAIVER.  LENDER, AND BORROWER EACH HEREBY IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL

BY JURY IN ANY CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE

MASTER AGREEMENT, AND/OR THE LOAN DOCUMENTS.




 




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(h)                                 Counterparts;

Telecopied Signatures. 

This Agreement may be executed in any number of counterparts and by

different parties to this Agreement on separate counterparts, each of which,

when so executed, shall be deemed an original, but all such counterparts shall

constitute one and the same agreement. 

Any signature delivered by a party by facsimile transmission shall be

deemed to be an original signature hereto.




 




(i)                                     Survival.  All representations, warranties, covenants,

agreements, undertakings, waivers and releases of Borrower contained herein

shall survive the termination of the Forbearance Period and payment in full of

the Indebtedness of Borrower under the Loan Documents.




 




(j)                                     Amendment.  No amendment, modification, rescission,

waiver or release of any provision of this Agreement shall be effective unless

the same shall be in writing and signed by the parties hereto.




 




7.                                       Release

of Claims and Waiver. 

Borrower hereby releases, remises, acquits and forever discharges Lender

and Lender’s employees, agents, representatives, consultants, attorneys,

fiduciaries, servants, officers, directors, partners, predecessors, successors

and assigns, subsidiary corporations, parent corporations, and related

corporate divisions (all of the foregoing hereinafter called the “Released

Parties”), from any and all actions and causes of action, judgments,

executions, suits, debts, claims, demands, liabilities, obligations, damages

and expenses of any and every character, known or unknown, direct and/or indirect,

at law or in equity, of whatsoever kind or nature, whether heretofore or

hereafter arising, for or because of any matter or things done, omitted or

suffered to be done by any of the Released Parties prior to and including the

date of execution hereof, and in any way directly or indirectly arising out of

or in any way connected to this Agreement and the Loan Documents, including but

not limited to, claims relating to any settlement negotiations (all of the

foregoing hereinafter called the “Released Matters”).  Borrower acknowledges that the agreements in

this paragraph are intended to be in full satisfaction of all or any alleged

injuries or damages arising in connection with the Released Matters.  Borrower represents and warrants to Lender

that it has not purported to transfer, assign or otherwise convey any right,

title or interest of Borrower in any Released Matter to any other Person and

that the foregoing constitutes a full and complete release of all Released

Matters.




 




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IN WITNESS

WHEREOF, the parties hereto have executed this Agreement as of the day and year

first above written.




 




	

   


  	

   


  	

  GENERAL

  ELECTRIC CAPITAL CORPORATION


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  /s/ Kevin G.

  Wortman


  	

   


  
	

   


  	

   


  	

   


  	

  Name: Kevin

  G. Wortman


  
	

   


  	

   


  	

   


  	

  Title: SVP,

  Strategic Asset Financing


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  ATCHISON

  CASTING CORPORATION


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  /s/ Kevin T.

  McDermed


  	

   


  
	

   


  	

   


  	

   


  	

  Name Kevin

  T. McDermed


  
	

   


  	

   


  	

   


  	

  Title: V.P.

  & Treasurer


  
						





 




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