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EXHIBIT 4.9
CASTING TECHNOLOGY COMPANY
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$32,100,000
CREDIT AND INTERCREDITOR AGREEMENT
dated August 26, 1999
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BANK ONE, INDIANA, NATIONAL ASSOCIATION
THE ASAHI BANK, LTD.,
acting through its Chicago Branch
and
BANK ONE, INDIANA, NATIONAL ASSOCIATION,
as Agent
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TABLE OF CONTENTS
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Article Page
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I. DEFINITIONS
1.1 Certain Definitions..............................................1
1.2 Other Definitions; Rules of
Construction.....................................................9
II. THE COMMITMENTS AND THE LOANS
2.1 Commitment of the Banks.........................................10
2.2 Reduction of Commitments........................................10
2.3 Fees............................................................10
2.4 Disbursement of Loans...........................................10
2.5 Conditions for First Disbursement...............................12
2.6 Further Conditions for Disbursement.............................14
2.7 Subsequent Elections as to Borrowings...........................15
2.8 Limitation of Requests and Elections............................16
2.9 Minimum Amounts; Limitation on
Number of Borrowings............................................17
2.10 Security and Collateral...........................................
III. PAYMENTS AND PREPAYMENTS OF LOANS
3.1 Principal Payments and Prepayments..............................17
3.2 Interest Payments...............................................18
3.3 Payment Method..................................................18
3.4 No Setoff or Deduction..........................................19
3.5 Payment on Non-Business Day; Payment Computations...............19
3.6 Additional Costs................................................19
3.7 Illegality and Impossibility....................................20
3.8 Indemnification.................................................20
IV. REPRESENTATIONS AND WARRANTIES
4.1 Existence and Power.............................................21
4.2 Authority.......................................................21
4.3 Binding Effect..................................................22
4.4 Subsidiaries....................................................22
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4.5 Litigation......................................................22
4.6 Financial Condition.............................................22
4.7 Use of Loans....................................................23
4.8 Consents, Etc...................................................23
4.9 Taxes...........................................................23
4.10 Title to Properties.............................................24
4.11 ERISA...........................................................24
4.12 Disclosure......................................................24
4.13 Environmental and Safety Matters................................24
4.14 Year 2000.......................................................25
V. COVENANTS
5.1 Affirmative Covenants...........................................25
(a) Preservation of Existence, Etc.........................25
(b) Compliance with Laws, Etc..............................26
(c) Maintenance of Properties; Insurance...................26
(d) Reporting Requirements.................................26
(e) Accounting; Access to Records, Books, Etc..............28
(f) Additional Security and Collateral.....................28
(g) Further Assurances.....................................28
(h) Payment of Indebtedness to Others......................29
(i) Year 2000 Issues.......................................29
5.2 Negative Covenants..............................................29
(a) Indebtedness...........................................29
(b) Liens..................................................30
(c) Net Worth..............................................31
(d) Total Equity...........................................31
(e) Merger, Acquisitions, Etc..............................31
(f) Disposition of Assets, Etc.............................31
(g) Nature of Business.....................................32
(h) Transactions with Affiliates...........................32
(i) Negative Pledge Limitation.............................32
(j) Distributions and Other Restricted Payments............32
(k) Investment, Loans, and Advances........................32
(l) Inconsistent Agreements ...............................32
(m) Payments following Guarantor Default...................33
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VI. DEFAULT
6.1 Events of Default...............................................33
6.2 Remedies........................................................35
6.3 Remedies upon Guarantor Default.................................36
VII. THE AGENT AND THE BANKS
7.1 Appointment and Authorization...................................37
7.2 Agent and Affiliates............................................37
7.3 Scope of Agent's Duties.........................................37
7.4 Reliance by Agent...............................................37
7.5 Default.........................................................38
7.6 Liability of Agent..............................................38
7.7 Nonreliance on Agent and Other Banks............................38
7.8 Indemnification.................................................38
7.9 Resignation of Agent............................................39
7.10 Sharing of Payments.............................................39
VIII. MISCELLANEOUS
8.1 Amendments, Etc.................................................40
8.2 Notices.........................................................41
8.3 No Waiver By Conduct; Remedies
Cumulative......................................................41
8.4 Reliance on and Survival of
Various Provisions..............................................41
8.5 Expenses .......................................................42
8.6 Successors and Assigns..........................................42
8.7 Counterparts....................................................43
8.8 Governing Law...................................................43
8.9 Table of Contents and Headings..................................43
8.10 Construction of Certain Provisions..............................43
8.11 Integration and Severability....................................43
8.12 Independence of Covenants.......................................43
8.13 Intent of the Parties...........................................44
8.14 Interest Rate Limitation........................................44
8.15 Waiver of Jury Trial............................................44
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EXHIBITS AND SCHEDULES
Exhibit A-1 Revolving Credit Note
Exhibit A-2 Term Note
Exhibit B-1 Request for Borrowing
Exhibit B-2 Request for Term Loan
Exhibit C Request for Continuation or
Conversion of Borrowing
Exhibit D Confirmation of Security Agreement
Exhibit E Amended and Restated Guaranty Agreement - Bank One
Exhibit F Fourth Acknowledgment and Confirmation of
Guaranty Agreement - Asahi
Schedule 4.5 Litigation
Schedule 4.9 Taxes
Schedule 4.13 Environmental Matters
Schedule 5.2(a) Indebtedness
Schedule 5.2(b) Liens
Schedule 5.2(g) Leased Real Property
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THIS CREDIT AND INTERCREDITOR AGREEMENT, dated August 26, 1999 (this
"Agreement"), is among Casting Technology Company, an Indiana general
partnership (the "Company"), Bank One, Indiana, National Association, a national
banking association ("Bank One"), and The Asahi Bank, Ltd., a Japanese banking
corporation acting through its Chicago Branch ("Asahi") (collectively, the
"Banks" and individually, a "Bank") and Bank One as agent for the Banks (in such
capacity, the "Agent").
INTRODUCTION
The Company, Bank One (as successor by merger to NBD Bank, N.A.), and
Asahi are party to the Credit and Intercreditor Agreement dated July 28, 1995
(as amended, the "Prior Credit Agreement").
As a continuation and refinancing of the Prior Credit Agreement, the
Company desires to obtain a revolving credit facility in the aggregate principal
amount of $7,500,000 and a term loan in the aggregate principal amount of
$24,600,000 in order to provide funds to finance the Company's corporate
purposes, and the Banks are willing to establish such a credit facility in favor
of the Company on the terms herein set forth.
It is a condition precedent to the refinancing contemplated hereby that
the obligations owing hereunder and under the related Revolving Credit Notes and
Term Notes continue to be secured by the Security Documents, as further
described below.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used herein the following terms shall
have the following respective meanings:
"ACTI" means Amcast Casting Technologies, Inc., an Indiana
corporation and a general partner of the Company.
"AFFILIATE", when used with respect to any person, means any
other person which, directly or indirectly, controls or is controlled by or is
under common control with such person. For purposes of this definition,
"control" (including the correlative meanings of the terms "controlled by" and
"under common control with"), with respect to any person, means possession,
directly or
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indirectly, of the power to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting securities or
by contract or otherwise.
"AMCAST" means Amcast Industrial Corporation, an Ohio
corporation and parent corporation of ACTI.
"APPLICABLE LENDING OFFICE" means, with respect to any Loan made
by any Bank or, with respect to such Bank's Commitment, the office of such Bank
or of any affiliate of such Bank located at the address set forth next to its
name in the signature pages hereof or any other office or affiliate of such Bank
hereafter selected and notified to the Company and the Agent by such Bank.
"BORROWING" means the aggregation of Loans, or continuations and
conversions of any Loans, made pursuant to Article II on a single date for a
single Interest Period, which Borrowings may be classified for purposes of this
Agreement by referring to the type of Loans comprising the related Borrowing,
E.G., a "Eurodollar Rate Borrowing" is a Borrowing comprised of Eurodollar Rate
Loans.
"BORROWING DATE" means the date of disbursing the first
Borrowing under Section 2.1 made in accordance with Sections 2.5 and 2.6.
"BUSINESS DAY" means a day other than a Saturday, Sunday or
other day which is a legal holiday or on which banking institutions are
authorized or required by law or other governmental action to close, in
Indianapolis, Indiana, or Chicago, Illinois.
"CAPITAL LEASE" of any person means any lease which, in
accordance with generally accepted accounting principles, is or should be
capitalized on the books of such person.
"CLOSING DATE" means the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
"COMMITMENT" means, with respect to each Bank, the commitment of
each such Bank to make Revolving Credit Loans pursuant to Section 2.1(a), in
amounts not exceeding in aggregate principal amount outstanding at any time the
respective commitment amounts for each such Bank set forth next to the name of
each such Bank in the signature pages hereof, as such amounts may be reduced
from time to time pursuant to Section 2.2.
"CONFIRMATION OF GUARANTY-ASAHI" means the Fourth
Acknowledgement and Confirmation of Guaranty-Asahi entered into by Izumi,
confirming the Guaranty-Asahi, in substantially the form of Exhibit F hereto.
"CONFIRMATION OF SECURITY AGREEMENT" means the Confirmation of
Security Agreement entered into by the Company in substantially the form of
Exhibit D hereto.
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"CONSOLIDATED" or "CONSOLIDATED" means, when used with reference
to any financial term in this Agreement, the aggregate for two or more persons
of the amounts signified by such term for all such persons determined on a
consolidated basis in accordance with generally accepted accounting principles.
"CUMULATIVE NET INCOME BEFORE TAXES" of any person means, as of
any date, the net income (before deducting for income and other taxes of the
person, or the Partners in the case of the Company, determined by reference to
the income or profits of the person) for the period commencing on the specified
date through the end of the most recently completed fiscal year of the person
(but without reduction for any net loss incurred for any fiscal year during the
period), taken as one accounting period, all as determined in accordance with
generally accepted accounting principles.
"DEFAULT" means any of the events or conditions described in
Section 6.1 which might become an Event of Default with notice or lapse of time
or both.
"DOLLARS" and "$" means the lawful money of the United States of
America.
"EFFECTIVE DATE" means the effective date specified in the final
paragraph of this Agreement.
"ENVIRONMENTAL LAWS" at any date means all provisions of law,
statute, ordinance, rules, regulations, judgments, writs, injunctions, decrees,
orders, awards and standards promulgated by the government of the United States
of America or any foreign government or by any state, province, municipality or
other political subdivision thereof or therein, or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) which, together with the Company or any Subsidiary of the Company,
would be treated as a single employer under Section 414 of the Code.
"EURODOLLAR BUSINESS DAY" means, with respect to any Eurodollar
Rate Loan, a day which is both a Business Day and a day on which dealings in
Dollar deposits are carried out in London, England.
"EURODOLLAR INTEREST PERIOD" means, with respect to any
Eurodollar Rate Loan, the period commencing on the day such Eurodollar Rate Loan
is made or converted to a Eurodollar Rate Loan and ending on the date one, two,
or three months thereafter, as the Company may elect under Section 2.4 or 2.7,
and each subsequent period commencing on the last day of the immediately
preceding Eurodollar Interest Period and ending on the date one, two, or three
months thereafter, as the Company may elect under Section 2.4 or 2.7, PROVIDED,
HOWEVER, that (a) any
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Eurodollar Interest Period which commences on the last Eurodollar Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Eurodollar Business Day of the appropriate subsequent calendar month, (b)
each Eurodollar Interest Period which would otherwise end on a day which is not
a Eurodollar Business Day shall end on the next succeeding Eurodollar Business
Day or, if such next succeeding Eurodollar Business Day falls in the next
succeeding calendar month, on the next preceding Eurodollar Business Day, and
(c) if the Eurodollar Interest Period before the Termination Date or the
Maturity Date would otherwise end on a day other than the Termination Date or
the Maturity Date (as the case may be), then such Eurodollar Interest Period
shall end as of the Termination Date or the Maturity Date (as the case may be)
and no Eurodollar Interest Period which would end after the Maturity Date (or
the Termination Date with respect to any Revolving Credit Loans) shall be
permitted.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Loan and the related Eurodollar Interest Period, the per annum rate that is
equal to the sum of:
(a) one and one-quarter percent (1.25%) per annum, plus
(b) the rate per annum obtained by dividing (i) the per annum
rate of interest determined by the Agent in accordance with its usual procedures
to be the average of the London interbank offered rates set forth on the "LIBO"
page of the Reuters Monitor Money Rate Service (or appropriate successor or
comparable replacement) determined by the Agent at approximately 11:00 a.m.
London time on the second Eurodollar Business Day prior to the first day of the
Eurodollar Interest Period for an amount comparable to the amount of such
Eurodollar Rate Loan to be made by the Agent in its capacity as a Bank and
having a borrowing date and a maturity comparable to the Eurodollar Interest
Period, by (ii) an amount equal to one minus the stated maximum rate (expressed
as a decimal) of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) that is specified
on the first day of such Eurodollar Interest Period by the Board of Governors of
the Federal Reserve System (or any successor agency thereto) for determining the
maximum reserve requirement with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of such Board)
maintained by a member bank of such System;
all as conclusively determined by the Agent, such sum to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%).
"EURODOLLAR RATE LOAN" means any Loan which bears interest at
the Eurodollar Rate.
"EVENT OF DEFAULT" means any of the events or conditions
described in Section 6.1.
"FEDERAL FUNDS RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or if such rate is not so published for any day which is a
Business Day,
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the average of the quotations at approximately 10 a.m. (Indianapolis time) on
such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole discretion.
"FLOATING RATE" means the per annum rate that is equal to the
greater of (a) the Prime Rate or (b) the Federal Funds Rate plus one and
one-quarter per cent (1.25%) per annum, which Floating Rate shall change
simultaneously with any change in the Prime Rate or the Federal Funds Rate, as
applicable.
"FLOATING RATE INTEREST PERIOD" means, with respect to any
Floating Rate Loan, the period commencing on the day such Floating Rate Loan is
made or converted to a Floating Rate Loan and ending on the date not less than
five (5) days but less than one month thereafter, as the Company may elect under
Section 2.4 or 2.7, and each subsequent period commencing on the last day of the
immediately preceding Floating Rate Interest Period and ending on the date not
less than five (5) days but less than one month thereafter, as the Company may
elect under Section 2.4 or 2.7, PROVIDED, HOWEVER, that (a) each Floating Rate
Interest Period which would otherwise end on a day which is not a Business Day
shall end on the next succeeding Business Day, and (b) if the Floating Rate
Interest Period before the Termination Date would otherwise end on a day other
than the Termination Date, then such Floating Rate Interest Period shall end as
of the Termination Date and no Floating Rate Interest Period which would end
after the Termination Date shall be permitted.
"FLOATING RATE LOAN" means any Loan which bears interest at the
Floating Rate.
"FORBEARANCE PERIOD" shall have the meaning set forth in Section
6.3(b).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally
accepted accounting principles applied on a basis consistent with that reflected
in the audited financial statements referred to in Section 4.6.
"GUARANTIES" means, collectively, the Guaranty-Bank One and the
Guaranty-Asahi.
"GUARANTOR" means each of Amcast and Izumi and each person
otherwise entering into a guaranty from time to time.
"GUARANTOR DEFAULT" means an Event of Default set forth in
Section 6.1(i).
"GUARANTY-ASAHI" means the Guaranty Agreement-Asahi (Rentai
Hoshosho) dated as of July 28, 1995, entered into by Izumi, for the benefit of
Asahi, as confirmed by the Confirmation of Guaranty-Asahi, and as otherwise as
amended, modified, or confirmed from time to time.
"GUARANTY-BANK ONE" means the means the Amended and Restated
Guaranty Agreement-Bank One of even date herewith, entered into by Amcast for
the benefit of Bank One, in substantially the form of Exhibit E hereto, and as
otherwise amended, modified, or confirmed from time to time.
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"INDEBTEDNESS" of any person means, as of any date, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person as lessee under any Capital Lease, (c) all obligations which are secured
by any Lien existing on any asset or property of such person whether or not the
obligation secured thereby shall have been assumed by such person, (d) the
unpaid purchase price for goods, property or services acquired by such person,
except for trade accounts payable arising in the ordinary course of business
that are not past due, (e) all obligations of such person to purchase goods,
property or services where payment therefor is required regardless of whether
delivery of such goods or property or the performance of such services is ever
made or tendered (generally referred to as "take or pay contracts"), (f) all
liabilities of such person in respect of Unfunded Benefit Liabilities under any
Plan or of any ERISA Affiliate, (g) all obligations of such person in respect of
any interest rate or currency swap, rate cap or other similar transaction
(valued in an amount equal to the highest termination payment, if any, that
would be payable by such person upon termination for any reason on the date of
determination), and (h) all obligations of others similar in character to those
described in clauses (a) through (g) of this definition for which such person is
contingently liable, as obligor, guarantor, surety or in any other capacity, or
in respect of which obligations such person assures a creditor against loss or
agrees to take any action to prevent any such loss (other than endorsements of
negotiable instruments for collection in the ordinary course of business),
including without limitation all reimbursement obligations of such person in
respect of letters of credit, surety bonds or similar obligations and all
obligations of such person to advance funds to, or to purchase assets, property
or services from, any other person in order to maintain the financial condition
of such other person.
"INTEREST PAYMENT DATE" means with respect to any Loan, the last
day of each Interest Period with respect to such Loan and, in the case of any
Eurodollar Interest Period exceeding three months, those days that occur during
such Eurodollar Interest Period at intervals of three months after the first day
of such Eurodollar Interest Period.
"INTEREST PERIOD" means any Floating Rate Interest Period and
any Eurodollar Interest Period.
"IZUMI" means Izumi Industries, Ltd., a Japanese corporation and
parent corporation of Izumi U.S.
"IZUMI U.S." means Izumi, Inc., a Delaware corporation and a
general partner of the Company.
"LIEN" means any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, option, conditional sale or title
retaining contract, sale and leaseback transaction, financing statement filing,
lessor's or lessee's interest under any lease, subordination of any claim or
right, or any other type of lien, charge, encumbrance, preferential arrangement
or other claim or right.
"LOAN" means any Revolving Credit Loan and any Term Loan. Any
such Loan or portion thereof may also be denominated as a Eurodollar Rate Loan
or a Floating Rate Loan and such Eurodollar Rate Loans and Floating Rate Loans
are referred to herein as "types" of Loans.
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"MANAGEMENT COMMITTEE" means the Management Committee of the
Company established under Section 2.02-1 of the Partnership Agreement.
"MATURITY DATE" means the maturity date of the Term Loans issued
under Section 2.1(b), which will be August 3, 2004.
"MULTIEMPLOYER PLAN" means any "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"NET WORTH" of any person means, as of any date, the net worth
of such person (or, in the case of the Company, the net partners capital of the
Company), as defined under generally accepted accounting principles.
"NOTE" means any Revolving Credit Note or Term Note.
"OVERDUE RATE" means (a) in respect of principal of Loans, a
rate per annum that is equal to the sum of two percent (2%) per annum plus the
per annum rate in effect thereon until the end of the then-current Interest
Period for such Loan and, thereafter, a rate per annum that is equal to the sum
of two percent (2%) per annum plus the Floating Rate, and (b) in respect of
other amounts payable by the Company hereunder, a per annum rate that is equal
to the sum of two percent (2%) per annum plus the Floating Rate.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"PARTNERS" means ACTI and Izumi U.S., the general partners of
the Company.
"PARTNERSHIP AGREEMENT" means that certain Joint Venture
Partnership Agreement, dated April 14, 1994, between the Partners, as it may be
amended from time to time.
"PAYMENT DATE" means each February 3, May 3, August 3, and
November 3, commencing on the first such date occurring after the Effective
Date.
"PERMITTED LIENS" means Liens permitted by Section 5.2(b)
hereof.
"PERSON" or "PERSON" shall include an individual, a corporation,
an association, a partnership, a limited liability company, a trust or estate, a
joint stock company, an unincorporated organization, a joint venture, a trade or
business (whether or not incorporated), a government (foreign or domestic) and
any agency or political subdivision thereof, or any other entity.
"PLAN" means any pension plan (other than a Multiemployer Plan)
subject to Title IV of ERISA or to the minimum funding standards of Section 412
of the Code which has been established or maintained by the Company, any
Subsidiary of the Company or any ERISA Affiliate,
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or by any other person if the Company, any Subsidiary of the Company or any
ERISA Affiliate could have liability with respect to such pension plan.
"PRIME RATE" means the per annum rate announced by the Agent
from time to time as its "prime rate" (it being acknowledged that such announced
rate may not necessarily be the lowest rate charged by the Agent to any of its
customers), which Prime Rate shall change simultaneously with any change in such
announced rate.
"PROHIBITED TRANSACTION" means any transaction involving any
Plan which is proscribed by Section 406 of ERISA or Section 4975 of the Code.
"PRO RATA SHARE" means, with respect to any Loans to be issued
by a Bank and payments to be made to a Bank under the Agreement, that portion of
the Loan or payment equal to the Bank's percentage share of the Commitments with
respect to the Revolving Credit Loans, or the Bank's percentage share of the
Term Loans with respect to the Term Loans, originally provided under this
Agreement, I.E., sixty percent for Bank One and forty percent for Asahi,
PROVIDED, HOWEVER, that if this Agreement is amended to change the Banks'
respective Commitment or Term Loan amounts, then this definition shall
thereafter be based on the amended amounts.
"REPORTABLE EVENT" means a reportable event as described in
Section 4043(b) of ERISA including those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA.
"REQUIRED BANKS" means Banks holding not less than one hundred
percent of the aggregate principal amount of the Loans then outstanding (or one
hundred percent of the Commitments if no Loans are then outstanding).
"REVOLVING CREDIT LOAN" means any borrowing under Section 2.4
evidenced by the Revolving Credit Notes and made pursuant to Section 2.1.
"REVOLVING CREDIT NOTE" means any promissory note of the Company
evidencing the Revolving Credit Loans, in substantially the form annexed hereto
as Exhibit A-1, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"SECURITY AGREEMENT" means the Security Agreement dated as of
July 28, 1995, entered into by the Company for the benefit of the Agent and the
Banks, as amended or modified from time to time.
"SECURITY DOCUMENTS" means, collectively, the Security
Agreement, the Guaranties and all other related agreements and documents,
including amendments, confirmations, financing statements, and similar
documents, otherwise entered into by any person to secure the Company's
obligations under this Agreement.
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"SUBSIDIARY" of any person means any other person (whether now
existing or hereafter organized or acquired) in which (other than directors'
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such person or by one or more of the other Subsidiaries of such
person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" means a Subsidiary of the Company.
"TERM LOAN" means any borrowing under Section 2.4 evidenced by
the Term Note and made pursuant to Section 2.1. Term Loans shall be made and
continued only as Eurodollar Rate Loans.
"TERM NOTE" means any promissory note of the Company evidencing
the Term Loans, in substantially the form annexed hereto as Exhibit A-2, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"TERMINATION DATE" (of the revolver period) means the earlier to
occur of (a) three (3) years from the Borrowing Date, and (b) the date on which
the Commitment shall be terminated pursuant to Section 6.2.
"UNFUNDED BENEFIT LIABILITIES" means, with respect to any Plan
as of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
"YEAR 2000 ISSUES" means anticipated costs, problems, and
uncertainties associated with the inability of certain computer applications to
effectively handle data, including dates prior to, on, and after January 1,
2000, as such inability affects the business, operations, and financial
condition of the Company and its Subsidiaries.
"YEAR 2000 PROGRAM" is defined in Section 4.14.
1.2 OTHER DEFINITIONS; RULES OF CONSTRUCTION. As used herein, the terms
"Agent", "Banks", "Company", "Bank One", "Asahi", "Prior Credit Agreement", and
"this Agreement" shall have the respective meanings ascribed thereto in the
introductory paragraphs of this Agreement. Such terms, together with the other
terms defined in Section 1.1, shall include both the singular and the plural
forms thereof and shall be construed accordingly. All computations required
hereunder and all financial terms used herein shall be made or construed in
accordance with generally accepted accounting principles unless such principles
are inconsistent with the express requirements of this Agreement. Use of the
terms "herein", "hereof", and "hereunder" shall be deemed references to this
Agreement in its entirety and not to the Section or clause in which such term
appears. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
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ARTICLE II
THE COMMITMENTS AND THE LOANS
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2.1 COMMITMENT OF THE BANKS.
(a) REVOLVING CREDIT LOANS. Each Bank agrees, for itself only,
subject to the terms of this Agreement, to make Revolving Credit Loans to the
Company pursuant to Section 2.4, from time to time from and including the
Borrowing Date to but excluding the Termination Date, not to exceed in aggregate
principal amount at any time outstanding the amount of its respective Commitment
as of the date any such Loan is made.
(b) TERM LOAN. Each Bank further agrees, for itself only,
subject to the terms of this Agreement, to make a single Term Loan to the
Company on the Borrowing Date in an amount not to exceed its Pro Rata Share of
$24,600,000.
2.2 REDUCTION OF COMMITMENTS. The Company shall have the right to
reduce the Commitments at any time and from time to time, PROVIDED that (a) the
Company shall give notice of such reduction to the Agent (with sufficient
executed copies for each Bank) specifying the amount and effective date thereof,
(b) each partial reduction of the Commitments shall be in a minimum amount of
$1,000,000 and in an integral multiple of $100,000 and shall reduce the
Commitments of all of the Banks proportionately in accordance with the
respective commitment amounts for each such Bank set forth in the signature
pages hereof next to name of each such Bank, (c) no such reduction shall be
permitted with respect to any portion of the Commitments as to which a request
for a Borrowing pursuant to Section 2.4 is then pending, and (d) the Commitments
may not be reduced below the principal amount of Loans then outstanding. The
Commitments or any portion thereof reduced pursuant to this Section 2.2, whether
optional or mandatory, may not be reinstated.
2.3 FEES. (a) The Company agrees to pay to the Banks a commitment fee
on the daily average unused amount of the Commitments, for the period from the
Effective Date to but excluding the Termination Date, at a rate equal to
three-eighths of one percent (3/8 of 1%) per annum, such fee to be shared pro
rata between the Banks based on their respective Commitments. Accrued commitment
fees shall be payable quarterly in arrears on each Payment Date, and also on the
Termination Date.
(b) The Company agrees to pay to the Banks a facility fee in
the amount of $80,250, such fee to be shared pro rata between the Banks based on
their respective Commitments. The facility fee shall be payable to the Agent on
or prior to the Effective Date.
(c) The Company agrees to pay to the Agent an agency fee for
its services as Agent under this Agreement in the amount of $5,000 per annum,
payable quarterly in advance on the date of this Agreement and thereafter on
each Payment Date.
2.4 DISBURSEMENT OF LOANS. (a) The Company shall give the Agent notice
of its request for each Borrowing of Revolving Credit Loans in substantially the
form of EXHIBIT B-1 hereto (with
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sufficient executed copies for each Bank), in the case of each Eurodollar Rate
Borrowing, not later than 10:00 a.m. Indianapolis time three Eurodollar
Business Days prior to the date such Borrowing is requested to be made and, in
the case of each Floating Rate Borrowing, not later than 10:00 a.m.
Indianapolis time one Business Day prior to the date such Borrowing is
requested to be made, which notice shall specify the Interest Period to be
initially applicable to such Borrowing.
(b) The Company shall give the Agent notice of its request for
the Term Loans in substantially the form of Exhibit B-2 hereto (with sufficient
executed copies for each Bank) not later than 10:00 a.m., Indianapolis time
three Eurodollar Business Days prior to the date the Term Loans are requested to
be made. Such notice shall specify the amount of the Term Loans requested to be
made, which shall be an amount not in excess of $24,600.000, and the Eurodollar
Interest Period to be initially applicable to the Term Loans.
(c) The Agent shall notify each Bank of (i) each requested
Eurodollar Rate Borrowing not later than the Business Day next succeeding the
day such notice is given and (ii) each requested Floating Rate Borrowing not
later than Noon Indianapolis time on the Business Day the Agent receives the
request. Subject to the terms of this Agreement, the proceeds of each such
requested Loan shall be made available to the Company by depositing the proceeds
thereof, in immediately available funds, in an account maintained and designated
by the Company at the principal office of the Agent.
(d) Each Bank, before 1:30 p.m. Indianapolis time on the date
any Borrowing is requested to be made, shall make its Pro Rata Share of such
Borrowing available in immediately available funds at the principal office of
the Agent for disbursement to the Company. Unless the Agent shall have received
notice from any Bank prior to the date such Borrowing is requested to be made
under this Section 2.4 that such Bank will not make available to the Agent such
Bank's Pro Rata Share of such Borrowing, the Agent may assume that such Bank has
made such portion available to the Agent in accordance with this Section 2.4. If
and to the extent such Bank shall not have so made such Pro Rata Share available
to the Agent, the Agent may (but shall not be obligated to) make such amount
available to the Company, and such Bank and the Company severally agree to pay
to the Agent forthwith on demand such amount together with interest thereon, for
each day from the date such amount is made available to the Company by the Agent
until the date such amount is repaid to the Agent, at a rate per annum equal to
the interest rate applicable to such Borrowing during such period. If such Bank
shall pay such amount to the Agent together with interest, such amount so paid
shall constitute a Loan by such Bank as a part of such Borrowing for purposes of
this Agreement. The failure of any Bank to make its Pro Rata Share of any such
Borrowing available to the Agent shall not relieve any other Bank of its
obligations to make available its Pro Rata Share of such Borrowing on the date
such Borrowing is requested to be made, but no Bank shall be responsible for
failure of any other Bank to make such Pro Rata Share available to the Agent on
the date of any such Borrowing.
(e) All Revolving Credit Loans made under this Section 2.4
shall be evidenced by the Revolving Credit Notes and the Term Loans made under
this Section 2.4 shall be evidenced by the Term Notes, and all such Loans shall
be due and payable and bear interest as provided in Article III. The Company
authorizes each Bank to record in its books and records the date, and
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amount and type of each Loan and the duration of the related Interest Period
(if applicable), the amount of each payment or prepayment of principal thereon,
and any other appropriate information which books and records shall constitute
prima facie evidence of the information so recorded, PROVIDED, HOWEVER, that
failure of any Bank to record, or any error in recording, any such information
shall not relieve the Company of its obligation to repay the outstanding
principal amount of the Loan, all accrued interest thereon and other amounts
payable with respect thereto in accordance with the terms of the Notes and this
Agreement. Subject to the terms of this Agreement, the Company may borrow
Revolving Credit Loans under this Section 2.4, prepay Revolving Credit Loans
pursuant to Section 3.1 and reborrow Revolving Credit Loans but not Term Loans
under this Section 2.4.
(f) The Company may enter into any interest rate protection
arrangements with either or both of the Banks with respect to any portion of any
outstanding Loans under procedures to be agreed upon among each of the Company
and the Required Banks. Any Indebtedness incurred thereunder shall constitute
Indebtedness evidenced by the Notes and secured by the Guaranties and the other
Security Documents.
2.5 CONDITIONS FOR FIRST DISBURSEMENT. The obligation of the Banks to
make the first Borrowing hereunder is subject to each Bank and the Agent
receiving the following documents and the following matters being completed, in
form and substance satisfactory to each Bank and the Agent:
(a) CHARTER DOCUMENTS. Certificates of recent date of the
appropriate authority or official of the Company's, Amcast's, and each of the
Partners' respective state of organization or incorporation listing all charter
documents of the Company, Amcast, and the Partners, respectively, on file in
that office and certifying as to the good standing and valid existence of the
Company, Amcast, and the Partners, respectively, together with copies of such
charter documents of the Company, Amcast, and the Partners, respectively,
certified as of a recent date by such authority or official and certified as
true and correct as of the Closing Date by a duly authorized general partner or
officer of the Company, Amcast, or the Partners, as appropriate;
(b) BY-LAWS AND AUTHORIZATIONS. Copies of the by-laws of
Amcast and the Partners, together with all authorizing resolutions and evidence
of other action taken by the Company, Amcast, and the Partners to authorize the
execution, delivery and performance by the Company and Amcast of this Agreement,
the Notes, and the Security Documents to which the Company and Amcast,
respectively, is a party and the consummation by the Company and Amcast,
respectively, of the transactions contemplated hereby and thereby, certified as
true and correct as of the Closing Date by a duly authorized general partner or
officer of the Company, Amcast, or the Partners, as appropriate;
(c) INCUMBENCY CERTIFICATE. Certificates of incumbency of the
Company, Amcast and the Partners containing, and attesting to the genuineness
of, the signatures of those officers authorized to act on behalf of the Company,
Amcast and the Partners in connection with this Agreement, the Notes, and the
Security Documents to which the Company or Amcast is a party and the
consummation by the Company and Amcast of the transactions contemplated hereby,
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certified as true and correct as of the Closing Date by a duly authorized
general partner or officer of the Company, Amcast or the Partners, as
appropriate;
(d) NOTES. The Revolving Credit Notes and Term Notes, duly
executed on behalf of the Company for each Bank;
(e) PARTNER'S GOOD STANDING. Certificates of recent date of
the Indiana Secretary of State certifying as to Izumi U.S.'s qualifications to
do business as a foreign corporation in Indiana.
(f) IZUMI DOCUMENTS; AUTHORIZATION; CERTIFICATES. An
incumbency certificate, dated as of the Effective Date, from the duly elected
Representative Director (Daihyo Torishimariyaku) of Izumi, providing facsimile
signatures of the Persons authorized to execute and deliver on behalf of Izumi
the Guaranty-Asahi and any other documents in connection therewith, and stating
that the signatory is a duly elected and qualified Representative Director
(Daihyo Torishimariyaku) of Izumi, fully authorized to execute such certificate,
and stating that attached to such certificate are true, complete and correct
copies of: (i) the Articles of Incorporation (Teikan) of Izumi; (ii) a certified
copy of corporate register (Shogyotokibotohon) (iii) resolutions duly adopted by
the Board of Directors (Torishimariyakukai) of Izumi which authorize the
execution, delivery and performance of the Confirmation of Guaranty-Asahi, and
(iv) an original of Certificate of Seal (Inkanshomei) of the Representative
Director (Daihyo Torishimariyaku) issued within 3 months of the date hereof by
the appropriate homukyoku.
(g) SECURITY DOCUMENTS. The Confirmation of Security Agreement
duly executed on behalf of the Company, the Guaranty Agreement-Bank One duly
executed on behalf of Amcast, and the Confirmation of Guaranty-Asahi duly
executed on behalf of Izumi, granting to the Banks and the Agent the collateral
and security intended to be provided pursuant to Section 2.10, together with:
(i) RECORDING, FILING, ETC. Evidence of the
recordation, filing and other action (including payment of any applicable taxes
or fees) in such jurisdictions as the Banks and the Agent may deem necessary or
appropriate with respect to the Security Documents, including the filing of
financing statements and similar documents which the Banks and the Agent may
deem necessary or appropriate to create, preserve or perfect the liens,
security interests and other rights intended to be granted to the Banks and the
Agent thereunder, together with Uniform Commercial Code record searches in such
offices as the Banks and the Agent may request;
(ii) LEASED PROPERTY; LANDLORD WAIVERS. A schedule
setting forth all real property leased by the Company, together with copies of
the related leases, certified as true and correct as of the Effective Date by a
duly authorized partner of the Company and an agreement of each landlord under
such leases, in form and substance acceptable to the Banks and the Agent,
waiving its distraint, lien and similar rights with respect to any property
subject to the Security Documents and agreeing to permit the Banks and the
Agent to enter such premises in connection therewith; and
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(iii) CASUALTY AND OTHER INSURANCE. Evidence that
the casualty and other insurance required pursuant to Section 5.1(c) and
paragraph 1(e) of the Security Agreement is in full force and effect;
(h) LEGAL OPINIONS. The favorable written opinion of Xxxxxxxx,
Xxxx and Xxxxx, counsel for the Company, ACTI, and Amcast, and of Xxxxxx &
Xxxxxxx, counsel for Izumi U.S., and of Xxxxxx Xxxxxxx, counsel for Izumi, which
collectively will address each of the matters set forth in Sections 4.1 (other
than Section 4.1(c)), 4.2, 4.3, and 4.8, in paragraph 1(a) of the Security
Agreement, and paragraphs 5(a), (b), (c), and (g) of the Guaranties, and such
other matters as the Banks and the Agent may reasonably request;
(i) CONSENTS, APPROVALS, ETC. Copies of all governmental and
non-governmental consents, approvals, authorizations, declarations,
registrations or filings, if any, required on the part of the Company or any
Guarantor in connection with the execution, delivery and performance of this
Agreement, the Notes, or the Security Documents or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Agreement, the Notes or any of the Security Documents,
certified as true and correct and in full force and effect as of the Effective
Date by a duly authorized general partner of the Company, or if none are
required, a certificate of a general partner to that effect;
(j) FEES. The facility fee described in Section 2.3(b) and
the agency fee then due and payable under Section 2.3(c); and
(k) PAYMENT OF INDEBTEDNESS UNDER PRIOR CREDIT AGREEMENT.
Payment in full (which payment shall be made simultaneously with the first Loans
made under this Agreement) of the outstanding principal balance and all interest
accrued through the Effective Date hereof on the loans and all fees accrued
under the Prior Credit Agreement, and it is acknowledged and agreed that this
Agreement refinances the loans outstanding under the Prior Credit Agreement, and
the Commitments replace all commitments to lend under the Prior Credit
Agreement, all of which commitments to lend under the Prior Credit Agreement
shall be terminated and replaced with the Commitments simultaneously upon this
Agreement being executed.
2.6 FURTHER CONDITIONS FOR DISBURSEMENT. The obligation of the Banks to
make any Loan (including the first Loan), or any continuation or conversion
under Section 2.7, is further subject to the following conditions precedent
being satisfied:
(a) The representations and warranties contained in Article IV
and in the Security Documents shall be true and correct on and as of the date
such Loan is made (both before and after such Loan is made) as if such
representations and warranties were made on and as of such date;
(b) No Event of Default or Default shall exist or shall have
occurred and be continuing on the date such Loan is made (whether before or
after such Loan is made);
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(c) The Company shall have executed and delivered all further
documents and taken all further action that the Agent may request in order to
perfect the Banks' security interest in the collateral to be purchased with the
proceeds of the requested Loan.
The Company shall be deemed to have made a representation and warranty to the
Banks at the time of the making of, and the continuation or conversion of, each
Loan to the effect set forth in clauses (a) and (b) of this Section 2.6. For
purposes of this Section 2.6, the representations and warranties contained in
Section 4.6 shall be deemed made with respect to both the financial statements
referred to therein and the most recent financial statements delivered pursuant
to Section 5.1(d)(ii) and (iii).
2.7 SUBSEQUENT ELECTIONS AS TO BORROWINGS. (a) Each Revolving Credit
Loan outstanding as a Floating Rate Loan shall continue as a Floating Rate Loan
until the end of the then-applicable Floating Rate Interest Period therefor, at
which time such Floating Rate Loan shall be automatically converted into a
Floating Rate Loan with a Floating Rate Interest Period of five (5) days unless
the Company shall have given the Agent irrevocable notice substantially in the
form of EXHIBIT C hereto (a "Conversion/Continuation Notice") requesting that,
at the end of such Floating Rate Interest Period, such Floating Rate Loan either
continue as a Floating Rate Loan for the same or another Floating Rate Interest
Period or be converted into a Eurodollar Rate Loan for a specified Eurodollar
Interest Period.
(b) Each Revolving Credit Loan outstanding as a Eurodollar
Rate Loan shall continue as a Eurodollar Rate Loan until the end of the
then-applicable Eurodollar Interest Period therefor, at which time such
Eurodollar Rate Loan shall be automatically converted into a Floating Rate Loan
with a Floating Rate Interest Period of five (5) days unless the Company shall
have given the Agent a Conversion/Continuation Notice requesting that, at the
end of such Eurodollar Interest Period, such Eurodollar Rate Loan either
continue as a Eurodollar Rate Loan for the same or another Eurodollar Interest
Period or be converted into a Floating Rate Loan for a specified Floating Rate
Interest Period.
(c) Subject to the terms of Sections 2.8 and 3.2, the Company
may elect from time to time to convert all or any part of any Revolving Credit
Loan of any type into any other type or types of Loan; provided that any
conversion of any Revolving Credit Loan shall be made only on the last day of
the Interest Period applicable thereto.
(d) Each Term Loan outstanding as a Eurodollar Rate Loan shall
continue as a Eurodollar Rate Loan until the end of the then-applicable
Eurodollar Interest Period therefor, at which time such Eurodollar Rate Loan
shall be automatically converted into a Eurodollar Rate Loan with a Eurodollar
Interest Period of one (1) month unless the Company shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Eurodollar
Interest Period, such Eurodollar Rate Loan continue as a Eurodollar Rate Loan
for the same or another Eurodollar Interest Period.
(e) The Company shall give the Agent a Conversion/Continuation
Notice of each conversion or continuation of a Loan not later than 10:00 a.m.
(Indianapolis time) at least one Business Day, in the case of a conversion into
or continuation of a Floating Rate Loan, or
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three Eurodollar Business Days, in the case of a conversion into or
continuation of a Eurodollar Rate Loan, prior to the date of the requested
conversion or continuation, specifying
(i) the requested date, which shall be a Business Day,
of such conversion or continuation;
(ii) the aggregate amount and type of the Loan which is
to be converted or continued; and
(iii) the amount and type(s) of Loan(s) into which such
Loan is to be converted or continued and the
duration of the Interest Period applicable thereto.
The Agent shall notify each Bank of (i) each requested conversion into or
continuation of a Eurodollar Rate Loan not later than the Business Day next
succeeding the day such notice is given and (ii) each requested conversion into
or continuation of Floating Rate Loan not later than Noon Indianapolis time on
the Business Day the Agent receives the request.
2.8 LIMITATION OF REQUESTS AND ELECTIONS. (a) Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
Eurodollar Rate Borrowing pursuant to Section 2.4, or a request for a
continuation of a Eurodollar Rate Loan pursuant to Section 2.7, (a) deposits in
Dollars for periods comparable to the Eurodollar Interest Period elected by the
Company are not available to any Bank in the relevant interbank or secondary
market, or (b) the applicable interest rate will not adequately and fairly
reflect the cost to any Bank of making, funding or maintaining the related
Borrowing, or (c) by reason of national or international financial, political or
economic conditions or by reason of any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect, or the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank
with any guideline, request or directive of such authority (whether or not
having the force of law), including without limitation exchange controls, it is
impracticable, unlawful or impossible for any Bank (i) to make or fund the
relevant Borrowing or (ii) to continue such Borrowing, then the Company shall
not be entitled, so long as such circumstances continue, to request a Eurodollar
Rate Borrowing pursuant to Section 2.4 or a continuation of a Eurodollar Rate
Borrowing pursuant to Section 2.7. In the event that such circumstances no
longer exist, the Banks shall again consider requests for Eurodollar Rate
Borrowings of the affected type pursuant to Section 2.4, and requests for
continuations of Eurodollar Rate Borrowings of the affected type pursuant to
Section 2.7.
(b) Notwithstanding any other provision of this Agreement to
the contrary, and in order to give effect to the provisions of Section 3.1(a),
the Company shall make requests for Borrowings pursuant to Section 2.4, and
requests for continuations of Borrowings pursuant to Section 2.7, such that, on
each date that any scheduled principal payment is due with respect to any Loan
pursuant to Section 3.1(a), Loans having an Interest Period ending on such date
are outstanding on such date in an aggregate principal amount not less than the
amount of such principal payment.
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2.9 MINIMUM AMOUNTS; LIMITATION ON NUMBER OF BORROWINGS. Except for (a)
Borrowings which exhaust the entire remaining amount of the Commitments and (b)
payments required pursuant Section 3.7, each Borrowing and each continuation
pursuant to Section 2.7 and each prepayment thereof shall be in a minimum amount
of $500,000 and in an integral multiple of $100,000 (or, in the case of any Term
Borrowing, in integral multiples of the quarterly installments of principal
thereon). The aggregate number of Eurodollar Rate Borrowings outstanding at any
one time under this Agreement may not exceed ten. No more than five Eurodollar
Interest Periods shall be permitted to exist at any one time with respect to all
Borrowings outstanding hereunder from time to time.
2.10 SECURITY AND COLLATERAL. To secure the payment when due of the
Notes and all other obligations of the Company under this Agreement to the Banks
and the Agent, the Company shall execute and deliver, or cause to be executed
and delivered, to the Banks and the Agent Security Documents granting the
following:
(a) Security interests in all present machinery and equipment
of the Company, and in all future machinery and equipment other than machinery
and equipment purchased solely with proceeds of Indebtedness permitted under
Section 5.2(a)(v).
(b) Guarantees of the Guarantors; PROVIDED, HOWEVER, that the
Guaranty-Bank One shall secure only the obligations of the Company to Bank One
and that the Guaranty-Asahi shall secure only the obligations of the Company to
Asahi.
(c) All other security and collateral described in the
Security Documents.
ARTICLE III
PAYMENTS AND PREPAYMENTS OF LOANS
---------------------------------
3.1 PRINCIPAL PAYMENTS AND PREPAYMENTS. (a) Unless earlier
payment is required under this Agreement (i) the Company shall pay to the Banks
on the Termination Date the entire outstanding principal amount of the Revolving
Credit Loans and (ii) the Company shall pay to the Banks the outstanding
principal amount of the Term Loans in 20 equal quarterly installments payable on
each Payment Date, to and including the Maturity Date, when the entire
outstanding principal amount of the Term Loans shall be due and payable.
(b) The Company may at any time and from time to time prepay all
or a portion of the Borrowings, without premium or penalty, PROVIDED that (i)
the Company may not prepay any portion of any Borrowing as to which an election
for a continuation of a Borrowing is pending pursuant to Section 2.7, (ii)
unless earlier payment is required under this Agreement, any Borrowing may only
be prepaid on the last day of the then-current Interest Period with respect to
such Borrowing and shall have paid to the Banks, together with such prepayment
of principal, all accrued interest to the date of payment on such Loan or
portion thereof so prepaid and all amounts owing to the Banks under Section 3.8
in connection with such prepayment, and (iii) such prepayment of any
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Term Loan shall only be permitted if the Company shall have given not less than
10 days' notice thereof specifying the Term Loan or portion thereof to be so
prepaid. Upon the giving of such notice, the aggregate principal amount of such
Borrowing or portion thereof so specified in such notice, together with such
accrued interest and other amounts, shall become due and payable on the
specified prepayment date.
(c) All prepayments of the Term Loans, whether optional or
mandatory, shall be applied to installments of principal of the Term Loans in
inverse order of their maturities and no partial prepayment of the Term Loans
shall reduce the amount or defer the date of the scheduled installments of
principal required to be paid thereon.
3.2 INTEREST PAYMENTS. The Company shall pay interest to the Banks on
the unpaid principal amount of each Loan, for the period commencing on the date
such Loan is made until such Loan is paid in full, on each Interest Payment Date
and at maturity (whether at stated maturity, by acceleration or otherwise), and
thereafter on demand, during such periods that such Loan is a Eurodollar Rate
Loan, at the Eurodollar Rate applicable to such Loan for each related Eurodollar
Interest Period and during such periods that such Loan is a Floating Rate Loan,
at the Floating Rate applicable to such Loan for each related Floating Rate
Interest Period. Term Loans shall only be made and continued as Eurodollar Rate
Loans. Notwithstanding the foregoing, the Company shall pay interest on demand
at the Overdue Rate on the outstanding principal amount of any Loan and any
other amount payable by the Company hereunder which is not paid in full when due
(whether at stated maturity, by acceleration or otherwise) for the period
commencing on the due date thereof until the same is paid in full, PROVIDED,
HOWEVER, that interest shall accrue and be computed on any installment of
interest which has become due and remains unpaid at the lower of the Overdue
Rate and the highest legal rate then permitted on such amounts from the time at
which it becomes due until paid.
3.3 PAYMENT METHOD. (a) All payments to be made by the Company hereunder
will be made in Dollars and in immediately available funds to the Agent for the
account of the Banks at its address set forth in Section 8.2 not later than 1:00
p.m. Indianapolis time on the date on which such payment shall become due.
Payments received after 1:00 p.m. Indianapolis time shall be deemed to be
payments made prior to 1:00 p.m. Indianapolis time on the next succeeding
Business Day. The Company authorizes the Agent to charge its account with Bank
One in order to cause timely payment of amounts due hereunder to be made
(subject to sufficient funds being available in such account for that purpose).
(b) At the time of making each such payment, the Company shall,
subject to the other terms of this Agreement, specify to the Agent that Loan or
other obligation of the Company hereunder to which such payment is to be
applied. In the event that the Company fails to so specify the relevant
obligation or if an Event of Default shall have occurred and be continuing, the
Agent may apply such payments as it may determine in its sole discretion to
obligations of the Company to the Banks arising under this Agreement or
otherwise.
(c) On the day such payments are deemed received, the Agent
shall remit to the Banks their Pro Rata Share of such payments in immediately
available funds (other than the Agent's
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fees payable pursuant to Section 2.3(c) and amounts payable to any Bank under
Sections 3.6, 3.7, and 3.8).
3.4 NO SETOFF OR DEDUCTION. All payments of principal and interest on
the Loans and other amounts payable by the Company hereunder shall be made by
the Company without setoff or counterclaim, and free and clear of, and without
deduction or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of whatever nature,
imposed by any governmental authority, or by any department, agency or other
political subdivision or taxing authority.
3.5 PAYMENT ON NON-BUSINESS DAY; PAYMENT COMPUTATIONS. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days (or 365 or 366 days as the case may be,
when determining the Floating Rate) for the actual number of days elapsed,
including the first day but excluding the last day of the relevant period.
3.6 ADDITIONAL COSTS. (a) In the event that any applicable law, treaty,
rule or regulation (whether domestic or foreign) now or hereafter in effect and
whether or not presently applicable to any Bank or the Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank or
the Agent with any guideline, request or directive of any such authority
(whether or not having the force of law), shall (i) affect the basis of taxation
of payments to any Bank or the Agent of any amounts payable by the Company under
this Agreement (other than taxes imposed on the overall net income of the Bank
or the Agent, by the jurisdiction, or by any political subdivision or taxing
authority of any such jurisdiction, in which any Bank or the Agent, as the case
may be, has its principal office), or (ii) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by any Bank or the
Agent, or (iii) shall impose any other condition with respect to this Agreement,
the Commitments, the Notes or the Loans, and the result of any of the foregoing
is to increase the cost to any Bank or the Agent, as the case may be, of making,
funding or maintaining any Eurodollar Rate Loan or to reduce the amount of any
sum receivable by any Bank or the Agent, as the case may be, thereon, then the
Company shall pay to such Bank or the Agent, as the case may be, from time to
time, upon request by such Bank (with a copy of such request to be provided to
the Agent) or the Agent, additional amounts sufficient to compensate such Bank
or the Agent for such increased cost or reduced sum receivable to the extent
such Bank or the Agent is not compensated therefor in the computation of the
interest rate applicable to such Eurodollar Rate Loan for the period of up to
200 days after the event resulting in the increased capital requirement and
reduced rate of return. A statement as to the amount of such increased cost or
reduced sum receivable, prepared in good faith and in reasonable detail by such
Bank or the Agent and submitted by such Bank or the Agent to the Company, shall
be conclusive and binding for all purposes absent manifest error in computation.
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(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or the Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank or the Agent
with any guideline, request or directive of any such authority (whether or not
having the force of law), including any risk-based capital guidelines, affects
or would affect the amount of capital required or expected to be maintained by
such Bank or the Agent (or any corporation controlling such Bank or the Agent)
and such Bank or the Agent, as the case may be, determines that the amount of
such capital is increased by or based upon the existence of such Bank's or the
Agent's obligations hereunder and such increase has the effect of reducing the
rate of return on such Bank's or the Agent's (or such controlling corporation's)
capital as a consequence of such obligations hereunder to a level below that
which such Bank or the Agent (or such controlling corporation) could have
achieved but for such circumstances (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Bank or the Agent to be
material, then the Company shall pay to such Bank or the Agent, as the case may
be, from time to time, upon request by such Bank (with a copy of such request to
be provided to the Agent) or the Agent, additional amounts sufficient to
compensate such Bank or the Agent (or such controlling corporation) for any
increase in the amount of capital and reduced rate of return which such Bank or
the Agent reasonably determines to be allocable to the existence of such Bank's
or the Agent's obligations hereunder for the period of up to 200 days after the
event resulting in the increased capital requirement and reduced rate of return.
A statement as to the amount of such compensation, prepared in good faith and in
reasonable detail by such Bank or the Agent, as the case may be, and submitted
by such Bank or the Agent to the Company, shall be conclusive and binding for
all purposes absent manifest error in computation.
3.7 ILLEGALITY AND IMPOSSIBILITY. In the event that any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank
with any guideline, request or directive of such authority (whether or not
having the force of law), including without limitation exchange controls, shall
make it unlawful or impossible for any Bank to maintain any Eurodollar Rate Loan
under this Agreement, the Company shall upon receipt of notice thereof from such
Bank, repay in full the then-outstanding principal amount of each Eurodollar
Rate Loan so affected, together with all accrued interest thereon to the date of
payment and all amounts owing to such Bank under Section 3.8, (a) on the last
day of the then-current Eurodollar Interest Period applicable to such Loan if
such Bank may lawfully continue to maintain such Loan to such day, or (b)
immediately if such Bank may not continue to maintain such Loan to such day.
3.8 INDEMNIFICATION. If the Company makes any payment of principal with
respect to any Loan on any other date than the last day of the Interest Period
applicable thereto (whether pursuant to Section 3.7, Section 6.2 or otherwise),
or if the Company fails to borrow any Loan after notice has been given to the
Banks in accordance with Section 2.4, or if the Company fails to make any
payment of principal or interest in respect of a Loan when due, the Company
shall reimburse each
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Bank on demand for any resulting loss or expense incurred by each such Bank,
including without limitation any loss incurred in obtaining, liquidating or
employing deposits from third parties, whether or not such Bank shall have
funded or committed to fund such Loan. A statement as to the amount of such
loss or expense, prepared in good faith and in reasonable detail by such Bank
and submitted by such Bank to the Company, shall be conclusive and binding for
all purposes absent manifest error in computation. Calculation of all amounts
payable to such Bank under this Section 3.8 shall be made as though such Bank
shall have actually funded or committed to fund the relevant Loan through the
purchase of an underlying deposit in an amount equal to the amount of such Loan
and having a maturity comparable to the related Interest Period and, in the
case of any Eurodollar Rate Loan, through the transfer of such deposit from an
offshore office of such Bank to a domestic office of such Bank in the United
States of America; PROVIDED, HOWEVER, that such Bank may fund any Loan in any
manner it sees fit and the foregoing assumption shall be utilized only for the
purpose of calculation of amounts payable under this Section 3.8.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants that:
4.1 EXISTENCE AND POWER. (a) The Company is a general partnership duly
organized, validly existing and in good standing under the laws of the State of
Indiana, and is duly qualified to do business, and is in good standing, in all
additional jurisdictions where such qualification is necessary under applicable
law. The Company has all requisite partnership power to own or lease the
properties used in its business and to carry on its business as now being
conducted and as proposed to be conducted, and to execute and deliver this
Agreement, the Notes and the Security Documents to which it is a party and to
engage in the transactions contemplated by this Agreement.
(b) Each of the Partners is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation and is duly qualified to do business, and is in good standing, in
all additional jurisdictions where such qualification is necessary under
applicable law (including without limitation the State of Indiana). Each of the
Partners has all requisite corporate power to own or lease the properties used
in its business and to carry on its business as now being conducted and as
proposed to be conducted, and to execute and deliver this Agreement on behalf of
the Company.
(c) The ownership interests in the Company are held beneficially
and of record sixty percent (60%) by ACTI and forty percent (40%) by Izumi U.S.
Amcast owns beneficially and of record all of the outstanding equity securities
of ACTI. Izumi owns beneficially and of record all of the outstanding equity
securities of Izumi U.S.
4.2 AUTHORITY. (a) The execution, delivery and performance by the
Company of this Agreement, the Notes, and the Security Documents to which it is
a party are not in contravention of any law, rule or regulation, or any
judgment, decree, writ, injunction, order or award of any
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arbitrator, court or governmental authority, or of the terms of the Company's
charter, or of any contract or undertaking to which the Company is a party or
by which the Company or its property may be bound or affected and will not
result in the imposition of any Lien except for Permitted Liens.
(b) The execution, delivery and performance by the Partners on
behalf of the Company of this Agreement, the Notes, and the Security Documents
to which the Company is a party have been duly authorized by all necessary
corporate action and are not in contravention of any law, rule or regulation, or
any judgment, decree, writ, injunction, order or award of any arbitrator, court
or governmental authority, or of the terms of the charter of either Partner, or
of any contract or undertaking to which either Partner is a party or by which
either Partner or its property may be bound or affected and will not result in
the imposition of any Lien except for Permitted Liens.
4.3 BINDING EFFECT. This Agreement is, and the Notes and the Security
Documents to which the Company is a party when delivered hereunder will be,
legal, valid and binding obligations of the Company and its Partners,
enforceable against the Company and its Partners in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity).
4.4 SUBSIDIARIES. The Company has no Subsidiaries as of the date hereof,
but each corporation becoming a Subsidiary of the Company after the date hereof
will be a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and will be duly qualified
to do business in each additional jurisdiction where such qualification may be
necessary under applicable law. Each Subsidiary of the Company will have all
requisite corporate power to own or lease the properties used in its business
and to carry on its business as now being conducted and as proposed to be
conducted. All outstanding shares of capital stock of each class of each
Subsidiary of the Company will be validly issued and will be fully paid and
nonassessable and, except as disclosed in writing to the Agent and the Banks
from time to time, will be owned, beneficially and of record, by the Company or
another Subsidiary of the Company free and clear of any Liens.
4.5 LITIGATION. Except as set forth in SCHEDULE 4.5 hereto, there is no
action, suit or proceeding pending or, to the best of the Company's knowledge,
threatened against or affecting the Company or any of its Subsidiaries before or
by any court, governmental authority or arbitrator, which if adversely decided
might result, either individually or collectively, in any material adverse
change in the business, properties, operations or condition, financial or
otherwise, of the Company or any of its Subsidiaries or in any material adverse
effect on the legality, validity or enforceability of this Agreement, the Notes
or any Security Document and, to the best of the Company's knowledge, there is
no basis for any such action, suit or proceeding.
4.6 FINANCIAL CONDITION. The consolidated balance sheet of the Company
and its Subsidiaries and the consolidated statements of income, retained
earnings and cash flow of the
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Company and its Subsidiaries for the fiscal year ended August 31, 1998, as
provided by the Company to the Partners under the Partnership Agreement, and
the interim consolidated balance sheet and interim consolidated statements of
income, retained earnings and cash flow of the Company and its Subsidiaries, as
of or for the 9-month period ended on May 30, 1999, copies of which have been
furnished to the Banks, fairly present, and the financial statements of the
Company and its Subsidiaries delivered pursuant to Section 5.1(d) will fairly
present, the consolidated financial position of the Company and its
Subsidiaries as at the respective dates thereof, and the consolidated results
of operations of the Company and its Subsidiaries for the respective periods
indicated, all in accordance with generally accepted accounting principles
consistently applied (subject, in the case of said interim statements, to
year-end audit adjustments). There has been no material adverse change in the
business, properties, operations or condition, financial or otherwise, of the
Company or any of its Subsidiaries since August 31, 1998, except as has been
previously disclosed to the Agent and the Banks by the Company. There is no
material Contingent Liability of the Company that is not reflected in such
financial statements or in the notes thereto.
4.7 USE OF LOANS. The Company will use the proceeds of the Loans to
finance the Company's business. Neither the Company nor any of its Subsidiaries
extends or maintains, in the ordinary course of business, credit for the
purpose, whether immediate, incidental, or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no part of the proceeds of any Loan will be
used for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying any such margin stock or maintaining or extending credit to others for
such purpose. After applying the proceeds of each Loan, such margin stock will
not constitute more than 25% of the value of the assets (either of the Company
alone or of the Company and its Subsidiaries on a consolidated basis) that are
subject to any provisions of this Agreement or any Security Document that may
cause any Loan to be deemed secured, directly or indirectly, by margin stock.
4.8 CONSENTS, ETC. Except for such consents, approvals, authorizations,
declarations, registrations or filings delivered by the Company pursuant to
Section 2.5(g), if any, each of which is in full force and effect, no consent,
approval or authorization of or declaration, registration or filing with any
governmental authority or any nongovernmental person or entity, including
without limitation any creditor, lessor or stockholder of the Company or any of
its Subsidiaries, is required on the part of the Company in connection with the
execution, delivery and performance of this Agreement, the Notes, the Security
Documents or the transactions contemplated hereby or thereby or as a condition
to the legality, validity or enforceability of this Agreement, the Notes or any
of the Security Documents.
4.9 TAXES. The Company and its Subsidiaries have filed all tax returns
(federal, state and local) required to be filed and have paid all taxes shown
thereon to be due, including interest and penalties, or have established
adequate financial reserves on their respective books and records for payment
thereof. Except as set forth in SCHEDULE 4.9 hereto, neither the Company nor any
of its Subsidiaries knows of any actual or proposed tax assessment or any basis
therefor, and no extension of time for the assessment of deficiencies in any
federal or state tax has been granted by the Company or any Subsidiary.
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4.10 TITLE TO PROPERTIES. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement, the
Company or one or more of its Subsidiaries have good and marketable fee simple
title to all of the real property, and a valid and indefeasible ownership
interest in all of the other properties and assets (including, without
limitation, the collateral subject to the Security Documents to which any of
them is a party) reflected in said balance sheet or subsequently acquired by the
Company or any Subsidiary. All of such properties and assets are free and clear
of any Lien except for Permitted Liens.
4.11 ERISA. The Company, its Subsidiaries, the ERISA Affiliates and the
Plans are in compliance in all material respects with those provisions of ERISA
and of the Code which are applicable with respect to any Plan. No Prohibited
Transaction and no Reportable Event has occurred with respect to any Plan. None
of the Company, any of its Subsidiaries or any of the ERISA Affiliates is an
employer with respect to any Multiemployer Plan. The Company, its Subsidiaries
and the ERISA Affiliates have met the minimum funding requirements under ERISA
and the Code with respect to each of the respective Plans, if any, and have not
incurred any liability to the PBGC or any Plan. The execution, delivery and
performance of this Agreement, the Notes, and the Security Documents does not
constitute a Prohibited Transaction. There is no material Unfunded Benefit
Liability, determined in accordance with Section 4001(a)(18) of ERISA, with
respect to any Plan.
4.12 DISCLOSURE. No report or other information furnished in writing or
on behalf of the Company, any Partner, or any Guarantor to any Bank or the Agent
in connection with the negotiation or administration of this Agreement or the
Prior Credit Agreement contains any material misstatement of fact or omits to
state any material fact or any fact necessary to make the statements contained
therein not misleading. Neither this Agreement, the Notes, the Security
Documents, nor any other document, certificate, or report or other information
furnished to any Bank or the Agent by or on behalf of the Company in connection
with the transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading. There is no fact known
to the Company which materially and adversely affects, or which in the future
may (so far as the Company can now foresee) materially and adversely affect, the
business, properties, operations or condition, financial or otherwise, of the
Company, any Partner, or any Subsidiary, which has not been set forth in this
Agreement or in the other documents, certificates, statements, reports and other
information furnished in writing to the Banks by or on behalf of the Company,
any Partner, or any Guarantor in connection with the transactions contemplated
hereby.
4.13 ENVIRONMENTAL AND SAFETY MATTERS. The Company and each Subsidiary
is in compliance with all federal, state and local laws, ordinances and
regulations relating to safety and industrial hygiene or to the environmental
condition, including without limitation all Environmental Laws in jurisdictions
in which the Company or any Subsidiary owns or operates, or has owned or
operated, a facility or site, or arranges or has arranged for disposal or
treatment of hazardous substances, solid waste, or other wastes, accepts or has
accepted for transport any hazardous substances, solid wastes or other wastes or
holds or has held any interest in real property or otherwise. No demand, claim,
notice, suit, suit in equity, action, administrative action, investigation or
inquiry whether brought by any governmental authority, private person or entity
or otherwise,
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arising under, relating to or in connection with any Environmental Laws is
pending or threatened against the Company or any of its Subsidiaries, any real
property in which the Company or any such Subsidiary holds or has held an
interest or any past or present operation of the Company or any Subsidiary.
Neither the Company nor any of its Subsidiaries (a) is the subject of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release of any toxic substances, radioactive materials,
hazardous wastes or related materials into the environment, (b) has received
any notice of any toxic substances, radioactive materials, hazardous waste or
related materials in, or upon any of its properties in violation of any
Environmental Laws, or (c) knows of any basis for any such investigation,
notice or violation, except as disclosed on SCHEDULE 4.13 hereto, and as to
such matters disclosed on such Schedule, none will have a material adverse
effect on the financial condition or business of the Company or any of its
Subsidiaries. No release, threatened release or disposal of hazardous waste,
solid waste or other wastes is occurring or has occurred on, under or to any
real property in which the Company or any of its Subsidiaries holds any
interest or performs any of its operations, in violation of any Environmental
Law.
4.14 YEAR 2000. The Company has made a full and complete assessment of
the Year 2000 Issues and believes it has a realistic and achievable program for
remediating the Year 2000 Issues on a timely basis (the "Year 2000 Program").
Based on this assessment and on the Year 2000 Program, the Borrower does not
reasonably anticipate that Year 2000 Issues will have a material adverse effect
on the financial condition or business of the Company or any of its
Subsidiaries.
ARTICLE V
COVENANTS
---------
5.1 AFFIRMATIVE COVENANTS. The Company covenants and agrees that, until
the Termination Date and thereafter until payment in full of the principal of
and accrued interest on the Notes and the performance of all other obligations
of the Company under this Agreement, unless the Required Banks shall otherwise
consent in writing, it shall, and shall cause each of its Subsidiaries to:
(a) PRESERVATION OF EXISTENCE, ETC. (i) Do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and its qualification in good standing to do business in each
jurisdiction in which such qualification is necessary under applicable law, and
the rights, licenses, permits (including those required under Environmental
Laws), franchises, patents, copyrights, trademarks and trade names material to
the conduct of its businesses; and defend all of the foregoing against all
claims, actions, demands, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory authority.
(ii) Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect the legal existence of each
of the Partners and their qualification in good standing to do business in each
jurisdiction in which such qualification is necessary under applicable law, and
the rights, licenses, permits (including those required under Environmental
Laws),
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franchises, patents, copyrights, trademarks and trade names material to the
conduct of their businesses; and defend all of the foregoing against all
claims, actions, demands, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory
authority.
(b) COMPLIANCE WITH LAWS, ETC. Comply in all material respects
with all applicable laws, rules, regulations and orders of any governmental
authority whether federal, state, local or foreign (including without limitation
ERISA, the Code and Environmental Laws), in effect from time to time; and pay
and discharge promptly when due all taxes, assessments and governmental charges
or levies imposed upon it or upon its income, revenues or property, before the
same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise, which, if unpaid, might give rise to
Liens upon such properties or any portion thereof, except to the extent that
payment of any of the foregoing is then being contested in good faith by
appropriate legal proceedings and with respect to which adequate financial
reserves have been established on the books and records of the Company or such
Subsidiary.
(c) MAINTENANCE OF PROPERTIES; INSURANCE. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company or any of its Subsidiaries and keep such property in good repair,
working order and condition and from time to time make, or cause to be made all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times in accordance with customary and prudent
business practices for similar businesses; and, in addition to that insurance
required under the Security Documents, maintain in full force and effect
insurance with responsible and reputable insurance companies or associations in
such amounts, on such terms and covering such risks, including fire and other
risks insured against by extended coverage, as is usually carried by companies
engaged in similar businesses and owning similar properties similarly situated
and maintain in full force and effect public liability insurance, insurance
against claims for personal injury or death or property damage occurring in
connection with any of its activities or any of any properties owned, occupied
or controlled by it, in such amount as it shall reasonably deem necessary, and
maintain such other insurance as may be required by law or as may be reasonably
requested by the Required Banks for purposes of assuring compliance with this
Section 5.1(c).
(d) REPORTING REQUIREMENTS. Furnish to the Banks and the Agent
the following:
(i) Promptly and in any event within three Business
Days after becoming aware of the occurrence of (A) any Event of Default or
Default, (B) the commencement of any material litigation against, by or
affecting the Company, the Partners, or any of the Subsidiaries, and any
material developments therein, or (C) entering into any material contract or
undertaking that is not entered into in the ordinary course of business or (D)
any development in the business or affairs of the Company or any of its
Subsidiaries which has resulted in or which is likely in the reasonable
judgment of the Company, to result in a material adverse change in the
business, properties, operations or condition, financial or otherwise of the
Company or any of its Subsidiaries, a statement of the chief financial officer
of the Company setting forth details of each such Event of Default or Default
and such litigation, material contract or undertaking or development and the
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action which the Company or such Subsidiary, as the case may be, has taken and
proposes to take with respect thereto;
(ii) As soon as available and in any event within 45
days after the end of each of the first three fiscal quarters of the Company,
the consolidated balance sheet of the Company and its Subsidiaries as of the
end of such quarter, and the related consolidated statements of income,
retained earnings and changes in financial position for the period commencing
at the end of the previous fiscal year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures for
the corresponding date or period of the preceding fiscal year, all in
reasonable detail and duly certified (subject to year-end audit adjustments) by
the chief financial officer of the Company as having been prepared in
accordance with generally accepted accounting principles, together with a
certificate of the chief financial officer of the Company stating that no Event
of Default or Default has occurred and is continuing or, if an Event of Default
or Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the Company has taken and proposes to take
with respect thereto;
(iii) As soon as available and in any event within 90
days after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income, retained
earnings and changes in financial position of the Company and its Subsidiaries
for such fiscal year, as provided by the Company to the Partners under the
Partnership Agreement, with a customary audit report of independent certified
public accountants selected by the Company if required to be delivered to the
Partners under the Partnership Agreement, together with a certificate of the
chief financial officer of the Company stating that no Event of Default or
Default has occurred and is continuing or, if an Event of Default or Default
has occurred and is continuing, a statement setting forth the details thereof
and the action which the Company has taken and proposes to take with respect
thereto;
(iv) Promptly and in any event within 10 calendar days
after receiving or becoming aware thereof, (A) a copy of any notice of intent
to terminate any Plan filed with the PBGC, (B) a statement of the chief
financial officer of the Company setting forth the details of the occurrence of
any Reportable Event with respect to any Plan, (C) a copy of any notice that
the Company, any of its Subsidiaries or any ERISA Affiliate may receive from
the PBGC relating to the intention of the PBGC to terminate any Plan or to
appoint a trustee to administer any Plan, or (D) a copy of any notice of
failure to make a required installment or other payment within the meaning of
Section 412(n) of the Code or Section 302(f) of ERISA with respect to a Plan;
(v) Promptly and in any event within 10 days after
receipt, a copy of any management letter or comparable analysis prepared by the
auditors for the Company or any of its Subsidiaries;
(vi) Annually and concurrently with being delivered to
the Management Committee, the business plan to be reviewed by the Management
Committee, as well as any revisions of the business plan reviewed by the
Management Committee;
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(vii) Annually, on or before the anniversary date of
this Agreement, a certificate of the Company's chief financial officer stating
that he or she has reviewed the Security Documents and that the Company is in
compliance with the terms thereof; and
(viii) Promptly, such other information respecting the
business, properties, operations or condition, financial or otherwise, of the
Company or any of it Subsidiaries as any Bank or the Agent may from time to
time reasonably request.
(e) ACCOUNTING, ACCESS TO RECORDS, BOOKS, ETC. Maintain a system
of accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
generally accepted accounting principles and to comply with the requirements of
this Agreement and, at any reasonable time and from time to time, (i) permit any
Bank or the Agent any agents or representatives thereof to examine (and upon the
occurrence and during the continuance of any Event of Default, make copies of
and abstracts from) the records and books of account of, and visit the
properties of, the Company and its Subsidiaries, and to discuss the affairs,
finances and accounts of the Company and its Subsidiaries with their respective
directors, officers, employees and independent auditors, and by this provision
the Company does hereby authorize such persons to discuss such affairs, finances
and accounts with any Bank or the Agent, and (ii) permit the Agent or any of its
agents or representatives to conduct a comprehensive field audit of its books,
records, properties and assets, including without limitation all collateral
subject to the Security Documents.
(f) ADDITIONAL SECURITY AND COLLATERAL. Promptly execute and
deliver, and cause each of the Guarantors to execute and deliver, additional
Security Documents, within 30 days after request therefor by the Banks and the
Agent, sufficient to grant to the Banks and the Agent liens and security
interests in any after acquired property of the type described in Section 2.10.
The Company shall notify the Banks and the Agent, within 10 days after the
occurrence thereof, of any event or condition that may require additional action
of any nature in order to preserve the effectiveness and perfected status of the
liens and security interests of the Banks and the Agent pursuant to the Security
Documents.
(g) FURTHER ASSURANCES. Will, and will cause each Guarantor to,
execute and deliver within 30 days after request therefor by the Banks and the
Agent, all further instruments and documents and take all further action that
may be necessary or desirable, or that the Agent may request, in order to give
effect to, and to aid in the exercise and enforcement of the rights and remedies
of the Banks under, this Agreement, the Notes and the Security Documents,
including without limitation causing each lessor of real property to the Company
or any Subsidiary to execute and deliver to the Agent, prior to or upon the
commencement of any tenancy, an agreement in form and substance acceptable to
the Bank and the Agent duly executed on behalf of such lessor waiving any
distraint, lien and similar rights with respect to any property subject to the
security documents and agreeing to permit the Banks and the Agent to enter such
premises in connection therewith. The Company further agrees to deliver to the
Agent, on or before each anniversary date of the Effective Date, a certificate
of the chief financial officer of the Company stating that he has reviewed the
Security Documents and that the Company and each Guarantor are in compliance
with the terms and conditions thereof. The Company shall take, or cause to be
taken, all action necessary to permit
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such an opinion to be rendered, including filing such financing statements and
continuation statements and executing and delivering such supplements to the
Security Documents and other instruments as may be necessary or desirable in
connection with such opinion.
(h) PAYMENT OF INDEBTEDNESS TO OTHERS. Pay when due (or within
any applicable grace periods) all Indebtedness due to third Persons, except when
the amount thereof is being contested in good faith by appropriate proceedings
and with adequate reserves therefor being set aside on the Company's financial
books and records. If the Company fails to make any such payment, the Company
shall give the Agent proper notice of the failure. The Company further agrees to
make all lease payments when due, and to take no action that could result in any
additional fees or penalties being imposed under any leases, such as late fees,
prepayment penalties, or cancellation penalties.
(i) YEAR 2000 ISSUES. The Company will take reasonable steps to
eliminate all material Year 2000 Issues of which it becomes aware, and will
allocate sufficient reserves or budget to implement appropriate corrective
actions.
5.2 NEGATIVE COVENANTS. Until the Maturity Date and thereafter until
payment in full of the principal of and accrued interest on the Notes and the
performance of all other obligations of the Company under this Agreement, the
Company agrees that, unless the Required Banks shall otherwise consent in
writing, it shall not, and shall not permit any of its Subsidiaries to:
(a) INDEBTEDNESS. Create, incur, assume, or in any manner become
liable in respect of, or suffer to exist, any Indebtedness other than:
(i) The Loans;
(ii) The Indebtedness described on Schedule 5.2(a)
hereto, having the same terms as those existing on the
date of this Agreement, but no extension or renewal
thereof shall be permitted;
(iii) Indebtedness of any Subsidiary of the Company
owing to the Company or to any other Subsidiary of the
Company;
(iv) Liabilities not exceeding $2,000,000 in the
aggregate in respect of Unfunded Benefit Liabilities
under any Plan or of any ERISA Affiliate; and
(v) Indebtedness under Capital Leases and Indebtedness
arising under purchase money obligations incurred solely
to finance the acquisition of equipment, PROVIDED that
the principal amount of such Indebtedness does not
exceed the cost of the equipment purchased and the
aggregate principal amount of all such Indebtedness,
together with the Indebtedness under Capital Leases,
does not exceed $1,500,000 at any time.
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(vi) Other Indebtedness in aggregate principal amount
not exceeding $500,000 outstanding at any one time.
Notwithstanding anything else contained in this Agreement, the Company
may incur Indebtedness to the Partners or the Guarantors, or any of them, in
aggregate principal amount not to exceed Ten Million Dollars ($10,000,000) at
any one time outstanding, and make payments of principal and interest thereon
(irrespective of the limitations contained in Section 5.2(j)) PROVIDED, HOWEVER,
that, upon the occurrence and during the continuance of any Default or Event of
Default, all such Indebtedness to the Partners and to the Guarantors shall be
subordinated to all Indebtedness now or hereafter owing by the Company to the
Banks until all Indebtedness owing by the Company to the Banks has been
irrevocably paid in full.
(b) LIENS. Create, incur or suffer to exist any Lien on any of
the assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and
as to which adequate financial reserves have been
established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA)
created and maintained in the ordinary course of
business which do not secure obligations exceeding
$500,000 in the aggregate and which would not have a
material adverse effect on the business or operations of
the Company or any of its Subsidiaries and which
constitute (A) pledges or deposits under worker's
compensation laws, unemployment insurance laws or
similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to
which the Company or any of its Subsidiaries is a party
for a purpose other than borrowing money or obtaining
credit, including rent security deposits, (C) liens
imposed by law, such as those of carriers, warehousemen
and mechanics, if payment of the obligation secured
thereby is not yet due, (D) Liens securing taxes,
assessments or other governmental charges or levies not
yet subject to penalties for nonpayment, and (E) pledges
or deposits to secure public or statutory obligations of
the Company or any of its Subsidiaries, or surety,
customs or appeal bonds to which the Company or any of
its Subsidiaries is a party;
(iii) Liens affecting real property which constitute
minor survey exceptions or defects or irregularities in
title, minor encumbrances, easements or reservations of,
or rights of others for, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use
of such real property, PROVIDED that all of the
foregoing, in the aggregate, do not at any time
materially detract from the value of said properties or
materially impair their use in the operation of the
businesses of the Company or any of its Subsidiaries;
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(iv) Liens created pursuant to the Security Documents
and Liens expressly permitted by the Security Documents;
(v) Each Lien described on Schedule 5.2(b) hereto may be
suffered to exist upon the same terms as those existing
on the date hereof, but no extension or renewal thereof
shall be permitted;
(vi) Liens securing purchase money Indebtedness
permitted under Section 5.2(a)(v), PROVIDED that any
such Lien only encumbers the assets purchased with the
proceeds of such Indebtedness; and
(vii) The interest or title of a lessor under any
Capital Lease or other lease otherwise permitted under
this Agreement with respect to the property subject to
such lease to the extent performance of the obligations
of the Company or its Subsidiary thereunder are not
delinquent.
(c) NET WORTH. Permit or suffer the Consolidated Net Worth of
the Company and its Subsidiaries from and after September 1, 1999, to be less
than $12,000,000.
(d) TOTAL EQUITY. Permit or suffer the total capital
contribution to the Company of ACTI as of September 1, 1999, to be less than
$20,567,000, or the total capital contribution to the Company of Izumi U.S.
as of September 1, 1999, to be less than $13,711,000.
(e) MERGER, ACQUISITIONS, ETC. Purchase or otherwise acquire,
whether in one or a series of transactions, all or a substantial portion of the
business assets, rights, revenues or property, real, personal or mixed, tangible
or intangible, of any person, or all or a substantial portion of the capital
stock of or other ownership interest in any other person; nor merge or
consolidate or amalgamate with any other person or take any other action having
a similar effect, nor enter into any joint venture or similar arrangement with
any other person, PROVIDED, HOWEVER, that this subsection shall not prohibit any
merger or acquisition if the Company shall be the surviving or continuing person
and, immediately after such merger or acquisition, no Default or Event of
Default shall exist or shall have occurred and be continuing and, prior to the
consummation of such merger or acquisition, the Company shall have provided to
the Banks an opinion of counsel and a certificate of the chief financial officer
of the Company (attaching computations to demonstrate compliance with all
financial covenants hereunder), each stating that such merger or acquisition
complies with this subsection and that any other conditions under this Agreement
relating to such transaction have been satisfied and PROVIDED, FURTHER, that
this subsection shall not prohibit the incorporation of the Company so long as
the equity interests on the resulting corporation are owned only by the Partners
in the same proportions as the Company is owned by them prior to the
incorporation, and the Company, the Agent, and the Banks shall amend this
Agreement, the Notes, and the Security Documents as necessary to accommodate
such incorporation.
(f) DISPOSITION OF ASSETS; ETC. Sell, lease, license, transfer,
assign or otherwise dispose of all or a substantial portion of its business,
assets, rights, revenues or property, real,
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personal or mixed, tangible or intangible, whether in one or a series of
transactions, other than finished inventory sold in the ordinary course of
business upon customary credit terms and sales of scrap or obsolete material or
equipment, PROVIDED, HOWEVER, that, if no Default or Event of Default is
existing or would result therefrom, this subsection shall not prohibit any such
sale, lease, license, transfer, assignment or other disposition of assets if
the aggregate book value (disregarding any write-downs of such book value other
than ordinary depreciation and amortization) of all of such business, assets,
rights, revenues and property disposed of after the date of this Agreement
shall be less than twenty-five percent of such aggregate book value of the
total assets of the Company or such Subsidiary, as the case may be.
(g) NATURE OF BUSINESS. Make any substantial change in the
nature of its business from that engaged in on the date of this Agreement or
engage in any other businesses other than those in which it is engaged on the
date of this Agreement.
(h) TRANSACTIONS WITH AFFILIATES. Enter into, become a party to,
or become liable in respect of, any contract or undertaking with any Affiliate
except in the ordinary course of business and on terms not less favorable to the
Company or such Subsidiary than those which could be obtained if such contract
or undertaking were an arms length transaction with a person other than an
Affiliate.
(i) NEGATIVE PLEDGE LIMITATION. Enter into any Agreement with
any person other than the Banks pursuant hereto which prohibits or limits the
ability of the Company or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, whether now owned or hereafter
acquired.
(j) DISTRIBUTIONS AND OTHER RESTRICTED PAYMENTS. Except as
permitted under the last paragraph of Section 5.2(a), make, pay, declare, or
authorize any payment or distribution in respect of any partnership interest or
in connection with any redemption, purchase, retirement, or other acquisition,
directly or indirectly, of any partnership interests, or make or authorize any
payments on any loan, advance, or other credit extension made by any of the
Partners, the Guarantors, or their Affiliates, PROVIDED, HOWEVER, that, if no
Default or Event of Default is existing or would result therefrom, the Company
may authorize and make payments and other distributions during or with respect
to any fiscal year which, in the aggregate, do not exceed fifty percent (50%) of
the Consolidated Cumulative Net Income before Taxes of the Company and its
Subsidiaries for such year.
(k) INVESTMENT, LOANS, AND ADVANCES. Make any loan, advance, or
other credit extension to, or purchase or otherwise acquire any capital stock of
or other ownership interest in, or debt security of or other evidences of
Indebtedness of, any of the Partners, the Guarantors, or their Affiliates.
(l) INCONSISTENT AGREEMENTS. Enter into any agreement containing
any provision which would be violated or breached by this Agreement or any of
the transactions contemplated
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hereby or by performance by the Company or any of its Subsidiaries or any
Guarantor of its obligations in connection therewith.
(m) PAYMENTS FOLLOWING GUARANTOR DEFAULT. Following the
occurrence of a Guarantor Default, and during the continuance of a Forbearance
Period, make any payments or prepayments of principal or interest on any
outstanding Indebtedness except for regularly scheduled payments of principal
and interest otherwise due in the absence of the Guarantor Default.
ARTICLE VI
DEFAULT
6.1 EVENTS OF DEFAULT. The occurrence of any one of the following events
or conditions shall be deemed an "Event of Default" hereunder unless waived by
the Required Banks pursuant to Section 8.1:
(a) NONPAYMENT. The Company shall fail to pay when due any
principal of or interest on the Notes or any fees or any other amount payable
hereunder;
(b) MISREPRESENTATION. Any representation or warranty made by
the Company in Article IV hereof or in any Security Document or any other
certificate, report, financial statement or other document furnished by or on
behalf of the Company in connection with this Agreement, shall prove to have
been incorrect in any material respect when made or deemed made;
(c) CERTAIN COVENANTS. The Company shall fail to perform or
observe any term, covenant or agreement contained in Article V hereof, or there
occurs any change in the ownership of the Company or of any of the Partners;
(d) OTHER DEFAULTS. The Company shall fail to perform or observe
any other term, covenant or agreement contained in this Agreement or in any
Security Document, and any such failure shall remain unremedied for 15 calendar
days after notice thereof shall have been given to the Company by the Agent (or
such longer or shorter period of time as may be specified in such Security
Document);
(e) OTHER INDEBTEDNESS. The Company or any of its Subsidiaries
shall fail to pay any part of the principal of, the premium, if any, or the
interest on, or any other payment of money due under any of its Indebtedness
(other than Indebtedness hereunder), beyond any period of grace provided with
respect thereto; or if the Company or any of its Subsidiaries fails to perform
or observe any other term, covenant or agreement contained in any agreement,
document or instrument evidencing or securing any such Indebtedness, or under
which any such Indebtedness was issued or created, beyond any period of grace,
if any, provided with respect thereto if the effect of such failure is either
(i) to cause, or permit the holders of such Indebtedness (or a trustee on behalf
of such holders) to cause, any payment in respect of such Indebtedness to become
due prior to its due date
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or (ii) to permit the holders of such Indebtedness (or a trustee on behalf of
such holders) to assume operational control of the Company;
(f) JUDGMENTS. One or more judgments or orders for the payment
of money in an aggregate amount of $500,000 shall be rendered against the
Company, the Partners or any of its Subsidiaries, or any other judgment or order
(whether or not for the payment of money) shall be rendered against or shall
affect the Company, the Partners or any of its Subsidiaries which causes or
could cause a material adverse change in the business, properties, operations or
condition, financial or otherwise, of the Company, the Partners or any of its
Subsidiaries or which does or could have a material adverse effect on the
legality, validity or enforceability of this Agreement, the Notes or any
Security Document, and either (i) such judgment or order shall have remained
unsatisfied and the Company, such Partner or such Subsidiary shall not have
taken action necessary to stay enforcement thereof by reason of pending appeal
or otherwise, prior to the expiration of the applicable period of limitations
for taking such action or, if such action shall have been taken, a final order
denying such stay shall have been rendered, or (ii) enforcement proceedings
shall have been commenced by any creditor upon any such judgment or order;
(g) ERISA. The occurrence of a Reportable Event that results in
or could result in liability of the Company, any Subsidiary of the Company or
any ERISA Affiliate to the PBGC or to any Plan and such Reportable Event is not
corrected within thirty (30) days after the occurrence thereof; or the
occurrence of any Reportable Event which could constitute grounds for
termination of any Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer any Plan and such
Reportable Event is not corrected within thirty (30) days after the occurrence
thereof; or the filing by the Company, any Subsidiary of the Company or any
ERISA Affiliate of a notice of intent to terminate a Plan or the institution of
other proceedings to terminate a Plan; or the Company, any Subsidiary of the
Company or any ERISA Affiliate shall fail to pay when due any liability to the
PBGC or to a Plan; or the PBGC shall have instituted proceedings to terminate,
or to cause a trustee to be appointed to administer, any Plan; or any person
engages in a Prohibited Transaction with respect to any Plan which results in or
could result in liability of the Company, any Subsidiary of the Company, any
ERISA Affiliate to make a required installment or other payment to any Plan
within the meaning of Section 302(f) of ERISA or Section 412(n) of the Code that
results in or could result in liability of the Company, any Subsidiary of the
Company or any ERISA Affiliate to the PBGC or any Plan; or the withdrawal of the
Company, any of its Subsidiaries or any ERISA Affiliate from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(9a)(2) of ERISA; or the Company, any of its Subsidiaries or any ERISA
Affiliate becomes an employer with respect to any Multiemployer Plan without the
prior written consent of the Required Banks;
(h) INSOLVENCY, ETC. The Company or any of the Partners shall be
dissolved or liquidated (or any judgment, order or decree therefor shall be
entered), or shall generally not pay its debts as they become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against the Company or any of the Partners any proceeding or
case seeking to adjudicate it a bankrupt or insolvent or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
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or reorganization or relief or protection of debtors or seeking the entry of an
order for relief, or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its assets, rights,
revenues or property, and, if such proceeding is instituted against the Company
or a Partner and is being contested by the Company or the Partner in good faith
by appropriate proceedings, such proceeding shall remain undismissed or unstayed
for a period of 60 days; or the Company or a Partner shall take any action
(corporate or other) to authorize or further any of the actions described above
in this subsection; or
(i) GUARANTOR DEFAULTS. Any event of default described in any
Guaranty shall have occurred and be continuing, and the holder of the defaulted
Guaranty notifies the Agent, the Guarantors, and the other Bank of such default
and requests in writing that such default be declared an Event of Default under
this Agreement.
6.2 REMEDIES.
(a) Upon the occurrence and during the continuance of any Event
of Default, and subject to the terms of Section 6.3, the Agent may and, upon
being directed to do so by any Bank, shall, within one Business Day, by notice
to the Company and the Guarantors, (i) terminate the Commitments or (ii) declare
the outstanding principal of, and accrued interest on, the Notes and all other
amounts owing under this Agreement to be immediately due and payable, or both of
the foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts shall become immediately due and payable, as the case may be, PROVIDED
that in the case of any event or condition described in Section 6.1(h) with
respect to the Company, the Commitments shall automatically terminate forthwith
and all such amounts shall automatically become immediately due and payable
without notice; in all cases without demand, presentment, protest, diligence,
notice of dishonor or other formality, all of which are hereby expressly waived.
(b) Subject to Section 6.3, the Agent may and, upon being
directed to do so by the Required Banks, shall, in addition to the remedies
provided in Section 6.2(a), exercise and enforce any and all other rights and
remedies available to it or the Banks, whether arising under this Agreement, the
Notes or any Security Document or under applicable law, in any manner deemed
appropriate by the Agent, including suit in equity, action at law, or other
appropriate proceedings, whether for the specific performance (to the extent
permitted by law) of any covenant or agreement contained in this Agreement or in
the Notes or any Security Document or in aid of the exercise of any power
granted in this Agreement, the Notes or any Security Document.
(c) Subject to Section 6.3, upon the occurrence and during the
continuance of any Event of Default, each Bank may at any time and from time to
time, without notice to the Company (any requirement for such notice being
expressly waived by the Company) set off and apply against any and all of the
obligations of the Company now or hereafter existing under this Agreement,
whether owing to such Bank or any other Bank or the Agent, any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Bank to or for the credit or the
account of the Company and any property of the Company from time to time in
possession of such Bank, irrespective of whether or not such Bank shall have
made any demand hereunder and although such obligations may be contingent and
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unmatured. The Company hereby grants to the Banks and the Agent a lien on and
security interest in all such deposits, indebtedness and property as collateral
security for the payment and performance of the obligations of the Company under
this Agreement. The rights of such Bank under this Section 6.2(c) are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which such Bank may have. Any funds obtained by the Agent or
any Bank under this subsection shall be shared between the Banks under Section
7.10.
(d) In addition to other amounts payable pursuant to this
Agreement, the Company confirms that it shall further pay, together with any
payment of the Loans hereunder after the occurrence and during the continuance
of any Event of Default, all amounts required to be paid pursuant to Section
3.8.
6.3 REMEDIES UPON GUARANTOR DEFAULT. (a) Upon a Guarantor Default
occurring, the Agent shall terminate the Commitments and declare the outstanding
principal of, and accrued interest on, the Notes and all other amounts owing
under this Agreement to be immediately due and payable, whereupon the
Commitments shall terminate and all such amounts shall become immediately due
and payable. Thereafter, each Bank may pursue any and all remedies which it may
have under its respective Guaranty with respect to its portion of the Company's
obligations hereunder, with any proceeds received by the Banks to be applied as
set forth in Section 7.10(a).
(b) During the continuance of a Guarantor Default, the Agent and
the Banks shall not pursue any remedies against the Company other than
terminating the Commitments and accelerating the obligations as permitted under
Section 6.3(a) until one of the following has occurred (such period from the
occurrence of a Guarantor Default until one of the following has occurred being
referred to as the "Forbearance Period"):
(i) A Default or an Event of Default (other than the
Guarantor Default) has occurred; or
(ii) A Guarantor Default exists and is continuing with
respect to each Guarantor; or
(iii) A period of thirty (30) days has passed from the
date the Guarantor Default occurred, and the Guarantor Default
has not been cured or waived in writing by the Banks.
(c) Notwithstanding any other provision of this Agreement to the
contrary, during the Forbearance Period, the Agent and the Banks agree that (i)
there shall be due and payable under this Agreement from the Company only such
amounts as would be due and payable if no Guarantor Default had occurred,
PROVIDED, HOWEVER, that any interest which accrues during the Forbearance Period
shall accrue and be payable at the Overdue Rate, and (ii) no Event of Default
shall occur or be declared under Section 6.1(a) unless and until the Company
fails to pay when due any amounts due and payable under Section 6.3(c)(i).
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ARTICLE VII
THE AGENT AND THE BANKS
-----------------------
7.1 APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement, the Notes and the Security Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. The provisions of this Article VII
are solely for the benefit of the Agent and the Banks, and the Company shall not
have any rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
the Company.
7.2 AGENT AND AFFILIATES. Bank One, in its capacity as a Bank hereunder,
shall have the same rights and powers hereunder as any other Bank and may
exercise or refrain from exercising the same as though it were not the Agent.
Bank One and its affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with the Company, any
Guarantor, or any Subsidiary of the Company as if it were not acting as Agent
hereunder, and may accept fees and other consideration therefor without having
to account for the same to the Banks.
7.3 SCOPE OF AGENT'S DUTIES. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement, have a fiduciary relationship with any Bank, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or shall otherwise exist against the Agent. As to any
matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement action under the Notes and the Security
Documents), the Agent shall not be required to exercise any discretion or take
any action, but may request instructions from the Required Banks. The Agent
shall in all cases be fully protected in acting, or in refraining from acting,
pursuant to the written instructions of the Required Banks, which instructions
and any action or omission pursuant thereto shall be binding upon all of the
Banks; PROVIDED, HOWEVER, that the Agent shall not be required to act or omit to
act if, in the judgment of the Agent, such action or omission may expose the
Agent to personal liability or is contrary to this Agreement, the Notes or the
Security Documents or applicable law.
7.4 RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto. The Agent
may employ agents (including, without limitation, collateral agents) and may
consult with legal counsel (who may be counsel for the Company), independent
public accounts and other
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experts selected by it and shall not be liable to the Banks, except as to money
or property received by it or its authorized agents, for the negligence or
misconduct of any such agent selected by it with reasonable care or for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
7.5 DEFAULT. The Agent shall not be deemed to have knowledge of the
occurrence of any Default or Event of Default, unless the Agent has received
written notice from a Bank or the Company specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice, the Agent shall give written notice thereto to
the Banks.
7.6 LIABILITY OF AGENT. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to the Banks for any action taken
or not taken by it or them in connection herewith with the consent or at the
request of the Required Banks or in the absence of its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any recital, statement, warranty or
representation contained in this Agreement, any Note or any Security Document,
or in any certificate, report, financial statement or other document furnished
in connection with this Agreement, (ii) the performance or observance of any of
the covenants or agreements of the Company or any Guarantor, (iii) the
satisfaction of any condition specified in Article II hereof, of (iv) the
validity, effectiveness, legal enforceability, value or genuineness of this
Agreement, the Notes or the Security Documents or any collateral subject thereto
or any other instrument or document furnished in connection herewith.
7.7 NONRELIANCE ON AGENT AND OTHER BANKS. Each Bank acknowledges and
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Company and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decision in
taking or not taking action under this Agreement. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Company or any Guarantor of this Agreement, the Notes or the Security Documents
or any other documents referred to or provided for herein or to inspect the
properties or books of the Company or any Guarantor and, except for notices,
reports and other documents and information expressly required to be furnished
to the Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any information concerning the affairs,
financial condition or business of the Company or any of its Subsidiaries which
may come into the possession of the Agent or any of its affiliates.
7.8 INDEMNIFICATION. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Company, but without limiting any obligation of the
Company to make such reimbursement), ratably according to the respective
principal amounts of the Loans then outstanding made by each of them (or if no
Loans are at the time outstanding, ratably according to the respective amounts
of their Commitments), from and against any and all claims, damages, losses,
liabilities, costs or expenses of any kind or nature whatsoever (including,
without limitation, fees and
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disbursements of counsel) which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or
the transactions contemplated hereby or any action taken or omitted by the
Agent under this Agreement, PROVIDED, HOWEVER, that no Bank shall be liable for
any portion of such claims, damages, losses, liabilities, costs or expenses
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including,
without limitation, fees and expenses of counsel) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Company, but without limiting the
obligation of the Company to make such reimbursement. Each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any amounts
owing to the Agent by the Banks pursuant to this Section. If the indemnity
furnished to the Agent under this Section shall, in the judgment of the Agent,
be insufficient or become impaired, the Agent may call for additional indemnity
from the Banks and cease, or not commence, to take any action until such
additional indemnity is furnished.
7.9 RESIGNATION OF AGENT. The Agent may resign as such at any time upon
thirty days' prior written notice to the Company and the Banks. In the event of
any such resignation, the Required Banks shall, by an instrument in writing
delivered to the Company and the Agent, appoint a successor, which shall be
Asahi, or, if Asahi declines, then a commercial bank acceptable to the Banks. If
a successor is not so appointed or does not accept such appointment before the
Agent's resignation becomes effective, the resigning Agent may appoint a
temporary successor to act until such appointment by the Required Banks is made
and accepted or if no such temporary successor is appointed as provided above by
the resigning Agent, the Required Banks shall thereafter perform all the duties
of the Agent hereunder until such appointment by the Required Banks is made and
accepted. Any successor to the Agent shall execute and deliver to the Company
and the Banks an instrument accepting such appointment and thereupon such
successor Agent, without further act, deed, conveyance or transfer shall become
vested with all of the properties, rights, interests, powers, authorities and
obligations of its predecessor hereunder with like effect as if originally named
as Agent hereunder. Upon request of such successor Agent, the Company and the
resigning Agent shall execute and deliver such instruments of conveyance,
assignment and further assurance and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in such successor
Agent all such properties, rights, interests, powers, authorities and
obligations. The provisions of this Article VII shall thereafter remain
effective for such resigning Agent with respect to any actions taken or omitted
to be taken by such Agent while acting as the Agent hereunder.
7.10 SHARING OF PAYMENTS. (a) The Banks agree among themselves that, in
the event that any Bank shall obtain payment in respect of any Loan or any other
obligation owing to the Banks under this Agreement through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise in excess of its Pro
Rata Share, such Bank shall promptly purchase from the other Banks
participations in such Loans and other obligations in such amounts, and make
such other adjustments from time to time, as shall be equitable to the end that
all of the Banks share such payment in accordance with such ratable shares,
PROVIDED, HOWEVER, that no sharing shall be
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required in respect of any payments received by any Bank from a Guarantor under
its respective Guaranty, or in respect of any sale or assignment of all Notes
held by any Bank under Section 8.6 below, and any amounts so received shall be
applied to pay all amounts owed by the Company or the respective Guarantor to
the receiving Bank and the receiving Bank has no obligation to share any
payments so received with the Agent or the other Bank. This provision shall not
release either Bank from its obligations to the Agent under this Agreement, and
shall not affect the application of funds received from the Company under this
Agreement or under the Security Documents (other than the Guaranties).
(b) The Banks further agree among themselves that if payment to
a Bank obtained by such Bank through the exercise of a right of set-off,
banker's lien, counterclaim or otherwise as aforesaid shall be rescinded or must
otherwise be restored, each Bank which shall have shared the benefit of such
payment shall, by repurchase of participations theretofore sold, return its
share of that benefit to each Bank whose payment shall have been rescinded or
otherwise restored. The Company agrees that any Bank so purchasing such a
participation may, to the fullest extent permitted by law, exercise all rights
of payment, including set-off, banker's lien or counterclaim, with respect to
such participation as fully as if such Bank were a holder of such Loan or other
obligation in the amount of such participation. The Banks further agree among
themselves that, in the event that amounts received by the Banks and the Agent
hereunder are insufficient to pay all such obligations or insufficient to pay
all such obligations when due, the fees and other amounts owing to the Agent in
such capacity shall be paid therefrom before payment of obligations owing to the
Banks under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Bank or the Agent shall fail to remit to the Agent or any
other Bank an amount payable by such Bank or the Agent to the Agent or such
other Bank pursuant to this Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Bank at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Banks and the Agent that if the Agent shall
engage in any other transactions with the Company and shall have the benefit of
any collateral or security therefor which does not expressly secure the
obligations arising under this Agreement except by virtue of a so-called dragnet
clause or comparable provision, the Agent shall be entitled to apply any
proceeds of such collateral or security first in respect of the obligations
arising in connection with such other transaction before application to the
obligations arising under this Agreement.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 AMENDMENTS, ETC. (a) No amendment, modification, termination or
waiver of any provision of this Agreement nor any consent to any departure
therefrom shall be effective unless the same shall be in writing and signed by
the Required Banks and, to the extent any rights or duties of the Agent may be
affected thereby, the Agent, PROVIDED, HOWEVER, that either Bank may in its sole
discretion amend or discharge the Guaranty made in its favor.
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(b) Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
8.2 NOTICES. (a) All notices and other communications hereunder shall be
in writing and shall be delivered or sent to the Company at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer, Facsimile
No. (000) 000-0000, with a copy to Amcast at 0000 Xxxxxxxxxx Xxxxxxx Xxxxx,
Xxxxxx, Xxxx 00000-0000, Attention: Chief Financial Officer, Facsimile No. (937)
291-7007, and to the Agent and the Banks at the respective addresses and numbers
for notices set forth on the signature pages hereof, or to such other address as
may be designated by the Company, the Agent or any Bank by notice to the other
parties hereto. All notices and other communications shall be deemed to have
been given at the time of actual delivery thereof to such address, or if sent by
facsimile, at the time of sending, or if sent by certified or registered mail,
postage prepaid, to such address, on the third day after the date of mailing,
PROVIDED, HOWEVER, that notices to the Agent shall not be effective until
received.
(b) Notices by the Company to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.2, requests
for Loans pursuant to Section 2.4, requests for continuations or conversions of
Loans pursuant to Section 2.7, and notices of prepayment pursuant to Section 3.1
shall be irrevocable and binding on the Company.
8.3 NO WAIVER BY CONDUCT; REMEDIES CUMULATIVE. No course of dealing on
the part of the Agent or any Bank, nor any delay or failure on the part of the
Agent or any Bank in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Bank's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or any Bank under this Agreement, the Notes or any
Security Document is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy granted thereunder or now or hereafter existing under any applicable
law. Every right and remedy granted by this Agreement, the Notes or any Security
Document or by applicable law to the Agent or any Bank may be exercised from
time to time and as often as may be deemed expedient by the Agent or any Bank
and, unless contrary to the express provisions of this Agreement, the Notes or
any Security Document, irrespective of the occurrence or continuance of any
Default or Event of Default.
8.4 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All terms,
covenants, agreements, representations and warranties of the Company or any
Guarantor made herein or in any Security Document or in any certificate, report,
financial statement or other document furnished by or on behalf of the Company
or any Guarantor in connection with this Agreement shall be deemed to be
material and to have been relied upon by the Banks, notwithstanding any
investigation heretofore or hereafter made by any Bank or on such Bank's behalf,
and those covenants and agreements of the Company set forth in Section 3.6, 3.8
and 8.5 hereof shall survive the repayment in full of the Loans and the
termination of the Commitments.
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8.5 EXPENSES. The Company agrees to pay, or reimburse the Agent for the
payment of, on demand, (i) the reasonable fees and expenses of Xxxxxxxxx Xxxxxx
PLLC, counsel to the Agent, in the amount of $14,000 in connection with the
preparation, execution, and delivery of this Agreement, the Notes, and the
Security Documents, (ii) the reasonable fees and expenses of counsel to the
Agent in connection with advising the Agent as to its rights and
responsibilities with respect thereto, and in connection with any amendments,
waivers or consents in connection therewith, (iii) reasonable fees and expenses
of counsel to Asahi (not to exceed $7,000) in connection with the preparation,
execution, and delivery of this Agreement, the Notes, and the Security
Documents, (iv) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing or recording of this
Agreement, Notes, the Security Documents and the consummation of the
transactions contemplated hereby, and any and all liabilities with respect to or
resulting from any delay in paying or omitting to pay such taxes or fees, and
(v) all reasonable costs and expenses of the Agent and the Banks (including
reasonable fees and expenses of counsel and whether incurred through
negotiations, legal proceedings or otherwise) in connection with any Default or
Event of Default or the enforcement of, or the exercise or preservation of any
rights under, this Agreement or the Notes or any Security Document or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement.
8.6 SUCCESSORS AND ASSIGNS. (a) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, PROVIDED that the Company may not, without the prior consent of the
Required Banks, assign its rights or obligations hereunder or under the Notes or
any Security Document and the Banks shall not be obligated to make any Loan
hereunder to any entity other than the Company. With the prior written consent
of the Company, the Partners, the Guarantors, the Agent, and each other Bank,
any Bank may assign to any financial institution or institutions, and such
financial institution or institutions may further assign, all (but not less than
all) of such Bank's rights and benefits under this Agreement and the Notes and
the Security Documents. Notwithstanding the foregoing, each Bank may assign all
of its rights and benefits hereunder to any branch or other affiliate of such
Bank located within the United States upon prior written notice to the Company
and the Agent, without further consent, acknowledgment, or confirmation. To the
extent of any assignment, such assignee or assignees shall have the same rights
and benefits against the Company under Section 6.2(c) as it or they would have
had if such assignee or assignees were the Bank making the Loans to the Company
hereunder.
(b) The Agent from time to time in its sole discretion may
appoint agents for the purpose of servicing and administering this Agreement and
the transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under this Agreement, the Notes, any Security
Documents or otherwise. In furtherance of such agency, the Agent may from time
to time direct that the Company and the Guarantors provide notices, reports and
other documents contemplated by this Agreement (or duplicates thereof) to such
agent. The Company and each Guarantor consents to the appointment of such agent
and agrees to provide all such notices, reports and other documents and to
otherwise deal with such agent acting on behalf of the Agent in the same manner
as would be required if dealing with the Agent itself.
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8.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 GOVERNING LAW. This Agreement is a contract made under, and shall be
governed by and construed in accordance with, the law of the State of Indiana
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State. The Company
further agrees that any legal action or proceeding with respect to this
Agreement, the Notes or any Security Document or the transactions contemplated
hereby may be brought in any court of the State of Indiana, or in any court of
the United States of America sitting in Indiana, and the Company submits to and
accepts generally and unconditionally the jurisdiction of those courts with
respect to its person and property, and irrevocably appoints its Chief Financial
Officer, whose address in Indiana is set forth in Section 8.2, as its agent for
service of process and irrevocably consents to the service of process in
connection with any such action or proceeding by personal delivery to such agent
or to the Company or by the mailing thereof by registered or certified mail,
postage prepaid to the Company at its address set forth in Section 8.2. Nothing
in this paragraph shall affect the right of the Banks and the Agent to serve
process in any other manner permitted by law or limit the right of the Banks or
the Agent to bring any such action or proceeding against the Company or its
property in the courts of any other jurisdiction. The Company irrevocably waives
any objection to the laying of venue of any such suit or proceeding in the above
described courts.
8.9 TABLE OF CONTENTS AND HEADINGS. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 CONSTRUCTION OF CERTAIN PROVISIONS. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
8.11 INTEGRATION AND SEVERABILITY. This Agreement embodies the entire
agreement and understanding among the Company, the Agent, and the Banks, and
supersedes all prior agreements and understandings, relating to the subject
matter hereof. In case any one or more of the obligations of the Company under
this Agreement, the Notes or any Security Document shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Company shall not in any way be affected or
impaired thereby, and such invalidity, illegality or unenforceability in one
jurisdiction shall not affect the validity, legality or enforceability of the
obligations of the Company under this Agreement, the Notes or any Security
Document in any other jurisdiction.
8.12 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default or any event or
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49
condition which with notice or lapse of time, or both, could become such a
Default or an Event of Default if such action is taken or such condition
exists.
8.13 INTENT OF THE PARTIES. By executing this Agreement and the Notes,
the parties have no intention of extinguishing or terminating the rights,
interests, or obligations of the Borrower under the Prior Credit Agreement and
the promissory notes issued thereunder, except as set forth in Section 2.5(k),
but have executed this Agreement with the intention of replacing the terms of
the Prior Credit Agreement with the terms contained in this Agreement.
8.14 INTEREST RATE LIMITATION. Notwithstanding any provision of this
Agreement, the Notes or any Security Document, in no event shall the amount of
interest paid or agreed to be paid by the Company exceed an amount computed at
the highest rate of interest permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision of this Agreement, the
Notes or any Security Document at the time performance of such provision shall
be due, shall involve exceeding the interest rate limitation validly prescribed
by law which a court of competent jurisdiction may deem applicable hereto, then,
IPSO FACTO, the obligations to be fulfilled shall be reduced to an amount
computed at the highest rate of interest permissible under applicable law, and
if for any reason whatsoever the Bank shall ever receive as interest an amount
which would be deemed unlawful under such applicable law such interest shall be
automatically applied to the payment of principal of the outstanding hereunder
(whether or not then due and payable) and not to the payment of interest, or
shall be refunded to the Company if such principal and all other obligations of
the Company to the Banks have been paid in full.
8.15 WAIVER OF JURY TRIAL. THE BANKS AND THE COMPANY, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT EACH OF THEM MAY HAVE TO A TRIAL BY JURY IN
ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED
INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF EITHER OF THEM. NEITHER OF THE BANKS NOR THE COMPANY
SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN
WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE
BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY EITHER OF THE BANKS OR THE
COMPANY EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY EACH OF THEM.
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50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the day and year first above written.
CASTING TECHNOLOGY COMPANY
By: AMCAST CASTING TECHNOLOGIES,
INC., its General Partner
By: /s/ XXXXXXX X XXXXX
------------------------------------
Its: Vice President, Finance
------------------------------
And
By: IZUMI, INC., its General Partner
By: /s/ TOMOAKI IZUMI
------------------------------------
Its: President
------------------------------
Address for Notices: BANK ONE, INDIANA, NATIONAL
One Indiana Square ASSOCIATION, Individually and as Agent
IN 1-7034
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx By: /s/ XXXXXX X. XXXXXXXX
------------------------------------
Facsimile: (000) 000-0000 Its: First Vice President
Commitment Amount: $4,500,000 ------------------------------
Percentage of
Total Commitments: 60%
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51
Address for Notices: THE ASAHI BANK, LTD.,
000 Xxxxx XxXxxxx Xxxxxx acting through its Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Noriki Nagase By /s/ Noriki Nagase
----------------------------------
Facsimile No.: (000) 000-0000 Its: Manager
Commitment Amount: $3,000,000
Percentage of
Total Commitments: 40%
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52
AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
THIS AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE, dated as of
August 26, 1999 (this "Guaranty"), made by AMCAST INDUSTRIAL CORPORATION, an
Ohio corporation (the "Guarantor"), in favor of BANK ONE, INDIANA, NATIONAL
ASSOCIATION, formerly known as NBD Bank, N.A. ("Bank One").
Casting Technology Company, an Indiana general partnership (the
"Company"), has entered into a Credit and Intercreditor Agreement of even date
herewith (such agreement, as it may be amended from time to time, the "Credit
Agreement"), with Bank One, as a lender, and The Asahi Bank, Ltd., as a lender
(collectively, the "Banks"), and Bank One as agent for the Banks (in such
capacity, the "Agent"), pursuant to which the Banks have agreed to provide
certain credit facilities to the Company in an aggregate principal amount not
to exceed $32,100,000, of which Bank One has committed under the Credit
Agreement to provide sixty percent of the Loans extended to the Company under
the Credit Agreement.
The Credit Agreement is a continuation and refinancing of a Credit and
Intercreditor Agreement dated July 28, 1995 (as amended, the "Prior Credit
Agreement"), among the Company, NBD Bank (which assigned its interest in the
Prior Credit Agreement to Bank One), The Asahi Bank, Ltd., and NBD Bank as
agent. In connection with the Prior Credit Agreement, the Guarantor entered
into a Guaranty Agreement-NBD dated as of July 28, 1995 (as amended, the "Prior
Guaranty"), in favor of NBD Bank.
Amcast Casting Technologies, Inc. ("Casting") is a general partner of
the Company, and the Guarantor is the parent corporation of Casting.
As a condition to the effectiveness of the Bank One's obligations
under the Credit Agreement, the Guarantor is required to enter into this
Guaranty, amending and restating the Prior Guaranty, to guarantee, among other
things, certain obligations of the Company to Bank One under the Credit
Agreement and the Notes held and to be held by Bank One.
The Guarantor has participated in the drafting and negotiation of the
Credit Agreement, the Notes, the Security Documents, and all other documents,
agreements, instruments and certificates furnished by or on behalf of the
Company in connection therewith (all of the foregoing being herein collectively
referred to as the "Operative Documents"), and the Guarantor has determined
that it is in its interest and to its financial benefit that the parties to the
Operative Documents enter into the transactions contemplated thereby.
THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, and as further consideration, and to induce Bank One to enter
into the transactions contemplated by the Operative Documents, the Guarantor
agrees with Bank One as follows:
1. GUARANTEE OF OBLIGATIONS. (a) The Guarantor (i) guarantees to Bank
One the prompt payment of the principal of the loans made to the Company by
Bank One as a lender under the Credit Agreement but in no event more than
$19,260,000 (the "Bank One Share of the Loans") and any and all accrued and
unpaid interest on the Bank One Share of the Loans when due, whether by
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53
scheduled maturity, acceleration or otherwise, all in accordance with the terms
of the Credit Agreement and the Notes held and to be held by Bank One, and (ii)
agrees to make prompt payment, on demand, of any and all costs and expenses
incurred by Bank One or the Agent in connection with enforcing the obligations
of the Guarantor hereunder, including without limitation, the reasonable fees
and disbursements of counsel (all of the foregoing being collectively referred
to as the "Guaranteed Obligations").
(b) If for any reason any of the Guaranteed Obligations shall not be
paid in full when the same becomes due and payable, the Guarantor undertakes to
pay forthwith each such amount to Bank One regardless of any defense or setoff
or counterclaim which the Company may have or assert, and regardless of any
other condition or contingency. If the Guarantor shall make any payments in
respect of the Guaranteed Obligations, the Guarantor shall be subrogated pro
tanto to the rights of Bank One in connection therewith, PROVIDED, HOWEVER,
that no such rights of subrogation or any other rights of the Guarantor against
the Company in connection with the transactions contemplated hereby shall
accrue or be exercisable by the Guarantor until all principal of and accrued
and unpaid interest on the Loans and other amounts due under the Operative
Documents shall have been paid in full to the Banks and the Agent and not be
subject to any revocation or rescission.
(c) The date and amount of advances of principal made by Bank One in
respect of the Loans and of each payment of principal and interest thereon
received by Bank One, and the aggregate principal amount thereof and accrued
interest thereon shown upon the books and records of Bank One, and in any
certificate delivered by Bank One to the Guarantor in respect thereof, shall be
prima facie evidence of the principal amount and accrued interest owing and
unpaid on the Loans. The failure to record any such information on such books
and records shall not, however, limit or otherwise affect the obligations of
the Company to repay the principal amount of the Loans together with accrued
interest thereon or the obligations of the Guarantor hereunder with respect to
the Guaranteed Obligations.
2. NATURE OF GUARANTY. Subject to paragraph 8(d), this Guaranty is an
absolute and irrevocable guaranty of payment and not a guaranty of collection
and is wholly independent of and in addition to other rights and remedies of
Bank One and is not contingent upon the pursuit by Bank One of any such rights
and remedies, such pursuit being waived by the Guarantor.
3. WAIVERS AND OTHER AGREEMENTS. The Guarantor unconditionally (a)
waives any requirement that Bank One, in the event of any default by the
Company, first make demand upon, or seek to enforce remedies against, the
Company before demanding payment under or seeking to enforce this Guaranty, (b)
covenants that this Guaranty will not be discharged except by full payment of
the Guaranteed Obligations, (c) agrees that this Guaranty shall remain in full
force and effect without regard to, and shall not be affected or impaired,
without limitation, by any invalidity, irregularity or unenforceability in
whole or in part of any of the Operative Documents, or any limitation on the
liability of the Company thereunder, or any limitation on the method or terms
of payment thereunder which may now or hereafter be caused or imposed in any
manner whatsoever, (d) waives diligence, presentment and protest with respect
to, and any notice of default or dishonor
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
54
in the payment of any amount at any time payable by the Company under or in
connection with, any of the Operative Documents, and further waives any
requirement of notice of acceptance of, or other formality relating to, this
Guaranty and (e) agrees that the Guaranteed Obligations shall include any
amounts paid by the Company to Bank One which may be required to be returned to
the Company or to its representative or to a trustee, custodian or receiver for
the Company.
4. OBLIGATIONS ABSOLUTE. The obligations, covenants, agreements and
duties of the Guarantor under this Guaranty shall not be released, affected or
impaired by any of the following, whether or not undertaken with notice to or
consent of the Guarantor: (a) any assignment or transfer, in whole or in part,
of the Loans, or any of the Operative Documents, or (b) any waiver by Bank One
or by any other person of the performance or observance by the Company of any
of the agreements, covenants, terms or conditions contained in any of the
Operative Documents, or (c) any indulgence in or the extension of the time for
payment by the Company of any amounts payable under or in connection with any
of the Operative Documents, or of the time for performance by the Company of
any other obligations under or arising out of any of the Operative Documents,
or the extension or renewal thereof, or (d) the modification, amendment or
waiver (whether material or otherwise) of any duty, agreement or obligation of
the Company set forth in any of the Operative Documents (the modification,
amendment or waiver from time to time of the Credit Agreement, the Note or any
of the Security Documents to which the Company is a party being expressly
authorized without further notice to or consent of the Guarantor), or (e) the
voluntary or involuntary liquidation, sale or other disposition of all or
substantially all of the assets of the Company, or any receivership,
insolvency, bankruptcy, reorganization, or other similar proceedings, affecting
the Company or any of its assets, or (f) the release of any security, if any,
for the obligations of the Company under any of the Operative Documents, or the
impairment of or failure to perfect an interest in any such security, or (g)
the merger or consolidation of the Company or the Guarantor with any other
person, or (h) the release or discharge of the Company or the Guarantor from
the performance or observance of any agreement, covenant, term or condition
contained in any of the Operative Documents, by operation of law, or (i) any
other cause whether similar or dissimilar to the foregoing which would release,
affect or impair the obligations, covenants, agreements or duties of the
Guarantor hereunder.
5. REPRESENTATIONS AND WARRANTIES. As of the date hereof and as of the
date of each Loan made by Bank One to the Company, the Guarantor represents and
warrants that:
(a) CORPORATE EXISTENCE AND POWER. The Guarantor is a
corporation duly organized, validly existing and in good standing under the
laws of State of Ohio and is duly qualified to do business in each additional
jurisdiction where such qualification is necessary under applicable law except
where the failure to so qualify would not have a material adverse effect on the
Guarantor. The Guarantor has all requisite corporate power to own its
properties and to carry on its business as now being conducted and as proposed
to be conducted, and to execute and deliver this Guaranty and to engage in the
transactions contemplated by this Guaranty.
(b) CORPORATE AUTHORITY. The execution, delivery and
performance by the Guarantor of this Guaranty are within its corporate powers,
have been duly authorized by all
-3-
AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
55
necessary corporate action and are not in contravention of any law, rule or
regulation, or of any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of the terms of the Guarantor's
articles or code of regulations, or of any contract or undertaking to which the
Guarantor is a party or by which it or its property may be bound or affected.
(c) BINDING EFFECT. This Guaranty is the legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors rights generally and by general principles
of equity (whether applied in a proceeding at law or in equity).
(d) SUBSIDIARIES. Annex I hereto correctly sets forth the
corporate name, jurisdiction of organization, and ownership percentage with
respect to each Subsidiary of the Guarantor. Each such Subsidiary and each
corporation becoming a Subsidiary of the Guarantor after the date hereof is and
will be duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, and is and will be duly qualified to do
business in each additional jurisdiction where such qualification is or may be
necessary under applicable law except where the failure to so qualify would not
have a material adverse effect on the Guarantor. Each Subsidiary of the
Guarantor has and will have all requisite power to own its properties and to
carry on its business as now being conducted and as proposed to be conducted.
All outstanding shares of capital stock of each class of each corporate
Subsidiary of the Guarantor have been and will be validly issued and are and
will be fully paid and nonassessable and, except as otherwise indicated in
Annex I hereto or disclosed in writing to Bank One from time to time, are and
will be owned, beneficially and of record, by the Guarantor or another
Subsidiary of the Guarantor free and clear of any liens, charges, encumbrances
or rights of others whatsoever.
(e) LITIGATION. Except as set forth on Exhibit A, there is no
action, suit or proceeding pending or, to the best of the Guarantor's
knowledge, threatened against or affecting the Guarantor or any of its
Subsidiaries before or by any court, governmental authority or arbitrator,
which if adversely decided might result, either individually or collectively,
in any material adverse change in the business, properties, operations or
conditions, financial or otherwise, of the Guarantor or any of its Subsidiaries
and, to the best of the Guarantor's knowledge, there is no basis for any such
action, suit or proceeding.
(f) FINANCIAL CONDITION. The consolidated balance sheet of
the Guarantor and its Subsidiaries and the consolidated statements of income,
retained earnings and changes in financial position of the Guarantor and its
Subsidiaries for the fiscal year ended August 31, 1998, and certified by Ernst
& Young LLP, independent certified public accountants, and the interim
consolidated balance sheet and interim consolidated statements of income,
retained earnings and changes in financial position of the Guarantor and its
Subsidiaries, as of or for the nine-month period, ended on May 30, 1999, copies
of which have been furnished to Bank One, fairly present the consolidated
financial position of the Guarantor and its Subsidiaries as at the respective
dates thereof, and the consolidated results of operations of the Guarantor and
its Subsidiaries for the respective periods indicated, all in accordance with
generally accepted accounting principles
-4-
AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
56
consistently applied (subject, in the case of said interim statements, to
year-end audit adjustments). There has been no material adverse change in the
business, properties, operations or condition, financial or otherwise, of the
Guarantor or any of its Subsidiaries since August 31, 1998.
(g) CONSENTS, ETC. No consent, approval or authorization of
or declaration, registration or filing with any governmental authority or any
nongovernmental person or entity, including without limitation any creditor or
equity holder of the Guarantor or any of its Subsidiaries, is required on the
part of the Guarantor in connection with the execution, delivery and
performance of this Guaranty or the transactions contemplated hereby or as a
condition to the legality, validity or enforceability of this Guaranty.
(h) TAXES. The Guarantor and its Subsidiaries have filed all
tax returns (federal, state and local) required to be filed and have paid all
taxes shown thereon to be due, including interest and penalties, except for
those that are being contested in good faith by appropriate proceedings as to
which adequate financial reserves have been established on their respective
books and records for payment thereof.
(i) TITLE TO PROPERTIES. Except as set forth in the financial
statements described in paragraph 5(f) or as otherwise disclosed in the
financial statements delivered to Bank One pursuant to paragraph 6(d), the
Guarantor and its Subsidiaries have good and marketable title to, and a valid
indefeasible ownership interest in, all of their respective properties and
assets, free and clear of any lien or security interest, except for (i) liens
for taxes not delinquent or for taxes being contested in good faith by
appropriate proceedings as to which adequate financial reserves have been
established on its books and records, and (ii) liens created in connection with
workers' compensation, unemployment insurance, and social security, or to
secure the performance of bids, tenders or contracts (other than for the
repayment of borrowed money), leases, statutory obligations, surety and appeal
bonds, and other obligations of like nature made in the ordinary course of
business.
6. COVENANTS. The Guarantor agrees that, until the Maturity Date and
thereafter until payment in full of the principal of and accrued interest on
the Notes held by Bank One, and the performance of all other obligations of the
Company to Bank One under the Credit Agreement, unless Bank One shall otherwise
consent in writing:
(1) PRESERVATION OF CORPORATE EXISTENCE, ETC. The Guarantor
shall, and shall cause each of its Subsidiaries to preserve and maintain its
existence and qualify and remain qualified to do business in good standing in
each jurisdiction in which such qualification is necessary under applicable law
except where the failure to so qualify would not have a material adverse effect
on the Guarantor.
(b) COMPLIANCE WITH LAWS, ETC. The Guarantor shall, and shall
cause each of its Subsidiaries to comply in all material respects with all
applicable laws, rules, regulations and orders of any governmental authority,
noncompliance with which could materially and adversely affect the financial
condition or operations of the Guarantor or any of its Subsidiaries or the
legality, validity
-5-
AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
57
or enforceability of this Guaranty (such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property), except to the
extent that compliance with any of the foregoing is being contested in good
faith and by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of the
Guarantor or such Subsidiary.
(c) MAINTENANCE OF INSURANCE. The Guarantor shall, and shall
cause each of its Subsidiaries to maintain insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties similarly situated.
(d) REPORTING REQUIREMENTS. The Guarantor shall furnish to
Bank One the following:
(i) Within 45 days after the close of each of the
first three quarterly accounting periods in each fiscal year of the
Guarantor, the consolidated statements of financial condition of the
Guarantor as at the end of such quarterly period and the related
consolidated statements of operations, retained earnings and cash
flows for the elapsed portion of the fiscal year ended with the last
day of such quarterly period, all in reasonable detail, prepared in
accordance with generally accepted accounting principles consistently
applied throughout the period involved (except for such changes as are
disclosed in such financial statements or in the notes thereto and
concurred in by the independent certified public accountants) and with
the prior year and certified by the chief financial officer of the
Guarantor subject to customary year-end audit adjustments;
(ii) Within 90 days after the close of each fiscal
year of the Guarantor, the consolidated statements of financial
condition of the Guarantor as at the end of such fiscal year, the
related consolidated statements of operations, shareholders equity and
cash flows for such fiscal year, in each case setting forth
comparative figures of the preceding fiscal year, all in reasonable
detail, prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved (except
for such changes as are disclosed in such financial statements or in
the notes thereto and concurred in by the independent certified public
accounts) and with the prior year and accompanied by an opinion
relating thereto of independent certified public accountants of
recognized standing selected by the Guarantor;
(iii) At the time of the delivery of the financial
statements required by paragraph 6(d)(ii), a certificate of the
independent public accountants stating that, in making the examination
necessary for expressing an opinion on such financial statements,
nothing came to their attention that caused them to believe that there
is in existence any event of default or, if in the opinion of such
accountants any event of default exists, the certificate shall state
its nature and the length of time it has existed;
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
58
(iv) At the time of delivery of the financial
statements required by paragraphs 6(d)(i) and 6(d)(ii), a certificate
of the chief financial officer of the Guarantor to the effect either
that such officer is aware of no event of default or, if he is aware
that any event of default exists, specifying the nature thereof, its
period of existence and the action that is proposed to be taken with
respect thereto, and also setting forth the calculations required to
establish whether the Guarantor was in compliance with the provisions
of paragraphs 6(f), 6(g) and 6(h) as at the end of such fiscal period;
(v) Promptly and in any event within three Business
Days after the Guarantor obtains knowledge thereof, notice of (i) any
event which constitutes an event of default (such notice to specify
the nature thereof, the period of existence thereof and the action
that is proposed to be taken with respect thereto) and (ii) any
litigation or governmental proceeding pending against the Company or
any Subsidiary as to which there is a reasonable possibility that it
might materially and adversely affect the business, operations or
condition (financial or otherwise) of the Guarantor and its
Subsidiaries taken as a whole;
(vi) Promptly, copies of all regular and periodic
financial and other reports, if any, which the Company or any of its
Subsidiaries shall file with the Securities and Exchange Commission or
any governmental agencies substituted therefor;
(vii) From time to time, and promptly upon each
request, such other information or documents as Bank One may
reasonably request;
PROVIDED, HOWEVER, that, if the Guarantor has provided Bank One with
information under the Amcast Credit Agreement equivalent to that required under
subsections (i) through (iv) above, the Guarantor need not separately provide
such information to Bank One under this Agreement.
(e) ACCESS TO RECORDS, BOOKS, ETC. The Guarantor shall, and
shall cause each of its Subsidiaries to, at any reasonable time and from time
to time, permit Bank One or any agents or representatives thereof to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, the Guarantor and its Subsidiaries, and to discuss the
affairs, finances and accounts of the Guarantor and its Subsidiaries with their
respective officers and employees.
(f) CONSOLIDATION, MERGER AND SALE OF ASSETS. The Guarantor
shall not nor shall it permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) assets constituting (in the aggregate) 25% or
more of the value of the Guarantor's Consolidated Total Assets (as determined
in accordance with generally accepted accounting principles consistently
applied), PROVIDED that (i) the Guarantor may enter into a merger transaction
if it is the surviving entity and no event of default would result therefrom,
and (ii) any Subsidiary may merge into, or sell, convey, lease or otherwise
dispose of any or all of its
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
59
property to the Guarantor, another Subsidiary or any Person that after giving
effect to the foregoing shall constitute a Subsidiary, PROVIDED that no event
of default would result therefrom.
(g) CONSOLIDATED NET WORTH. The Guarantor will at all times
keep and maintain Consolidated Net Worth at an amount not less than (i)
$90,000,000 plus (ii) 25% of the Guarantor's Consolidated Net Earnings computed
on a cumulative basis for each of the elapsed fiscal years ending August 31,
1995, through August 31, 1997, plus (iii) 50% of the Guarantor's Consolidated
Net Earnings computed on a cumulative basis for each of the elapsed fiscal
years ending August 31, 1998, through August 31, 1999, plus (iii) 50% of the
Guarantor's Consolidated Net Earnings computed on a cumulative basis for each
of the elapsed fiscal quarters ending after August 31, 1999, such calculation
to be revised at the end of each fiscal quarter, PROVIDED that, notwithstanding
that Consolidated Net Earnings for any such elapsed fiscal quarter may be a
deficit figure, no reductions as a result thereof shall be made in the sum to
be maintained pursuant hereto.
(h) ADDITIONAL INDEBTEDNESS. The Guarantor will not, and will
not permit any Subsidiary to create, assume, incur or guarantee any
Indebtedness except (i) Indebtedness incurred under this Agreement, (ii) any
Indebtedness which is outstanding as of February 26, 1995, as shown on Exhibit
A hereto, and (iii) any other Indebtedness if after giving effect to the
creation, incurrence, assumption or guarantee thereof, Indebtedness would not
exceed 60% of Consolidated Capitalization.
(i) CHANGES IN BUSINESS. The Guarantor and its Subsidiaries
will not enter into any business which is substantially different from that
presently conducted by them. For purposes of this subparagraph, "substantially
different" means "outside of the metal manufacturing or processing business."
(j) ADDITIONAL LIENS. The Guarantor will not, nor will it
permit any of its Subsidiaries to, create, assume or incur, directly or
indirectly, any Lien on any of its properties or assets except as permitted
under the Amcast Credit Agreement as in effect on the date hereof.
7. EVENTS OF DEFAULT. The occurrence of any of the following events or
conditions shall be deemed an "event of default" hereunder unless waived by
Bank One pursuant to paragraph 9:
(a) An event of default under that certain Credit Agreement
dated as of August 14, 1997, among the Guarantor, various Financial
Institutions, and Key Bank, National Association, individually and as agent, as
such agreement may be amended, restated, or refinanced from time to time (the
"Amcast Credit Agreement"); or
(b) The Guarantor shall fail to pay when due any amount
payable under paragraph 1 hereof; or
(c) Any representation or warranty made by the Guarantor in
paragraph 5 hereof or in any other document or certificate furnished by or on
behalf of the Guarantor in connection with this Guaranty shall prove to have
been incorrect in any material respect when made
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
60
or any material provision of this Guaranty shall at any time for any reason
cease to be valid and binding and enforceable against the Guarantor, or the
validity, binding effect or enforceability thereof shall be contested by any
person, or the Guarantor shall deny that it has any or further liability or
obligation under this Guaranty, or this Guaranty shall be terminated,
invalidated or set aside, or be declared ineffective or inoperative or in any
way cease to give or provide to Bank One the benefits purported to be created
thereby; or
(d) The Guarantor shall default in the due performance or
observance by it of any term, covenant or agreement to be performed or observed
pursuant to paragraph 6 (other than paragraph 6(d)), and such default shall
continue for a period of five days after the Company has knowledge or should
have knowledge of such default; or
(e) The Guarantor shall default in any material respect in
the due performance or observance by it of any term, covenant or agreement
(other than those referred to in subparagraphs (a) through (d) of this
paragraph 7, inclusive) contained in this Agreement and such default shall
continue unremedied for a period of 30 days after the Guarantor shall have
become aware of the existence of such default; or
(f) The Company or any of its Subsidiaries (each a
"Designated Party") shall default in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Indebtedness (other than under the Credit Agreement), including any and all
interest and fees accrued to the date of default, the aggregate amount of which
was at least $5,000,000 at the time of the default, or any Designated Party
shall default in the performance or observance of any obligation or condition
with respect to any such other Indebtedness if the effect of such default
(after giving effect to any applicable grace period) is to accelerate the
maturity of any such Indebtedness or to permit the holder or holders thereof,
or any trustee or agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity; or
(g) A judgment or order for the payment of money (if the
aggregate amount involved is at least $1,000,000 in excess of the amount of all
insurance applicable thereto), or any other judgment or order (whether or not
for the payment of money), shall be rendered against or shall affect the
Guarantor or any of its Subsidiaries which causes or could cause a material
adverse change in the business, properties, operations or condition, financial
or otherwise, of the Guarantor or any of its Subsidiaries or which does or
could have a material adverse effect on the legality, validity or
enforceability of this Guaranty, and either (i) such judgement or order shall
have remained unsatisfied for a period of 30 days and the Guarantor or such
Subsidiary shall not have taken action necessary to stay enforce thereof, by
reason of pending appeal or otherwise, prior to the expiration of the
applicable period of limitations for taking such action or, if such action
shall have been taken, a final order denying such stay shall have been
rendered, or (ii) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order; or
(h) The occurrence of a Reportable Event that results in or
there is a reasonable possibility that it could result in liability of the
Guarantor, any Subsidiary of the Guarantor or any of their ERISA Affiliates to
the PBGC or to any Plan which is material and adverse to any of them and
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
61
such Reportable Event is not corrected within thirty (30) days after the
occurrence thereof; or the occurrence of any Reportable Event which there is a
reasonable possibility that it could constitute grounds for termination of any
Plan of the Guarantor, its Subsidiaries or their ERISA Affiliates by the PBGC
or for the appointment by the appropriate United States District Court of a
trustee to administer any such Plan and such Reportable Event is not corrected
within thirty (30) days after the occurrence thereof; or the filing by the
Guarantor, any Subsidiary of the Guarantor or any of their ERISA Affiliates of
a notice of intent to terminate a Plan or the institution of other proceedings
to terminate a Plan which is material and adverse to any of them; or the
Guarantor, any Subsidiary of the Guarantor or any of their ERISA Affiliates
shall fail to pay when due any liability to the PBGC or to a Plan which is
material and adverse to any of them; or the PBGC shall have instituted
proceedings to terminate, or to cause a trustee to be appointed to administer,
any Plan of the Guarantor, its Subsidiaries or their ERISA Affiliates; or any
person engages in a Prohibited Transaction with respect to any Plan which
results in or there is a reasonable possibility that it could result in
liability of the Guarantor, any Subsidiary of the Guarantor, any of their ERISA
Affiliates, any Plan of the Company, its Subsidiaries or their ERISA
Affiliates, or fiduciary of any such Plan which is material and adverse to any
of them; or failure by the Guarantor, any Subsidiary of the Guarantor or any of
their ERISA Affiliates to make a required installment or other payment to any
Plan within the meaning of Section 302(f) of ERISA or Section 412(n) of the
Code that results in or there is a reasonable possibility that it could result
in liability of the Guarantor, any Subsidiary of the Guarantor or any of their
ERISA Affiliates to the PBGC or any Plan which is material and adverse to any
of them; or the withdrawal of the Guarantor, any of its Subsidiaries or any of
their ERISA Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(9a)(2) of ERISA; or the
Guarantor, any of its Subsidiaries or any of their ERISA Affiliates becomes an
employer with respect to any Multiemployer Plan without the prior written
consent of Bank One; or
(i) The Guarantor or any of its Subsidiaries shall be
dissolved or liquidated (or any judgment, order or decree therefor shall be
entered), or shall generally not pay its debts as they become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against the Guarantor or any of its Subsidiaries, any
proceeding or case seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtor or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
assets, rights, revenues or property, and, if such proceeding is instituted
against the Guarantor or such Subsidiary and is being contested by the
Guarantor or such Subsidiary, as the case may be, in good faith by appropriate
proceedings, such proceedings shall remain undismissed or unstayed for a period
of 60 days; or the Guarantor or such Subsidiary shall take any action
(corporate or other) to authorize or further any of the actions described above
in this subsection; or
(j) OWNERSHIP. The outstanding capital stock of all classes
of the Guarantor entitled to voting power of 25% or more, in the aggregate, for
the election of the Guarantor's
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
62
directors is owned, or directly or indirectly controlled, by any one Person or
by an Associate of such Person.
8. REMEDIES. (a) Upon the occurrence and during the continuance of
such event of default, Bank One may, in addition to the remedies provided in
Section 6.2 of the Credit Agreement, enforce its rights either by suit in
equity, or by action at law, or by other appropriate proceedings, whether for
the specific performance (to the extent permitted by law) of any covenant or
agreement contained in this Guaranty or in aid of the exercise of any power
granted in this Guaranty and may enforce payment under this Guaranty and any of
its other rights available at law or in equity.
(b) Upon the occurrence and during the continuance of any
event of default hereunder, Bank One is authorized at any time and from time to
time, without notice to the Guarantor (any requirement for such notice being
expressly waived by the Guarantor) to set off and apply against any and all of
the obligations of the Guarantor now or hereafter existing under this Guaranty
any deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by Bank One to or for the
credit or the account of the Guarantor and any property of the Guarantor from
time to time in possession of Bank One, irrespective of whether or not Bank One
shall have made any demand hereunder and although such obligations may be
contingent and unmatured. The rights of Bank One under this subparagraph (b)
are in addition to other rights and remedies (including, without limitation,
other rights of setoff) which it may have.
(c) To the extent that it lawfully may, the Guarantor agrees
that it will not at any time insist upon or plead, or in any manner whatever
claim or take any benefit or advantage of any applicable present or future
stay, extension or moratorium law, which may affect observance or performance
of the provisions of this Guaranty, the Credit Agreement, the Notes or any
Security Document; nor will it claim, take or insist upon any benefit or
advantage of any present or future law providing for the evaluation or
appraisal of any security for its obligations hereunder or the Company under
the Credit Agreement and under the Notes prior to any sale or sales thereof
which may be made under or by virtue of any instrument governing the same; nor
will it, after any such sale or sales, claim or exercise any right, under any
applicable law, to redeem any portion of such security so sold.
(d) Notwithstanding anything to the contrary contained
herein, after an Izumi Guarantor Default has occurred and during the related
Forbearance Period, Bank One shall not seek to collect from the Guarantor any
amounts due with respect to the Notes under paragraph 1, and no event of
default shall be deemed to have occurred under paragraph 7(b) because such
amounts have not been paid.
9. AMENDMENTS, ETC. This Guaranty may be amended from time to time and
any provision hereof may be waived by the parties hereto. No such amendment or
waiver of any provision of this Guaranty nor consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by Bank One, and then such
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
63
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
10. NOTICES. All notices and other communications hereunder shall be
in writing and shall be delivered or sent to the Guarantor at 0000 Xxxxxxxxxx
Xxxxxxx Xxxxx, X.X. Xxx 00, Xxxxxx, Xxxx 00000-0000, Attention: Chief Financial
Officer, Facsimile No. 000-000-0000, to Bank One at Xxx Xxxxxxx Xxxxxx,
XX0-0000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, or to
such other address as may be designated by the Guarantor and Bank One by notice
to the other party hereto. All notices and other communications shall be deemed
to have been given at the time of actual delivery thereof to such address, or
if sent by certified or registered mail, postage prepaid, to such address, on
the third day after the date of mailing, or in the case of telex notice, upon
receipt of the appropriate answerback, PROVIDED, HOWEVER, that notices to Bank
One shall not be effective until received.
11. CONDUCT NO WAIVER; REMEDIES CUMULATIVE. The obligations of the
Guarantor under this Guaranty are continuing obligations and an additional
cause of action shall arise in respect of each event of default hereunder. No
course of dealing on the part of Bank One, nor any delay or failure on the part
of Bank One in exercising any right, power or privilege hereunder shall operate
as a waiver of such right, power or privilege or otherwise prejudice Bank One's
rights and remedies hereunder; nor shall any single or partial exercise thereof
preclude any further exercise thereof or the exercise of any other right, power
or privilege. No right or remedy conferred upon or reserved to Bank One under
this Agreement is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy given hereunder or now or hereafter existing under any applicable
law. Every right and remedy given by this Agreement or by applicable law to
Bank One may be exercised from time to time and as often as may be deemed
expedient by Bank One.
12. RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All terms,
covenants, agreements, representations and warranties of the Guarantor made
herein or in any certificate or other document delivered pursuant hereto shall
be deemed to be material and to have been relied upon Bank One, notwithstanding
any investigation heretofore or hereafter made by Bank One or on Bank One's
behalf.
13. SUCCESSORS AND ASSIGNS. The rights and remedies of Bank One
hereunder shall inure to the benefit of, and the duties and obligations of the
Guarantor hereunder shall be binding upon, the parties hereto and their
respective successors and assigns.
14. GOVERNING LAW. This Guaranty is a contract made under, and the
rights and obligations of the parties hereunder shall be governed by and
construed in accordance with, the laws of the State of Indiana applicable to
contracts to be made and performed entirely with such State.
15. DEFINITIONS; HEADINGS. As used herein the following terms shall
have the following respective meanings:
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
64
"AMCAST CREDIT AGREEMENT": shall have the meaning ascribed to
it in paragraph 7(a).
"ASSOCIATE" shall mean any person which, directly or
indirectly, controls or is controlled by or is under common control with
another person and for the purposes of this definition, "control", including
"controlled by" and "under common control with", means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting securities or
by contract or otherwise.
"CONSOLIDATED CAPITALIZATION" means the sum of Funded
Indebtedness of the Guarantor plus Consolidated Net Worth.
"CONSOLIDATED NET EARNINGS" means for any period the net
income of the Company and its Subsidiaries for such period, determined in
accordance with generally accepted accounting principles consistently applied,
excluding (a) extraordinary items, and (b) any equity interest of the Company
on the unremitted earnings of any corporation which is not a Subsidiary.
"CONSOLIDATED NET WORTH" means, as of the date of any
determination thereof, the amount of the capital stock accounts (net of
treasury stock, at cost), plus (or minus, in the case of a deficit) the surplus
in retained earnings of the Guarantor and its Subsidiaries as determined in
accordance with generally accepted accounting principles consistently applied.
"CONSOLIDATED TOTAL ASSETS" means at any time the total
assets of the Guarantor and its Subsidiaries determined on a consolidated
basis.
"FUNDED INDEBTEDNESS" means all short-term and long-term
interest-bearing Indebtedness, including but not limited to all amounts
outstanding under the Amcast Credit Agreement and the Guarantor's short-term
lines, original issue discount debt and capitalized leases.
"IZUMI GUARANTOR DEFAULT" means a Guarantor Default declared
under the Credit Agreement by reason of any event of default under any Guaranty
other than the Guaranty-Bank One.
"LIEN" shall have the meaning ascribed thereto in the Amcast
Credit Agreement.
"NET WORTH" of the Guarantor means the sum of its capital
stock, capital in excess of par or stated value of shares of its capital stock,
retained earnings, and any other account which, in accordance with generally
accepted account principles, constitutes stockholders' equity, LESS treasury
stock.
Terms used but not defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement. The headings of the various subdivisions
hereof are for convenience of reference only and shall in no way modify any of
its terms or provisions hereof.
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
65
16. CONSTRUCTION OF CERTAIN PROVISIONS. All computations required
hereunder and all financial terms used herein shall be made or construed in
accordance with generally accepted accounting principles unless such principles
are inconsistent with the express requirements of this Guaranty. If any
provision of this Guaranty refers to any action to be taken by any person, or
which such person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such person, whether or
not expressly specified in such provision.
17. INTEGRATION AND SEVERABILITY. This Guaranty embodies the entire
agreement and understanding between the Guarantor and Bank One and supersedes
all prior all agreements and understandings relating to the subject matter
hereof. In case one or more of the obligations of the Guarantor under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining obligations of the
Guarantor shall not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability in one jurisdiction shall not affect
the validity, legality or enforceability of the obligations of the Guarantor
under this Guaranty in any other jurisdiction.
18. WAIVER OF JURY TRIAL. Bank One and the Guarantor, after consulting
or having had the opportunity to consult with counsel, knowingly, voluntarily
and intentionally waive any right any of them may have to a trial by jury in
any litigation based upon or arising out of this Guaranty or any related
instrument or agreement or any of the transactions contemplated by this
Guaranty or any course of conduct, dealing, statements (whether oral or
written) or actions of either of them. Neither Bank One nor the Guarantor shall
seek to consolidate, by counterclaim or otherwise, any such action in which a
jury trial has been waived with any other action in which a jury trial cannot
be or has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by either Bank One or the Guarantor
except by a written instrument executed by each of them.
[Remainder of page intentionally left blank.]
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
66
IN WITNESS WHEREOF, the parties have caused this Guaranty to be duly
executed and delivered as of the day and year first above written.
AMCAST INDUSTRIAL CORPORATION
By: /s/ XXXXXXX X. XXXXX
-----------------------------
Its: Vice President, Finance
----------------------------
BANK ONE, INDIANA, NATIONAL
ASSOCIATION
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------
Its: First Vice President
----------------------------
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AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
67
ANNEX I TO
GUARANTY AGREEMENT - BANK ONE
SUBSIDIARIES
------------
Percentage of
Name of Jurisdiction Ownership by Company
Subsidiary of Organization or Other Subsidiaries
---------- --------------- ---------------------
-------------------------------------------------------------------------------
EXHIBIT A TO
GUARANTY AGREEMENT - BANK ONE
OUTSTANDING INDEBTEDNESS
------------------------
LITIGATION
----------
-16-
AMENDED AND RESTATED GUARANTY AGREEMENT - BANK ONE
