Exhibit 10.2
FIRST AMENDMENT TO
LETTER OF CREDIT FACILITY AGREEMENT
This FIRST AMENDMENT TO LETTER OF CREDIT FACILITY AGREEMENT (this
"Amendment") made and entered into as of April 13, 2004, by and among INTERMET
CORPORATION, a Georgia corporation ("Intermet"), THE BANK OF NOVA SCOTIA, a
Canadian chartered bank ("Scotia Capital"), acting through its Atlanta Agency,
and any assignees of Scotia Capital which become "Lenders" as provided in the
Amended L/C Agreement (as defined below) (Scotia Capital, and such assignees
referred to collectively herein as the "Lenders"), and Scotia Capital, in its
capacity as administrative agent for the Lenders and each successor agent for
such Lenders as may be appointed from time to time pursuant to Article IX of the
Amended L/C Agreement (the "Administrative Agent") and as the Issuer.
W I T N E S S E T H:
WHEREAS, Intermet, the Lenders and the Administrative Agent are parties to
that certain Letter of Credit Facility Agreement, dated as of January 8, 2004
(the "Existing L/C Agreement," capitalized terms used herein but not otherwise
defined herein having the same respective meanings as in the Existing L/C
Agreement); and
WHEREAS, the parties to the Existing L/C Agreement wish to amend the
Existing L/C Agreement (the Existing L/C Agreement as amended by this Amendment
being the "Amended L/C Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, Intermet, the Lenders and the Administrative Agent agree, upon
the terms and subject to the conditions set forth herein, as follows:
SECTION 1. AMENDMENTS. Effective on the First Amendment Date (as defined
below), the Existing L/C Agreement shall be amended as follows:
(a) Incorporated Covenants. The amendments set forth in the First
Amendment to the Credit Agreement of even date herewith shall be effective with
respect to the Incorporated Covenants as incorporated into the Existing L/C
Agreement.
SECTION 2. EFFECTIVENESS. The amendments set forth in Section 1 above
shall become effective on the date (the "First Amendment Date") when the
Administrative Agent shall have received each of the following, all in form and
substance satisfactory to the Administrative Agent:
(a) This Amendment. Counterparts hereof executed by Intermet, the
Administrative Agent and the Lenders.
(b) Amendment to Credit Agreement. Evidence that the amendments set forth
in the First Amendment to the Credit Agreement of even date herewith shall have
become effective.
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(c) Fees of Counsel. Evidence that Intermet shall have paid all
outstanding fees and expenses of counsel to the Administrative Agent, to the
extent invoiced.
(d) Other Instruments or Documents. Such other instruments or documents as
the Administrative Agent or any Lender may reasonably request in connection with
this Amendment.
SECTION 3. MISCELLANEOUS.
(a) To induce the Administrative Agent and the Required Lenders to enter
into this Amendment, Intermet represents and warrants to the Administrative
Agent and the Lenders that: (i) the representations and warranties contained in
the Credit Documents, as amended by this Amendment, are true and correct in all
material respects as of the date hereof with the same effect as though made on
the date hereof; (ii) after giving effect to this Amendment, no Default or Event
of Default exists; (iii) this Amendment has been duly authorized by all
necessary corporate proceedings and duly executed and delivered by Intermet, and
the Amended L/C Agreement and each of the other Credit Documents are the legal,
valid and binding obligations of the Credit Parties party thereto, enforceable
against such Credit Parties in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity; and (iv) no consent, approval, authorization, order,
registration or qualification with any governmental authority, regulatory body
or securities exchange is required for, and in the absence of which would
adversely affect, the legal and valid execution and delivery or performance by
Intermet of this Amendment or the performance by Intermet of the Amended L/C
Agreement or by any Credit Party of any other Credit Document to which it is a
party.
(b) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall together constitute
one and the same Amendment.
(c) Except as specifically provided above, the Existing L/C Agreement and
the other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed in all respects. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Administrative Agent or
the Lenders under the Existing L/C Agreement or any of the other Credit
Documents, nor constitute a waiver or modification of any provision of any of
the other Credit Documents.
(d) On and after the First Amendment Date, each reference in the Existing
L/C Agreement and related documents to "Letter of Credit Facility Agreement,"
"this Agreement" or words of like import, shall, unless the context otherwise
requires, be deemed to refer to the Amended L/C Agreement.
(e) Intermet agrees to pay on demand all reasonable costs and expenses
incurred at any time by the Administrative Agent (including the reasonable
attorney fees and expenses for the Administrative Agent) in connection with the
preparation, negotiation, execution and
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administration of this Amendment and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith.
(f) This Amendment shall be binding upon and shall insure to the benefit
of the parties hereto and their respective successors and permitted assigns as
provided in the Amended L/C Agreement.
(g) In case any provision in or obligation under this Amendment or the
other Credit Documents shall be invalid, illegal or unenforceable, in whole or
in part, in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
(h) THIS AMENDMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).
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