Exhibit 4-11 - First Amendment Agreement dated July 23, 2001 to the
Last-In-First-Out Credit Agreement
FIRST AMENDMENT AGREEMENT
This First Amendment Agreement (this "Amendment") is made as of July
23, 2001, by and among AMCAST INDUSTRIAL CORPORATION, an Ohio corporation
("Borrower"), the banking institutions named in Schedule 1 to the Credit
Agreement, as hereinafter defined ("Banks"), and KEYBANK NATIONAL ASSOCIATION,
as agent for the Banks ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain
Last-In-First-Out Credit Agreement dated as of June 5, 2001, as the same may
from time to time be amended, restated or otherwise modified, which provides,
among other things, for loans and letters of credit aggregating Thirty-Five
Million Dollars ($35,000,000), all upon certain terms and conditions ("Credit
Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each capitalized term used herein shall be defined in
accordance with the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and the
Banks agree as follows:
1. Amendment to Covenants.
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(i) The Credit Agreement is hereby amended to delete Section 4.7
therefrom in its entirety and to insert in place thereof the following:
Section 4.7. Financial Covenants. On or before August 6, 2001,
Borrower shall enter into an amendment to this Agreement (the
"Financial Covenant Amendment") with Agent and the Banks which
Financial Covenant Amendment shall provide for such financial covenants
as Agent and the Banks deem necessary or appropriate based upon the
Borrower Business Plan and then current financial conditions of the
Companies, which Financial Covenant Amendment shall be in form and
substance satisfactory to Agent and the Banks.
(ii) Section 4.9 of the Credit Agreement is hereby amended to delete
subsection (f) therefrom and to insert in place thereof the following:
(f) Liens on the assets of Speedline S.r.l in connection with the
Indebtedness permitted pursuant to Section 4.8(f) hereof; or
2. New Covenant Regarding the Strategic Alternate Plan. Article IV of the
Credit Agreement is hereby amended to add the following new Section
4.22 thereto:
Section 4.22. Strategic Alternative Review. In addition to the
requirements set forth in Section 3.2(c) hereof with respect to the
delivery of the Borrower Business Plan, on or before November 30, 2001,
Borrower shall have delivered to Agent and the Banks a strategic
alternative review in form and detail reasonably satisfactory to Agent
and the Required Banks which review shall provide for contingencies in
the event that the Borrower Business Plan is proving to be unsuccessful
and either an Event of Default shall have occurred or an Event of
Default is likely to exist at the end of the next fiscal quarter
("Strategic Alternative Review"). The Strategic Alternative Review
shall include a comprehensive review that shall set forth specific
strategic alternatives to those set forth in the Borrower Business Plan
that will result in a significant reduction in the amount of
Indebtedness outstanding by the Companies by the end of Borrower's
fiscal year ending on or about August 31, 2002.
3. Real Property Deliveries. Notwithstanding anything in the Credit
Agreement to the contrary, Borrower, Agent and the Banks hereby agree that
Borrower shall provide to Agent the items set forth in Section 3.2(e)(i), (ii)
and (iii) of the Credit Agreement on or before September 15, 2001 (or such later
date to which Agent and the Required Banks shall have consented in writing). In
addition, Borrower, Agent and the Banks also agree to extend the time period set
forth in Section 6.3 of the Subordination Agreement to September 15, 2001.
4. CTC Reorganization. Borrower has informed Agent and the Banks that
Izumi, Inc., a Delaware corporation ("Izumi"), desires to merge (the "Merger")
with and into Amcast Casting Technologies, Inc., an Indiana corporation
("ACTI"). Presently, Casting Technology Company, an Indiana general partnership
("CTC"), has two general partners, Izumi and ACTI. Pursuant to the Merger, CTC
will be dissolved and terminated in accordance with the general partnership laws
of the State of Indiana, all of the assets and liabilities of CTC will be
transferred to ACTI (the "Asset Transfer") and the name of ACTI will be changed
to Casting Technology Company. Pursuant to Section 4.12 of the Credit Agreement,
Borrower has requested that Agent and the Required Banks consent to the Merger
and the Asset Transfer. Agent and the Required Banks, by signing this Amendment,
hereby consent to the Merger and the Asset Transfer.
5. Representations and Warranties. Borrower hereby represents and
warrants to Agent and the Banks that (a) Borrower has the legal power and
authority to execute and deliver this Amendment; (b) the officials executing
this Amendment have been duly authorized to execute and deliver the same and
bind Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower of
the provisions hereof do not violate or conflict with the organizational
agreements of Borrower or any law applicable to Borrower or result in a breach
of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against Borrower; (d) no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment or by the
performance or observance of any provision hereof; (e) neither Borrower nor any
Subsidiary has any claim or offset against, or defense or counterclaim to, any
of Borrower's or any Subsidiary's obligations or liabilities under the Credit
Agreement or any Related Writing; and (f) this Amendment constitutes a valid and
binding obligation of Borrower in every respect, enforceable in accordance with
its terms.
6. Credit Agreement Unaffected. Each reference that is made in the
Credit Agreement or any other writing to the Credit Agreement shall hereafter be
construed as a reference to the Credit Agreement as amended hereby. Except as
herein otherwise specifically provided, all provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby.
7. Waiver. Borrower and each Subsidiary, by signing below, hereby
waives and releases Agent and each of the Banks and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all
claims, offsets, defenses and counterclaims of which Borrower and any Subsidiary
is aware, such waiver and release being with full knowledge and understanding of
the circumstances and effect thereof and after having consulted legal counsel
with respect thereto.
8. Counterparts This Amendment may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
9. Governing Law. The rights and obligations of all parties hereto shall
be governed by the laws of the State of Ohio, without
regard to principles of conflicts of laws.
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10. JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR
HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE
BANKS, EACH GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR
MODIFY AGENT'S OR ANY BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANK ONE INDIANA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FISTAR BANK, N.A.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: AVP
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
and /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: V.P./ Sr.Relationship Mgr.
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President
NATIONAL CITY BANK
(successor in interest to
National City Bank of Dayton)
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing First Amendment Agreement dated as of July 23, 2001. Each
of the undersigned specifically acknowledges the terms of and consent to the
waivers set forth therein. Each of the undersigned further agrees that the
obligations of each of the undersigned pursuant to the Guaranties of Payment of
Debt executed by each of the undersigned shall remain in full force and effect
and be unaffected hereby.
Each of the undersigned, by signing below, hereby waives and releases
Agent and each of the Banks and their respective directors, officers, employees,
attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which any of the undersigned is aware, such waiver
and release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR HEREBY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE BANKS, EACH
GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS
WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY
BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT AMONG BORROWER, AGENT, THE BANKS AND GUARANTORS, OR ANY THEREOF.
ELKHART PRODUCTS CORPORATION AMCAST INVESTMENT SERVICES
AMCAST AUTOMOTIVE OF INDIANA, CORPORATION
INC. (fka Wheeltek, Inc.)
AS INTERNATIONAL, INC. By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
IZUMI, INC. Title: Vice President
AMCAST CASTING TECHNOLOGIES, INC.
AMCAST INDUSTRIAL FINANCIAL SERVICES, INC. CASTING TECHNOLOGY COMPANY
By: Amcast Casting Technologies,Inc.
By: /s/ Xxxxxxx X. Xxxxxxx a General Partner
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
