EXHIBIT 10.1
SECOND AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
This SECOND AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT (this
"AMENDMENT") is dated as of November 19, 2004 and entered into by and among
INTERMET CORPORATION, a Georgia corporation ("COMPANY"), THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "BORROWERS" and each a "BORROWER"), THE
BANK OF NOVA SCOTIA, as Administrative Agent for the Lenders ("ADMINISTRATIVE
AGENT") and as a Lead Lender, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent and Co-Agent for the Lenders ("COLLATERAL AGENT") and as a Lead
Lender, and the undersigned Lenders, and is made with reference to that certain
Debtor-In-Possession Revolving Credit Agreement dated as of October 22, 2004 (as
amended, supplemented or otherwise modified to the date hereof, the "CREDIT
AGREEMENT"), by and among Borrowers, the Lenders, Administrative Agent and
Collateral Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers, Lead Lenders and the undersigned Lenders desire
to amend the Credit Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 1.1.
A. Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions in appropriate alphabetical order:
"SECOND AMENDMENT" means that certain Second Amendment to
Debtor-In-Possession Credit Agreement dated as of November 19, 2004
by and among Borrowers, Agents, Lead Lenders and the Lenders party
thereto.
"SECOND AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the Second Amendment.
B. Subsection 1.1 of the Credit Agreement is hereby further amended
by deleting the definition of "Incremental Commitment Effective Date" contained
therein in its entirety and substituting therefor the following:
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"INCREMENTAL COMMITMENT EFFECTIVE DATE" means the earliest
time as of which all conditions set forth in subsection 4.2 shall
have been deemed satisfied or otherwise waived in accordance with
the last paragraph of such subsection; provided, however, that
solely for purposes of each of the definition of "Budget",
subsection 6.1(xvi) and subsection 7.1(iv), each reference to
"Incremental Commitment Effective Date" shall mean the date on which
Borrowers shall have delivered the documents (in form and substance
satisfactory to each Agent in its sole discretion) required to be
delivered under clause (a) of the second sentence of subsection
6.16.
1.2 AMENDMENT TO SUBSECTION 4.2.
Subsection 4.2 of the Credit Agreement is hereby amended by deleting
clause (iii) of the last paragraph of such subsection in its entirety and
substituting therefor the following:
"(iii) Borrowers and Lenders hereby agree that (a) Borrowers shall
be required to satisfy of all the conditions set forth in
subsections 4.2A through 4.2K (other than subsection 4.2C) and
subsection 4.2M on a date that is after the First Amendment
Effective Date but prior to the 11th day after the First Amendment
Effective Date and (b) failure to satisfy such conditions as
required under clause (a) shall be an immediate Event of Default on
such 11th day (it being understood and agreed that for purposes of
this clause (iii), each reference to "Incremental Commitment
Effective Date" in subsections 4.2A through 4.2K and the reference
to "Closing Date" in subsection 4.2J shall be deemed to refer to the
date on which all the conditions set forth in such subsections shall
have been satisfied pursuant to this clause (iii)), provided,
however, that the Mortgages required under subsection 4.2H of the
Credit Agreement for Lynchburg Foundry Company's property at 0000 X.
Xxxx xx Xxxxxxx, XX and Ganton Technologies Inc.'s property in
Addison, Illinois shall be required to be delivered to Collateral
Agent on or prior to 5:00 p.m. New York City time on December 31,
2004 (and any earlier date of delivery required in this paragraph
shall not apply);".
1.3 AMENDMENT TO SUBSECTION 4.3.
Subsection 4.3B of the Credit Agreement is hereby amended by (i)
adding immediately prior to the ";" at the end of clause (iii) thereof the
phrase ", and shall not have been reversed, vacated or otherwise modified after
the entry thereof without prior written consent of each Agent and the Requisite
Lenders", and (ii) deleting clause (viii)(e) of such subsection and renumbering
clause (viii)(f) of such subsection as clause (viii)(e).
1.4 AMENDMENT TO SUBSECTION 4.5.
Subsection 4.5B of the Credit Agreement is hereby amended by (i)
adding immediately prior to the ";" at the end of clause (iii) thereof the
phrase ", and shall not have been reversed, vacated or otherwise modified after
the entry thereof without prior written consent of each Agent and the Requisite
Lenders", and (ii) deleting clause (v)(e) of such subsection and renumbering
clause (v)(f) of such subsection as clause (v)(e).
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1.5 AMENDMENT TO SUBSECTION 6.16.
Subsection 6.16 of the Credit Agreement is hereby amended by adding
at the end thereof the following new sentence:
"Notwithstanding anything to the contrary in this Agreement or in
any limited waiver to this Agreement executed prior to the Second
Amendment Effective Date, (a) the documents described in subsection
4.2C (including Borrowers' business plan for the Chapter 11 Cases in
form and substance satisfactory to each Agent in its sole
discretion) shall be required to be delivered to Agents prior to
5:00 p.m. New York City time on December 31, 2004 (and any earlier
date of required delivery for such documents shall not apply); (b)
the required daily transfer of amounts on deposit in Borrowers' Cash
Management System described in subsection 4.1J and subsection 6.11
shall not require such daily transfer from accounts with Standard
Federal Bank N.A., Comerica Bank and Bank One, N.A. to the extent
Borrowers' funds on deposit with such banks do not exceed
$1,000,000, $500,000 and $250,000, respectively; and (c) the Control
Agreements required from Standard Federal Bank National Association,
Comerica Bank, Bank One, N.A., Bank of America, N.A., and U.S. Bank,
N.A. pursuant to subsection 6.16 shall be required to be delivered
to Collateral Agent prior to 5:00 p.m. New York City time on
December 6, 2004 (and any earlier date of required delivery for such
Control Agreements shall not apply); provided, that Collateral Agent
may extend such date in writing.".
1.6 AMENDMENT TO SUBSECTION 8.3.
Subsection 8.3 of the Credit Agreement is hereby amended by (i)
adding immediately prior to the reference to "6.11" contained therein the word
"or" and (ii) adding immediately after the reference to "6.11" contained therein
the phrase ", clause (iii) of the last paragraph of subsection 4.2, the second
sentence of subsection 6.16".
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Lenders and the Lenders to enter into
this Amendment and to amend the Credit Agreement in the manner provided herein,
Borrowers represent and warrant to each Lead Lender and Lender that the
following statements are true, correct and complete:
2.1 CORPORATE POWER AND AUTHORITY. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
2.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment has been duly authorized by all necessary action on the part of each
Borrower and the performance of the Amended Agreement has been duly authorized
by all necessary action on the part of each Borrower.
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2.3 NO CONFLICT. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Borrower or any of its Subsidiaries, or the
Organizational Documents of any Borrower or any of its Subsidiaries or any
order, judgment or decree of the Bankruptcy Court of any other Government
Authority binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
Subsidiaries or any applicable order of the Bankruptcy Court, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of any Borrower or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Borrower or any of
its Subsidiaries.
2.4 GOVERNMENTAL CONSENTS. The execution and delivery by each Borrower
of this Amendment and the performance by each Borrower of the Amended Agreement
do not and will not require any Governmental Authorization.
2.5 BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Borrower, and each of this Amendment and the Amended Agreement
is the legally valid and binding obligations of each Borrower enforceable
against each Borrower in accordance with its respective terms.
2.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Second Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 ABSENCE OF DEFAULT. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
2.8 FINAL BORROWING ORDER. The Final Borrowing Order is in full force
and effect and has not been stayed by the Bankruptcy Court or any other court of
competent jurisdiction and has not been reversed, vacated or otherwise modified
after the entry thereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective on the date (such
date being referred to herein as the "SECOND AMENDMENT EFFECTIVE DATE") on which
(i) Agents shall have received duly executed copies of this Amendment from each
Borrower, each Lead Lender and Requisite Lenders and (ii) the provisions of the
last paragraph of subsection 4.2 (as amended by this Amendment) that are
required to be satisfied prior to the 11th day after the First Amendment
Effective Date shall have been satisfied.
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SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower hereby acknowledges that such Borrower has read this
Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Borrower under each of the Loan Documents to which such
Borrower is a party shall not be impaired and each of the Loan Documents to
which such Borrower is a party are, and shall continue to be, in full force and
effect and are hereby confirmed and ratified in all respects.
SECTION 5. MISCELLANEOUS
5.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
A. On and after the Second Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
B. Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment shall
not constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent or any Lender under, the Credit Agreement or
any of the other Loan Documents.
5.2 FEES AND EXPENSES. Each Borrower acknowledges that all costs, fees
and expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent and Collateral Agent and their respective counsel
(including, without limitation, O'Melveny & Xxxxx LLP and Wachtell, Lipton,
Xxxxx & Xxxx) with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Borrowers.
5.3 HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
5.4 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and
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delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
INTERMET CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CAST-MATIC CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
COLUMBUS FOUNDRY, L.P.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
DIVERSIFIED DIEMAKERS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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GANTON TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET HOLDING COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET ILLINOIS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET U.S. HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
IRONTON IRON, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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LYNCHBURG FOUNDRY COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
NORTHERN CASTINGS CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SUDBURY, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SUDM, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
TOOL PRODUCTS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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XXXXXX CASTINGS COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HAVANA, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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AGENTS AND LENDERS:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lead Lender and a
Lender
By:/s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and as a Lead Lender and a
Lender
By:/s/ Xxxxx Xxxxx
--------------------
Name: Xxxxx Xxxxx
Title: Director
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