Exhibit 4.12 - Second Amendment Agreement dated August 6,2001, to the
Last-In-First-Out Credit Agreement
SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement (this "Amendment") is made as of August
6, 2001, by and among AMCAST INDUSTRIAL CORPORATION, an Ohio corporation
("Borrower"), the banking institutions named in Schedule 1 to the Credit
Agreement, as hereinafter defined ("Banks"), and KEYBANK NATIONAL ASSOCIATION,
as agent for the Banks ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain
Last-In-First-Out Credit Agreement dated as of June 5, 2001, as amended and as
the same may from time to time be further amended, restated or otherwise
modified, which provides, among other things, for loans aggregating Thirty-Five
Million Dollars ($35,000,000), all upon certain terms and conditions ("Credit
Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each capitalized term used herein shall be defined in
accordance with the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and the
Banks agree as follows:
1. Amendment to Definitions. Article I of the Credit Agreement is hereby
amended to delete the definitions of "Level
I Availability", "Level II Availability" and "Level III Availability"
therefrom and to insert in place thereof, respectively, the following:
"Level I Availability" shall have the meaning given to such
term in Section 2.2(a) hereof.
"Level II Availability" shall have the meaning given to such
term in Section 2.2(b) hereof.
"Level III Availability" shall have the meaning given to such
term in Section 2.2(c) hereof.
2. Amendment to Mandatory Payment. Section 2.9 of the Credit Agreement is
hereby amended to add the following
new paragraph thereto:
On the last day of FQE November 30, 2001, Borrower shall make
a mandatory prepayment of the Loans in the amount of Five Million
Dollars ($5,000,000). On the last day of FQE May 31, 2002, Borrower
shall make a mandatory prepayment of the Loans in the amount of Six
Million Five Hundred Thousand Dollars ($6,500,000). On the last day of
FQE August 31, 2002, Borrower shall make a mandatory prepayment of the
Loans in the amount of Five Million Dollars ($5,000,000). If, at any
time that any prepayment required to be made under this paragraph is
made, there are no Loans then outstanding, or if the amount of Loans
then outstanding shall be less than the amount of the mandatory
prepayment due on such date, then such payment, or the remainder of
such payment, as the case may be, shall be paid to the Collateral
Agent, for the benefit of the Lenders (as defined in the Intercreditor
Agreement, as defined in the Subordination Agreement). Such payment
shall be distributed to the Lenders on a Pro Rata (as defined in the
Intercreditor Agreement) basis, provided that, for the purposes of
allocation of such payment, Pro Rata shall be determined on the date
that such payment was made. In addition, on the date of any prepayment
required to be made pursuant to this paragraph, if there shall be any
Loans outstanding, then (a) the maximum amount of the Revolving Credit
Commitment available pursuant to Section 2.2 hereof shall be
permanently reduced by an amount equal to the lesser of (i) the
aggregate principal amount of the Loans outstanding on such date, or
(ii) the amount of the mandatory prepayment due under this paragraph on
such date, and (b) a reserve shall be established in the Borrowing Base
in an amount equal to the lesser of (i) the aggregate principal amount
of the Loans outstanding on such date, or (ii) the amount of the
mandatory prepayment due under this paragraph on such date.
3. Amendment to Financial Reporting. Article IV of the Credit Agreement
is hereby amended to delete Section
4.3 therefrom and to insert in place thereof the following:
Section 4.3. Borrowing Base Certificate; Financial Information.
(a) Commencing June 19, 2001, and on each Tuesday of each week
thereafter Borrower shall deliver by 11:00 A.M. (or such later time as
shall be agreed to by Agent) to Agent and the Banks, a Borrowing Base
Certificate certified by a Financial Officer, each such Borrowing Base
Certificate to be effective as of the close of business of the
immediately preceding Friday.
(b) On the fourth Tuesday following the end of each fiscal
month of Borrower, Borrower shall deliver to Agent and the Banks copies
of all accounts receivable aged trial balances, accounts payable
agings, inventory reports and other financial information necessary to
support the amounts and calculations presented in the Borrowing Base
Certificate delivered as of the most recent fiscal month end, together
with reconciliations of the total amounts shown on each such accounts
receivable, accounts payable and inventory detail report to those shown
in each corresponding general ledger account of Borrower.
(c) Within twenty-five (25) days after the end of each month,
Borrower shall furnish to Agent and the Banks balance sheets of
Borrower as of the end of such period and statements of income (loss),
all prepared on a Consolidated and consolidating basis, in accordance
with Borrower's normal internal financial reporting practices,
consistently applied, and certified by a Financial Officer of Borrower.
(d) Within forty-five (45) days after the end of each of the
first three (3) quarterly periods of each fiscal year of Borrower,
Borrower shall furnish to Agent and the Banks balance sheets of
Borrower as of the end of such period and statements of income (loss),
stockholders' equity and cash flow for the quarter and fiscal year to
date periods, all prepared on a Consolidated and consolidating basis,
in accordance with GAAP, and in form and detail satisfactory to Agent
and the Banks and certified by a Financial Officer of Borrower.
(e) Within ninety (90) days after the end of each fiscal year
of Borrower, Borrower shall furnish to Agent and the Banks an annual
audit report of Borrower for that year prepared on a Consolidated and
consolidating basis, in accordance with GAAP, and in form and detail
satisfactory to Agent and certified by an independent public accountant
satisfactory to Agent, which report shall include balance sheets and
statements of income (loss), stockholders' equity and cash-flow for
that period, together with a certificate by the accountant setting
forth the Defaults and Events of Default coming to its attention during
the course of its audit or, if none, a statement to that effect.
(f) Concurrently with the delivery of the financial statements
in subparts (d) and (e) above, Borrower shall deliver to Agent and the
Banks a breakdown of the financial information provided pursuant to
subpart (e) above to separately reflect information with respect to (i)
U.S. operations and (ii) foreign operations, in form and detail
satisfactory to Agent and certified by a Financial Officer of Borrower.
(g) Concurrently with the delivery of the financial statements
in (d) and (e) above, Borrower shall furnish to Agent and the Banks a
compliance certificate in the form of Exhibit C hereto.
(h) With the delivery of the quarterly and annual financial
statements in (d) and (e) above, Borrower shall furnish to Agent and
the Banks a copy of any management report, letter or similar writing
furnished to the Companies by the accountants in respect of the
Companies' systems, operations, financial condition or properties.
(i) As soon as available, Borrower shall furnish to Agent and
the Banks copies of all notices, reports, definitive proxy or other
statements and other documents sent by Borrower to its shareholders, to
the holders of any of its debentures or bonds or the trustee of any
indenture securing the same or pursuant to which they are issued, or
sent by Borrower (in final form) to any securities exchange or over the
counter authority or system, or to the Securities and Exchange
Commission or any similar federal agency having regulatory jurisdiction
over the issuance of Borrower's securities.
(j) Within fourteen (14) days of Agent's written request,
Borrower shall furnish to each Bank such other information about the
financial condition, properties and operations of any Company as Agent
may from time to time reasonably request, which information shall be
submitted in form and detail reasonably satisfactory to Agent and
certified by a Financial Officer of the Company or Companies in
question.
4. Amendment to Financial Covenants. Article IV of the Credit Agreement
is hereby amended to delete Section
4.7 therefrom and to insert in place thereof the following:
Section 4.7. Financial Covenants.
(a) Definitions. As used in this Section 4.7, the following terms shall
have the following meanings:
"Adjusted Net Worth Ratio" shall mean, as of the last day of
the most recently completed fiscal quarter of the Companies, on a
Consolidated basis and in accordance with GAAP, the ratio of (a)
Consolidated Total Liabilities, to (b) Consolidated Tangible Net Worth.
"Consolidated Capital Expenditures" shall mean, for any
period, the amount of capital expenditures of the Companies, as
determined on a Consolidated basis and in accordance with GAAP.
"Consolidated Depreciation and Amortization Charges" shall
mean, for any period, the aggregate of all depreciation and
amortization charges for fixed assets, leasehold improvements and
general intangibles (specifically including goodwill) of the Companies
for such period, as determined on a Consolidated basis and in
accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, on a
Consolidated basis and in accordance with GAAP, Consolidated Net
Earnings for such period plus the aggregate amounts deducted in
determining such Consolidated Net Earnings in respect of (a)
Consolidated Income Tax Expense, (b) Consolidated Interest Expense, (c)
Consolidated Depreciation and Amortization Charges, (d) provisions
charged to income for future outlays, less amounts expended in cash
with respect to such provisions or similar provisions charged during
the current period or previous periods, and (e) losses, net of gains,
on sales of PPE.
"Consolidated Free Cash Flow" shall mean, for any period, on a
Consolidated basis and in accordance with GAAP, an amount equal to:
(a) the sum of:
(i) Consolidated EBITDA for such period;
(ii) an amount equal to the sum of:
(A) the Accounts Receivable on the first day of such
period minus the Accounts Receivable on the last day of such
period,
(B) the Inventory on the first day of such period minus
the Inventory on the last day of such period,
(C) the Prepaids on the first day of such period minus
the Prepaids on the last day of such period,
(D) the Accounts Payable on the last day of such period
minus the Accounts Payable on the first day of such period,
and
(E) the Accrued Liabilities on the last day of such
period minus the Accrued Liabilities on the first day of
such period; and
(iii) an amount equal to:
(A) the sum of:
(1) the amount, if any, by which the
Deferred Items Classified as Assets on the
last day of such period are less than the
Deferred Items Classified as Assets on the
first day of such period, and
(2) the amount, if any, by which the
Deferred Items Classified as Liabilities on
the first day of such period are less than
the Deferred Items Classified as Liabilities
on the last day of such period; minus
(B) the sum of:
(1) the amount, if any, by which the
Deferred Items Classified as Assets on the
last day of such period exceed the Deferred
Items Classified as Assets on the first day
of such period, and
(2) the amount, if any, by which the
Deferred Items Classified as Liabilities on
the first day of such period exceed the
Deferred Items Classified as Liabilities on
the last day of such period; plus
(C) the sum of:
(1) the amount, if any, by which the
Other Non-Current Items Classified as Assets
on the last day of such period are less than
the Other Non-Current Items Classified as
Assets on the first day of such period, and
(2) the amount, if any, by which the
Other Non-Current Items Classified as
Liabilities on the first day of such period
are less than the Other Non-Current Items
Classified as Liabilities on the last day of
such period; minus
(D) the sum of:
(1) the amount, if any, by which the
Other Non-Current Items Classified as Assets
on the last day of such period exceed the
Other Non-Current Items Classified as Assets
on the first day of such period, and
(2) the amount, if any, by which the
Other Non-Current Items Classified as
Liabilities on the first day of such period
exceed the Other Non-Current Classified as
Liabilities on the last day of such period;
minus
(E) Consolidated Capital Expenditures for such period
(less net cash proceeds of the sale of PPE); minus
(b) the aggregate amount of principal payments made during
such period by Casting Technology Company, an Indiana general
partnership (together with its successors and assigns, "CTC"), or on
behalf of CTC pursuant to the CTC Documents; minus
(c) for FQE August 31, 2001, the amount of Five Million
Dollars ($5,000,000) (which amount reflects Non-cash Charges, as
described in the Quarterly Financial Statements for such period).
As used in this definition, the words "Accounts Receivable",
"Inventory", "Prepaids", "Accounts Payable", "Accrued Liabilities",
"Deferred Items" "Non-cash Charges" and "Other Non-Current Items" shall
refer to those amounts, respectively, that are reported in the
Quarterly Financial Statements for such period. As used in this
definition, the words "Deferred Items Classified as Assets" shall mean
Deferred Items that are classified as assets of the Companies, the
words "Deferred Items Classified as Liabilities" shall mean Deferred
Items that are classified as liabilities of the Companies, the words
"Other Non-Current Items Classified as Assets" shall mean Other
Non-Current Items that are classified as assets of the Companies, and
the words "Other Non-Current Items Classified as Liabilities" shall
mean Other Non-Current Items that are classified as liabilities of the
Companies.
"Consolidated Income Tax Expense" shall mean, for any period,
all provisions for taxes based on the net income of the Companies
(including, without limitation, any additions to such taxes, and any
penalties and interest with respect thereto), all as determined for the
Companies on a Consolidated basis and in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
the interest expense of the Companies for such period, as determined on
a Consolidated basis and in accordance with GAAP.
"Consolidated Net Earnings" shall mean, for any period, the
net income (loss) of the Companies for such period, as determined on a
Consolidated basis and in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, at any date, (a)
the net book value (after deducting all applicable reserves and
excluding any re-appraisal or write-up of assets) of the assets (other
than the Intangible Assets) of the Companies, minus (b) Consolidated
Total Liabilities.
"Consolidated Total Liabilities" shall mean the total of items
of Indebtedness or liabilities of the Companies that, in accordance
with GAAP, would be included in determining total liabilities on the
liability side of the balance sheet of the Companies as of the date of
determination, as determined on a Consolidated basis.
"Cumulative Domestic Free Cash Flow" shall mean, for any
fiscal quarter of the Companies, Cumulative Free Cash Flow for such
fiscal quarter, excluding that portion of Cumulative Free Cash Flow for
such fiscal quarter that shall be attributable to Foreign Subsidiaries,
but including cash payments made during such fiscal quarter to Borrower
or any Domestic Subsidiary by any such Foreign Subsidiaries of
Indebtedness owing to Borrower or such Domestic Subsidiary.
"Cumulative Free Cash Flow" shall mean (a) for FQE August 31,
2001, Consolidated Free Cash Flow for such fiscal quarter, and (b) for
any completed fiscal quarter of the Companies after FQE August 31,
2001, the aggregate amount of Consolidated Free Cash Flow for such
completed fiscal quarter and all previous completed fiscal quarters
ending on or after FQE August 31, 2001.
"FQE August 31" shall mean Borrower's fiscal quarter ending
August 31.
"FQE February 28" shall mean Borrower's fiscal quarter ending
on or about February 28.
"FQE May 31" shall mean Borrower's fiscal quarter ending on or
about May 31.
"FQE November 30" shall mean Borrower's fiscal quarter ending
on or about November 30.
"Intangible Assets" shall mean with respect to the
Companies, collectively, all patents, trademarks, goodwill or other
intangibles as determined in accordance with GAAP, including, but not
limited to, (a) the "Speedline" name and technology associated with the
Speedline entities, and (b) the intangible assets associated with the
New York Stock Exchange organization.
"PPE" shall mean property, plant and equipment as listed in
the Quarterly Financial Statements.
"Quarterly Financial Statements" shall mean for any fiscal
quarter of the Companies, the financial statements delivered by the
Companies with respect to such fiscal quarter pursuant to Section
4.3(c) hereof.
(b) Adjusted Net Worth Ratio. The Companies shall not suffer
or permit at any time the Adjusted Net Worth Ratio to be less than (i)
5.90 to 1.00 on the last day of FQE August 31, 2001 through the day
prior to the last day of FQE November 30, 2001, (ii) 6.40 to 1.00 on
the last day of FQE November 30, 2001 through the day prior to the last
day of FQE February 28, 2002, (iii) 7.00 to 1.00 on the last day of FQE
February 28, 2002 through the day prior to the last day of FQE May 31,
2002, (iv) 6.80 to 1.00 on the last day of FQE May 31, 2002 through the
day prior to the last day of FQE August 31, 2002, and (v) 6.50 to 1.00
on the last day of FQE August 31, 2002 and thereafter. The Adjusted Net
Worth Ratio shall be calculated only as of the last day of a fiscal
quarter and shall not be recalculated until the last day of the next
succeeding fiscal quarter.
(c) Cumulative Free Cash Flow. The Companies shall not suffer
or permit at any time Cumulative Free Cash Flow, to be less than (i)
negative Seven Million One Hundred Fifty Thousand Dollars (-$7,150,000)
on the last day of FQE August 31, 2001 through the day prior to the
last day of FQE November 30, 2001, (ii) Eight Million One Hundred
Thousand Dollars ($8,100,000) on the last day of FQE November 30, 2001
through the day prior to the last day of FQE February 28, 2002, (iii)
Six Million One Hundred Thousand Dollars ($6,100,000) on the last day
of FQE February 28, 2002 through the day prior to the last day of FQE
May 31, 2002, (iv) Twenty Million Nine Hundred Thousand Dollars
($20,900,000) on the last day of FQE May 31, 2002 through the day prior
to the last day of FQE August 31, 2002, and (v) Thirty-One Million Two
Hundred Thousand Dollars ($31,200,000) on the last day of FQE August
31, 2002 and thereafter. Cumulative Free Cash Flow shall be calculated
only as of the last day of a fiscal quarter and shall not be
recalculated until the last day of the next succeeding fiscal quarter.
(d) Cumulative Domestic Free Cash Flow. The Companies shall
not suffer or permit at any time Cumulative Domestic Free Cash Flow,
for the most recently completed fiscal quarter of the Companies, to be
less than (i) negative Seventeen Million Nine Hundred Thousand Dollars
(-$17,900,000) on the last day of FQE August 31, 2001 through the day
prior to the last day of FQE November 30, 2001, (ii) negative Ten
Million Two Hundred Thousand Dollars (-$10,200,000) on the last day of
FQE November 30, 2001 through the day prior to the last day of FQE
February 28, 2002, (iii) negative Eight Million Eight Hundred Thousand
Dollars (-$8,800,000) on the last day of FQE February 28, 2002 through
the day prior to the last day of FQE May 31, 2002, (iv) Two Million
Five Hundred Thousand Dollars ($2,500,000) on the last day of FQE May
31, 2002 through the day prior to the last day of FQE August 31, 2002,
and (v) Eleven Million Six Hundred Thousand Dollars ($11,600,000) on
the last day of FQE August 31, 2002 and thereafter. Cumulative Domestic
Free Cash Flow shall be calculated only as of the last day of a fiscal
quarter and shall not be recalculated until the last day of the next
succeeding fiscal quarter.
5. Amendment to Investments and Loans Covenant. Article IV of the Credit
Agreement is hereby amended to delete Section 4.11 therefrom and to
insert in place thereof the following:
Section 4.11. Investments and Loans. No Company shall, without
the prior written consent of Agent and the Required Banks (which
consent shall not unreasonably be withheld), (a) create, acquire or
hold any Subsidiary, (b) make or hold any investment in any stocks,
bonds or securities of any kind, (c) be or become a party to any joint
venture or other partnership, (d) make or keep outstanding any advance
or loan to any Person, or (e) be or become a Guarantor of any kind,
except guarantees only for Indebtedness of the Companies incurred or
permitted pursuant to this Agreement; provided, that this Section shall
not apply to (i) any endorsement of a check or other medium of payment
for deposit or collection through normal banking channels or similar
transaction in the normal course of business; (ii) the holding of
Subsidiaries listed on Schedule 6.1 to the Existing Credit Agreement;
(iii) loans to a Company from a Company so long as each such Company is
Borrower or a Guarantor of Payment and is not a CTC Company or loans by
a Foreign Subsidiary to Borrower or a Guarantor of Payment, (iv) the
outstanding loans and guaranties listed on Schedule 4.11 hereto, by the
Companies so listed, provided that the principal amount of each such
loan or guaranty shall not hereafter be increased, (v) prepaid expenses
and advances made by a Company in the ordinary course of business, or
(vi) advances made by a Company in the ordinary course of business to
the employees of such Company in an amount not to exceed, for all
Companies, the aggregate of Two Hundred Fifty Thousand Dollars
($250,000) at any one time.
6. Amendment to Add a New Exhibit. The Credit Agreement is hereby amended
to add a new Exhibit C
(Compliance Certificate) thereto in the form of Exhibit C attached
hereto.
7. Amendment to Add a New Schedule. The Credit Agreement is hereby
amended to add a new Schedule
4.11 (Guaranties) thereto in the form of Schedule 4.11
attached hereto.
8. Extension of Maturity Under KeyBank Note and Firstar Note. Reference
is made to the (a) Demand Master Promissory Note, dated February 1, 1994,
executed by Borrower in favor of KeyBank National Association, in the original
principal amount of Ten Million Dollars ($10,000,000), as the same may from time
to time be amended, restated or otherwise modified or replaced (the "KeyBank
Note"), and (b) Firstar Bank, N.A. Revolving Loan-Grid Note, dated August 22,
2000, executed by Borrower in favor of Firstar Bank, N.A., in the original
principal amount of Ten Million Dollars ($10,000,000), as the same may from time
to time be amended, restated or otherwise modified or replaced (the "Firstar
Note"). Pursuant to Section 4.20 of the Credit Agreement, Borrower has requested
that Agent and the Required Banks consent to the extension of the maturity of
the Firstar Note from August 15, 2001 to September 15, 2002, and extension of
the maturity of the last advance made under the KeyBank Note from March 14, 2001
to September 15, 2002 (collectively, the "Maturity Extensions"). Agent and the
Required Banks, by signing below and provided that Borrower shall not (except in
accordance with Section 2.9 of the Credit Agreement) prepay the principal amount
owing under the KeyBank Note or the Firstar Note at any time prior to September
15, 2002, consent to the Maturity Extensions.
9. Level II Availability. Borrower and the Banks hereby acknowledge that
the Level II Availability Date occurred on July
8, 2001.
10. Representations and Warranties. Borrower hereby represents and
warrants to Agent and the Banks that (a) Borrower has the legal power and
authority to execute and deliver this Amendment; (b) the officials executing
this Amendment have been duly authorized to execute and deliver the same and
bind Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower of
the provisions hereof do not violate or conflict with the organizational
agreements of Borrower or any law applicable to Borrower or result in a breach
of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against Borrower; (d) no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment or by the
performance or observance of any provision hereof; (e) neither Borrower nor any
Subsidiary has any claim or offset against, or defense or counterclaim to, any
of Borrower's or any Subsidiary's obligations or liabilities under the Credit
Agreement or any Related Writing; and (f) this Amendment constitutes a valid and
binding obligation of Borrower in every respect, enforceable in accordance with
its terms.
11. Credit Agreement Unaffected. Each reference that is made in the
Credit Agreement or any other writing to the Credit Agreement shall hereafter be
construed as a reference to the Credit Agreement as amended hereby. Except as
herein otherwise specifically provided, all provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby.
12. Waiver. Borrower and each Subsidiary, by signing below, hereby
waives and releases Agent and each of the Banks and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all
claims, offsets, defenses and counterclaims of which Borrower and any Subsidiary
is aware, such waiver and release being with full knowledge and understanding of
the circumstances and effect thereof and after having consulted legal counsel
with respect thereto.
13. Counterparts This Amendment may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
14. Governing Law. The rights and obligations of all parties hereto shall
be governed by the laws of the State of Ohio, without
regard to principles of conflicts of laws.
[Remainder of page intentionally left blank.]
15. JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR
HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE
BANKS, EACH GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR
MODIFY AGENT'S OR ANY BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANK ONE INDIANA, N.A.
By: /s/ Xxxxxxx X Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FISTAR BANK, N.A.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: AVP
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
and /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: V.P./ Sr.Relationship Mgr.
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT C
COMPLIANCE CERTIFICATE
For Fiscal Quarter ended
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected President and Chief Financial Officer of
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Borrower");
(2) We are familiar with the terms of that certain Last-In-First-Out
Credit Agreement dated as of June 5, 2001, among the undersigned, the Banks, as
defined in the Credit Agreement, and KeyBank National Association, as Agent (as
amended and as the same may from time to time be further amended, restated or
otherwise modified, the "Credit Agreement", the terms defined therein being used
herein as therein defined), and the terms of the other Loan Documents, and we
have made, or have caused to be made under our supervision, a review in
reasonable detail of the transactions and condition of Borrower and its
Subsidiaries during the accounting period covered by the attached financial
statements;
(3) The review described in paragraph (2) above did not disclose, and
we have no knowledge of, the existence of any condition or event that
constitutes or constituted a Default or Event of Default, at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate;
(4) The representations and warranties made by Borrower contained in each
Loan Document are true and correct as though made on and as of the
date hereof; and
(5) Set forth on Attachment I hereto are calculations of the financial
covenants set forth in Section 4.7 of the Credit Agreement, which calculations
show compliance with the terms thereof.
IN WITNESS WHEREOF, we have signed this certificate the ___ day of
_________, 20___.
AMCAST INDUSTRIAL CORPORATION
By:
Name:
Title:
And:
Name:
Title:
SCHEDULE 4.11
(Guaranties)
[AMCAST TO PROVIDE]
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Second Amendment Agreement dated as of August 6, 2001.
Each of the undersigned specifically acknowledges the terms of and consent to
the waivers set forth therein. Each of the undersigned further agrees that the
obligations of each of the undersigned pursuant to the Guaranties of Payment of
Debt executed by each of the undersigned shall remain in full force and effect
and be unaffected hereby.
Each of the undersigned, by signing below, hereby waives and releases
Agent and each of the Banks and their respective directors, officers, employees,
attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which any of the undersigned is aware, such waiver
and release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR HEREBY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE BANKS, EACH
GUARANTOR, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS
WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY
BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT AMONG BORROWER, AGENT, THE BANKS AND GUARANTORS, OR ANY THEREOF.
ELKHART PRODUCTS CORPORATION AMCAST INVESTMENT SERVICES
AMCAST AUTOMOTIVE OF INDIANA, CORPORATION
INC. (fka Wheeltek, Inc.)
AS INTERNATIONAL, INC. By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
IZUMI, INC. Title: Vice President
AMCAST CASTING TECHNOLOGIES, INC.
AMCAST INDUSTRIAL FINANCIAL SERVICES, INC. CASTING TECHNOLOGY COMPANY
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx By: Amcast Casting
Technologies, Inc.,
Title: Vice President a General Partner
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
