Exhibit 4.7 - Sixth Amendment Agreement Dated June 5, 2001
SIXTH AMENDMENT AGREEMENT
This Sixth Amendment Agreement (this "Amendment") is made as of June 5,
2001, by and among AMCAST INDUSTRIAL CORPORATION, an Ohio corporation
("Borrower"), the banking institutions named in Schedule 1 to the Credit
Agreement, as hereinafter defined ("Banks"), and KEYBANK NATIONAL ASSOCIATION,
as agent for the Banks ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain Credit
Agreement dated as of August 14, 1997, as amended and as the same may from time
to time be further amended, restated or otherwise modified, which provides,
among other things, for loans and letters of credit aggregating Two Hundred
Million Dollars ($200,000,000), all upon certain terms and conditions ("Credit
Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each capitalized term used herein shall be defined in
accordance with the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and the
Banks agree as follows:
1. No Additional Loans. Borrower, Agent and the Banks hereby agree
that, on and after the date of this Amendment and notwithstanding anything in
the Credit Agreement to the contrary, Borrower shall not request any additional
Loans or Letters of Credit and the Banks shall not be obligated to make any
further Loans and Agent shall not be obligated to issue any further Letters of
Credit; provided, however, that, on and after the date hereof and
notwithstanding anything in the Credit Agreement to the contrary, Borrower may
(a) reborrow any LIBOR Loan that is in Italian Lira at the end of each Interest
Period applicable thereto (provided that Borrower shall not select an Interest
Period greater than one (1) month), or (b) extend the expiry date of or replace
any existing Letter of Credit, so long as the Letter of Credit Exposure is not
increased. Borrower hereby confirms that as of the date hereof the outstanding
principal balance of all loans and the Letter of Credit Exposure is One Hundred
Eleven Million Three Hundred Seventy-Seven Thousand Nine Hundred Sixty-One and
68/100 Dollars ($111,377,961.68).
2. Default Rate. Borrower, Agent and the Banks hereby agree that, on
and after the date of this Amendment and notwithstanding anything in the Credit
Agreement to the contrary, (a) the aggregate principal amount of Loans
outstanding shall bear interest at the Default Rate, and (b) the fee for the
aggregate undrawn face amount of issued and outstanding Letters of Credit shall
be increased to two percent (2%) in excess of the then applicable fee from time
to time in effect pursuant to Section 2.1B of the Credit Agreement.
3. Amendments to Definitions. Article I of the Credit Agreement is hereby
amended to delete the definitions of "Default Rate", "Loan Documents" and "Total
Commitment Amount" therefrom in their entirety and to insert in place thereof,
respectively, the following:
"Default Rate" shall mean (a) with respect to Prime Rate
Loans, a rate per annum equal to two percent (2%) in excess of the
Adjusted Prime Rate from time to time in effect, and (b) with respect
to LIBOR Loans, a rate per annum equal to three percent (3%) in
excess of the Derived LIBOR Rate from time to time in effect.
Anything in this definition to the contrary notwithstanding, after
the occurrence of an Event of Default pursuant to Section 7.1 of this
Agreement, the Default Rate shall, at the direction of the Majority
Banks, be increased by an additional two hundred (200) basis points.
"Loan Documents" shall mean this Agreement, each Note, each
Guaranty of Payment, each Security Document, the Subordination
Agreement, each Assumption Agreement, all documentation relating to
each Letter of Credit and any other documents relating to any of the
foregoing, as any of the foregoing may from time to time be amended,
restated or otherwise modified or replaced.
"Total Commitment Amount" shall mean the obligation hereunder
of the Banks, during the Commitment Period, to make Loans and to
participate in the issuance of Letters of Credit up to the maximum
aggregate principal amount of One Hundred Eleven Million Three
Hundred Seventy-Seven Thousand Nine Hundred Sixty-One and 68/100
Dollars ($111,377,961.68) (or such lesser amount as shall be
determined pursuant to Section 2.5 hereof). For purposes of
calculating the amount of Loans outstanding with respect to the Total
Commitment Amount, the amount utilized by each Eurocurrency Loan
shall be the Dollar Equivalent amount of each such Eurocurrency Loan
as of the most recent Interest Adjustment Date.
4. New Definitions. Article I of the Credit Agreement is hereby amended to
add the following new definitions thereto:
"Assumption Agreement" shall mean the Assumption Agreement, in
form and substance satisfactory to Agent, among Speedline, Borrower,
Agent and the Banks, as the same may from time to time be amended,
restated or otherwise modified.
"Capital Distribution" shall mean a payment made, liability
incurred or other consideration given for the purchase, acquisition,
redemption or retirement of any capital stock or other equity
interest of any Company or as a dividend, return of capital or other
distribution (other than any stock dividend, stock split or other
equity distribution payable only in capital stock or other equity of
the Company in question) in respect of any Company's capital stock or
other equity interest.
"Collateral Agency and Intercreditor Agreement" shall mean the
Collateral Agency and Intercreditor Agreement among the Collateral
Agent, LIFO Agent, the LIFO Banks, the Line of Credit Lenders, the
Noteholders, Agent and the Banks, dated as of June 5, 2001, as the
same may from time to time be amended, restated or otherwise
modified.
"CTC Company" shall mean Casting Technology Company, an
Indiana general partnership, Amcast Casting Technologies, Inc.,
an Indiana corporation, or Izumi, Inc., a Delaware corporation.
"CTC Transaction" shall mean the acquisition by Borrower of
all of the outstanding common stock of Izumi, Inc., a Delaware
corporation, and the related transactions in connection therewith, as
set forth in the Stock Purchase Agreement, dated as of May 31, 2001,
between Borrower and Izumi Industries, Ltd., a Japanese corporation.
"LIFO Agent" shall mean KeyBank National Association, as agent
for the LIFO Banks under the LIFO Credit Agreement, together with its
successors and assigns.
"LIFO Banks" shall mean the banking institutions listed on
Schedule 1 to the LIFO Credit Agreement, together with their
respective successors and assigns.
"LIFO Credit Agreement" shall mean the Last-In-First-Out
Credit Agreement among Borrower, the LIFO Banks and the LIFO Agent,
dated as of June 5, 2001, as the same may from time to time be
amended, restated or otherwise modified.
"Restricted Payment" shall mean, with respect to any Company,
(a) any Capital Distribution, (b) any Stock Repurchase, or (c) any
amount paid by such Company in repayment, redemption, retirement,
repurchase, direct or indirect, of any Subordinated Indebtedness.
"Speedline" shall mean ASW International I, B.V., or any of
it's Subsidiaries.
"Subordination, Waiver and Consent Agreement" shall mean the
Subordination, Waiver and Consent Agreement among the Collateral
Agent, LIFO Agent, the LIFO Banks, the Line of Credit Lenders, the
Noteholders, Agent and the Banks, dated as of June 5, 2001, as the
same may from time to time be amended, restated or otherwise
modified.
5. Replacement of Intercreditor Definitions. To the extent that the
definitions contained in the Collateral Agency and Intercreditor Agreement are
different from the respective definitions added to the Credit Agreement through
the Fifth Amendment Agreement and the Exhibit G attached thereto, Article I and
Exhibit G of the Credit Agreement are hereby amended to conform the definitions
contained in Article I and Exhibit G to the definitions contained in the
Collateral Agency and Intercreditor Agreement.
6. Replacement of Section 5.8. The Credit Agreement is hereby amended to
delete Section 5.8 (Liens) therefrom in its entirety and to insert in place
thereof the following:
SECTION 5.8. LIENS. No Company shall create, assume or suffer
to exist any Lien upon any of its property or assets, whether now
owned or hereafter acquired; provided that this Section shall not
apply to the following:
(a) Liens for taxes not yet due or that are being actively
contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP;
(b) other statutory Liens incidental to the conduct of its
business or the ownership of its property and assets that (i) were
not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and (ii) do not in the aggregate
materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business;
(c) Liens on property or assets of a Subsidiary to secure
obligations of such Subsidiary to Borrower or a Guarantor of Payment
(other than a CTC Company);
(d) Liens existing as of the Closing Date and described on
Schedule 5.8 hereto (with the understanding, however, that the
Indebtedness secured by such Liens may be extended, renewed, or
replaced by Indebtedness of the same amount);
(e) Liens granted to the Collateral Agent to secure the
Obligations, so long as any such Liens granted to the Collateral
Agent to secure the Noteholder Obligations or the Line of Credit
Obligations are at all times subject to the Intercreditor Provisions,
or other intercreditor provisions otherwise satisfactory to Agent and
the Majority Banks;
(f) the Liens on the property or assets of Casting granted to
Bank One, Indiana, National Association pursuant to the CTC Documents,
as defined in the CTC Forbearance Agreement (as defined in the
Subordination, Waiver and Consent Agreement);
(g) Liens on the assets of Speedline S.r.l. in connection with
the Indebtedness permitted pursuant to Section 5.25(f) hereof; or
(h) Liens granted to the LIFO Agent, for the benefit of the
LIFO Banks, pursuant to the LIFO Credit Agreement.
7. Replacement of Section 5.10. The Credit Agreement is hereby amended to
delete Section 5.10 (Investments and Loans) therefrom in its entirety and to
insert in place thereof the following:
SECTION 5.10. INVESTMENTS AND LOANS. No Company shall, without
the prior written consent of Agent and the Majority Banks, (a)
create, acquire or hold any Subsidiary, (b) make or hold any
investment in any stocks, bonds or securities of any kind, (c) be or
become a party to any joint venture or other partnership, (d) make or
keep outstanding any advance or loan to any Person, or (e) be or
become a Guarantor of any kind, except guarantees only for
Indebtedness of the Companies incurred or permitted pursuant to this
Agreement; provided that this Section shall not apply to (i) any
endorsement of a check or other medium of payment for deposit or
collection through normal banking channels or similar transaction in
the normal course of business, (ii) the holding of Subsidiaries
listed on Schedule 6.1 hereto, (iii) loans to a Company from a
Company so long as each such Company is Borrower or a Guarantor of
Payment (other than a CTC Company), or (iv) the guaranties by and
loans from a Company as listed on Schedule 5.10 hereto, provided that
no such Company shall increase the principal amounts thereof.
8. Replacement of Section 5.11. The Credit Agreement is hereby amended
to delete Section 5.11 (Merger and Sale of Assets) therefrom in its entirety and
to insert in place thereof the following:
SECTION 5.11. MERGER AND SALE OF ASSETS. No Company shall
merge or consolidate with any other Person or sell, lease or transfer
or otherwise dispose of all or a substantial part of it's assets to
any Person.
9. Replacement of Section 5.12. The Credit Agreement is hereby amended to
delete Section 5.12 (Acquisitions) therefrom in its entirety and to insert in
place thereof the following:
SECTION 5.12. ACQUISITIONS. On and after June 5, 2001, no
Company shall acquire or permit any Subsidiary to acquire the assets
or stock or other equity interest of any other Person; provided,
however, that, notwithstanding the foregoing, effective as of May 31,
2001, Borrower shall be permitted enter into the CTC Transaction.
10. Replacement of Section 5.22. Article V of the Credit Agreement is
hereby amended to delete Section 5.22 (Stock Repurchases) therefrom in its
entirety and to insert in place thereof the following:
SECTION 5.22. RESTRICTED PAYMENTS. No Company shall make
or commit itself to make any Restricted Payment, except that: (a) any
Subsidiary may make Capital Distributions to Borrower or a Guarantor
of Payment; and(b) employees of Borrower may exercise employee options
through a "cashless exercise".
11. Addition of New Sections. The Credit Agreement is hereby amended
to add the following new Sections 5.25, 5.26 and 5.27 thereto:
SECTION 5.25. BORROWING. No Company shall create, incur or
have outstanding any obligation for borrowed money or any
Indebtedness of any kind; provided, however, that this Section shall
not apply to (a) the Loans, Letters of Credit or any other
Indebtedness under this Agreement; (b) the Indebtedness under the
LIFO Credit Agreement; (c) the Indebtedness under the Note Agreements
(including the PIK Interest, as defined in the Subordination
Agreement), so long as the aggregate principal amount thereof is not
increased; (d) the Indebtedness under the Line of Credit Documents;
(e) the Indebtedness set forth in Schedule 5.25 hereto (including any
refinancing thereof, provided that no Company shall increase the
principal amount thereof); (f) Indebtedness of Speedline S.r.l. up to
the aggregate principal amount not to exceed Twenty-Nine Million
Dollars ($29,000,000) (or the equivalent amount of Italian Lira); and
(g) loans to a Company from a Company so long as each such Company is
Borrower or a Guarantor of Payment and not a CTC Company.
SECTION 5.26. ACCOUNT DEBTOR NOTICE. Borrower shall provide
immediate written notice to Agent and the Banks (a) if any account
debtor with obligations owing to the Companies in excess of the
aggregate, for all Companies of One Hundred Thousand Dollars
($100,000), shall be in default of any of such obligations or (b) if
any account debtor with obligations owing to the Companies in excess
of the aggregate, for all Companies, of One Hundred Thousand Dollars
($100,000) shall assert any right of set-off, deduction or
counterclaim with respect to any account.
SECTION 5.27. ASSUMPTION OF DEBT. Upon request of Agent
whenever made, Borrower shall deliver to Agent and the Banks an
Assumption Agreement executed by Speedline wherein Speedline shall
have assumed a portion of the Debt as its direct obligation, with
such portion of the Debt being directly equivalent to the amount of
the Loans granted to Borrower for the benefit of Speedline (other
than as consideration for the initial acquisition of the Speedline
shares). In addition, concurrently with the delivery of such
Assumption Agreement, Borrower shall deliver to Agent such Security
Documents (or such foreign equivalents), charter documents and
approving resolutions (or foreign equivalent) of Speedline, and
opinions of counsel to Speedline as Agent may deem necessary or
appropriate.
12. Financial Covenant Amendment. Upon the Financial Covenant
Amendment, as defined in the LIFO Credit Agreement, becoming effective under the
LIFO Credit Agreement, the terms of such Financing Covenant Amendment shall be
deemed incorporated herein as though written herein and Borrower shall comply
with the same.
13. Replacement of Schedule 4. The Credit Agreement is hereby amended
to replace Schedule 4 (Line of Credit Obligations) thereto with Schedule 4
attached hereto.
14. Collateral Audits; Real Estate Matters.
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(a) Borrower, Agent and the Banks hereby agree that (i) such Persons as
Agent and the Majority Banks shall approve, in their discretion, shall perform a
collateral audit, field exam and appraisal of the personal and real property of
the Companies, the costs and expenses of which shall be paid for by Borrower;
(ii) Borrower shall select and retain a turnaround management firm acceptable to
Agent and the Majority Banks, the fees and expenses of which shall be paid for
by Borrower; and (iii) Agent and the Banks shall have retained a turnaround
financial advisor acceptable to Agent and the Majority Banks, the fees and
expenses of which shall be paid for by Borrower; and
(b) Borrower, Agent and the Banks further agree as follows:
(i) within sixty (60) days of the date hereof, Borrower shall
have delivered to Agent an amendment, in form and substance
satisfactory to Agent, executed by Elkhart Products Corporation to
each Mortgage filed of record in Elkhart County, Indiana and Xxxxx
County, Indiana, respectively, which amendments shall correct the
name and address of the debtor contained in Section 12 of each such
Mortgage;
(ii) within sixty (60) days of the date hereof, with respect
to each Mortgaged Real Property, or such thereof as Agent may
require, at Borrower's cost and expense, Borrower shall have caused
to be delivered a Loan Policy of title insurance, ALTA 1970 Form B
(amended 10/17/70 and 10/17/84) (unless such form is unavailable in
any particular state, in which case Borrower shall provide such other
form of a Loan Policy of title insurance as may reasonably requested
by Agent) issued by a title company satisfactory to Agent
(collectively, the "Loan Policies" and, individually, a "Loan
Policy") in an amount equal to the fair market value of such
Mortgaged Real Property insuring each Mortgage to be a valid first
priority Lien on such Mortgaged Real Property, free and clear of all
defects and encumbrances except such matters of record as permitted
pursuant to the Credit Agreement, with waiver of any survey
exceptions and such other standard exceptions as Agent may require,
and with such endorsements and affirmative insurance as Agent, in its
reasonable discretion, may require;
(iii) within sixty (60) days of the date hereof, Borrower
shall provide to Agent, with respect to each Mortgaged Real Property,
or such thereof as Agent may require, at Borrower's cost and expense,
environmental reports or studies prepared by environmental
engineering firms acceptable to Agent (the "Reports"), which Reports
shall be in form acceptable to Agent, in its sole discretion;
(iv) within sixty (60) days of the date hereof, Borrower shall
provide to Agent with respect to each Mortgaged Real Property, or
such thereof as Agent may require, at Borrower's cost and expense,
(i) a current (certified not more than sixty (60) days prior to the
date of such request) survey of the such Mortgaged Real Property,
prepared by a licensed surveyor acceptable to Agent, certified to
Agent, the Collateral Agent and the Lenders and the title company
pursuant to certificate of survey acceptable to Agent; such survey
shall be in form and substance acceptable to Agent, in its sole
discretion, shall be made in accordance with the "Minimum Standard
Detail Requirements for Land Title Surveys" adopted by the American
Land Title Association in 1992; (ii) a copy of the certificate of
occupancy for each building located on each such Mortgaged Real
Property; (iii) evidence satisfactory to Agent of compliance with all
building and zoning codes applicable to the Mortgaged Real Property,
(iv) evidence of the availability and adequacy of utilities for the
buildings located on the Mortgaged Real Property; and (v) evidence,
satisfactory to Agent, that no portion of any of the Mortgaged Real
Property is located in a Special Flood Hazard Area or is otherwise
classified as Class A or Class BX on the Flood Maps maintained by the
Federal Emergency Management Agency; and
(v) Borrower shall have satisfied such other conditions as
Agent and the Majority Banks may reasonably require.
15. The effectiveness of this Agreement is further conditioned on
Borrower complying with the following provisions concurrently (or with respect
to subpart (b) below, within fourteen (14) days hereof) with the execution
hereof:
(a) Borrower shall provide to Agent Schedules 5.10 and 5.25 to
the Credit Agreement, in form and substance satisfactory to Agent and
the Majority Banks and Borrower shall provided to Agent and the Banks
a replacement of any other Schedule, in form and substance
satisfactory to Agent and the Majority Banks, that is no longer
accurate;
(b) with respect to the CTC Companies, Borrower shall cause to
be delivered to Agent a Guaranty of Payment and such Security
Documents as Agent shall require, properly executed by the CTC
Companies, together with such corporate governance documents and an
opinion of counsel as Agent shall request;
(c) Borrower shall cause each Guarantor of Payment to consent
and agree to and acknowledge the terms of this Agreement by executing
the Guarantor Acknowledgment and Agreement attached hereto;
(d) concurrently with the execution of this Amendment,
Borrower shall pay the reasonable costs and expenses incurred by any
Bank under or with respect to foreign currency swap transactions
relating to LIBOR Loans in Italian Lira outstanding on and after
March 4, 2001; and
(e) concurrently with the execution of this Amendment,
Borrower shall pay all legal fees and expenses of Agent in connection
with this Amendment, the Credit Agreement, and the LIFO Credit
Agreement.
16. Representations and Warranties. Borrower hereby represents and
warrants to Agent and the Banks that (a) Borrower has the legal power and
authority to execute and deliver this Amendment; (b) the officials executing
this Amendment have been duly authorized to execute and deliver the same and
bind Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower of
the provisions hereof do not violate or conflict with the organizational
agreements of Borrower or any law applicable to Borrower or result in a breach
of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against Borrower; (d) no
Unmatured Event of Default or Event of Default exists under the Credit
Agreement, nor will any occur immediately after the execution and delivery of
this Amendment or by the performance or observance of any provision hereof; (e)
neither Borrower nor any Subsidiary has any claim or offset against, or defense
or counterclaim to, any of Borrower's or any Subsidiary's obligations or
liabilities under the Credit Agreement or any Related Writing; and (f) this
Amendment constitutes a valid and binding obligation of Borrower in every
respect, enforceable in accordance with its terms.
17. Credit Agreement Unaffected. Each reference that is made in the
Credit Agreement or any other writing to the Credit Agreement shall hereafter be
construed as a reference to the Credit Agreement as amended hereby. Except as
herein otherwise specifically provided, all provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby.
18. Waiver. Borrower and each Subsidiary, by signing below, hereby
waives and releases Agent and each of the Banks and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all
claims, offsets, defenses and counterclaims of which Borrower and any Subsidiary
is aware, such waiver and release being with full knowledge and understanding of
the circumstances and effect thereof and after having consulted legal counsel
with respect thereto.
19. Counterparts This Amendment may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
20. Governing Law. The rights and obligations of all parties hereto
shall be governed by the laws of the State of Ohio, without regard to principles
of conflicts of laws.
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21. JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR
HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE
BANKS, EACH GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR
MODIFY AGENT'S OR ANY BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: S.V.P.
INTESABCI - CHICAGO BRANCH
(successor in interest to Banca
Comerciale Italiana)
By: /s/ X. Xxxxxxx
Name: X. Xxxxxxx
Title: FVP/Deputy Manager
and /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANK ONE INDIANA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
(successor in interest to Caisse
Nationalede Credit Agricole)
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
and /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: V.P./ Sr.Relationship Mgr.
COMERICA BANK
By: /s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: First Vice President
UNICREDITO ITALIANO SPA
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
Title: F.V.P. & Deputy Manager
and /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
SANPAOLO IMI S.p.A.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: V.P.
and /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: G.M.
NATIONAL CITY BANK
(successor in interest to
National City Bank of Dayton)
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK ONE INDIANA, N.A.
(successor by merger to NBD Bank)
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRSTAR BANK, N.A.
(fka STAR BANK, N.A.)
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: AVP/Its Attorney-In-Fact
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Sixth Amendment Agreement dated as of June 5, 2001. Each
of the undersigned specifically acknowledges the terms of and consent to the
waivers set forth therein. Each of the undersigned further agrees that the
obligations of each of the undersigned pursuant to the Guaranties of Payment of
Debt executed by each of the undersigned shall remain in full force and effect
and be unaffected hereby.
Each of the undersigned further agrees with Agent and the Banks that
(a) Section 9 of the Guaranty of Payment executed by each of undersigned, (b)
Section 16 of the Security Agreement executed by each of the undersigned, (c)
Section 19 of the Collateral Assignment and Security Agreement executed by each
of the undersigned, and (d) Section 9 of the Pledge Agreement executed by each
of the undersigned each are hereby amended to delete the text of each of such
sections therefrom in their entirety and to insert in place thereof the
following:
Anything in this Agreement to the contrary notwithstanding, in
no event shall the amount of the undersigned's liability hereunder
(or, if applicable, the amount secured by this Agreement) exceed the
maximum amount that (after giving effect to the incurring of the
obligations hereunder and to any rights to contribution of the
undersigned from other affiliates of Borrower) would not render the
rights to payment of Agent and the Banks hereunder void, voidable or
avoidable under any applicable fraudulent transfer law.
Each of the undersigned, by signing below, hereby waives and releases
Agent and each of the Banks and their respective directors, officers, employees,
attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which any of the undersigned is aware, such waiver
and release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR HEREBY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE BANKS, EACH
GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS
WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY
BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT AMONG BORROWER, AGENT, THE BANKS AND GUARANTORS, OR ANY THEREOF.
ELKHART PRODUCTS CORPORATION
AMCAST AUTOMOTIVE OF INDIANA,
INC. (fka Wheeltek, Inc.)
AS INTERNATIONAL, INC.
By:
Name:
Title:
AMCAST INVESTMENT SERVICES
CORPORATION
By:
Name:
Title:
Schedule 4
Line of Credit Lenders
Lender Maximum Amount of Facility
KeyBank National Association $10,000,000
Firstar Bank, National Association $12,032,783
