Exhibit 4.24 - Security Agreement Dated July 24, 2001
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is made as of July 24, 2001,
by CASTING TECHNOLOGY COMPANY, an Indiana general partnership ("Pledgor"), in
favor of KEYBANK NATIONAL ASSOCIATION, as collateral agent (together with its
successors and assigns, "Collateral Agent"), for the benefit of the Lenders, as
hereinafter defined.
1. RECITALS.
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation (together with its
successors and assigns, "Borrower"), the financial institutions listed on
Schedule 1 to the Credit Agreement, as hereinafter defined (collectively,
"Banks" and, individually, "Bank"), and KEYBANK NATIONAL ASSOCIATION, as agent
for the Banks under the Credit Agreement ("Agent"), are parties to the Credit
Agreement pursuant to which the Banks will, among other things, grant to
Borrower, for the benefit of Borrower, Pledgor and each other subsidiary of
Borrower, the Loans and Letters of Credit, as defined in the Credit Agreement.
Each of the Noteholders, as hereinafter defined, has purchased certain
notes from Borrower, for the benefit of Borrower and each subsidiary of
Borrower, including Pledgor, in accordance with the Note Agreements, as
hereinafter defined.
Each of the Line of Credit Lenders, as hereinafter defined, has made
and will continue to make certain advances and other extensions of credit to
Borrower, for the benefit of Borrower and each subsidiary of Borrower, including
Pledgor, in accordance with the Line of Credit Documents, as hereinafter
defined.
Borrower has requested that the Credit Agreement be amended to revise
certain covenants and other provisions applicable to the Companies, as defined
in the Credit Agreement.
Pledgor, a subsidiary of Borrower whose financing is provided by the
financial accommodations provided by the Lenders, deems it to be in the direct
pecuniary and business interests of Pledgor that Borrower continue to obtain
such financial accommodations.
Pledgor understands that Agent, the Banks and the other Lenders are
willing to continue to grant or otherwise continue to make available financial
accommodations to Borrower, only upon certain terms and conditions, one of which
is that Pledgor grant to Collateral Agent, for the benefit of the Lenders, a
security interest in and an assignment of the Collateral, as hereinafter
defined, and this Agreement is being executed and delivered in consideration of
each financial accommodation granted to Borrower by any Lender and for other
valuable considerations.
2. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"Account" shall mean (a) all accounts, as defined in Chapter 1309 of
the Ohio Revised Code; (b)(i) any right to payment now or hereafter owing to
Pledgor (including but not limited to any such right to payment by reason of any
lease, sale, manufacture, repair, processing or fabrication of personal property
formerly, now or hereafter owned or otherwise held by Pledgor, by reason of any
services formerly, now or hereafter rendered by or on behalf of Pledgor or by
reason of any former, existing or future contract for any such lease, sale,
manufacture, repair, processing, fabrication and/or services), whether such
right to payment be classified by law as an instrument, chattel paper, contract
right, account, document, general intangible or otherwise; (ii) the security, if
any, for such right to payment; (iii) Pledgor's right, title and interest
(including, without limitation, all of Pledgor's rights as an unpaid vendor, and
any applicable right of stoppage in transit) in or to the personal property, if
any, that is the subject of such right to payment; and (iv) all books and
records pertaining to such right to payment; and (c) all proceeds of any of the
foregoing, irrespective of the form or kind thereof.
"Account Debtor" shall mean any Person obligated to pay all or any part
of any Account in any manner and includes (without limitation) any guarantor
thereof or other accommodation party therefor.
"Administrative Expenses" shall mean (a) any and all reasonable costs,
liabilities, and expenses (including, without limitation, losses, damages,
penalties, claims, actions, reasonable attorneys' fees, legal expenses,
judgments, suits, and disbursements) incurred by, imposed upon, or asserted
against, Collateral Agent in any attempt by Collateral Agent to (i) obtain,
preserve, perfect or enforce any security interest evidenced by this Agreement,
any other Collateral Document or any other Lending Party Document; (ii) obtain
payment, performance or observance of any and all of the Obligations; or (iii)
maintain, insure, audit, collect, preserve, repossess or dispose of any of the
Collateral or any other collateral securing the Obligations, including, without
limitation, costs and expenses for appraisals, assessments, and audits of
Borrower, Pledgor or any such Collateral; (b) to the extent not included in
subpart (a) hereof, any amounts payable to Collateral Agent pursuant to Section
9A.9 of the Credit Agreement; and (c) all costs liabilities and expenses
incidental or related to (a) or (b) hereof, including, without limitation,
interest thereupon (i) prior to the occurrence of a Default Event, after ten
(10) days after demand therefor until paid at the Default Rate, as defined in
the Credit Agreement, and (ii) after the occurrence of a Default Event, from the
date incurred, imposed or asserted until paid, at the Default Rate.
"Bank Obligations" shall mean, collectively, (a) the Debt (as defined
in the Credit Agreement), and (b) all other Indebtedness or other obligations
incurred by any Company to Agent and the Banks pursuant to the Credit Agreement
or any other Loan Document, whether for principal, interest, fees, costs or
indemnities, and whether now existing or hereafter arising.
"Cash Collateral Account" shall mean a commercial Deposit Account
designated "cash collateral account" and maintained by Pledgor with Collateral
Agent, without liability by Collateral Agent or any Lender to pay interest
thereon, from which account Collateral Agent shall have the exclusive right to
withdraw funds until all of the Obligations are paid in full.
"Cash Security" shall mean all cash, instruments, Deposit Accounts, and
other cash equivalents, whether matured or unmatured, whether collected or in
the process of collection, upon which Pledgor presently has or may hereafter
have any claim, wherever located, including but not limited to any of the
foregoing that are presently or may hereafter be existing or maintained with,
issued by, drawn upon, or in the possession of Collateral Agent or any Lender.
"Collateral" shall mean all of Pledgor's existing and future (a)
personal property; (b) Accounts, accounts receivable, Investment Property,
contract rights, instruments, chattel paper, documents, General Intangibles,
Inventory and Equipment; (c) funds now or hereafter on deposit in the Cash
Collateral Account, if any; (d) Cash Security; and (e) Proceeds, products,
profits, and rents of any of (a) through (d) above.
"Credit Agreement" shall mean the Credit Agreement executed by and
among Borrower, Agent and the Banks and dated as of the 14th day of August,
1997, as amended and as the same may from time to time be further amended,
restated or otherwise modified.
"Default Event" shall mean a Default Event, as defined in the Credit
Agreement.
"Deposit Account" shall mean (a) any deposit account, and (b) any
demand, time, savings, passbook, or a similar account maintained with a bank,
savings and loan association, credit union, or similar organization.
"Equipment" shall mean all (a) equipment, as defined in Chapter 1309 of
the Ohio Revised Code, including without limitation, machinery, motor vehicles,
trade fixtures, office and other furniture and furnishings; (b) goods that are
used or bought for use primarily in Pledgor's business; (c) goods that are not
consumer goods, farm products (as defined in Chapter 1309 of the Ohio Revised
Code), or Inventory; and (d) substitutes or replacements for, and parts,
accessories, additions, attachments, or accessions to (a) through (c) above.
"General Intangibles" shall mean all (a) general intangibles, as
defined in Chapter 1309 of the Ohio Revised Code; (b) choses in action, causes
of action, customer lists, corporate or other business records, inventions,
designs, patents, patent applications, service marks, registrations, trade
names, trademarks, copyrights, goodwill, computer software, rights to
indemnification and tax refunds; and (c) Proceeds of any of the foregoing,
irrespective of the form or kind thereof.
"Hedge Agreement" shall mean any currency swap or hedge agreement,
interest rate swap, cap, collar or floor agreement, or other interest rate
management device entered into by Borrower with Agent or any of the Banks, or
any of their respective affiliates, in connection with the Debt.
"Inventory" shall mean all (a) inventory, as defined in Chapter 1309 of
the Ohio Revised Code; (b) goods that are raw materials; (c) goods that are
work-in-process; (d) goods that are materials used or consumed in the ordinary
course of Pledgor's business; (e) goods that are, in the ordinary course of
Pledgor's business, held for sale or lease or furnished or to be furnished under
contracts of service; and (f) substitutes and replacements for, and parts,
accessories, additions, attachments, or accessions to (a) through (e) above.
"Investment Property" shall mean all investment property, as defined in
Chapter 1309 of the Ohio Revised Code, unless the Uniform Commercial Code as in
effect in another jurisdiction would govern the perfection and/or priority of a
security interest in investment property, and, in such case, investment property
shall be defined in accordance with the law of that jurisdiction.
"Lender" shall mean any Bank, Noteholder or Line of Credit Lender.
"Lending Party Documents" shall mean, collectively, the Loan Documents,
as defined in the Credit Agreement, the Note Agreements and the Line of Credit
Documents.
"Line of Credit Documents" shall mean the promissory notes and other
agreements evidencing or relating to the Line of Credit Obligations.
"Line of Credit Lender" shall mean (a) each of the financial
institutions set forth on Schedule 4 to the Credit Agreement so long as such
financial institution (i) is a Bank under this Agreement and (ii) has
established an unsecured, discretionary line of credit for Borrower and its
Subsidiaries, or (b) is financial institution that has entered into a Hedge
Agreement with Borrower so long as such financial institution is a Bank under
this Agreement; provided that, if any such financial institution ceases to be a
Bank under the Credit Agreement, then the Line of Credit Obligations owing to
such financial institution shall no longer be secured by the Collateral.
"Line of Credit Obligations" shall mean all Indebtedness or other
obligations incurred by Borrower to the Line of Credit Lenders, whether for
principal, interest, fees, costs or indemnities, and whether now existing or
hereafter arising; provided, however, that the principal amount owing to any
Line of Credit Lender shall not exceed the amount set forth opposite such Line
of Credit Lender's name on Schedule 4 to the Credit Agreement.
"Note Agreement" shall mean any of (a) the Note Agreement dated as of
November 1, 1995, as amended, executed by Borrower in favor of Principal Mutual
Life Insurance Company, as Purchaser, with respect to $25,000,000 7.09% Senior
Notes Due November 7, 2005, and (b) the Note Agreement dated as of November 1,
1995, as amended, executed by Borrower in favor of Northwestern Mutual Life
Insurance Company, as Purchaser, with respect to $25,000,000 7.09% Senior Notes
Due November 7, 2005.
"Noteholder" shall mean Northwestern Mutual Life Insurance Company, and
its successors and assigns, or Principal Mutual Life Insurance Company, and its
successors and assigns.
"Noteholders" shall mean, collectively, Northwestern Mutual Life
Insurance Company and Principal Mutual Life Insurance Company, and their
respective successors and assigns.
"Noteholder Obligations" shall mean all Indebtedness or other
obligations incurred by Borrower to the Noteholders pursuant to the Note
Agreements, whether for principal, interest, fees, costs or indemnities, and
whether now existing or hereafter arising.
"Obligations" shall mean, collectively, (a) the Bank Obligations, (b)
the Noteholder Obligations, (c) the Line of Credit Obligations, and (d) all
Administrative Expenses and all other indebtedness or other obligations now
owing or hereafter incurred by Borrower or any other Company to Collateral Agent
pursuant to this Agreement or any of the Collateral Documents.
"Person" shall mean 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.
"Proceeds" shall mean (a) any proceeds, and (b) whatever is received
upon the sale, exchange, collection, or other disposition of Collateral or
proceeds, whether cash or non-cash. Cash proceeds includes, without limitation,
moneys, checks, and Deposit Accounts. Proceeds includes, without limitation, any
Account arising when the right to payment is earned under a contract right, any
insurance payable by reason of loss or damage to the Collateral, and any return
or unearned premium upon any cancellation of insurance. Except as expressly
authorized in this Agreement, the right of Collateral Agent or any Lender to
Proceeds specifically set forth herein or indicated in any financing statement
shall never constitute an express or implied authorization on the part of
Collateral Agent or such Lender to Pledgor's sale, exchange, collection, or
other disposition of any or all of the Collateral.
Except as specifically defined herein, all capitalized terms used herein that
are defined in the Credit Agreement shall have the meanings ascribed to them in
the Credit Agreement. Unless otherwise defined in this Section 2, terms that are
defined in Chapter 1309 of the Ohio Revised Code, as in effect from time to
time, are used herein as so defined.
3. SECURITY INTEREST. In consideration of and as security for the full
and complete payment of all of the Obligations, Pledgor hereby agrees that
Collateral Agent, for the benefit of the Lenders, shall at all times have, and
hereby grants to Collateral Agent, for the benefit of the Lenders, a security
interest in and an assignment of all of the Collateral, including (without
limitation) all of Pledgor's future Collateral, irrespective of any lack of
knowledge by Collateral Agent or the Lenders of the creation or acquisition
thereof.
4. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and warrants
to Collateral Agent and each Lender as follows:
4.1. Pledgor is a general partnership duly formed, validly existing and
in good standing under the laws of its state of formation and is duly qualified
to do business in each state in which a failure to so qualify would have a
material adverse effect on Pledgor.
4.2. Pledgor has full power, authority and legal right to grant a
security interest in or collateral assignment of the Collateral, to execute and
deliver this Agreement, and to perform and observe the provisions hereof. The
general partner acting on Pledgor's behalf has been duly authorized to execute
and deliver this Agreement and to execute and file appropriate financing
statements in respect hereof. This Agreement is valid and binding upon Pledgor
in accordance with the terms hereof.
4.3. Neither the execution and delivery of this Agreement nor the
performance and observance of the provisions hereof, by Pledgor will conflict
with, or constitute a violation or default under, any provision of any
applicable law or Pledgor's certificate (or articles) of incorporation and
bylaws (or regulations).
4.4. Pledgor's principal place of business and the location where
Pledgor keeps records in respect of the Accounts are set forth on Schedule 4.4
hereto. Pledgor has places of business or maintains Collateral at the locations
set forth on Schedule 4.4 hereto.
4.5. Borrower has furnished its most recent financial statements to
each Lender and such financial statements are true and complete, have been
prepared in accordance with generally accepted accounting principles, in a
manner consistent with that used for the immediately preceding fiscal period
(except as otherwise noted therein), and fairly present the financial condition
of the Companies as of the date of such financial statements and the results of
Borrower's operations for the period then ending. Since such date, there has
been no material adverse change in any Company's financial condition, business
and properties other than such changes, if any, as have been specifically
disclosed to each Lender in writing.
4.6. Except as permitted by Section 5.8 of the Credit Agreement, (a)
there is no financing statement outstanding covering the Collateral, or any part
thereof, other than a financing statement in favor of Collateral Agent, for the
benefit of the Lenders; (b) none of the Collateral is subject to any security
interest or lien of any kind, other than the security interest herein granted to
Collateral Agent, for the benefit of the Lenders, or previously granted to
Collateral Agent, for the benefit of the Lenders; (c) the Internal Revenue
Service has not alleged the nonpayment or underpayment of any tax by Pledgor or
threatened to make any assessment in respect thereof that would have a material
adverse effect on Pledgor; and (d) the filing of the U.C.C. financing statements
being executed in connection herewith, Collateral Agent will have, for the
benefit of the Lenders, a valid and enforceable first security interest in or
first priority collateral assignment of the Collateral.
4.7. Pledgor has received consideration that is the reasonable
equivalent value of the obligations and liabilities that Pledgor has incurred to
the Lenders. Pledgor is not insolvent, as defined in any applicable state or
federal statute, nor will Pledgor be rendered insolvent by the execution and
delivery of this Agreement to Collateral Agent, or any other documents executed
and delivered to Collateral Agent in connection herewith. Pledgor has not
engaged, nor is Pledgor about to engage, in any business or transaction for
which the assets retained by it are or will be an unreasonably small amount of
capital, taking into consideration the obligations to the Lenders incurred
hereunder. Pledgor does not intend to, nor does it believe that it will, incur
debts beyond its ability to pay such debts as they mature.
4.8. At the execution and delivery hereof, no Default Event exists.
5. INSURANCE. Pledgor shall at all times maintain insurance upon its
Inventory, Equipment and other personal and real property in such form, written
by such companies, in such amounts, for such period, and against such risks as
may be acceptable to Collateral Agent, with provisions satisfactory to
Collateral Agent, for payment of all losses thereunder to Collateral Agent, for
the benefit of the Lenders, and Pledgor as their interests may appear (loss
payable endorsement in favor of Collateral Agent, for the benefit of the
Lenders), and, if required by Collateral Agent, Pledgor shall deposit the
policies with Collateral Agent. Any such policies of insurance shall provide for
no fewer than thirty (30) days prior written notice of cancellation to
Collateral Agent. Any sums received by Collateral Agent, for the benefit of the
Lenders, in payment of insurance losses, returns, or unearned premiums under the
policies may, at the option of the Collateral Agent, be held as Collateral and
distributed pursuant to the Intercreditor Provisions, or may be delivered to
Borrower or Pledgor, as appropriate, for the purpose of replacing, repairing, or
restoring the insured property; provided, however, that so long as no Event of
Default, as defined in the Credit Agreement, has occurred, any sums received by
the Collateral Agent which are less than the aggregate amount of Ten Million
Dollars ($10,000,000), for all Companies, shall be paid to Borrower or Pledgor,
as appropriate, if Borrower so requests, for the sole purpose of rebuilding,
replacing or restoring the property that has been damaged or destroyed. If such
funds are delivered to Pledgor, Pledgor shall commence such rebuilding,
replacing or restoration within six (6) months of the receipt of such insurance
proceeds and complete such rebuilding, replacing or restoring within six (6)
months thereafter, or such longer time as may be agreed to in writing by
Collateral Agent. Any sums received by Collateral Agent, for the benefit of the
Lenders, in payment of insurance losses, returns, or unearned premiums under the
policies shall be applied in accordance with the Intercreditor Provisions, as
defined in the Credit Agreement. In the event of failure to provide such
insurance as herein provided, Collateral Agent may, at its option, provide such
insurance and Pledgor shall pay to Collateral Agent, upon demand, the cost
thereof. Should Pledgor fail to pay such sum to Collateral Agent upon demand,
interest shall accrue thereon, from the date of demand until paid in full, at
the Default Rate. Within ten (10) days of any Lender's written request, Pledgor
shall furnish to such Lender such information about Pledgor's insurance as such
Lender may from time to time reasonably request, which information shall be
prepared in form and detail satisfactory to such Lender and certified by a
Financial Officer of Pledgor.
6. TAXES AND OTHER PLEDGOR OBLIGATIONS. Pledgor shall pay in full (a)
all taxes, assessments and governmental charges and levies in accordance with
Section 5.2 of the Credit Agreement; (b) all of its wage obligations to its
employees in accordance with Section 5.2 of the Credit Agreement; (c) all
obligations under the Employees Retirement Income Security Act of 1974, as
amended from time to time, in accordance with Section 5.6 of the Credit
Agreement; and (d) all of Pledgor's other obligations calling for the payment of
money in accordance with Section 5.2 of the Credit Agreement.
7. CORPORATE NAMES AND LOCATION OF COLLATERAL. Pledgor shall not change
its name, unless, in each case, Pledgor shall provide Collateral Agent with at
least thirty (30) days prior written notice thereof. Except as specified on
Schedule 7 hereto, Pledgor shall not use trade names, assumed names or
fictitious names without giving Collateral Agent at least thirty (30) days prior
written notice thereof. Pledgor shall also provide Collateral Agent with at
least thirty (30) days prior written notification of (a) any change in any
location where any of Pledgor's Inventory or Equipment is maintained (except
with respect to changes among existing locations), and any new locations where
any of Pledgor's Inventory or Equipment is to be maintained; (b) any change in
the location of the office where Pledgor's records pertaining to its Accounts
are kept; (c) the location of any new places of business and the changing or
closing of any of its existing places of business; and (d) any change in
Pledgor's chief executive office. In the event of any of the foregoing, Pledgor
shall promptly execute and deliver to Collateral Agent (and Pledgor agrees that
Collateral Agent may execute and deliver the same as Pledgor's irrevocable
attorney-in-fact) new U.C.C. financing statements describing the Collateral and
otherwise in form and substance sufficient for recordation wherever necessary or
appropriate, as determined in Collateral Agent's sole discretion, to perfect or
continue perfected the security interest of Collateral Agent, for the benefit of
the Lenders, in the Collateral, based upon such new places of business or names,
and Pledgor shall pay all filing and recording fees and taxes in connection with
the filing or recordation of such financing statements and shall immediately
reimburse Collateral Agent therefor if Collateral Agent pays the same. Such
amounts not so paid or reimbursed shall be Administrative Expenses hereunder.
8. NOTICE. Pledgor shall give Collateral Agent and each Lender prompt
written notice if any Default shall occur hereunder or if the Internal Revenue
Service shall allege the nonpayment or underpayment of any tax by Pledgor or
threaten to make any assessment in respect thereof that would have a material
adverse effect on Pledgor.
9. FINANCIAL RECORDS. Pledgor shall (a) maintain at all times true and
complete financial records and books of accounts and, without limiting the
generality of the foregoing, prepare authentic invoices for all of Pledgor's
Accounts; (b) render to Collateral Agent, forthwith upon each request of
Collateral Agent or any Lender, such reports of the Accounts, as Collateral
Agent or any Lender may from time to time reasonably request; (c) give
Collateral Agent prompt written notice whenever any Account Debtor shall become
in default in any material manner or assert any defense or offset with respect
to any material Account and whenever any other event, omission or condition
having a material adverse effect on any material Account shall occur or arise;
and (d) promptly forward to Collateral Agent, upon the reasonable request of
Collateral Agent or any Lender (i) an aging report of the Accounts then
outstanding setting forth, in such form and detail and with such representations
and warranties as Collateral Agent or such Lender may from time to time
reasonably require, the unpaid balances of all invoices billed respectively
during that period and during each of the three (3) next preceding periods, and
certified by an officer of Pledgor, and (ii) with respect to Pledgor's Inventory
and any other Collateral, such reports and other documents that are reasonably
satisfactory to Collateral Agent and the Lenders.
10. TRANSFERS, LIENS AND MODIFICATIONS REGARDING COLLATERAL. Except as
otherwise permitted hereunder or in the Credit Agreement, Pledgor shall not,
without Collateral Agent's prior written consent, (a) sell, assign, transfer, or
otherwise dispose of, or grant any option with respect to, or create, incur, or
permit to exist any pledge, lien, mortgage, hypothecation, security interest,
charge, option or any other encumbrance with respect to any of the Collateral,
or any interest therein, or any proceeds thereof, except for the lien and
security interest provided for by this Agreement and any security agreement
securing only Collateral Agent, for the benefit of the Lenders; or (b) enter
into or assent to any amendment, compromise, extension, release or other
modification of any kind of, or substitution for, any material Account that
would have any material adverse effect on the security interest granted in such
Account to the Collateral Agent.
11. COLLATERAL. Pledgor shall:
(a) at all reasonable times allow Collateral Agent by or through any of
its officers, agents, employees, attorneys, or accountants to (i) examine,
inspect, and make extracts from Pledgor's books and other records, including,
without limitation, the tax returns of Pledgor, (ii) arrange for verification of
Pledgor's Accounts, under reasonable procedures, directly with Account Debtors
or by other methods, and (iii) examine and inspect Pledgor's Inventory and
Equipment, wherever located;
(b) promptly furnish to Collateral Agent upon the reasonable request of
Collateral Agent (i) additional statements and information with respect to the
Collateral, and all writings and information relating to or evidencing any of
Pledgor's Accounts (including, without limitation, computer printouts or
typewritten reports listing the mailing addresses of all present Account
Debtors), and (ii) any other writings and information as Collateral Agent may
reasonably request;
(c) notify Collateral Agent in writing immediately upon the creation of
any Account (in excess of Ten Thousand Dollars ($10,000)) with respect to which
the Account Debtor is the United States of America or any state, county, city or
other governmental authority or any department, agency or instrumentality of any
of them, or any foreign government or instrumentality thereof or any business
that is located in a foreign country;
(d) immediately notify Collateral Agent in writing of any information
that Pledgor has or may receive with respect to the Collateral that might in any
manner materially and adversely affect the value thereof or the rights of
Collateral Agent or any Lender with respect thereto;
(e) subject to Section 14 hereof, maintain the Equipment in good
operating condition and repair, ordinary wear and tear excepted, making all
necessary replacements thereof so that the value and operating efficiency
thereof shall at all times be maintained and preserved, and promptly inform
Collateral Agent of any material additions to or deletions from the Equipment;
and
(f) upon request of Collateral Agent, promptly take such action and
promptly make, execute, and deliver all such additional and further items,
deeds, assurances, instruments and any other writings as Collateral Agent may
from time to time deem necessary or appropriate, including, without limitation,
financing statements and chattel paper, to carry into effect the intention of
this Agreement or so as to completely vest in and ensure to Collateral Agent and
the Lenders their rights hereunder and in or to the Collateral.
If certificates of title or applications for title are issued or outstanding
with respect to any of Pledgor's Inventory or Equipment, Pledgor shall (i) upon
request of Collateral Agent, execute and deliver to Collateral Agent a short
form security agreement, in form and substance satisfactory to Collateral Agent,
and (ii) deliver such certificate or application to Collateral Agent and cause
the interests of Collateral Agent and the Lenders to be properly noted thereon.
Pledgor hereby authorizes Collateral Agent or Collateral Agent's designated
agent (but without obligation by Collateral Agent to do so) to incur
Administrative Expenses (whether prior to, upon, or subsequent to any Default
Event hereunder), and Pledgor shall promptly repay, reimburse, and indemnify
Collateral Agent for any and all Administrative Expenses. If Pledgor fails to
keep and maintain the Equipment in good operating condition, Collateral Agent
may (but shall not be required to) so maintain or repair all or any part of the
Equipment and the cost thereof shall be an Administrative Expense. All
Administrative Expenses are payable to Collateral Agent upon demand therefor.
12. COLLECTIONS AND RECEIPT OF PROCEEDS BY PLEDGOR. Prior to exercise
by Collateral Agent, on behalf of the Required Lenders, of the rights of the
Lenders under this Agreement, both (a) the lawful collection and enforcement of
all of Pledgor's Accounts, and (b) the lawful receipt and retention by Pledgor
of all Proceeds of all of Pledgor's Accounts and Inventory shall be as the agent
of Collateral Agent and the Lenders. Upon written notice after the occurrence of
a Default Event to Pledgor from Collateral Agent, acting at the direction of the
Required Lenders, a Cash Collateral Account shall be opened by Pledgor at the
main office of Collateral Agent and all such lawful collections of Pledgor's
Accounts and such Proceeds of Pledgor's Accounts and Inventory shall be remitted
daily by Pledgor to Collateral Agent in the form in which they are received by
Pledgor, either by mailing or by delivering such collections and Proceeds to
Collateral Agent, appropriately endorsed for deposit in the Cash Collateral
Account. In the event that such notice is given to Pledgor from Collateral
Agent, Pledgor shall not commingle such collections or Proceeds with any of
Pledgor's other funds or property, but shall hold such collections and Proceeds
separate and apart therefrom upon an express trust for Collateral Agent. In such
case, Collateral Agent shall, at the request of the Required Lenders, at any
time and from time to time, apply all or any portion of the account balance in
the Cash Collateral Account as a credit against the Obligations in accordance
with the terms and conditions of the Credit Agreement, after payment of all
Administrative Expenses. If any remittance shall be dishonored, or if, upon
final payment, any claim with respect thereto shall be made against Collateral
Agent on its warranties of collection, Collateral Agent may charge the amount of
such item against the Cash Collateral Account or any other Deposit Account
maintained by Pledgor with Collateral Agent, and, in any event, retain the same
and Pledgor's interest therein as additional security for the Obligations.
Collateral Agent may, with the consent of the Required Lenders, release funds
from the Cash Collateral Account to Pledgor for use in Pledgor's business. The
balance in the Cash Collateral Account may be withdrawn by Pledgor upon
termination of this Agreement and irrevocable payment in full of all of the
Obligations. At Collateral Agent's request, Pledgor shall cause all remittances
representing collections and Proceeds of Collateral to be mailed to a lock box
in Cleveland, Ohio, to which Collateral Agent shall have access for the
processing of such items in accordance with the provisions, terms, and
conditions of Collateral Agent's customary lock box agreement.
13. COLLECTIONS AND RECEIPT OF PROCEEDS BY COLLATERAL AGENT. Collateral
Agent shall, at all times after the occurrence of a Default Event, have the
right, but not the duty, to collect and enforce any or all of the Accounts as
Collateral Agent may deem advisable and, if Collateral Agent shall at any time
or times elect to do so in whole or in part, Collateral Agent shall not be
liable to Pledgor except for willful misconduct, if any. Pledgor hereby
constitutes and appoints Collateral Agent, or Collateral Agent's designated
agent, as Pledgor's attorney-in-fact to exercise, at any time after the
occurrence of a Default Event, all or any of the following powers which, being
coupled with an interest, shall be irrevocable until the complete and full
payment of all of the Obligations:
(a) to receive, retain, acquire, take, endorse, assign, deliver,
accept, and deposit, in Collateral Agent's name or Pledgor's name, any and all
of Pledgor's cash, instruments, chattel paper, documents, Proceeds of Accounts,
Proceeds of Inventory, collection of Accounts, and any other writings relating
to any of the Collateral. Pledgor hereby waives presentment, demand, notice of
dishonor, protest, notice of protest, and any and all other similar notices with
respect thereto, regardless of the form of any endorsement thereof. Neither
Collateral Agent, Agent nor any Lender shall be bound or obligated to take any
action to preserve any rights therein against prior parties thereto;
(b) to transmit to Account Debtors, on any or all of Pledgor's
Accounts, notice of assignment to Collateral Agent, for the benefit of the
Lenders, thereof and the security interest of Collateral Agent, for the benefit
of the Lenders, and to request from such Account Debtors at any time, in
Collateral Agent's name or in Pledgor's name, information concerning Pledgor's
Accounts and the amounts owing thereon;
(c) to transmit to purchasers of any or all of Pledgor's Inventory,
notice of the security interest of Collateral Agent, for the benefit of the
Lenders, and to request from such purchasers at any time, in Collateral Agent's
name or in Pledgor's name, information concerning Pledgor's Inventory and the
amounts owing thereon by such purchasers;
(d) to notify and require Account Debtors on Pledgor's Accounts and
purchasers of Pledgor's Inventory to make payment of their indebtedness directly
to Collateral Agent, for the benefit of the Lenders;
(e) to enter into or assent to such amendment, compromise, extension,
release or other modification of any kind of, or substitution for, the accounts
or any thereof as Collateral Agent in its sole discretion may deem to be
advisable;
(f) to enforce the Accounts or any thereof, or any other Collateral, by
suit or otherwise, to maintain any such suit or other proceeding in Collateral
Agent's own name or in Pledgor's name, and to withdraw any such suit or other
proceeding. Pledgor agrees to lend every assistance requested by Collateral
Agent in respect of the foregoing, all at no cost or expense to Collateral Agent
or the Lenders and including, without limitation, the furnishing of such
witnesses and of such records and other writings as Collateral Agent may require
in connection with making legal proof of any Account. Pledgor agrees to
reimburse Collateral Agent in full for all court costs and attorneys' fees and
every other cost, expense or liability, if any, incurred or paid by Collateral
Agent or the Lenders in connection with the foregoing, which obligation of
Pledgor shall constitute Obligations, shall be secured by the Collateral and
shall bear interest, until paid, at the Default Rate; and
(g) to accept all collections in any form relating to the Collateral,
including remittances that may reflect deductions, and to deposit the same, into
Pledgor's Cash Collateral Account or, at the option of Collateral Agent, at the
direction of the Required Lenders, to apply them as a payment on the
Obligations.
14. USE OF INVENTORY AND EQUIPMENT. Until a Default Event shall occur,
Pledgor may (a) retain possession of and use its Inventory and Equipment in any
lawful manner not inconsistent with this Agreement or with the terms,
conditions, or provisions of any policy of insurance thereon; (b) sell or lease
its Inventory in the ordinary course of business; provided, however, that a sale
or lease in the ordinary course of business does not include a transfer in
partial or total satisfaction of any indebtedness; (c) use and consume raw
materials, components or supplies, the use and consumption of which are
necessary in order to carry on Pledgor's business; and (d) sell Equipment that
is obsolete or no longer useful in Pledgor's business.
15. RETURNED OR REPOSSESSED PROPERTY. If any merchandise or other
property the subject of any Account shall for any reason be returned to or
repossessed by Pledgor in any manner, Collateral Agent shall have, for the
benefit of the Lenders, a security interest in such property as security for the
Obligations. Pledgor shall receive the same in trust for Collateral Agent, and,
upon Collateral Agent's reasonable request, whenever made, segregate such
property and label the same as being held for Collateral Agent and immediately
give Collateral Agent a detailed written notice of such return or repossession
and the reason therefor. Pledgor further agrees that, upon demand from
Collateral Agent after the occurrence of a Default Event, Pledgor shall
forthwith pay Collateral Agent in cash an amount equal to each Account relating
to any returned or repossessed property, provided that Collateral Agent shall
thereupon release such Account and said property to Pledgor and apply such
payment to the Obligations in accordance with the terms and conditions of the
Credit Agreement, after payment of all Administrative Expenses.
16. MAXIMUM LIABILITY OF PLEDGOR. Anything in this Agreement to the
contrary notwithstanding, in no event shall the amount of the Obligations
secured by this Agreement exceed the maximum amount that (after giving effect to
the incurring of the obligations hereunder and to any rights to contribution of
Pledgor from other affiliates of Borrower) would not render the rights to
payment of Agent and the Banks hereunder void, voidable or avoidable under any
applicable fraudulent transfer law.
17. DEFAULT AND REMEDIES. Upon the occurrence of a Default Event, and
at all times thereafter, Collateral Agent, acting on behalf of the Lenders,
shall have the rights and remedies of a secured party under the Ohio Revised
Code, in addition to the rights and remedies of a secured party provided
elsewhere within this Agreement or in any other Lending Party Document executed
by Pledgor. Collateral Agent may require Pledgor to assemble the Collateral,
which Pledgor agrees to do, and make it available to Collateral Agent at a
reasonably convenient place to be designated by Collateral Agent. Collateral
Agent may, with or without notice to or demand upon Pledgor and with or without
the aid of legal process, make use of such force as may be necessary to enter
any premises where the Collateral, or any thereof, may be found and to take
possession thereof (including anything found in or on the Collateral that is not
specifically described in this Agreement, each of which findings shall be
considered to be an accession to and a part of the Collateral) and for that
purpose may pursue the Collateral wherever the same may be found, without
liability for trespass or damage caused thereby to Pledgor. After any delivery
or taking of possession of the Collateral, or any thereof, pursuant to this
Agreement, then, with or without resort to Pledgor or any other Person or
property, all of which Pledgor hereby waives, and upon such terms and in such
manner as Collateral Agent may deem advisable, Collateral Agent, in its
discretion, may sell, assign, transfer and deliver any of the Collateral at any
time or, from time to time. No prior notice need be given to Pledgor or to any
other Person in the case of any sale of Collateral that Collateral Agent
determines to be perishable or to be declining speedily in value or that is
customarily sold in any recognized market, but in any other case Collateral
Agent shall give Pledgor no fewer than ten (10) days prior notice of either the
time and place of any public sale of the Collateral or of the time after which
any private sale or other intended disposition thereof is to be made. Pledgor
waives advertisement of any such sale and (except to the extent specifically
required by the preceding sentence) waives notice of any kind in respect of any
such sale. At any such public sale, Collateral Agent or any Lender may purchase
the Collateral, or any part thereof, free from any right of redemption, all of
which rights Pledgor hereby waives and releases. After deducting all
Administrative Expenses, and after paying all claims, if any, secured by liens
having precedence over this Agreement, Collateral Agent may apply the net
proceeds of each such sale to or toward the payment of the Obligations, whether
or not then due, in such order and by such division as Collateral Agent in its
sole discretion may deem advisable. Any excess, to the extent permitted by law,
shall be paid to Pledgor, and the obligors on the Obligations shall remain
liable for any deficiency. In addition, Collateral Agent shall at all times have
the right to obtain new appraisals of Pledgor or the Collateral, the cost of
which shall be paid by Pledgor.
18. INTERPRETATION. Each right, power or privilege specified or
referred to in this Agreement is cumulative and in addition to and not in
limitation of any other rights, powers and privileges that Collateral Agent or
the Lenders may otherwise have or acquire by operation of law, by contract or
otherwise. No course of dealing by Collateral Agent or the Lenders in respect
of, nor any omission or delay by Collateral Agent or the Lenders in the exercise
of, any right, power or privilege shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude
any other or further exercise thereof or of any other right, power or privilege,
as Collateral Agent or the Lenders may exercise each such right, power or
privilege either independently or concurrently with others and as often and in
such order as Collateral Agent and the Required Lenders may deem expedient. No
waiver, consent or other agreement shall be deemed to have been made by
Collateral Agent or the Lenders or be binding upon Collateral Agent or the
Lenders in any case unless specifically granted by Collateral Agent in writing,
and each such writing shall be strictly construed. If, at any time, one or more
provisions of this Agreement is or becomes invalid, illegal or unenforceable in
whole or in part, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. Pledgor hereby
authorizes Collateral Agent to file financing statements with respect to the
Collateral. A carbon, photographic, or other reproduction of this Agreement may
be used as a financing statement. The captions to sections herein are inserted
for convenience only and shall be ignored in interpreting the provisions of this
Agreement.
19. NOTICE. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to Pledgor, mailed or
delivered to it, addressed to it at the address specified on the signature page
of this Agreement, if to Collateral Agent, mailed or delivered to it, addressed
to it at the address specified below, or if to any Lender, mailed or delivered
to it, addressed to the address of such Lender specified in the appropriate
Lending Party Documents. All notices, statements, requests, demands and other
communications provided for hereunder shall be deemed to be given or made when
delivered or forty-eight (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 from
Pledgor to Collateral Agent or any Lender pursuant to any of the provisions
hereof shall not be effective until received by Collateral Agent or such Lender.
All notices to Collateral Agent shall be sent to: KeyBank National Association,
as collateral agent, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Large
Corporate Banking (or such other address as Collateral Agent shall specify in
writing).
20. GOVERNING LAW; SUBMISSION TO JURISDICTION. The provisions of this
Agreement and the respective rights and duties of Pledgor, Collateral Agent and
the Lenders hereunder shall be governed by and construed in accordance with Ohio
law, without regard to principles of conflict of laws. Pledgor hereby
irrevocably submits to the non-exclusive jurisdiction of any Ohio state or
federal court sitting in Cleveland, Ohio, over any action or proceeding arising
out of or relating to this Agreement, any Loan Document or any Related Writing,
and Pledgor hereby irrevocably agrees that all claims in respect of such action
or proceeding may be heard and determined in such Ohio state or federal court.
Pledgor hereby irrevocably waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the laying of venue in any action or
proceeding in any such court as well as any right it may now or hereafter have
to remove such action or proceeding, once commenced, to another court on the
grounds of FORUM NON CONVENIENS or otherwise. Pledgor agrees that a final,
nonappealable judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Pledgor
and Pledgor's successors and assigns and shall inure to the benefit of and be
enforceable and exercisable by Collateral Agent on behalf of and for the benefit
of the Lenders and their respective successors and assigns.
22. TERMINATION. At such time as the Obligations have been irrevocably
paid in full, the Commitment, as defined in the Credit Agreement, terminated,
and the Credit Agreement terminated and not replaced by any other credit
facility with Agent and the Banks, this Agreement shall terminate and, upon
written request of Pledgor, Collateral Agent shall promptly execute and deliver
to Pledgor appropriate termination statements.
23. ENTIRE AGREEMENT. This Agreement integrates all of the terms and
conditions as to the Collateral and supersedes all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
[Remainder of page intentionally left blank.]
24. JURY TRIAL WAIVER. PLEDGOR, COLLATERAL AGENT, AGENT AND THE LENDERS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG PLEDGOR, COLLATERAL AGENT, AGENT
AND THE LENDERS, 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.
Executed and delivered at Dayton , Ohio.
CASTING TECHNOLOGY COMPANY
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Amcast Casting Technologies, Inc.,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ General Partner
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
SCHEDULE 4.4
(Locations)
SCHEDULE 7
(Trade Names, Assumed Names,
and Fictitious Names)
