Exhibit 4.15.1
LIFO RESTRUCTURING AGREEMENT
This LIFO RESTRUCTURING AGREEMENT, dated as of July 15, 2002 (this
"Agreement"), is entered into by and among:
(a) AMCAST INDUSTRIAL CORPORATION, an Ohio corporation
("Borrower");
(b) the Guarantors, as hereinafter defined, that are parties
hereto (together with Borrower, collectively, the
"Credit Parties");
(c) the lending institutions parties hereto (the "LIFO Banks");
and
(d) KEYBANK NATIONAL ASSOCIATION, as agent for the LIFO Banks
("LIFO Agent" and together with the LIFO Banks, collectively,
the "LIFO Lenders").
PRELIMINARY STATEMENTS:
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1. The Credit Parties, LIFO Agent and the LIFO Banks are parties to the
Last-In-First-Out Credit Agreement, dated as of June 5, 2001 (as amended and as
the same may from time to time be further amended, restated or otherwise
modified, the "LIFO Credit Agreement") pursuant to which the LIFO Banks have
made certain loans and other extensions of credit all on the terms and
conditions set forth in the LIFO Lender Documents.
2. Borrower has informed the LIFO Lenders that it will be unable to comply with
certain provisions of the LIFO Credit Agreement.
3. Borrower, the LIFO Lenders, the Subordinated Lenders (as hereinafter
defined), and the Collateral Agent (as hereinafter defined) are parties to the
Subordination, Waiver and Consent Agreement, dated as of June 5, 2001 (as the
same may from time to time be amended, restated or otherwise modified, the
"Subordination Agreement").
4. In connection with the foregoing, the Credit Parties have requested that the
LIFO Lenders enter into this Agreement.
AGREEMENT:
In consideration of the premises and the mutual covenants contained in
this Agreement, and other good and valuable consideration the receipt and
sufficiency of which are acknowledged, the parties hereto agree as follows:
SECTION 1. definitions.
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1.1 Definitions. Except as otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the LIFO Credit
Agreement. As used in this Agreement, the following terms have the following
meanings:
"Additional Prepayment" has the meaning set forth in Section
3.5(a) hereof.
"Applicable Restructuring Fee Rate" means the applicable number of basis points,
based upon the calculation of the Restructuring Leverage Ratio for the most
recently completed four fiscal quarters, set forth below:
Restructuring Leverage Ratio
----------------------- -------------------- -------------------- --------------------- --------------------
Borrower's First Borrower's Second Borrower's Third Borrower's Fourth
Applicable Basis Fiscal Quarter of Fiscal Quarter of Fiscal Quarter of Fiscal Quarter of
Points 2003 2003 2003 2003
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20 basis points Greater than or Greater than or Greater than or Greater than or
equal to 6.25 to equal to 5.75 to equal to 5.50 to equal to 5.25 to
1.00 1.00 1.00 1.00
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15 basis points Greater than or Greater than or Greater than or Greater than or
equal to 6.00 to equal to 5.50 to equal to 5.25 to equal to 5.00 to
1.00, but less 1.00, but less 1.00, but less than 1.00, but less
than 6.25 to 1.00 than 5.75 to 1.00 5.50 to 1.00 than 5.25 to 1.00
---------------------- -------------------- -------------------- --------------------- --------------------
10 basis points Greater than or Greater than or Greater than or Greater than or
equal to 5.75 to equal to 5.25 to equal to 5.00 to equal to 4.75 to
1.00, but less 1.00, but less 1.00, but less than 1.00, but less
than 6.00 to 1.00 than 5.50 to 1.00 5.25 to 1.00 than 5.00 to 1.00
---------------------- -------------------- -------------------- --------------------- --------------------
5 basis points Greater than or Greater than or Greater than or Greater than or
equal to 5.50 to equal to 5.00 to equal to 4.75 to equal to 4.50 to
1.00, but less 1.00, but less 1.00, but less than 1.00, but less
than 5.75 to 1.00 than 5.25 to 1.00 5.00 to 1.00 than 4.75 to 1.00
---------------------- -------------------- -------------------- --------------------- --------------------
The Applicable Restructuring Fee Rate may be adjusted to levels acceptable to
LIFO Agent and the Required Banks after, and based upon a review of, the Budget,
which adjustment shall be effective upon delivery by the Required Banks of
written notice of such adjustment to Borrower.
"Budget" means a budget, including monthly and quarterly balance sheets, income
statements and cash flow statements on a Consolidated basis and by plant basis
and otherwise in form and detail satisfactory to the Required Banks, that
details Borrower's projected costs, expenses, other expenditures, capital
requirements and financial performance forecast for Borrower's 2003 fiscal year.
"Cash Collateral Account" has the meaning set forth in Section 3.10(a) hereof.
"Collateral Agent" means KeyBank National Association, in its capacity as
Collateral Agent under the Subordinated Lender Collateral Documents, together
with its successors and assigns in such capacity.
"Commitment Letter" has the meaning set for the in Section 3.9(b) hereof.
"Committed Debt" means, as of any date, the sum of (a) Funded Indebtedness (as
defined in the Existing Credit Agreement), plus (b) the difference between (i)
the Maximum Amount and (ii) the aggregate principal amount of Revolving Loans
outstanding under the LIFO Credit Agreement, minus (c) the aggregate amount of
cash on deposit in the Cash Collateral Account.
"Companies" means, collectively, Borrower and each Subsidiary.
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"Creditor Documents" means, collectively, the LIFO Lender Documents and the
Subordinated Lender Documents.
"Creditors" means, collectively, the Subordinated Lenders and the LIFO Lenders.
"CTC Forbearance Agreement" means the Forbearance and Waiver Agreement among
Borrower, the LIFO Agent, on behalf of and for the benefit of the LIFO Banks,
and Bank One, Indiana, National Association on behalf of itself and as CTC Agent
(as defined therein) for the benefit of and on behalf of the CTC Banks (as
defined therein), dated as of June 5, 2001, as the same may from time to time be
amended, restated or otherwise modified.
"Domestic EBITDA" means Consolidated EBITDA less the amounts used in calculating
Consolidated EBITDA that are attributed to Foreign Subsidiaries.
"Effective Date" has the meaning set forth in Section 6 hereof.
"Existing Credit Agreement" means the Credit Agreement, dated as of August 14,
1997, among Borrower, the Existing Credit Agreement Banks and the Existing
Credit Agreement Agent, as amended and as the same may from time to time be
further amended, restated or otherwise modified.
"Existing Credit Agreement Agent" means KeyBank National Association, as Agent
for the Existing Credit Agreement Banks, together with its successors and
assigns in such capacity.
"Existing Credit Agreement Banks" means the lenders party to the Existing Credit
Agreement, together with their respective successors and assigns in such
capacity.
"Existing Credit Agreement Loan Documents" means the Loan Documents, as defined
in the Existing Credit Agreement.
"Existing Credit Agreement Obligations" means all indebtedness and other
obligations incurred by Borrower or any other Company to the Existing Credit
Agreement Agent or the Existing Credit Agreement Banks pursuant to the Existing
Credit Agreement, whether for principal, premium, interest, fees, costs or
indemnities, and whether now existing or hereafter arising.
"Foreign Subsidiary" means a Subsidiary that is organized outside of the United
States.
"Guarantor" means any Person that pledges its credit or property in any manner
for the payment or other performance of any of the LIFO Lender Obligations or
Subordinated Lender Obligations.
"Intercreditor Agreement" means the Collateral Agency and Intercreditor
Agreement, dated as of June 5, 2001, by and among the Existing Credit Agreement
Agent, the Existing Credit Agreement Banks, the Noteholders, the Line of Credit
Lenders and the Collateral Agent, as the same may from time to time be amended,
restated or otherwise modified.
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"Lien" means any mortgage, security interest, lien (statutory or other), charge,
encumbrance on, pledge or deposit of, or conditional sale, leasing, sale with a
right of redemption or other title retention agreement and any capitalized lease
with respect to any property (real or personal) or asset.
"LIFO Credit Agreement" has the meaning set forth in the Preliminary Statements
of this Agreement.
"LIFO Lender Collateral" means any property, whether tangible or intangible, at
any time securing the LIFO Lender Obligations, or any part thereof.
"LIFO Lender Collateral Documents" means the Security Documents, together with
all other documents, instruments or agreements executed in connection with any
security interest or Lien granted, or otherwise obtained, on or in connection
with the LIFO Lender Collateral, or any part thereof.
"LIFO Lender Documents" means, collectively, the LIFO Credit Agreement, the LIFO
Lender Collateral Documents, the Loan Documents and the Subordination Agreement,
together with all other documents, instruments or agreements executed in
connection with any of the foregoing, as the same may from time to time be
amended, restated or otherwise modified.
"LIFO Lender Liens" means the Liens granted to the LIFO Agent, for the benefit
of the LIFO Banks, in the LIFO Lender Collateral pursuant to the LIFO Lender
Collateral Documents.
"LIFO Lender Obligations" means all indebtedness or other obligations incurred
by Borrower or any other Company to LIFO Agent and/or the LIFO Banks pursuant to
the LIFO Credit Agreement, whether for principal, premium, interest, fees, costs
or indemnities, and whether now existing or hereafter arising.
"Line of Credit Documents" means the promissory notes and other agreements
evidencing the Line of Credit Obligations.
"Line of Credit Lenders" means the Line of Credit Lenders, as defined in the
Existing Credit Agreement.
"Line of Credit Obligations" means all indebtedness or other obligations
incurred by Borrower or any other Company to the Line of Credit Lenders pursuant
to the Line of Credit Documents, whether for principal, interest, fees, costs or
indemnities, and whether now existing or hereafter arising.
"Northwestern" means The Northwestern Mutual Life Insurance Company, together
with its successors and assigns.
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"Northwestern Note Agreement" means the Note Agreement, dated as of November 1,
1995, pursuant to which Borrower has issued to Northwestern certain $25,000,000
10.09% Senior Notes Due November 7, 2003, as amended and as the same may from
time to time be further amended, restated or otherwise modified.
"Note Agreements" means, collectively, the Principal Note Agreement and the
Northwestern Note Agreement.
"Noteholders" means, collectively, Principal and Northwestern.
"Noteholder Obligations" means all indebtedness or other obligations incurred by
Borrower or any other Company to the Noteholders pursuant to the Note Agreements
and the Notes issued thereunder, whether for principal, premium, interest, fees,
costs or indemnities, and whether now existing or hereafter arising.
"Person" means any individual, sole proprietorship, partnership, joint venture,
unincorporated organization, corporation, limited liability company,
institution, trust, estate, government or other agency or political subdivision
thereof or any other entity.
"Principal" means Principal Life Insurance Company, together with its successors
and assigns.
"Principal Note Agreement" means the Note Agreement, dated as of November 1,
1995, pursuant to which Borrower has issued to Principal certain $25,000,000
10.09% Senior Notes Due November 7, 2003, as amended and as the same may from
time to time be further amended, restated or otherwise modified.
"Refinancing" has the meaning set forth in Section 3.9(b) hereof.
"Refinancing Package" has the meaning set forth in Section 3.9(a) hereof.
"Refinancing Rejection Fee" has the meaning set for the in Section 3.9 hereof.
"Refinancing Report" has the meaning set forth in Section 3.9(c) hereof.
"Refinancing Requirements" has the meaning set forth in Section 3.9(c) hereof.
"Required Banks" means the Required Banks, as defined in the LIFO Credit
Agreement.
"Restructuring Fee" has the meaning set forth in Section 3.4 hereof.
"Restructuring Leverage Ratio" means, at any time, the ratio of (a) Committed
Debt, to (b) Consolidated EBITDA for the most recently completed four fiscal
quarters.
"Restructuring Period" has the meaning set forth in Section 3.1 hereof.
"Strategic Plan" has the meaning set forth in Section 3.7 hereof.
"Subject Noncompliance Events" has the meaning set forth in Section 2.2 hereof.
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"Subordinated Lender Collateral" means any property, whether tangible or
intangible, at any time securing the LIFO Lender Obligations, or any part
thereof.
"Subordinated Lender Collateral Documents" means the Collateral Documents, as
defined in the Existing Credit Agreement, together with all other documents,
instruments or agreements executed in connection with any security interest or
Lien granted, or otherwise obtained, on or in connection with the Subordinated
Lender Collateral, or any part thereof.
"Subordinated Lender Documents" means, collectively, the Existing Credit
Agreement, the Existing Credit Agreement Loan Documents, the Note Agreements,
the Line of Credit Documents, the Subordinated Lender Collateral Documents, the
Intercreditor Agreement and the Subordination Agreement, together with all other
documents, instruments or agreements executed in connection with any of the
foregoing, as the same may from time to time be amended, restated or otherwise
modified.
"Subordinated Lender Liens" means the Liens granted to the Collateral Agent, for
the benefit of the Subordinated Lenders, in the Subordinated Lender Collateral
pursuant to the Subordinated Lender Collateral Documents, or any other Lien
granted to or acquired by any Person that by its terms secures the Subordinated
Lender Obligations, or any part thereof.
"Subordinated Lender Obligations" means, collectively, (a) the Existing Credit
Agreement Obligations, (b) the Noteholder Obligations, (c) the Line of Credit
Obligations, and (d) all indebtedness or other obligations owing by the
Companies to the Collateral Agent or any Subordinated Lender pursuant to the
Subordinated Lender Collateral Documents.
"Subordinated Lender Restructuring Agreement" means the Restructuring Agreement,
dated as of the date hereof, among the Subordinated Lenders and Borrower, as the
same may from time to time be amended, restated or otherwise modified.
"Subordinated Lenders" means, collectively, the Existing Credit Agreement Agent,
the Existing Credit Agreement Banks, the Line of Credit Lenders, and the
Noteholders.
"Subordination Agreement" has the meaning set forth in the Preliminary
Statements of this Agreement.
"Subsidiary" of Borrower or any of its Subsidiaries means (a) a corporation more
than 50% of the Voting Power of which is owned, directly or indirectly, by
Borrower or by one or more other subsidiaries of Borrower or by Borrower and one
or more subsidiaries of Borrower, (b) a partnership or limited liability company
of which Borrower, one or more other subsidiaries of Borrower or Borrower and
one or more subsidiaries of Borrower, directly or indirectly, is a general
partner or managing member, as the case may be, or otherwise has the power to
direct the policies, management and affairs thereof, or (c) any other Person
(other than a corporation) in which Borrower, one or more other subsidiaries of
Borrower or Borrower and one or more subsidiaries of Borrower, directly or
indirectly, has at least a majority interest in the Voting Power or the power to
direct the policies, management and affairs thereof.
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"Termination Date" shall have the meaning set forth in Section 3.1 hereof.
"Termination Event" has the meaning set forth in Section 3.11 hereof.
"Voting Power" means, with respect to any Person, the exclusive ability to
control, through the ownership of shares of capital stock, partnership
interests, membership interests or otherwise, the election of members of the
board of directors or other similar governing body of such Person, and the
holding of a designated percentage of Voting Power of a Person means the
ownership of shares of capital stock, partnership interests, membership
interests or other interests of such Person sufficient to control exclusively
the election of that percentage of the members of the board of directors or
similar governing body of such Person.
1.2 Plural Terms. The foregoing definitions shall be applicable to the singular
and plurals of the foregoing defined terms.
SECTION 2. CREDIT PARTY acknowledgments.
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2.1 Outstanding Indebtedness. Each Credit Party acknowledges and confirms (a)
that the aggregate principal amount of all outstanding indebtedness of the
Credit Parties (or any thereof) owing to the LIFO Lenders is, or on the
effective date of this Agreement will be, $20,000,000 and that such amount,
together with all interest thereon and fees related thereto, is not subject to
any defense, counterclaim, recoupment or offset of any kind and that (b) each
Credit Party's obligations in respect of such indebtedness are absolute and
unconditional.
2.2 Subject Noncompliance Events. Each Credit Party acknowledges that Borrower
has failed to comply with, or will fail to comply with, the provisions of the
LIFO Credit Agreement set forth on Exhibit A hereto (the "Subject Noncompliance
Events").
2.3 Continuing Noncompliance Events. Each Credit Party acknowledges that (a) the
Subject Noncompliance Events are and will be continuing and have not been waived
by virtue of any previous actions (or failure to act) by LIFO Agent or the LIFO
Banks, or through any course of conduct or course of dealing or otherwise, (b)
as a result of the Subject Noncompliance Events, the LIFO Lenders, pursuant to
their respective LIFO Lender Documents, have the right to, among other things,
(i) terminate their respective obligations (if any) to make any further loan or
other extension of credit, and (ii) accelerate the maturity of the LIFO Lender
Obligations, as the case may be, and (c) no LIFO Lender has any obligation to
enter into this Agreement.
SECTION 3. RESTRUCTURING PERIOD.
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3.1 Restructuring Period. During the Restructuring Period, except as
specifically set forth in this Section 3, no LIFO Lender will exercise any of
their respective rights or remedies under the LIFO Lender Documents or
applicable law with respect to the Subject Noncompliance Events. For purposes of
this Agreement, "Restructuring Period" means the period commencing on the
Effective Date and ending on the earlier of (a) September 14, 2003 and (b) the
date the Restructuring Period is terminated upon the occurrence of any of the
events described in Section 3.11 hereof (the "Termination Date").
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3.2 Loans. Notwithstanding anything to the contrary herein or in any LIFO Lender
Document, during the during the Restructuring Period, Borrower shall not request
any loan or other extension of credit from any LIFO Lender pursuant to any of
the LIFO Lender Documents, and no LIFO Lender shall make any such loan or grant
any other extension of credit to Borrower.
3.3 Interest Rate Under the LIFO Credit Agreement. Notwithstanding the terms of
the LIFO Credit Agreement, on and after the date hereof, (a) Borrower shall pay
interest on the unpaid principal amount of each Loan at a rate per annum equal
to the sum of the Derived Base Rate from time to time in effect plus 2%; and (b)
after the occurrence of a Termination Event, interest on all outstanding Loans
shall be payable at a rate per annum equal to 3.0% in excess of the interest
rate otherwise applicable to such Loan.
3.4 Fees. In addition to the fees set forth in any of the LIFO Lender Documents,
Borrower shall pay to the Creditors, to be distributed on a pro rata basis, a
fee (the "Restructuring Fee") on each date that Borrower delivers its financial
statements for each of Borrower's fiscal quarters pursuant to Section 4.3(d) of
the LIFO Credit Agreement, commencing with the financial statements for
Borrower's fiscal quarter ending on or about November 30, 2002, in an amount
equal to the product of (a) the Applicable Restructuring Fee Rate times (b) the
Committed Debt divided by four. For the avoidance of doubt, the Restructuring
Fees payable pursuant to this Section 3.4 are the same as and not in addition to
the restructuring fees payable pursuant to Section 3.4 of the Subordinated
Lender Restructuring Agreement.
3.5 Mandatory Prepayments.
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(a) In addition to any mandatory prepayment provisions in any
of the Creditor Documents, Borrower shall pay to the applicable
Creditors, as a mandatory prepayment on their respective LIFO Lender
Obligations and, if applicable, the Subordinated Lender Obligations,
the following amounts (collectively, the "Additional Prepayments") that
shall be applied to such obligations as set forth below:
(i) on February 28, 2003, $4,000,000; and
(ii) on August 31, 2003, $3,500,000.
(b) Each Additional Prepayment shall be applied, first, to the
LIFO Lender Obligations, if any (with a corresponding permanent
reduction of the Revolving Credit Commitment), and, second, to the
Subordinated Lender Obligations, on a pro rata basis.
(c) The Borrowing Base shall be reduced by an amount equal to
the sum of all Additional Prepayments made at or prior to the time that
the Borrowing Base is calculated.
Provided, however, that the amount of any Additional Prepayment (A) will be
adjusted to reflect the impact of the sale of any business unit sold prior to
the dates set forth in subparts (i) and (ii) hereof, and, and (B) may be
adjusted to an amount reasonably acceptable to the Required Banks after, and
based upon a review of, the Budget, which adjustment shall be effective upon
delivery by the Required Banks of written notice of such adjustment to Borrower.
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3.6 Budget. On or before August 15, 2002, Borrower shall deliver the Budget to
each of the LIFO Lenders. ------
3.7 Strategic Plan. Borrower will use commercially reasonable efforts to execute
and perform in a timely manner Borrower's strategic plan which includes the
disposal of certain non-strategic assets as presented to the Creditors (the
"Strategic Plan") and if Borrower shall fail at any time to be proceeding in a
timely and commercially reasonable manner, as determined by the Required Banks
in their sole discretion, then Borrower will pay the Creditors, on a pro rata
basis, the fees agreed to between Borrower and the Creditors on the dates agreed
to between Borrower and the Creditors. In addition, Borrower shall engage an
investment banking firm, acceptable to the Required Banks, that will, among
other things, assist Borrower in executing the Strategic Plan.
3.8 Financial Covenants. The LIFO Lenders and Borrower agree that the financial
covenants set forth below shall replace the financial covenants set forth in
Section 4.7(b), (c) and (d) of the LIFO Credit Agreement. Borrower shall comply
at all times with each of the following:
(a) Adjusted Net Worth Ratio. Borrower shall not suffer or
permit at any time the Adjusted Net Worth Ratio, for the most recently
completed four fiscal quarters of the Companies, to be greater than (i)
12.00 to 1.00 for the four fiscal quarter period of the Companies
ending on or about August 31, 2002, (ii) 12.70 to 1.00 for the four
fiscal quarter period of the Companies ending on or about November 30,
2002, (iii) 13.90 to 1.00 for the four fiscal quarter period of the
Companies ending on or about February 28, 2003, (iv) 14.90 to 1.00 for
the four fiscal quarter period of the Companies ending on or about May
31, 2003, and (v) 15.60 to 1.00 for the four fiscal quarter period of
the Companies ending on or about August 31, 2003 and each four fiscal
quarter period thereafter.
(b) Consolidated EBITDA. Borrower shall not suffer or permit
at any time Consolidated EBITDA, for the most recently completed four
fiscal quarters of the Companies, to be less than (i) $28,967,000 for
the four fiscal quarter period of the Companies ending on or about
August 31, 2002, (ii) $32,412,000 for the four fiscal quarter period of
the Companies ending on or about November 30, 2002, (iii) $35,735,000
for the four fiscal quarter period of the Companies ending on or about
February 28, 2003, (iv) $36,541,000 for the four fiscal quarter period
of the Companies ending on or about May 31, 2003, and (v) $39,059,000
for the four fiscal quarter period of the Companies ending on or about
August 31, 2003.
(c) Domestic EBITDA. Borrower shall not suffer or permit at
any time Domestic EBITDA, for the most recently completed four fiscal
quarters of the Companies, to be less than (i) $28,719,000 for the four
fiscal quarter period of the Companies ending on or about August 31,
2002, (ii) $33,389,000 for the four fiscal quarter period of the
Companies ending on or about November 30, 2002, (iii) $36,413,000 for
the four fiscal quarter period of the Companies ending on or about
February 28, 2003, (iv) $35,064,000 for the four fiscal quarter period
of the Companies ending on or about May 31, 2003, and (v) $35,999,000
for the four fiscal quarter period of the Companies ending on or about
August 31, 2003.
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(d) Consolidated Capital Expenditures. Borrower shall not
suffer or permit at any time Consolidated Capital Expenditures, for the
most recently completed fiscal year of the Companies, to be greater
than (i) $22,537,000 for the fiscal year of the Companies ending on or
about August 31, 2002, and (ii) $24,691,000 for the fiscal year of the
Companies ending on or about August 31, 2003.
Provided, however, that any of the financial covenants set forth above (i) will
be adjusted to reflect the impact on such covenants for any fiscal quarter (and
any testing period including such fiscal quarter) following the sale by the
Companies of any business unit sold prior to such fiscal quarter of the
Companies, and (ii) may be adjusted to an amount reasonably acceptable to the
Required Banks after, and based upon a review of, the Budget, which adjustment
shall be effective upon delivery by the Required Banks of written notice of such
adjustment to Borrower.
3.9 Refinancing Covenants.
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(a) Refinancing Package. On or before February 28, 2003,
Borrower shall deliver to the LIFO Lenders and no less than three
prospective lenders, reasonably acceptable to the Required Banks, its
business plan and such other reports necessary to evaluate the
financial condition of the Companies, all in form and detail
satisfactory to the Required Banks (the "Refinancing Package").
(b) Commitment Letter. On or before June 30, 2003, Borrower
shall have delivered to the LIFO Lenders a fully executed and effective
commitment letter, in form and substance reasonably satisfactory to the
Required Banks, from a lender or syndicate of lenders reasonably
acceptable to the Required Banks, which shall provide, among other
things, for (i) the refinancing of the Subordinated Lender Obligations
and the LIFO Lender Obligations (the "Refinancing"), and (ii) a closing
date of the Refinancing of no later than September 14, 2003 (the
"Commitment Letter").
(c) Refinancing Report. On or before February 28, 2003, and on
the last business day of each bi-weekly period thereafter, Borrower
shall deliver to LIFO Agent a report, in form and detail satisfactory
to the Required Banks, of its progress in obtaining the Refinancing
(each a "Refinancing Report" and together with the Refinancing Package
and the Commitment Letter, collectively, the "Refinancing
Requirements").
Provided, however, that if Borrower fails to deliver any of the Refinancing
Requirements on or before the applicable dates set forth above such failure
shall not constitute a Termination Event if Borrower pays to the Creditors, on
or before the applicable dates set forth above, a fee in the amount of $100,000
for each such failure (each a "Refinancing Rejection Fee"), which Refinancing
Rejection Fee shall be distributed on a pro rata basis and shall be fully earned
when paid. The payment of any Refinancing Rejection Fee by Borrower in
connection with the failure to deliver any Refinancing Requirement will not
relieve Borrower of its obligation to deliver any subsequent Refinancing
Requirement or, if applicable, to pay any Refinancing Rejection Fee in
connection therewith.
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3.10 Cash Reserve Availability.
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(a) Concurrently herewith, Borrower shall deposit cash into a
deposit account in the name of and under the exclusive control of the
LIFO Agent, for the benefit of the LIFO Banks (the "Cash Collateral
Account") an amount equal to the lesser of (i) $20,000,000 or (ii) the
amount available under the Borrowing Base as currently defined in the
LIFO Credit Agreement;
(b) On and after the date hereof, Borrower shall maintain at
all times in the Cash Collateral Account an amount equal to the lesser
of (i) $20,000,000 and (ii) the difference between $20,000,000 and the
Borrowing Base;
(c) Borrower may request withdrawals from the Cash Collateral
Account, provided Borrower shall at all times prior to and immediately
after such withdraw be in compliance with this Agreement; and
(d) Borrower shall deliver to the LIFO Agent a Borrowing Base
Certificate on the second Business Day of each week.
3.11 Termination of Restructuring Period. Upon the occurrence of any Termination
Event and at all times thereafter the Restructuring Period shall automatically
terminate without demand or notice of any kind. For purposes of this Agreement,
"Termination Event" means:
(a) the occurrence of any default or event of default under any of the Creditor
Documents (other than the Subject Noncompliance Events);
(b) the occurrence of a default under, or the breach by any Credit Party of any
of the provisions of, this Agreement;
(c) the occurrence of a default, event of default, or Termination Event (as
defined in the Subordinated Lender Restructuring Agreement) under the
Subordinated Lender Restructuring Agreement;
(d) if a final judgment or order for the payment of money damages shall be
rendered against any Company by a court of competent jurisdiction, provided that
the aggregate of all such judgments for all such Companies shall exceed
$1,000,000 in excess of applicable insurance coverage;
(e) the failure of the Budget delivered pursuant to Section 3.6 hereof to be
acceptable to the Required Banks; or
(f) any representation or warranty made by any Company under this Agreement or
any agreement, instrument or other document executed or delivered by any Company
in connection with this Agreement is untrue or incorrect in any material respect
when made or any schedule, certificate, statement, report, financial data,
notice or writing furnished at any time by any Company to any LIFO Lender is
untrue or incorrect in any material respect on the date as of which the facts
set forth therein are stated or certified.
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3.12 Effect at End of Restructuring Period. On the Termination Date, the Subject
Noncompliance Events will be deemed to have continued to exist and, without
regard to any matters transpiring during the Restructuring Period or the
financial condition or prospects of the Companies as of such date, the LIFO
Lenders (or any thereof) shall be fully entitled to exercise any rights and
remedies they may have under the LIFO Lender Documents or applicable law.
3.13 ACKNOWLEDGMENT. EACH CREDIT PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT
THE RESTRUCTURING PROVISIONS SET FORTH IN SECTION 3.1 HEREOF IS EFFECTIVE ONLY
DURING THE RESTRUCTURING PERIOD AND THAT, AFTER THE TERMINATION DATE, EACH OF
THE LIFO LENDER DOCUMENTS WILL BE IN MATERIAL DEFAULT AND THE LIFO LENDERS WILL
BE FULLY ENTITLED IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE
LIFO LENDER DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY MATTERS
TRANSPIRING DURING THE RESTRUCTURING PERIOD OR THE FINANCIAL CONDITION OR
PROSPECTS OF THE COMPANIES. EACH CREDIT PARTY UNDERSTANDS THAT THE LIFO LENDERS
ARE EXPRESSLY RELYING ON THE TERMS OF THIS SECTION AND WOULD NOT HAVE ENTERED
INTO THIS AGREEMENT BUT FOR THE ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION.
3.14 No Waiver. Nothing in this Agreement shall in any way be deemed to be (a) a
waiver of any default or event of default including the Subject Noncompliance
Events or (b) an agreement to forbear from exercising any remedies with respect
to any default or event of default except as specifically set forth in Section
3.1 hereof.
3.15 No Contest. Each Credit Party agrees that it shall not dispute the validity
or enforceability of any of the LIFO Lender Documents, or any of its obligations
thereunder, or the validity, priority, enforceability or extent of any LIFO
Lender Lien, in any judicial, administrative or other proceeding, either during
or following the expiration or termination of the Restructuring Period.
SECTION 4. LIFO LENDERS' ACKNOWLEDGMENT.
----------------------------
Each LIFO Lender consents to and acknowledges the terms of the
Subordinated Lender Restructuring Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
------------------------------
To induce the LIFO Lenders to enter into this Agreement, the Credit
Parties represent and warrant to the LIFO Lenders that:
5.1 Due Authorization; No Conflict; No Lien; Enforceable Obligation. The
execution, delivery and performance by the Credit Parties of this Agreement are
within their respective corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental, regulatory
or other approvals (if any is required), do not and will not contravene or
conflict with any provision of (a) any law, (b) any judgment, decree or order or
(c) their respective articles or certificate of incorporation or bylaws and do
not and will not contravene or conflict with, or cause any lien to arise under,
any provision of any agreement or instrument binding upon the Credit Parties (or
any thereof) or upon any of their respective properties. This Agreement and each
of the LIFO Lender Documents to which any Credit Party is a party are its legal,
valid and binding obligations, enforceable against it in accordance with its
terms.
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5.2 Representations and Warranties; Default. As of the Effective Date, except
for those representations or warranties specifically made as of another date,
the representations and warranties of any of the Credit Parties contained in the
LIFO Lender Documents are true and correct. As of the Effective Date, except for
the Subject Noncompliance Events, no default or event of default has occurred
and is continuing.
SECTION 6. CONDITIONS PRECEDENT.
--------------------
Notwithstanding any other provision contained in this Agreement, the
effectiveness of this Agreement and the obligation of the LIFO Lenders to
institute the provisions of this Agreement and the commencement of the
Restructuring Period shall be effective on the date (the "Effective Date") on
which the LIFO Agent has received all of the following:
(a) executed counterpart signature pages of this Agreement from the parties
hereto;
(b) a restructuring fee, for the pro rata benefit of the LIFO Banks, in the
amount of $200,000, which shall be fully earned when paid;
(c) a copy of the agent fee letter, which shall be in form and substance
satisfactory to the LIFO Agent, executed by Borrower and payment of the fees set
forth therein;
(d) the cash required to be deposited by Borrower into the Cash Collateral
Account pursuant to Section 3.10(a) of this Agreement;
(e) an executed copy of the Subordinated Lender Restructuring Agreement;
(f) payment from Borrower of all out-of-pocket costs and expenses of LIFO Agent,
including the fees and out-of-pocket charges of counsel for LIFO Agent; and
(g) such other documents as LIFO Lenders may reasonably request.
SECTION 7. MISCELLANEOUS.
-------------
7.1 Captions. The recitals to this Agreement (except for definitions) and the
section captions used in this Agreement are for convenience only and do not
affect the construction of this Agreement.
7.2 Release. AS A CONDITION PRECEDENT TO THE EFFECTIVENESS OF THIS AGREEMENT,
AND IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND FOR OTHER GOOD
AND VALUABLE CONSIDERATION, EACH CREDIT PARTY HEREBY HOLDS HARMLESS, RELEASES,
ACQUITS AND FOREVER DISCHARGES THE LIFO LENDERS, THE RESPECTIVE PARTICIPANTS,
SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
13
SERVANTS, ATTORNEYS AND REPRESENTATIVES, AS WELL AS THE RESPECTIVE HEIRS,
PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF ANY AND ALL OF THEM
(COLLECTIVELY, THE "RELEASED PARTIES") FROM ANY AND ALL CLAIMS, DEMANDS, DEBTS,
ACTIONS, CAUSES OF ACTION, SUITS, CONTRACTS, AGREEMENTS, OBLIGATIONS, ACCOUNTS,
DEFENSES, OFFSETS AND LIABILITIES OF ANY KIND OR CHARACTER WHATSOEVER, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY,
THAT ANY SUCH CREDIT PARTY EVER HAD, NOW HAVE, OR MIGHT HEREAFTER HAVE AGAINST
ANY RELEASED PARTY, JOINTLY OR SEVERALLY, FOR OR BY REASON OF ANY MATTER, CAUSE
OR THING WHATSOEVER OCCURRING BEFORE THE DATE OF THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION, ANY OF THE FOREGOING THAT RELATE TO, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR LIFO LENDER DOCUMENT. IN ADDITION,
EACH CREDIT PARTY AGREES NOT TO COMMENCE, JOIN IN OR PROSECUTE ANY SUIT OR OTHER
PROCEEDING THAT IS ADVERSE TO ANY OF THE RELEASED PARTY ARISING DIRECTLY OR
INDIRECTLY FROM ANY OF THE FOREGOING MATTERS. THE CREDIT PARTIES AGREE TO
INDEMNIFY AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY LOSS OR DAMAGES,
CLAMS, COSTS AND ATTORNEY FEES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY LIFO LENDER DOCUMENT.
7.3 LIFO Lender Documents Unaffected. Except as herein otherwise specifically
provided, all provisions of the LIFO Lender Documents shall remain in full force
and effect and be unaffected hereby.
7.4 No Other Promises or Inducements. There are no promises or inducements that
have been made to any party hereto to cause such party to enter into this
Agreement other than those that are set forth in this Agreement. This Agreement
has been entered into by each Credit Party freely, voluntarily, with full
knowledge, and without duress, and, in executing this Agreement, no Credit Party
is relying on any other representations, either written or oral, express or
implied, made to such Credit Party by any LIFO Lender. Each Credit Party agrees
that the consideration received by such Credit Party under this Agreement has
been actual and adequate.
7.5 No Waiver of Rights. No waiver shall be deemed to be made by any party
hereunder of any of its rights hereunder unless the same shall be in writing
signed on behalf of such party.
7.6 Successors and Assigns. This Agreement is binding upon the Credit Parties,
the LIFO Lenders and their respective successors and assigns, and inures to the
sole benefit of the Credit Parties, the LIFO Lenders and their successors and
assigns. No Credit Party has any right to assign its rights or delegate their
duties under this Agreement.
7.7 Continued Effectiveness. Notwithstanding anything contained in this
Agreement, the terms of this Agreement are not intended to and do not serve to
effect a novation as to any LIFO Lender Document. The parties to this Agreement
expressly do not intend to extinguish any LIFO Lender Document. Instead, the
parties to this Agreement expressly intend to reaffirm the indebtedness created
under the LIFO Lender Documents. The LIFO Lender Documents remain in full force
and effect and the terms and provisions of the LIFO Lender Documents are
ratified and confirmed.
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7.8 Tolling. Any and all statutes of limitations, repose or similar legal
constraints on the time by which a claim must be filed, a person given notice
thereof, or asserted, that expire, run or lapse during the Restructuring Period
on any claims that any LIFO Lender may have against any Credit Party or any
other persons relating to any of the Credit Parties (collectively, the
"Restructuring Period Statutes of Limitation") will be tolled during the
Restructuring Period. Each Credit Party waives any defense they may have against
any of the LIFO Lenders under the Restructuring Period Statutes of Limitation,
applicable law or otherwise solely as to the expiration, running or lapsing of
the Restructuring Period Statutes of Limitation during the Restructuring Period.
7.9 Revival of Obligations. If all or any part of any payment under or on
account of the LIFO Lender Documents, this Agreement or any agreement,
instrument or other document executed or delivered by any Credit Party in
connection with this Agreement is invalidated, set aside, declared or found to
be void or voidable or required to be repaid to the issuer or to any trustee,
custodian, receiver, conservator, master, liquidator or any other person
pursuant to any bankruptcy law or pursuant to any common law or equitable cause
then, to the extent of such invalidation, set aside, voidness, voidability or
required repayment, such payment would be deemed to not have been paid, and the
obligations of such Credit Party in respect thereof shall be immediately and
automatically revived without the necessity of any action by the LIFO Lenders.
7.10 Governing Law. This Agreement shall be construed according to the laws of
the State of Ohio, without regard to principles of conflicts of laws.
7.11 Entire Agreement. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements, and undertakings of every kind and
nature among them with respect to the subject matter hereof.
7.12 Counterparts. This Agreement may be executed in any number of counterparts,
and by the parties hereto on the same or separate counterparts and by facsimile
signature, and each such counterpart, when executed and delivered, shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same Agreement.
7.13 Notice. All notices, requests, demands and other communications provided
for hereunder shall be in writing and mailed or delivered to any party,
addressed to the address of such party specified on the signature page of this
Agreement. All notices, statements, requests, demands and other communications
provided for hereunder shall be deemed to be given or made when delivered or 48
hours after being deposited in the mails with postage prepaid by registered or
certified mail, addressed as aforesaid, or sent by facsimile with telephonic
confirmation of receipt, except that notices pursuant to any of the provisions
hereof shall not be effective until received.
7.14 Jurisdiction and Venue. All judicial proceedings arising out of or relating
to this Agreement or any obligation hereunder shall be brought in the United
States District Court for the Northern District of Ohio or in the Court of
Common Pleas, Cuyahoga County, Ohio, and by their respective execution and
delivery of this Agreement, the undersigned accept for themselves and in
connection with their properties, generally and unconditionally, the
jurisdiction of the aforesaid courts and waive any defense of forum
nonconveniens, and irrevocably agree to be bound by any judgment rendered
thereby in connection with this Agreement.
15
7.15 Severability of Provisions; Captions; Attachments. Wherever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to Sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein an shall be deemed to be a part hereof.
7.16 Legal Representation of Parties. This Agreement was negotiated by the
parties with the benefit of legal representation and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to any construction or interpretation hereof
or thereof.
7.17 JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW,
HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THEM, OR ANY OF THEM,
ARISING OUT OF, IN CONNECTION WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY
THE ABILITY OF ANY OF UNDERSIGNED TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION
OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT AMONG THE UNDERSIGNED.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date referenced in the first paragraph of this Agreement.
BORROWER:
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AMCAST INDUSTRIAL CORPORATION
Xxxxxx, Xxxx 00000
Attn: President By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President, Finance
GUARANTORS:
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx ELKHART PRODUCTS CORPORATION
Xxxxxx, Xxxx 00000
Attn: President By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AMCAST AUTOMOTIVE OF INDIANA,
Xxxxxx, Xxxx 00000 INC.
Attn: President
By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AS INTERNATIONAL, INC.
Xxxxxx, Xxxx 00000
Attn: President By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx IZUMI, INC.
Xxxxxx, Xxxx 00000
Attn: President By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AMCAST CASTING TECHNOLOGIES,
Xxxxxx, Xxxx 00000 INC.
Attn: President
By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
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Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AMCAST INDUSTRIAL FINANCIAL
Xxxxxx, Xxxx 00000 SERVICES, INC.
Attn: President
By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AMCAST INVESTMENT SERVICES
Xxxxxx, Xxxx 00000 CORPORATION
Attn: President
By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx CASTING TECHNOLOGY COMPANY
Xxxxxx, Xxxx 00000
Attn: President By: Amcast Casting
Technologies, Inc., a
General Partner
By:/s/ X. X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
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LIFO LENDERS:
Address: 000 Xxxxxx Xxxxxx, 0xx Xxxxx XXXXXXX NATIONAL ASSOCIATION,
Xxxxxxxxx, Xxxx 00000 as LIFO Agent and a LIFO Bank
Attn: Xxxx X. Xxxxxxx
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
Address: Xxx Xxxx Xxxxxx, 00xx Xxxxx THE BANK OF NEW YORK
New York, New York 10286
Attn: Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 X. Xxxxx Xxxxxx BANK ONE INDIANA, N.A.
Xxxxxxxx, Xxxx 00000
Attn: ___________________ By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: First Vice President
Address: 00 Xxxx Xxxxxx Xxxxxx CREDIT AGRICOLE INDOSUEZ
Xxxxxxx, Xxxxxxxx 00000
Attn: __________________ By: /s/ Xxxxxxxx X. Asse
Name: Xxxxxxxx X. Xxxx
Title: Vice President
and /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Catarina
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx XXXXXXXX XXXX
Xxxxxxx, Xxxxxxxx 00000
Attn: X. Xxxxxx 3265 By: /s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: First Vice President
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Address: 0 Xxxxx Xxxx Xxxxxx XXXXXXXX XXXX XXXX
Xxxxxx, Xxxx 00000
Attn: Corporate Banking By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Address: U.S. Bancorp Center U.S. BANK NATIONAL ASSOCIATION
BC-MN-H22A (successor to Firstar Bank,
000 Xxxxxxxx Xxxx X.X.)
Xxxxxxxxxxx, XX 00000 By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: VP
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EXHIBIT A
SUBJECT NONCOMPLIANCE EVENTS
1. The failure to comply with Section 6.1 of the Existing Credit Agreement
(as such section relates to the payment of principal) on September 14,
2002.
2. The noncompliance with Section 6.5 of the LIFO Credit Agreement as a
result of the Subject Noncompliance Events (as defined in the
Subordinated Lender Restructuring Agreement.
