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Exhibit 4.10
SECOND AMENDMENT TO CREDIT AND INTERCREDITOR AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AND INTERCREDITOR AGREEMENT, dated as
of May 31, 1996 (this "Amendment"), among CASTING TECHNOLOGY COMPANY, an Indiana
general partnership (the "Company"), NBD BANK, a Michigan banking corporation
("NBD"), and THE ASAHI BANK, LTD., a Japanese banking corporation acting through
its Chicago Branch ("Asahi") (NBD and Asahi, collectively, the "Banks" and
individually, a "Bank"), and NBD BANK, a Michigan banking corporation, as agent
for the Banks (in such capacity, the "Agent").
RECITALS
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A. The parties hereto have entered into a Credit and Intercreditor
Agreement dated July 28, 1995 (as amended, the "Credit Agreement"), which is in
full force and effect.
B. The Company desires to amend the Credit Agreement as herein
provided, and the Banks and the Agent are willing to so amend the Credit
Agreement on the terms set forth herein.
AGREEMENT
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Based upon these recitals, the parties agree as follows:
1. AMENDMENT. Upon the Company satisfying the conditions set forth in
Section 4 hereof, the Credit Agreement shall be amended as follows:
(a) The definitions of "Maturity Date" and "Termination Date" in
Section 1.1 shall be amended to read as follows:
"MATURITY DATE" means the maturity date of the Term Loans
issued under Section 2.1(b), which will be August 3, 2002.
"TERMINATION DATE" (of the revolver period) means the earlier
to occur of (a) August 3, 1998, and (b) the date on which the
Commitment shall be terminated pursuant to Section 6.2.
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(b) Section 2.3(c) shall be amended to amend the agency fee by
replacing the number "$4,000" with the number "$5,000" in the second line
thereof.
(c) Section 3.1(a) shall be amended to read as follows:
(a) Unless earlier payment is required under this Agreement, (i)
the Company shall pay to the Banks on the Termination Date the
entire outstanding principal amount of the Revolving Credit Loans,
and (ii) the Company shall pay to the Banks the outstanding
principal amount of the Term Loans in eight equal semi-annual
installments, payable on the third day of each February and
August, commencing on February 3, 1999, to and including the
Maturity Date, when the entire outstanding principal amount of the
Term Loans shall be due and payable.
(d) The notice address for the Company set forth in Section 8.2
shall be amended to read as follows: 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx
00000, Attention: Chief Financial Officer, Facsimile No. (317)-___-____.
(e) The Commitment Amount set forth next to the name of NBD Bank
on the signature page of the Credit Agreement shall be increased by Six Million
Dollars ($6,000,000) to Twenty-One Million Dollars ($21,000,000).
(f) The Commitment Amount set forth next to the name of The Asahi
Bank, Ltd. on the signature page of the Credit Agreement shall be increased by
Four Million Dollars ($4,000,000) to Fourteen Million Dollars ($14,000,000).
(g) The Address for Notices set forth next to the name of NBD
Bank on the signature page of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
Xxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(h) Exhibit A-1 and Exhibit A-2 to the Credit Agreement shall be
amended and restated in their entirety, to read as set forth on Exhibit A-1 and
Exhibit A-2, respectively, attached to this Amendment.
2. REFERENCES TO CREDIT AGREEMENT. From and after the effective date
of this Amendment, references to the Credit Agreement in the Credit Agreement
and all other
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documents issued under or with respect thereto (as each of the foregoing is
amended hereby or pursuant hereto) shall be deemed to be references to the
Credit Agreement as amended hereby.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Banks and the Agent that:
(a) (i) The execution and delivery by the Partners on behalf of
the Company and the performance by the Company of this Amendment and all
agreements, instruments, and documents delivered pursuant hereto by the Company
have been duly authorized by all necessary action and do not and will not
violate any provision of any law, rule, regulation, order, judgment, injunction,
or award presently in effect applying to the Company, or of the Company's
charter, or result in a breach of or constitute a default under any material
agreement, lease or instrument to which the Company is a party or by which it or
its properties may be bound or affected; (ii) no authorization, consent,
approval, license, exemption or filing of a registration with any court or
governmental department, agency or instrumentality is or will be necessary to
the valid execution, delivery or performance by the Company of this Amendment
and all agreements and documents delivered pursuant hereto; and (iii) this
Amendment and all agreements and documents delivered pursuant hereto by the
Company are the legal, valid and binding obligations of the Company, enforceable
against it in accordance with the terms thereof.
(b) After giving effect to the amendments contained herein, the
representations and warranties contained in Article IV (other than Section 4.6)
of the Credit Agreement are true and correct on and as of the effective date
hereof with the same force and effect as if made on and as of such effective
date.
(c) No Default or Event of Default has occurred and is continuing
or will exist under the Credit Agreement as of the effective date hereof.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective until the Agent and each Bank has received the following documents and
the following conditions have been satisfied, each in form and substance
satisfactory to the Agent and each Bank:
(a) Updated Closing Certificates and copies of such organizational
documents of the Company, each of the Partners and each of the Guarantors,
including partnership agreements, articles of incorporation, bylaws (or
certifying as to the continued accuracy of the partnership agreements, articles
of incorporation and bylaws previously delivered to the Banks), good standing
certificates and incumbency certificates, and such documents evidencing
necessary corporate action by each of the Partners and each of the Guarantors
with respect to this Amendment and all other agreements or documents delivered
pursuant hereto;
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(b) Restated Revolving Credit Notes duly executed on behalf of the
Company in favor of each Bank, substantially in the form attached as Exhibit
A-1;
(c) Confirmation of Security Agreement duly executed on behalf of
the Company in favor of the Agent;
(d) Amendment and Confirmation of Guaranty - NBD duly executed on
behalf of the Guarantor in favor of NBD;
(e) First Acknowledgement and Confirmation of Guaranty Agreement -
Asahi duly executed on behalf of the Guarantor in favor of Asahi;
(f) Delivery of an opinion of legal counsel for the Company, each
of the Partners and each of the Guarantors, in form and substance satisfactory
to the Banks;
(g) Payment by the Company to the Banks of a Closing Fee in the
amount of Six Thousand Two Hundred Fifty Dollars ($6,250), to be shared pro rata
between the Banks based on their respective Commitments; and
(h) Such additional agreements and documents, fully executed by
the Company, reasonably requested by the Agent.
5. MISCELLANEOUS. The terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. Except as
expressly amended hereby, the Credit Agreement and all other documents issued
under or with respect thereto are hereby ratified and confirmed by the Banks,
the Agent, and the Company and shall remain in full force and effect, and the
Company hereby acknowledges that it has no defense, offset or counterclaim with
respect thereto.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this
Amendment by signing any such counterpart.
7. EXPENSES. The Company agrees to pay and save the Agent and the
Banks harmless from liability for all costs and expenses of the Agent and the
Banks arising in respect of this Amendment, including the reasonable fees and
expenses of the respective counsel to the Agent and the Banks in connection with
preparing and reviewing this Amendment and any related agreements and documents.
8. GOVERNING LAW. This Amendment is a contract made under, and shall be
governed by and construed in accordance with, the laws of the State of Michigan
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applicable to contracts made and to be performed entirely within such state and
without giving effect to the choice law principles of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
CASTING TECHNOLOGY COMPANY
By: AMCAST CASTING TECHNOLOGIES,
INC.,
its General Partner
By: /S/ XXXXXXX X. XXXXX
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Its: VICE PRESIDENT
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And By: IZUMI, INC.,
its General Partner
By: /S/ XXXXX XXXXX
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Its: PRESIDENT
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NBD BANK, individually and as Agent
By: /S/ XXXXXX X. XXXXXXXX
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Its: First Vice President
THE ASAHI BANK, LTD., acting
through its Chicago branch
By: /S/ XXXXXXXX XXXXXXXX
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Its: Manager
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AMENDMENT AND CONFIRMATION OF GUARANTY AGREEMENT - NBD
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THIS AMENDMENT AND CONFIRMATION OF GUARANTY AGREEMENT - NBD, dated as
of May 31, 1996 (this "Confirmation"), made by Amcast Industrial Corporation, an
Ohio corporation (the "Guarantor"), in favor of NBD Bank, a Michigan banking
corporation ("NBD").
RECITALS
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A. Casting Technology Company, an Indiana general partnership (the
"Company"), has entered into a Credit and Intercreditor Agreement dated July 28,
1995 (as amended, the "Credit Agreement") with NBD and The Asahi Bank, Ltd., a
Japanese banking corporation acting through its Chicago Branch ("Asahi")
(collectively, the "Banks" and individually, a "Bank"), and NBD, as agent for
the Banks (in such capacity, the "Agent").
B. The Guarantor has entered into a Guaranty Agreement - NBD, dated as
of July 28, 1995 (the "Guaranty"), in favor of NBD pursuant to which it
guaranteed, among other things, the payment of the Company's obligations to NBD
under the Credit Agreement.
C. The Company, the Banks and the Agent have entered into a Second
Amendment to Credit and Intercreditor Agreement of even date herewith (the
"Second Amendment"), pursuant to which, among other things, the Banks have
agreed to increase the credit facilities of the Company to an aggregate
principal amount not to exceed Thirty-Five Million Dollars ($35,000,000), of
which NBD has committed to provide an aggregate principal amount not to exceed
Twenty-One Million Dollars ($21,000,000).
D. The Guarantor wishes to confirm to NBD its obligations under the
Guaranty and desires to amend the Guaranty to further guaranty the obligations
of the Company to NBD under the Credit Agreement as amended by the Second
Amendment.
AGREEMENT
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Based upon these recitals, the parties agree as follows:
1. CONFIRMATION. The Guarantor confirms to NBD the continuing effect
of the Guaranty as a guaranty of the Guaranteed Obligations (as defined in the
Guaranty).
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2. AMENDMENTS.
(a) Section (1)(a) of the Guaranty shall be amended by replacing
the number "$15,000,000" with the number "$21,000,000".
(b) The notice address for NBD set forth in Section 10 of the
Guaranty shall be amended to read as follows: Xxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx.
3. REFERENCES TO THE GUARANTY. From and after the date of this
Confirmation, references in the Credit Agreement, the Guaranty and all other
documents executed pursuant to the Credit Agreement to the Guaranty shall be
deemed to be references to the Guaranty as amended hereby.
4. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that the representations and warranties set forth in Section 5 of the
Guaranty are true and correct as of the date hereof with the same effect as if
made on that date. Except as expressly amended, the Guaranty shall remain in
full force and effect.
5. COUNTERPARTS. This Confirmation may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this
Confirmation by signing any such counterpart.
6. GOVERNING LAW. This Confirmation is made under, and the rights and
obligations of the parties hereunder, shall be governed by and construed in
accordance with, the laws of the State of Michigan applicable to contracts to
be made and to be performed entirely within such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Confirmation to
be duly executed and delivered as of the date first written above.
AMCAST INDUSTRIAL CORPORATION
By: /S/ XXXXXXX X. XXXXX
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Its: VICE PRESIDENT
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NBD BANK
By: /S/ XXXXXX X. XXXXXXXX
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Its: FIRST VICE PRESIDENT
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