Exhibit - 4.15 - Collateral Agency and Intercreditor Agreement dated June 5,
2001
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
THIS COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (as the same may
from time to time be amended, restated or otherwise modified, this "Agreement"),
is made as of the 5th day of June, 2001, by and among:
(a) KeyBank National Association, as agent for the benefit of and on
behalf of the Banks, as hereinafter defined (in such capacity,
"Agent"): -----
(b) the Noteholders, as hereinafter defined;
(c) the Line of Credit Lenders, as hereinafter defined; and
(d) KeyBank National Association, as collateral agent under this
Agreement for the Lenders, as hereinafter defined (including
any successor collateral agent pursuant to the terms hereof,
in such capacity, the "Collateral Agent").
WHEREAS, pursuant to the Credit Agreement, dated as of August 14, 1997
(as amended and as the same may from time to time be further amended, restated
or otherwise modified, the "Credit Agreement"), among Amcast Industrial
Corporation, an Ohio corporation ("Borrower"), the banks listed on Schedule 1 to
the Credit Agreement (together with their respective successors and assigns,
collectively, the "Banks" and, individually, a "Bank") and Agent have
established the Commitment, as defined in the Credit Agreement, and have agreed
to make Loans, as hereinafter defined, and issue Letters of Credit, as
hereinafter defined, and extend other financial accommodations to Borrower from
time to time;
WHEREAS, each Noteholder has made certain loans to Borrower pursuant to
the Note Agreement to which such Noteholder is a party;
WHEREAS, each Line of Credit Lender has made, and may from time to time
make, loans and other extensions of credit to Borrower pursuant to the Line of
Credit Documents, as hereinafter defined, to which such Line of Credit Lender is
a party; and
WHEREAS, the Lenders desire to establish their respective priorities
with respect to the Collateral, as hereinafter defined;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
"Acceleration Event" shall have occurred if, (a) after the
occurrence of a Default Event with respect to the Bank Obligations, the
maturity of the Bank Obligations shall have been accelerated, or (b)
after the occurrence of a Default Event with respect to any of the
Noteholder Obligations, the maturity of any of the Noteholder
Obligations shall have been accelerated.
"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, the Collateral Agent
(i) in the performance of its duties under or otherwise in connection
with this Agreement, or (ii) in any attempt by the Collateral Agent to
(A) obtain, preserve, perfect or enforce any security interest
evidenced by the Collateral Documents or any other Lending Party
Document; (B) obtain payment, performance or observance of any and all
of the Obligations; or (C) 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 any Company, or any
such Collateral; (b) to the extent not covered in subpart (a) hereof,
all costs and expenses payable to the 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) above, 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.
"Administrative Obligations" shall mean, collectively, (a) all
Administrative Expenses and (b) all other Indebtedness or other
obligations now owing or hereafter incurred by Borrower or any other
Company to the Collateral Agent pursuant to this Agreement or any
Collateral Document.
"Bank Obligations" shall mean, collectively, (a) the Debt, 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, premium, fees, costs or
indemnities, and whether now existing or hereafter arising.
"Collateral" shall mean, collectively, (a) all of the
Collateral, as defined in each of the respective Security Documents
executed by Borrower and each other Company, (b) all of the Mortgaged
Real Property, and (c) any other property, whether tangible or
intangible, at any time securing the Obligations, or any part thereof,
whether such Lien securing any of the Obligations shall have been
granted to, or otherwise obtained by, the Collateral Agent or any
Lender.
"Collateral Assignment and Security Agreement" shall mean a
Collateral Assignment and Security Agreement, in form and substance
satisfactory to the Collateral Agent and the Required Lenders, executed
and delivered by Borrower or another Company, as the case may be,
wherein Borrower or such Company has granted to the Collateral Agent,
for the benefit of the Lenders, a security interest in and an
assignment of all intellectual property owned by Borrower or such
Company, as the same may from time to time be amended, restated or
otherwise modified.
"Collateral Documents" shall mean this Agreement and the
Security Documents, together with all other documents, instruments or
agreements executed in connection with the foregoing, or in connection
with any security interest or Lien granted, or otherwise obtained, on
or in connection with the Collateral, or any part thereof.
"Collateral Signing Date" shall mean July 7, 2000.
"Company" shall mean Borrower or a Subsidiary.
"Companies" shall mean Borrower and all Subsidiaries.
"Debt" shall mean, collectively, all Indebtedness incurred by
Borrower to the Banks pursuant to this Agreement and includes the
principal of and interest on all Notes and each extension, renewal or
refinancing thereof in whole or in part, the commitment fees, other
fees and any prepayment premium payable hereunder.
"Default Event" shall mean the occurrence of (a) an Event of
Default, as defined in the Credit Agreement, or (b) an "Event of
Default", as defined in any Note Agreement.
"Default Rate" shall mean three percent in excess of the Prime
Rate of KeyBank National Association as in effect from time to time.
"Hedge Agreement" shall mean any 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 in connection with the Bank Obligations.
"Hedge Agreement Obligations" shall mean the aggregate amount
of Indebtedness under any Hedge Agreement, provided, that, in
determining the amount of Indebtedness under any Hedge Agreement, such
amount shall be based upon the net termination obligation of Borrower
under such Hedge Agreement, calculated as of any date as if such Hedge
Agreement shall have been terminated as of such date.
"Indebtedness" shall mean, for any Company (excluding in all
cases trade payables payable in the ordinary course of business by such
Company), without duplication, (a) all obligations to repay borrowed
money, direct or indirect, incurred, assumed, or guaranteed, (b) all
obligations for the deferred purchase price of capital assets, (c) all
obligations under conditional sales or other title retention
agreements, (d) all obligations (contingent or otherwise) under any
letter of credit, banker's acceptance, currency swap agreement,
interest rate swap, cap, collar or floor agreement or other interest
rate management device, (e) all synthetic leases, (f) all lease
obligations that have been or should be capitalized on the books of
such Company in accordance with generally accepted accounting
principles in effect from time to time, (g) all obligations of such
Company with respect to asset securitization financing programs to the
extent that there is recourse against such Company or such Company is
liable (contingent or otherwise) under any such program, (h) all
obligations to advance funds to, or to purchase assets, property or
services from, any other Person in order to maintain the financial
condition of such Person, and (i) any other transaction (including
forward sale or purchase agreements) having the commercial effect of a
borrowing of money entered into by such Company to finance its
operations or capital requirements.
"Insolvency Event" shall mean (a) the pendency of any case
against Borrower or any other Company arising under the United States
Bankruptcy Code of 1978, as amended, or any successor statute, (b) the
pendency of any case against Borrower or any other Company arising
under any other bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt, dissolution, liquidation or other
similar law of any jurisdiction, including but not limited to any
foreign jurisdiction, (c) the appointment of, or taking possession by,
a trustee, receiver, custodian, liquidator or similar official of
Borrower or any other Company or any substantial assets of any of them,
(d) any assignment for the benefit of creditors of Borrower or any
other Company, or (e) the failure of Borrower or any other Company
generally to pay its debts as they become due.
"Lender" shall mean any Bank, Noteholder or Line of Credit Lender.
"Lending Parties" shall mean, collectively, (a) Agent, for the
benefit of and on behalf of the Banks, (b) each Noteholder and (c) each
Line of Credit Lender.
"Lending Party" shall mean (a) Agent, on behalf of the Banks,
(b) any Noteholder or (c) any Line of Credit Lender.
"Lending Party Documents" shall mean, collectively, the Loan
Documents, the Note Documents and the Line of Credit Documents.
"Letter of Credit" shall mean any Letter of Credit, as defined
in the Credit Agreement, issued pursuant to the Credit Agreement.
"Letter of Credit Exposure" shall mean, at the time of
determination, the sum of (a) the aggregate undrawn face amount of all
issued and outstanding Letters of Credit, and (b) the aggregate of the
draws made on Letters of Credit that have not been reimbursed by
Borrower.
"Lien" shall mean 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.
"Line of Credit Lender" shall mean (a) each of the financial
institutions set forth on Schedule 3 hereto so long as such financial
institution (i) shall be a Bank under the Credit Agreement and (ii)
shall have established a discretionary line of credit for Borrower and
its Subsidiaries; or (b) each financial institution that shall have
entered into a Hedge Agreement with Borrower so long as such financial
institution shall be a Bank under the Credit Agreement; provided that,
if any such financial institution shall cease 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 Documents" shall mean the promissory notes and
other agreements evidencing or relating to the Line of Credit
Obligations.
"Line of Credit Obligations" shall mean all Indebtedness or
other obligations incurred by Borrower to the Line of Credit Lenders
arising under the Line of Credit Documents, whether for principal,
interest, fees, costs or indemnities (including the aggregate undrawn
face amount of issued and outstanding letters of credit and draws made
on letters of credit that have not been reimbursed ("Other Letter of
Credit Obligations"), and whether now existing or hereafter arising;
provided, however, that, the principal amount owing to any Line of
Credit Lender (other than with respect to Hedge Agreement Obligations)
(plus any Other Letter of Credit Obligations) shall not exceed the
amount set forth opposite such Line of Credit Lender's name on Schedule
3 hereto.
"Loan" shall mean any Loan, as defined in the Credit
Agreement, made pursuant to the Credit Agreement.
"Loan Documents" shall mean the Credit Agreement, each Note,
as defined in the Credit Agreement, each Guaranty of Payment, as
defined in the Credit Agreement, each Security Document, this
Agreement, all documentation relating to each Letter of Credit, and any
other documents relating to any of the foregoing, as any of the
foregoing may from time to time be amended, restated or otherwise
modified or replaced.
"Loan and Reimbursement Obligations" shall mean, at the time
of determination, with respect to the Bank Obligations, the sum of (a)
the aggregate principal amount of the Loans then outstanding, plus (b)
the Letter of Credit Exposure.
"Mortgage" shall mean a Mortgage, Deed of Trust or other
instrument, in form and substance satisfactory to the Collateral Agent
and the Required Lenders, executed by Borrower or another Company, as
the case may be, with respect to any Mortgaged Real Property, as the
same may from time to time be amended, restated or otherwise modified.
"Mortgaged Real Property" shall mean each of the parcels of
real property as set forth on Schedule 2 hereto, or interests therein,
owned or leased by Borrower or another Company, as appropriate,
together with each other parcel of real property that shall become
subject to a Mortgage, in each case together with all of the right,
title and interest of Borrower or such Company, as the case may be, in
the improvements and buildings thereon and all appurtenances, easements
or other rights belonging thereto.
"Northwestern" shall mean The Northwestern Mutual Life
Insurance Company, together with its successors and assigns.
"Northwestern Note Agreement" shall mean the Note Agreement,
dated as of November 1, 1995, pursuant to which Borrower has issued to
Northwestern certain $25,000,000 7.09% Senior Notes Due November 7,
2005, as amended and as the same may from time to time be further
amended, restated or otherwise modified.
"Note Agreements" shall mean, collectively, the Principal Note
Agreement and the Northwestern Note Agreement.
"Note Documents" shall mean the Note Agreements, the
Noteholder Senior Notes, this Agreement, the Security Documents, each
Guaranty issued by any Person in respect of the obligations of Borrower
under the Note Agreements or the Noteholder Senior Notes, and any other
documents relating to any of the foregoing, as any of the foregoing may
from time to time be amended, restated or otherwise modified or
replaced.
"Noteholder" shall mean Northwestern or Principal.
"Noteholder Obligations" shall mean all Indebtedness and other
obligations incurred by Borrower or any other Company to the
Noteholders pursuant to the Note Agreements, the Noteholder Senior
Notes or any other Note Document, whether for principal, premium,
interest, fees, costs or indemnities, and whether now existing or
hereafter arising.
"Noteholder Senior Notes" shall mean Borrower's Senior Notes
due November 7, 2005 issued under the Note Agreements, together with
any replacement or substitute notes with respect thereto.
"Noteholders" shall mean, collectively, Principal and
Northwestern.
"Obligations" shall mean, collectively, (a) the Bank
Obligations, (b) the Noteholder Obligations, (c) the Line of Credit
Obligations, and (d) the Administrative Obligations.
"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.
"Pledge Agreement" shall mean a Pledge Agreement, in form and
substance satisfactory to the Collateral Agent and the Required
Lenders, executed and delivered to the Collateral Agent, for the
benefit of the Lenders, by Borrower or another Company, as appropriate,
as the same may from time to time be amended, restated or otherwise
modified.
"Principal" shall mean Principal Life Insurance Company,
together with its successors and assigns.
"Principal Note Agreement" shall mean the Note Agreement,
dated as of November 1, 1995, pursuant to which Borrower has issued to
Principal certain $25,000,000 7.09% Senior Notes Due November 7, 2005,
as amended and as the same may from time to time be further amended,
restated or otherwise modified.
"Pro Rata" shall mean, at the time of determination, with
respect to any Lending Party, the percentage that is determined by
dividing:
(a) (i) for Agent and the Banks, the Loan and Reimbursement Obligations,
(ii) for each Noteholder, the aggregate principal amount of the
Noteholder Senior Notes then outstanding to such Noteholder under its
Note Agreement, and (iii) for each Line of Credit Lender, (A) the
aggregate principal amount of the Line of Credit Obligations (plus any
Other Letter of Credit Obligations) then outstanding from such Line of
Credit Lender (other than any Hedge Agreement Obligations owing to
such Line of Credit Lender), plus (B) the Hedge Agreement Obligations
owing to such Line of Credit Lender, if any, by
(b) the sum of (i) the aggregate outstanding principal amount of all of
the Obligations (other than Administrative Obligations), (ii) the
Letter of Credit Exposure and the Other Letter of Credit Obligations,
and (iii) the Hedge Agreement Obligations.
For all purposes under this Agreement or any of the Collateral
Documents, Pro Rata shall be determined on the date of the occurrence
of the first Sharing Event.
"Required Lenders" shall mean, at the time of determination,
Lending Parties holding at least sixty-six and two-thirds percent
(66-2/3%) of the sum of (a) the Loan and Reimbursement Obligations, (b)
the aggregate principal amount of the Noteholder Senior Notes then
outstanding under the Note Agreements and (c) the aggregate principal
amount of the Line of Credit Obligations (plus any Other Letter of
Credit Obligations) then outstanding (but specifically excluding the
Hedge Agreement Obligations); provided, that, after the termination of
and the payment in full of all indebtedness under the LIFO Credit
Agreement, as defined in the Subordination, Waiver and Consent
Agreement, the parties hereto shall negotiate in good faith to agree to
a revised definition that shall be satisfactory to the parties hereto.
If the parties shall not agree to a new definition, then, until such
time as an agreement shall be reached, this definition shall continue
to be effective.
"Security Documents" shall mean each Security Agreement, each
Pledge Agreement, each Mortgage, each Collateral Assignment and
Security Agreement, each U.C.C. financing statement executed in
connection herewith or securing any interest created in any of the
foregoing documents, and any other documents relating to any of the
foregoing, as any of the foregoing may from time to time be amended,
restated or otherwise modified or replaced.
"Sharing Event" shall mean the earlier of (a) the occurrence
of an Insolvency Event, or (b) the occurrence of an Acceleration Event.
"Subordination, Waiver and Consent Agreement" shall mean the
Subordination, Waiver and Consent Agreement executed as of the date
hereof among the Lenders, the LIFO Agent, as defined therein, and the
LIFO Banks, as defined therein.
"Subsidiary" of Borrower or any of its Subsidiaries shall mean
(a) a corporation more than fifty percent (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.
"Voting Power" shall mean, 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.
SECTION 2. Appointment of the Collateral Agent. Each Lender hereby
appoints KeyBank National Association (together with its successors and assigns)
as the Collateral Agent under this Agreement, with such powers as are
specifically delegated to the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto in order to
carry out the intent of this Agreement, in the opinion of the Collateral Agent,
and KeyBank National Association hereby accepts such appointment as the
Collateral Agent under this Agreement. Neither the Collateral Agent nor any of
its directors, officers, attorneys or employees shall be liable for any action
taken or omitted to be taken in good faith by it or them hereunder or in
connection herewith, except for its or their own gross negligence or willful
misconduct, as determined by a court of competent jurisdiction.
SECTION 3. Pro Rata Distribution of Collateral. The Collateral Agent
shall be the secured party, beneficiary or mortgagee, as applicable, under the
Collateral Documents for the benefit of all of the Lending Parties. The
Collateral shall be held for the benefit of the Lending Parties on a pari passu
basis and shall serve as security for the Obligations. Subject to the terms of
this Agreement, the Collateral Agent shall receive, hold, administer and enforce
this Agreement, and foreclose upon, collect, dispose of all or any part of the
Collateral, for the Pro Rata benefit of the respective Lending Parties and
deliver to the Lending Parties, the proceeds therefrom for the Pro Rata benefit
of the respective Lending Parties in accordance with the terms of this
Agreement. The Companies and each Lender agree that any security interest or
Lien granted to any Lender with respect to the Collateral, or any part thereof,
whether granted prior to, or on or after the Collateral Signing Date, shall be
deemed to be held by such Lender for the benefit of the Lending Parties pursuant
to the terms of this Agreement. Each Lender further agrees that, notwithstanding
the relative priority or time of granting, creation, attachment or perfection
under applicable law of any security interest or lien, if any, of the Collateral
Agent or any Lender, whether such security interest or lien shall arise now or
hereafter be acquired, such security interest or lien shall be first priority
security interest or lien in favor of the Collateral Agent to secure the
Obligations on a pari passu basis for the Pro Rata benefit of the respective
Lending Parties.
SECTION 4. Payments or Proceeds Received Prior to a Sharing Event.
Subject to the terms and conditions of the Subordination, Waiver and Consent
Agreement, prior to the occurrence of a Sharing Event, the Lenders agree that
any Lender may accept and apply payments made from any source (including
proceeds of the Collateral) on or in respect of the Obligations owing to such
Lender without any responsibility to turn over to the Collateral Agent or share
with any other Lender such payments, except as otherwise specifically provided
in the Credit Agreement with respect to sharing among the Banks and in the Note
Agreements with respect to allocation among the Noteholders. Subject to the
terms and conditions of the Subordination, Waiver and Consent Agreement, if the
Collateral Agent (in its capacity as the Collateral Agent and not in any other
capacity) shall receive any payments from any source (including proceeds of the
Collateral) on or in respect to the Obligations at any time prior to the
occurrence of a Sharing Event, such payment or proceeds shall be delivered to
the appropriate Lending Party.
SECTION 5. Payments or Proceeds Received After a Sharing Event. After
the occurrence of a Sharing Event, (a) any payment received (whether from the
proceeds of the Collateral or otherwise) from any Company by any Lender, shall
be immediately forwarded to the Collateral Agent to be distributed in accordance
with the provisions of Section 6 hereof, and (b) any payment received (whether
from the proceeds of the Collateral or otherwise) by the Collateral Agent shall
be distributed in accordance with the provisions of Section 6 hereof.
SECTION 6. Distribution of Proceeds. Except as set forth in Section 4
hereof, subject to the terms and conditions of the Subordination, Waiver and
Consent Agreement, any proceeds received from the sale, disposition or
collection of the Collateral, or otherwise received with respect to the
Collateral, by the Collateral Agent at any time shall be applied by the
Collateral Agent as follows:
(a) first, to the payment of (i) any Administrative
Obligations, including, but not limited to, the costs and expenses of
the Collateral Agent in connection with any sale, collection or other
realization incurred by the Collateral Agent under the provisions of
this Agreement, or any other fees (including attorneys' fees,
accountants fees and other fees for special advisors or consultants
retained by the Collateral Agent), expenses, liabilities (including
rights to indemnification) or advances made or incurred by the
Collateral Agent in connection with the administration or enforcement
of the Collateral Documents and (ii) the fees and expenses of counsel
for the Noteholders and Agent;
(b) second, to each Lending Party, in an amount equal to such
Lending Party's Pro Rata Share of the amount to be distributed, until
all of the Obligations shall have been satisfied in full;
(c) third, to the payment of the PIK Interest, as defined in the
Subordination, Waiver and Consent Agreement; and
(c) fourth, after all of the Obligations shall have been
irrevocably satisfied in full, to Borrower or a Guarantor of Payment,
as appropriate, or as a court of competent jurisdiction may direct or
as otherwise required by law.
Notwithstanding the foregoing, any amounts to be distributed for application to
a Lending Party's liabilities with respect to any issued but undrawn Letter of
Credit (or letter of credit issued by a Line of Credit Lender) shall be held by
the Collateral Agent in an interest bearing trust account (the "Special Trust
Account") as collateral security for such liabilities until a drawing on such
letter of credit, at which time such amounts, together with interest accrued
thereon, shall be released by the Collateral Agent and applied to such
liabilities. If any such letter of credit expires without having been drawn upon
in full, the amounts held in the Special Trust Account with respect to the
undrawn portion of such letter of credit, together with interest accrued
thereon, shall be applied by the Collateral Agent in accordance with this
Section 6.
SECTION 7. Delivery of Collateral to the Collateral Agent. Except as
set forth in Section 4 hereof, if any Lender receives possession of any portion
of the Collateral, or any proceeds thereof, whether prior to or after the
occurrence of a Sharing Event, such Lender shall receive and hold the same in
trust for the Collateral Agent and shall deliver such Collateral or proceeds to
the Collateral Agent, wherein the Collateral Agent shall hold or dispose of such
Collateral or proceeds, in accordance with the terms of this Agreement.
SECTION 8. Return of Payments. If any payment or other proceeds
received by any Lender for its own account under this Agreement are required to
be repaid or returned, in whole or in part, by such Lender to the payor thereof,
or to any trustee, agent or other representative, or such payment is otherwise
rescinded, in whole or in part, pursuant to applicable law, each other Lender
that shall have received all or part of such payment or proceeds shall promptly,
upon written demand, return all or the ratable part, as the case may be, of the
portion of such payment or proceeds so received by such other Lender (and any
interest thereon to the extent the same is required to be paid by the Lender
originally receiving such payment or proceeds in respect of the return of such
payment or proceeds) in order to equitably adjust for the return of all or part
of such payment or proceeds.
SECTION 9. Lending Parties' Rights and Remedies.
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(a) Except as set forth in subpart (c) below and subject to the terms
and conditions of the Subordination, Waiver and Consent Agreement, each Lending
Party shall have the rights and remedies available to it under its respective
Lending Party Documents, other than rights specifically reserved for the
Collateral Agent under any of the Collateral Documents, upon the occurrence of a
Default Event or otherwise, including, but not limited to, the right to (i)
accelerate any of the Obligations owing to such Lending Party, (ii) institute
suit against any Company, and (iii) take any other enforcement action with
respect to any Default Event; provided, however, that each Lending Party agrees
that it shall have recourse under or by virtue of the Collateral Documents to
the Collateral only through the Collateral Agent and that no Lending Party shall
have any independent recourse to the liens and security interests created by the
Collateral Documents or otherwise, except that any Lender may set-off any amount
of any balances held by it for the account of any Company or any other property
held or owing by such Lender to or for the credit or the account of any Company,
provided that the amount set-off is delivered to the Collateral Agent for
application pursuant to the terms of this Agreement.
(b) Upon the occurrence of a Sharing Event, the appropriate Lending
Party shall promptly, and in any event within one (1) Business Day thereafter,
provide notice to the Collateral Agent of the occurrence of such Sharing Event,
and, upon receipt of such notice, the Collateral Agent shall promptly, and in
any event, within one (1) Business Day of receipt thereof, deliver a copy of
such notice to all of the Lenders; provided, however, that the failure to
provide any of the foregoing notices shall not affect, in any way, any of the
rights or obligations of any Person under this Agreement.
(c) Upon receipt of a notice of a Sharing Event and at all times
thereafter, no Lender shall institute suit against any Company with respect to
the Collateral or otherwise take any other enforcement action with respect to
the Collateral (except as permitted by the Subordination, Waiver and Consent
Agreement).
(d) By accepting any proceeds of Collateral under this Agreement or the
benefits of any Collateral Document, a Lender shall be deemed to be bound by the
terms and conditions set forth herein as if such Lender shall have executed this
Agreement.
SECTION 10. The Collateral Agent's Rights and Remedies upon a Sharing
Event. Upon the occurrence of a Sharing Event, the Required Lenders may notify
and direct the Collateral Agent to enforce the rights of the Lenders in and to
the Collateral through such remedies as may be available pursuant to the terms
and conditions of any Collateral Document, at law or in equity, or otherwise.
The Collateral Agent shall act as the Required Lenders may, in their reasonable
discretion, direct, provided that the Collateral Agent shall have no liability
for acting in accordance with such request and no Lender shall have any
liability to any other Lender in connection with any such request. The
Collateral Agent shall not release any Liens or Collateral without the direction
or consent of the Required Lenders (other than for substitutions of Collateral
or the sale of Collateral that is no longer useful in the businesses of the
Companies, in both cases to be in the ordinary course of business of the
Companies). The Collateral Agent shall give prompt notice to each Lending Party
of any action taken pursuant to the instructions of the Required Lenders to
enforce any Security Documents; provided that the failure to give any such
notice shall not impair the right of the Collateral Agent to take any such
action or the validity of any action so taken.
SECTION 11. Accounting. Each Lending Party agrees to render to the
Collateral Agent, at any time upon request of the Collateral Agent, an
accounting of the amounts of the Obligations owing to such Lending Party and
such other information with respect to the Obligations owing to such Lending
Party as the Collateral Agent may reasonably request in order to give effect to
the terms and conditions of this Agreement.
SECTION 12. Obligations Unaffected; Modification of Lending Documents.
Except for the agreements made pursuant to this Agreement and the Subordination,
Waiver and Consent Agreement, the Lending Party Documents shall be unaffected
hereby. Subject to the restrictions on amendment that are contained in the
Subordination, Waiver and Consent Agreement, each Lending Party shall be
entitled to amend, restate or otherwise modify any of their respective Lending
Party Documents in accordance with the respective terms of such Lending Party
Documents (subject to the restrictions set forth in the definition of Line of
Credit Obligations); provided, however, that, in the event that any Lending
Party shall receive any additional Collateral or other security for any of their
respective Obligations or file any additional financing statement, mortgage or
other lien with respect thereto, such collateral or other security shall become
part of the Collateral hereunder and shall be held in trust for the Pro Rata
benefit of the Lending Parties, subject to the terms and conditions of this
Agreement.
SECTION 13. Contesting Liens or Security Interests. No Lender shall
contest the validity, perfection, priority or enforceability of any Lien or
security interest granted to the Collateral Agent or any Lender (provided that
such Lien or security interest is subject to the terms of this Agreement).
SECTION 14. Actions by the Collateral Agent. Each Lender acknowledges
that (a) such Lender has performed and will continue to perform its own credit
analysis of Borrower and each other Company, and its own investigations of the
risks involved in the transactions contemplated in connection with the
Obligations and in entering into this Agreement and the Collateral Documents,
(b) such Lender has reviewed and approved the form and substance of each of the
Collateral Documents, including any UCC financing statements filed in connection
with any of the Collateral Documents, and (c) the Collateral Agent, by executing
this Agreement, has not, nor at any time shall the Collateral Agent be deemed to
have, made any representation or warranty, express or implied, with respect to
the (i) due execution, authenticity, legality, accuracy, completeness, validity
or enforceability of any of the Collateral Documents or as to the financial
condition or creditworthiness of Borrower or any other Company, or the
collectability of the Obligations, or (ii) validity, perfection, priority,
enforceability, value or sufficiency of, or title to any of the Collateral, or
the filing or recording, or taking of any other action with respect to the
Collateral. Although the Collateral Agent will endeavor to exercise the same
care in administering the Collateral as if the Collateral Agent were acting for
its own account, the Collateral Agent shall be fully protected in relying upon
any document that appears to it to be genuine and upon the advice of legal
counsel, independent accountants and other appropriate experts (including those
retained by Borrower). Neither the Collateral Agent nor any of its affiliates,
directors, officers, attorneys or employees shall be liable for any action taken
or omitted to be taken by it or them hereunder or in connection herewith, except
for its or their own gross negligence or willful misconduct, as determined by a
court of competent jurisdiction.
SECTION 15. Bankruptcy Filing. The provisions of this Agreement shall
be applicable both before and after the filing of any petition by or against
Borrower or any other Company under the United States Bankruptcy Code or, if
applicable, under the laws of any foreign jurisdiction, and all references in
this Agreement to Borrower or any other Company shall be deemed to apply to
Borrower or such Company as debtor-in-possession. All postpetition distributions
of the proceeds of any of the Collateral shall, subject to any court order
approving the financing of Borrower or any Company as debtor-in-possession (i.e.
this Agreement shall not limit any Lender's right to provide postpetition
financing, nor any Lender's right to object to any such financing, in accordance
with Section 364 of the United States Bankruptcy Code and any such financing,
and any liens or security interests granted in connection with such financing,
shall be on such terms and conditions as approved by the Bankruptcy Court),
continue to be made after the filing of any such petition on the same basis that
the Collateral was to be distributed prior to the date of such petition.
SECTION 16. Indemnification by Lenders. To the extent not indemnified
or reimbursed by Borrower or any other Company, or paid pursuant to Section 6(a)
hereof, the Lending Parties agree to indemnify the Collateral Agent, on a Pro
Rata basis, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Collateral Agent in its capacity as agent in any way relating to or
arising out of this Agreement or any Collateral Document or any action taken or
omitted in good faith by the Collateral Agent with respect to this Agreement or
any Collateral Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees) or disbursements
resulting from the Collateral Agent's gross negligence or willful misconduct, as
determined by a court of competent jurisdiction, or from any action taken or
omitted by the Collateral Agent in any capacity other than as collateral agent
under this Agreement.
SECTION 17. Right to Opt Out. Any Lending Party shall be entitled to
opt out of the sharing provisions of this Agreement by giving written notice to
the Collateral Agent and each Lending Party (a "Disclaiming Lender"). Effective
upon receipt by the Collateral Agent of such notice from any Disclaiming Lender,
such Disclaiming Lender (a) shall have no interest in any of the Collateral, nor
shall such Disclaiming Lender be entitled to its Pro Rata share of the proceeds
of any of the Collateral, and (b) shall not be liable for any indemnification
obligations with respect to the Collateral Agent or any of the Collateral,
except with respect to any such obligations that relate to claims arising,
accruing or occurring prior to the date such Lender became a Disclaiming Lender
under this Section.
SECTION 18. Third Parties. The provisions of this Agreement are solely
for the benefit of the Collateral Agent, Agent and the Lenders and are not
intended to grant any rights, benefits or defenses to or for the benefit of
Borrower, any other Company or any other Person. If Borrower or any Company
signs this Agreement, such signature shall be solely for the purpose of
acknowledging and agreeing to the rights and obligations of the Lending Parties
and the Collateral Agent. Neither Borrower nor any other Company shall have any
rights hereunder.
SECTION 19. Successors and Assigns; Amendments. The provisions of this
Agreement shall inure to the benefit of, and be binding on, Agent, the Lenders
and the Collateral Agent, and their respective successors and assigns. The
provision of this Agreement may not be amended, supplemented or otherwise
modified in any respect except in a writing signed by each Lending Party and the
Collateral Agent.
SECTION 20. Successor Collateral Agent. The Collateral Agent may resign
as collateral agent hereunder by giving not fewer than sixty (60) days prior
written notice to the Lenders, such resignation to take effect only upon the
acceptance by a successor collateral agent or its appointment hereunder. In
addition, the Required Lenders may remove the Collateral Agent at any time, with
or without cause, by giving written notice thereof to the Collateral Agent. If
the Collateral Agent shall resign or be removed under this Agreement, then
either (a) the Required Lenders shall appoint a successor collateral agent
hereunder, or (b) if a successor collateral agent shall not be so appointed and
approved within the sixty (60) day period following the Collateral Agent's
notice to the Lenders of its resignation or removal, then the Collateral Agent
shall appoint a successor collateral agent that shall serve as collateral agent
until such time as the Required Lenders appoint a successor collateral agent.
Upon its appointment, such successor collateral agent shall succeed to the
rights, powers and duties as collateral agent, and the term "Collateral Agent"
under this Agreement and any other Collateral Document shall mean such
successor, effective upon its appointment, and the former collateral agent's
rights, powers and duties as collateral agent shall be terminated without any
other or further act or deed on the part of such former collateral agent or any
of the parties to this Agreement. Upon the request of any such successor
Collateral Agent and the payment of all fees, expenses and other amounts in
connection therewith, the former collateral agent shall promptly execute and
deliver such instruments of conveyance and further assurance and do such other
things as may be reasonably required to more fully and certainly vest and
confirm in such successor Collateral Agent its interest in the Collateral and
such rights, powers, duties and obligations of the former collateral agent
hereunder. The former collateral agent shall also promptly assign and deliver to
the successor Collateral Agent any Collateral subject to the lien or security
interest of the Collateral Agent that may then be in its possession.
SECTION 21. Notice. All notices, requests, demands and other
communications provided for hereunder shall be in writing and sent (a) by
facsimile if the sender on the same day sends a confirming copy of such notice
by a recognized overnight or same day delivery service (charges prepaid), (b) by
registered or certified mail with return receipt requested (postage prepaid), or
(c) by a recognized overnight or same day delivery service (with charges
prepaid). Any such notice must be sent (i) if to a Lender, at the address
specified for such communication on Schedule 1 to this Agreement, or at such
other address as such Lender shall have specified to the Collateral Agent in
writing, or (ii) if to the Collateral Agent, at the address specified for such
communications on Schedule 1 to this Agreement, or at such other address as the
Collateral Agent shall have specified to the Lenders in writing. Any notice
under this Section 21 shall be effective (i) if sent by facsimile transmission
to the appropriate address pursuant to clause (a) of the first sentence of this
Section, upon receipt thereof, with telephonic confirmation of receipt, (ii) if
sent by recognized overnight courier to the appropriate address pursuant to
clause (c) of the first sentence of this Section, one (1) Business Day after
being sent, (iii) if sent by recognized courier to the appropriate address for
same day delivery pursuant to clause (c) of the first sentence of this Section,
when received, (iv) if sent by United States mail pursuant to clause (b) of the
first sentence of this Section, when actually received.
SECTION 22. 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.
SECTION 23. Execution in Counterparts. This Agreement 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.
SECTION 24. Termination; Repayment of Obligations. This Agreement shall
remain in full force and effect until all of the Obligations shall have been
indefeasibly paid in full. In the event that the Bank Obligations shall be paid
in full, then the Noteholders Obligations shall concurrently therewith be paid
in full.
SECTION 25. Governing Law. This Agreement shall be construed according
to the laws of the State of Ohio, without regard to principles of conflicts of
laws. Wherever possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
[Remainder of page intentionally left blank.]
SECTION 26. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT
PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THE COLLATERAL
AGENT 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 THE 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, OR ANY
THEREOF.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
KEYBANK NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION,
as Agent on behalf of and for the benefit of
the Banks
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
PRINCIPAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxxxx X. Jenderson
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Counsel
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: VP & Attorney-in-fact
KEYBANK NATIONAL ASSOCIATION,
as a Line of Credit Lender
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
FIRSTAR BANK, N.A.,
as a Line of Credit Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: AVP / Its Attorney-in-fact
Each of the undersigned hereby acknowledges the terms of and consents to the
foregoing:
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
ELKHART PRODUCTS CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
AMCAST AUTOMOTIVE OF INDIANA,
INC. (fka Wheeltek, Inc.)
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
AMCAST INVESTMENT SERVICES
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
AS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
Schedule 1
Lender's Name and Addresses for Notices
KeyBank National Association, IntesaBci - Chicago Branch
as Collateral Agent One Xxxxxxx Street
000 Xxxxxx Xxxxxx Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxx 00000-0000
KeyBank National Association, Unicredito Italiano SPA
as Agent and a Bank 000 Xxxx Xxxxxx
000 Xxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000
Xxxxxxxxx, Xxxx 00000-0000
The Bank of New York San Paolo IMI S.p.A.
Xxx Xxxx Xxxxxx 000 Xxxx Xxxxxx
Automotive Division, 22nd Floor New York, NY 10167
Xxx Xxxx, XX 00000
Bank One, Indiana, NA Principal Life Insurance Company
000 Xxxx Xxxxx Street, 12th Floor 000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000 Xxx Xxxxxx, Xxxx 00000
Credit Agricole Indosuez The Northwestern Mutual Life
Insurance Company
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, Xxxxxxxxx 00000
National City Bank KeyBank National Association,
0 Xxxxx Xxxx Xxxxxx as Line of Credit Lender
Locator 2200 000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000 Xxxxxxxxx, Xxxx 00000-0000
Firstar Bank, National Association Firstar Bank, National Association,
c/o US Bank as Line of Credit Lender
MPFP2516 x/x XX Xxxx
000 0xx Xxxxxx Xxxxx XXXX0000
Xxxxxxxxxx, Xxxxxxxxx 00000 000 0xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Schedule 2
Mortgaged Real Property
A. Amcast Industrial Corporation
1. N39 W 0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx
2. 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxxx, Xxxxxxx
Leasehold Mortgage
3. 00000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxx
B. Amcast Automotive of Indiana, Inc.
1. 000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
2. 0000 Xxxx 000 Xxxxx
Xxxxxx, Xxxxxxx
(Gas City)
Leasehold Mortgage
C. Elkhart Products Corporation
1. 0000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
2. 0000 Xxxxxxx 00X
Xxxxxxxxxxxx, Xxxxxxxx
3. 000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx
X. Xxx Brass Company
0000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx
Schedule 3
Line of Credit Lenders
Lender Maximum Amount of Facility
KeyBank National Association $10,000,000
Firstar Bank, National Association $12,032,783
