ACCOMMODATION AGREEMENT
Amcast Industrial Corporation ("Supplier"), General Motors Corporation
("GM" or "Customer"), the Lenders (defined below) through KeyBank National
Association, as agent ("Agent"), Principal Life Insurance Company ("Principal")
and The Northwestern Mutual Life Insurance Company ("Northwestern", or together
with Principal, collectively, the "Noteholders") enter into this Accommodation
Agreement (this "Agreement") on August 28, 2003 (the "Effective Date").
RECITALS
A. Pursuant to various purchase orders and/or supply contracts issued by
Customer and accepted by Supplier (the "Purchase Orders"), Supplier is obligated
to manufacture and provide Customer with component parts as set forth in the
Purchase Orders (the "Component Parts").
B. The Agent and certain other financial institutions (collectively, the
"Lenders") provide substantially all of Supplier's working capital financing
pursuant to various loan and security agreements and related documents (as may
be amended from time to time, the "Loan Documents") between Supplier and the
Lenders. Additionally, the Noteholders and Supplier are parties to the Note
Agreements (as defined in the Restructuring Agreement) pursuant to which
Supplier has certain Noteholder Obligations (as defined in the Restructuring
Agreement).
C. Supplier has requested that Customer, the Lenders and the Noteholders provide
certain financial accommodations to Supplier to permit Supplier to continue its
operations.
D. Subject to the terms of this Agreement, the parties hereto have
agreed to provide certain financial and other accommodations to each other.
E. Customer, the Lenders and the Noteholders have requested that Supplier
provide them with certain assurances and acknowledgments to induce Customer and
the Lenders to provide the above-referenced financial and other accommodations.
F. Customer acknowledges that the forbearance provided in the Restructuring
Agreement (as later defined herein) constitutes satisfactory financing as
required by the terms of this Agreement.
WHEREFORE, based upon the foregoing recitals and for good and valuable
consideration, the receipt and adequacy of which is acknowledged, the parties
agree as follows:
TERMS AND CONDITIONS
Customer's Accommodations
1. Resourcing.
Absent an Event of Default (as defined below), Customer will not
resource programs currently on contract with Supplier (whether or not such
programs are currently in production), which programs are produced at one or
more of the "Accessed Facilities" (as defined below) until the earlier of (a)
September 14, 2006; (b) the date on which the Lenders cease to provide
financing to Supplier; (c) the date on which either the Lenders or Supplier
materially breaches the terms of this Agreement; or (d) the date on which
Supplier breaches any Purchase Order, the consequence of which would create a
substantial likelihood of interrupting Customer's production at its assembly
operations. Notwithstanding the foregoing, on and after January 1, 2005,
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Customer shall have the right hereunder to resource Component Parts to the
extent Supplier fails to demonstrate, to the reasonable satisfaction of
Customer, that Supplier is competitive in terms of quality, service,
technology, delivery and price.
The foregoing limitation shall not prohibit Customer from taking action
to prepare for resourcing, including, without limitation, entering into
discussions, negotiations and agreements regarding the production of the
Component Parts, nor shall the foregoing prohibit resourcing to which Supplier
and Customer mutually agree. Supplier will fully cooperate and assist Customer
in its resourcing preparations including, but not limited to, upon reasonable
notice, permitting potential alternative suppliers to inspect tooling, and
Supplier will fully cooperate in connection with any resourcing of Customer
production.
Notwithstanding the foregoing, this Section 1 does not apply to the
following programs, which programs Customer shall be free to resource at any
time in its discretion:
(a) General Motors Europe Wheel Carrier program for the Epsilon
program produced at Supplier's Richmond, Indiana facility;
(b) the following programs produced at Supplier's Franklin,
Indiana facility: (i) SAAB Steering Knuckle program for SAAB
9.3; (ii) General Motors Europe Steering Knuckle program for
the Epsilon program; and (iii) SAAB Steering Knuckle program
for SAAB 9.5;
(c) the J-Car Wheel Part No. 9595065 produced at Supplier's Gas
City, Indiana facility; and
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(d) the IPC (International Product Center) production from
Delphi-owned tooling sold by Supplier to Customer, only to the
extent Delphi resources other production associated with such
tooling.
Notwithstanding the foregoing, if a breach relating to a Purchase Order
occurs that creates a substantial likelihood of interrupting Customer's
production, Customer's right to resource shall be limited to the Component Part
covered by the Purchase Order and not Component Parts relating to other Purchase
Orders; provided, however if such resource materially impacts the continued
viability of Supplier's facility at which such resourced Component Part was
produced, Customer shall have the right, but not the obligation, to resource
additional Component Parts produced at the affected facility. Customer shall
promptly provide Supplier and Agent with written notice of its decision to
resource any programs or Component Parts pursuant to this Agreement.
2. Limitation of Setoffs.
For all amounts due from Customer to Supplier for shipments made or
other obligations on or after the Effective Date accruing through the earlier
to occur of: (a) September 14, 2006; (b) the date on which the Lenders cease to
provide financing to Supplier; (c) the date on which either the Lenders or
Supplier materially breaches the terms of this Agreement; or (d) the date on
which Supplier breaches any Purchase Order, the consequence of which would
create a substantial likelihood of interrupting Customer's production at its
assembly operations, Customer agrees, for the benefit of the Lenders only, to
suspend and not to assert any defenses, rights and claims for setoffs and/or
recoupment, other than "Allowed Setoffs" (as defined below), and to pay
accounts receivable in accordance with their terms (net of Allowed Setoffs).
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For purposes of this Agreement, "Allowed Setoffs" means (a) setoffs,
recoupments or deductions for defective or nonconforming products, quality
problems (other than defects, nonconformities or quality problems resulting
from Supplier's adherence to written directions furnished by Customer),
unordered or unreleased parts which Customer is not otherwise obligated to
accept pursuant to this Agreement and which are returned to Supplier, short
shipments, misshipments, premium freight charges (not caused by Customer),
improper invoices, mispricing, duplicate payments or billing errors; provided,
however, Customer shall not have a right of setoff or recoupment for any
incidental, special or consequential damages; (b) materials or components
purchased by Customer and provided to Supplier to be used in connection with
Customer's production, and (c) Customer's professional fees and costs incurred
relating to Supplier (collectively, the "Professional Fees") up to $50,000 per
month (the "Monthly Limit"). Any Professional Fees in excess of the Monthly
Limit may be carried forward to subsequent months provided the aggregate amount
of each monthly setoff does not exceed the Monthly Limit. Subject to the terms
of this Section 2, which is intended for the sole benefit of the Lenders only,
Customer expressly reserves and does not waive any rights and interests it may
have against Supplier, including setoffs asserted for defense purposes.
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3. Conditional Award of New Business.
Absent an Event of Default (as defined in Section 17 below), Customer
conditionally awards to Supplier the following programs, which programs are
currently scheduled to commence production during the model years noted below:
(a) GMT 360 - SAAB Wheel Part No. 9595629 (2005);
(b) GMT 360 - SAAB Wheel Part No. 9595631 (2005);
(c) GMX020 Solstice Wheel Part No. 9595603 (2006);
(d) GMX020 Solstice Wheel Part No. 9595604 (2006);
and
(e) GMT265 Cadillac SRX Wheel Part No. XXX000000 (2006).
Supplier expressly acknowledges the conditional nature of the sourcing
of the aforementioned programs through its execution of this Agreement.
Customer's agreement to remove the conditional nature of the sourcing of the
aforementioned programs is expressly conditioned on Supplier's timely
fulfillment of all of its obligations under this Agreement. To the extent
Supplier does not timely fulfill all of its obligations under this Agreement,
Customer may revoke the conditional sourcing of the aforementioned programs and
Supplier will undertake commercially reasonable efforts to assist Customer in
the transfer of all work product, design work, etc. developed by Supplier, at no
cost to Customer.
4. Customer Bid List.
Absent an Event of Default (as defined in Section 17) and successful
implementation of the Restructure Plan (as defined in Section 6), Customer will
offer
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Supplier the opportunity to bid on new programs, consistent with
Customer's standard policies and procedures, including but not limited to
Supplier's demonstration of competitiveness in terms of quality, service,
delivery, technology and price. Notwithstanding the foregoing, any award of new
business to Supplier will be in Customer's sole discretion.
The Lenders' Accommodations
5. Extension and Restructuring.
Pursuant to the terms of that certain Amended and Restated
Restructuring Agreement dated August ___, 2003 between the Lenders, the
Noteholders and Supplier (the "Restructuring Agreement") a copy of which is
attached hereto as Exhibit 5, such Restructuring Agreement will provide for the
1) extension of the restructuring period relating to the Outstanding
Obligations (as defined below) to September 14, 2006 (the "Restructuring
Termination Date"); and 2) commitment to a restructuring plan with a resultant
adjustment to Supplier's balance sheet as outlined below (the "Restructure
Plan") with the Restructuring Agreement being executed by the Lenders, the
Noteholders and Supplier simultaneously with the execution of this Agreement,
which Restructuring Agreement must be acknowledged by Customer. To the extent
any one or more of Supplier, the Noteholders or the Lenders fail to execute the
Restructuring Agreement, all of Customer's obligations to each of Supplier and
the Lenders in this Agreement shall automatically terminate and be of no
further force and effect.
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6 Restructure Plan.
A. Sale or Refinancing Process.
Supplier shall engage an investment banker on or before December 1,
2003, which investment banker shall be instructed to initiate and effect the
sale of Supplier (the "Sale") to a "Qualified Buyer" (as defined below).
Alternatively, Supplier may effect a refinancing (the "Refinancing") that
results in either the replacement of the Outstanding Obligations (as later
defined) in form and structure substantially identical to the Remaining Senior
Debt (as defined in Section 6.C.) and the Restructured Debt (as defined in
Section 6.C.) or payment in full by a compromise on or before December 31, 2004
(the "Restructure Date"). A "Qualified Buyer" means a buyer who demonstrates to
the reasonable satisfaction of each of the Lenders and Customer that it: (i)
possesses the financial capabilities, business plan and management structure to
effect the acquisition of and operation of Supplier; and (ii) agrees to assume
Customer's Purchase Orders without modification including, without limitation,
increases to the pricing of the Component Parts. Supplier further agrees to
provide to Customer and/or BBK, Ltd. ("BBK") monthly updates, or more frequently
if requested, updates on the Sale and the Refinancing and all documentation
pertaining to the Sale and the Refinancing and associated with the updates.
Customer agrees to maintain such information in confidence and refrain from
dissemination of such information beyond those of Customer's representatives or
designees who, in Customer's reasonable discretion, need to know such
information, for purposes of evaluation of Customer's business relationship with
Supplier.
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B. Pre-Restructure Period. 1. LIFO Loans.
For the period from the Effective Date through the Restructure
Date (the "Pre-Restructure Period"), the parties hereto agree to further amend
the LIFO Restructuring Agreement dated as of July 15, 2002, as amended by that
certain Amendment No. 1 to LIFO Restructuring Agreement dated October 31, 2002
(as amended, the "LIFO Restructuring Agreement") between the Lenders and
Supplier (collectively, the "LIFO Loans") as follows:
(a) extend the restructuring period relating to
the LIFO Loans to the Restructuring
Termination Date;
(b) extend the termination date relating to the
use of the Special Reserve Funds (as defined
in the LIFO Restructuring Agreement) to the
Restructuring Termination Date;
(c) permit Supplier to access the Special
Reserve Funds in amounts necessary to fund
Supplier's ongoing cash needs until such
time as the parties to the Restructuring
Agreement have reached definitive, binding
written agreements thereto and thereafter in
such amounts as may be required to pay any
"Missed Event Fee" (as defined in the
Restructuring Agreement), which "Missed
Event Fee" Supplier is unable to fund from
its cash flow; and
(d) to the extent Supplier utilizes all or a
portion of the Special Reserve Funds and
subject to the availability of adequate cash
flow, require Supplier to replenish the
Special Reserve Funds upon stabilization of
Supplier's payment terms with its unsecured
trade creditors.
(e) For clarification, the following provisions
of the LIFO Restructuring Agreement will
continue to be effective:
(i) the August 31, 2003 "Additional
Prepayment";
(ii) interest payments on the LIFO Loans
through the Restructuring
Termination Date, unless earlier
repaid;
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(iii) amortization in an approximate
principal amount of $1,300,000
during fiscal year 2004 (the "2004
Additional Prepayment");
(f) repayment of the LIFO Loans, to the extent
proceeds are available, in the event of the
occurrence of either of the following:
(i) a sale or refinance of any of Supplier's
assets; or
(ii) the occurrence of the Restructuring
Termination Date.
2. Existing Secured Indebtedness.
During the Pre-Restructure Period, the parties agree that Supplier's
indebtedness owing to the Lenders pursuant to (i) the Credit Agreement dated as
of August 14, 1997 among Supplier, KeyBank National Association, as Agent, and
the lenders party thereto, as amended, (ii) the Note Agreement dated as of
November 1, 1995 between Supplier and Northwestern, as amended, (iii) the Note
Agreement dated as of November 1, 1995 between Supplier and Principal, and (iv)
certain obligations of Supplier owing under certain lines of credit
(collectively, the "Existing Secured Indebtedness") shall receive interest only
payments and no amortization of principal so long as the LIFO Loans remain
outstanding. In the event of a repayment in full of the LIFO Loans, including,
without limitation, any repayment in full generated from the proceeds of a sale
of any of Supplier's assets, any remaining prepayments due under the LIFO Loan
will be applied to the Outstanding Obligations.
C. Restructure Date.
If on or before the Restructure Date, Supplier fails to either (i)
close the Sale; or (ii) close the Refinancing of its obligations resulting in
full satisfaction of the LIFO Loans and the Existing Secured Indebtedness
(collectively, the "Outstanding Obligations"),
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either by payment in full or by
compromise, then, in such event, the Lenders must reduce the Outstanding
Obligations to an amount of debt no greater than 3.75 times the greater of
Supplier's trailing twelve months EBITDA or the 2005 Forecasted EBITDA (as
defined below) (the "Remaining Senior Debt").
The amount of reduction in the Outstanding Obligations (the
"Restructured Debt" or "RD") shall be converted to fully subordinated debt,
which shall remain secured. The Restructured Debt shall initially mature on
September 14, 2013 (the "RD Maturity Date"). From the Restructure Date through
the RD Maturity Date, absent earlier repayment in full, the Restructured Debt
shall accrue interest at the rate of five percent per annum (the "RD Current
Interest") in addition to which three percent per annum shall be added to the
principal balance of the Restructured Debt on a monthly basis (the "RD PIK
Interest"). The Lenders shall receive the RD Current Interest on the RD so long
as Supplier generates sufficient cash flow from operations from which to pay the
Remaining Senior Debt Service (as defined below), in addition to the RD Current
Interest. In the event Supplier has either (i) insufficient cash flow from which
to pay the RD Current Interest or (ii) Supplier refinances the Remaining Senior
Debt and to the extent that cash flow from operations is not available after all
requirements of the refinance lender in respect of the refinanced Remaining
Senior Debt are met, the RD Current Interest or any unpaid portion thereof shall
be added to the principal balance of the Restructured Debt on a monthly basis
until such time as Supplier generates sufficient cash flow to pay the RD Current
Interest (in addition to the Remaining Senior Debt debt service requirements).
The Restructured Debt shall have no rights of acceleration until such time as
Supplier has ceased operations and the Lenders (or any
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refinance Lender of the
Remaining Senior Debt) have commenced enforcement action against Supplier to
liquidate collateral for the Remaining Senior Debt.
D. Post-Restructure Date Treatment of Remaining Senior
Debt. 1. Restructure Debt Service Formula.
The Remaining Senior Debt must be subject to debt service
requirements (the "Remaining Senior Debt Service") post-Restructure Date
consistent with the Restructure Debt Service Formula (as defined below). On or
before the Restructure Date, Supplier must provide to the Lenders and Customer a
forecast for calendar year 2005 (the "2005 Forecasted EBITDA"). All parties must
agree on the content of the 2005 Forecasted EBITDA. With respect to calculation
of the 2005 Forecasted EBITDA, the parties agree that the EBITDA variation for
the Wheel Group (as defined below) from calendar 2004 are expected to include
volume variances and elimination of discontinued entities. In addition, for both
the Wheel Group and Flow Control Group (as defined below), additional cost
reductions may exist, which cost reductions both the Lenders and Customers will
consider. For purposes of this Agreement, "Wheel Group" means: (a) Gas City,
Indiana; and (b) Fremont, Indiana; and "Flow Control Group" means: (a) Elkhart
Plumbing; (b) Xxx Brass and (c) Elkhart Industrial. The Remaining Senior Debt
Service will be established based on the Remaining Senior Debt Service Formula.
For purposes of this Agreement, "Remaining Senior Debt Service Formula" means:
the greater of 2005 Forecasted EBITDA or Supplier's trailing twelve-month
EBITDA; less (y) Supplier's 2005 forecasted capital expenditures; less (z) CTC
Debt Service. For purposes of this Agreement, "CTC Debt Service" means the
principal and interest payments on the revolving credit facility and the
outstanding term debt secured
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by Supplier's real and personal property assets
located at Supplier's CTC Facility in Franklin, Indiana. All parties agree that
the process outlined in this Section 6.D.1. must be utilized to establish the
Remaining Senior Debt Service in calendar year 2006, absent completion of a sale
or refinance of Supplier during calendar year 2005.
2. "Special Reserve Funds" and Covenants.
Post-Restructuring Date, the "Special Reserve Funds" must
remain in effect and available to Supplier for the sole purpose of servicing the
Remaining Senior Debt Service. Supplier's loan covenants must be established
consistent with eighty-five percent of Supplier's 2005 Projected EBITDA, which
loan covenants Customer will have to opportunity to review.
3. Excess Cash Flow.
On the Restructure Date, the Lenders will establish an excess
cash flow collateral account (the "Excess Cash Flow Account") into which any
Excess Cash Flow (as defined below) must be deposited on a quarterly basis. For
purposes of this Section 3 only, "Excess Cash Flow" means 2005 Projected EBITDA
less the sum of (x) Supplier's 2005 capital expenditures; plus (y) CTC Debt
Service; plus (z) Remaining Senior Debt Service. The Lenders agree to release to
Supplier from the Excess Cash Flow Account amounts necessary to cover subsequent
quarterly shortfalls, provided no material events of default exist under the
Restructuring Agreement and cash is available in the Excess Cash Flow Account.
On December 31, 2005, the Lenders will apply amounts existing in the Excess Cash
Flow Account to either the Remaining Senior Debt or the Restructured Debt at the
Lenders' option.
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4. Treatment of Remaining Senior Debt at December 31, 2005.
On December 31, 2005, the Lenders will reset the Remaining
Senior Debt to no greater than 3.75 times the greater of Supplier's trailing
twelve months EBITDA or the 2006 Forecasted EBITDA, but in no event shall the
Remaining Senior Debt be reset at an amount less than the amount of the
Remaining Senior Debt on the Restructure Date.
7. Funding. The Lenders and the Noteholders, as applicable, agree to forbear
from exercising their rights and remedies in respect of defaults which are
currently in existence under the Loan Documents and will continue to provide
financing to Supplier in accordance with the LIFO Restructuring Agreement, the
Restructuring Agreement and the Restructure Plan as outlined above. Neither
Supplier, the Lenders nor the Noteholders, as applicable, will amend, restate,
or materially modify the terms of the LIFO Restructuring Agreement or the
Restructuring Agreement without the prior written consent of Customer, which
consent shall not be unreasonably withheld.
8. Acknowledgment. The Lenders and the Noteholders consent to the rights being
granted to Customer in the Access and Security Agreement in Section 16 below
and the Tooling Acknowledgment in Section 13 below.
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Supplier's Obligations
9. Cooperation with Restructure Plan. Supplier agrees to cooperate fully with
the Lenders, the Noteholders and Customer in order to effectuate the terms and
conditions of the Restructuring Agreement and the Restructure Plan as outlined
above. Supplier expressly agrees that to the extent it fails to cooperate with
the Restructure Plan or comply with the terms of the Restructuring Agreement in
any manner, such action will automatically constitute an "Event of Default"
under this Agreement.
10. Access to Books and Records. Supplier will provide Customer and its
respective agents and representatives, consultants and employees reasonable
access to Supplier's operations, books, records, officers and employees at
reasonable times during business hours, or outside of business hours upon
reasonable request, for the purposes of monitoring Supplier's compliance with
the terms of this Agreement and any other agreements and contracts between
Supplier and the parties. Supplier agrees to fully cooperate with the agents,
representatives, consultants, officers and employees of the respective parties
to accomplish the ends contemplated by this Agreement.
11. Financial Reporting. Supplier agrees to provide to Customer and/or BBK the
same monthly financial reporting the Lenders' require under the Restructuring
Agreement as such financial reporting is provided to the Lenders.
12. Inventory Bank. Supplier will build, upon request by Customer, inventory
banks of Customer's Component Parts, subject to Supplier having (i) adequate
internal capacity (e.g. machine capacity and manpower) and availability of raw
materials and supplies; and (ii) availability of financing from the Lenders.
Supplier will ship inventory bank Component Parts as they are produced, and
Customer will pay for such Component Parts pursuant to the Purchase Orders.
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13. Tooling Acknowledgment. Supplier acknowledges and agrees that, exclusive of
Supplier Owned Tooling, all tooling, dies, test and assembly fixtures, jigs,
gauges, patterns, casting patterns, cavities, molds, and documentation
including engineering specifications and test reports together with any
accessions, attachments, parts, accessories, substitutions, replacements, and
appurtenances thereto used by Supplier in connection with its manufacture of
the Component Parts for Customer (collectively the "Customer Tooling") are
owned by Customer and are being held by Supplier or, to the extent Supplier has
transferred Customer Tooling to third parties, by such third parties, as
bailees at will. For purposes of this Agreement, the term "Supplier Owned
Tooling" means all tooling, dies, test and assembly fixtures, jigs, gauges,
patterns, casting patterns, cavities, molds, and documentation including
engineering specifications and test reports together with any accessions,
attachments, parts, accessories, substitutions, replacements and appurtenances
thereto, for which Customer has not made full payment of the applicable
purchase order price or which is not subject to a purchase order. Each item of
Supplier Owned Tooling will become and be considered Customer Tooling under the
terms of this Agreement once it has been paid for in full in accordance with
the terms of the applicable Purchase Order related thereto, without setoff or
recoupment by Customer. Additionally, Customer Tooling does not include any
tooling manufactured by Supplier on or after the date of the execution of this
Agreement under a Purchase Order for Customer unless and until such tooling has
been fully paid for by Customer without setoff or recoupment.
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Within sixty (60) days from the Effective Date, Supplier will supply to
Customer and Agent a list of Supplier Owned Tooling. Any tooling utilized to
manufacture Component Parts for Customer not included on the list of Supplier
Owned Tooling shall be deemed Customer Tooling unless Agent objects in writing
within ten (10) days thereafter. Supplier will cooperate with Customer in
determining which of Supplier's tooling is Supplier Owned Tooling or Customer
Tooling. If Agent timely objects, Customer and Agent shall each select an
independent accountant (whose fees and costs shall be paid by the respective
party) who shall determine the status of any tooling in dispute. If the two
independent accountants cannot agree, the dispute will be referred to binding
arbitration with all costs and expenses shared equally. Should either Agent or
Customer fail to appoint an accountant within ten (10) days after a timely
objection by Agent, the status of any disputed tooling shall be determined by
the independent accountant selected by Customer or Agent, as the case may be,
acting alone.
No person or entity other than Customer has any right, title or
interest in Customer Tooling other than Supplier's right, subject to Customer's
unfettered discretion to utilize Customer Tooling in the manufacture of
Component Parts pursuant to the terms of the Purchase Orders. Subject to the
terms of this Agreement, Customer and its designee(s) shall have the right, upon
written notice to Supplier, to enter the premises of Supplier for the purpose of
taking immediate possession of Customer Tooling at any time without payment of
any kind from Customer to Supplier should Customer elect to exercise such right,
and Supplier waives any right to further notice or court hearing, and agrees to
cooperate with Customer in its taking possession of Customer Tooling; provided,
however, that Customer not exercise such right with respect to specific items of
Customer Tooling unless the Customer is entitled under the terms of this
Agreement to resource the Component Part related to such Customer Tooling.
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14. Access To Operations. Supplier will allow Customer, its employees, agents,
contingency suppliers and consultants access to inspect the Customer Tooling
and the Supplier Owned Tooling at mutually convenient times upon request.
15. Other Customers' Accommodations. Supplier represents and warrants that it
will not enter into any agreements with any of its other customers on terms
more favorable to the other customers than the terms contained in this
Agreement, without the consent of Customer. If for any reason Supplier's
financing is not sufficient to fund all of Supplier's expenses, Supplier agrees
that it will utilize the available financing to first ensure that production,
capital expenditure and tooling requirements are timely satisfied for Customer
and any other customer that executes a binding written agreement pursuant to
which such customer is obligated to provide accommodations substantially
identical to Customer's accommodations set forth in this Agreement.
16. Access Agreement. Simultaneous with execution of this Agreement, Supplier
will enter into the Access and Security Agreement attached as Exhibit 16 hereto
(the "Access Agreement") pursuant to which Supplier grants Customer an Access
Right (as defined in the Access Agreement) to the following facilities: Gas
City, Fremont, CTC Franklin and Richmond Indiana, and Wapakoneta, Ohio
(collectively, the "Accessed Facilities") and the right to operate those
facilities as more fully set forth in the Access Agreement.
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General Terms
17. Events of Default. Any one or more of the following shall be "Events of
Default", or individually, an "Event of Default", hereunder unless a waiver or
deferral thereof is agreed to in writing, in each instance, by Customer:
A. a material adverse change in the current financial
condition, business, operations or property and assets of Supplier occurs;
B. Supplier materially breaches any provision of this
Agreement;
C. Supplier breaches any provision of any Purchase Order, the
consequence of which would create a substantial likelihood of interrupting
Customer's production at its assembly operations;
D. if Supplier makes an assignment for the benefit of
creditors or a similar transfer of or action involving a material portion of
Supplier's assets, or a trustee, custodian or receiver is appointed over all or
substantially all of Supplier's property;
E. a Chapter 7 petition under the Bankruptcy Code is filed by
or against Supplier or if a Chapter 11 bankruptcy case filed by Supplier is
converted to Chapter 7 and Supplier has failed to successfully contest such
filing or conversion within thirty (30) days of the initiation of such action;
F. an event of default occurs under either the Loan Documents,
the LIFO Restructuring Agreement or the Restructuring Agreement, the consequence
of which is that the Lenders cease funding to Supplier;
G. any one or more of Supplier, the Noteholders or the Lenders
fails to comply with any provision of any one or more of the Restructuring
Agreement, the Restructuring Plan or Section 8 of this Agreement; or
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H. Supplier is unable to obtain a commitment to refinance the
Remaining Senior Debt from either the Lenders or another lender on or before
June 1, 2006.
Notwithstanding the foregoing, any breach, failure to perform or delay
in the manufacture, production, assembly or delivery of the Components Parts
(i) that is beyond Supplier's reasonable control in the conduct of its
business, such as acts of God, fires, floods or other natural disasters,
epidemics, quarantine restrictions, freight embargoes, unusually severe
weather, wars, acts of terrorism and riots, or (ii) caused by Customer's
failure to fulfill its obligations under this Agreement shall not constitute an
"Event of Default" under the terms of this Agreement.
18. Authorization. The parties executing this Agreement warrant that they have
the corporate power and authority to execute this Agreement and this Agreement
has been duly authorized by the parties.
19. Cooperation. Each party agrees to cooperate fully with the other parties and
to take all additional actions that may be necessary to give full force and
effect to this Agreement.
20. Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation of this Agreement. All
references to Sections, Schedules, and Exhibits are to Sections, Schedules, and
Exhibits in or to this Agreement unless otherwise specified.
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21. No Waiver; Cumulative Remedies; Unenforceability. No party to this Agreement
shall by any act, delay, indulgence, omission, or otherwise be deemed to have
waived any right or remedy under this Agreement or of any breach of the terms
and conditions of this Agreement. A waiver by any party of any right or remedy
under this Agreement on any one occasion shall not be construed as a bar to any
right or remedy which that party would otherwise have had on a subsequent
occasion. No failure to exercise, nor any delay in exercising, any right,
power, or privilege under this Agreement, by any party shall operate as a
waiver, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or future exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
under this Agreement are cumulative, may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by any other
agreements or applicable law. Should any provision of this Agreement be held
invalid or unenforceable, the remainder of this Agreement will not be affected
thereby.
22. Waivers and Amendments; Successors and Assigns. No term or provision of this
Agreement may be waived, altered, modified, or amended except by a written
instrument, duly executed by the parties hereto. This Agreement and all of the
parties' obligations are binding upon their respective successors and assigns,
and together with the rights and remedies of the parties under this Agreement,
inure to the benefit of the parties and their respective successors and
assigns. Supplier may not assign or transfer any right or obligation under this
Agreement without the prior written consent of Customer.
23. Notices. All notices, requests, and other communications that are required
or may be given under this Agreement must be in writing, and shall be deemed to
have been given on the date of delivery, if delivered by hand, telecopy or
courier, or three (3) days after mailing, if mailed by certified or registered
mail, postage prepaid, return receipt requested, addressed as set forth below
(which addresses may be changed, from time to time, by notice given in the
manner provided in this Section):
21
If given to Supplier: Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
with a copy to: Xxxxxxxx Xxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
If given to GM: General Motors Corporation
Mail Code 000-000-000
30009 Xxx Xxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If given to Lenders: KeyBank National Association
Mail Code: OH-01-27-0504
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
22
with a copy to: Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to the Noteholders: Northwestern Mutual Life Insurance
Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
with a copies to: Northwestern Mutual Life Insurance
Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
If to Principal: Principal Life Insurance Company
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with copies to:
Principal Life Insurance Company
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
24. No Intended Third Party Beneficiary. The parties hereto acknowledge and
agree that the rights and interests of the parties under this Agreement are
intended to benefit solely the parties to this Agreement, except as expressly
set forth in this Agreement.
23
25. Counterparts. This Agreement may be executed in any number of counterparts
and by each party hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart. For purposes of this Agreement, facsimile signatures shall also
constitute originals.
26. Entire Agreement; Conflicts; Ambiguous Language. This Agreement, together
with any other agreements and schedules referenced to herein or executed in
connection with this Agreement, constitutes the entire understanding of the
parties in connection with the subject matter hereof. Except as expressly set
forth in this Agreement, neither Supplier nor Customer are waiving, modifying
or limiting any rights each may have under the Purchase Orders, which terms and
conditions shall otherwise remain in full force and effect. To the extent any
term or condition of this Agreement is inconsistent or in conflict with the
terms of any other agreements between Supplier and Customer, the terms of this
Agreement shall govern and control. This Agreement is being entered into among
competent persons who are experienced in business and represented by counsel,
and has been reviewed by the parties and their respective counsel. Therefore,
any ambiguous language in this Agreement will not necessarily be construed
against any particular party as the drafter of such language.
27. Governing Law. This Agreement is made in the State of Michigan and shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Michigan, without regard to conflicts of law principles.
24
28. CONSULTATION WITH COUNSEL. THE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE
BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL BEFORE EXECUTING THIS
AGREEMENT AND ARE EXECUTING SUCH AGREEMENT WITHOUT DURESS OR COERCION AND
WITHOUT RELIANCE ON ANY REPRESENTATIONS, WARRANTIES OR COMMITMENTS OTHER THAN
THOSE REPRESENTATIONS, WARRANTIES AND COMMITMENTS SET FORTH IN THIS AGREEMENT.
29. WAIVER OF JURY TRIAL. THE PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL
BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED. THE
PARTIES EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL
RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO THIS
AGREEMENT, THE PURCHASE ORDERS, OR ANY OTHER AGREEMENTS BETWEEN THE PARTIES
RELATED TO SUPPLIER. NO PARTY SHALL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT
OF THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN
INSTRUMENT SIGNED BY THE PARTY TO WHOM SUCH RELINQUISHMENT WILL BE CHARGED.
AMCAST INDUSTRIAL CORPORATION
By:
-------------------------------------
Its:
-----------------------------
[Signatures continued on the following page]
25
[Signatures continued from the previous page]
GENERAL MOTORS CORPORATION
By:
---------------------------------------
Its:
------------------------------
[Signatures continued on the following page]
26
[Signatures continued from the previous page]
KEYBANK NATIONAL ASSOCIATION
As Agent for the Lenders
By:
------------------------------------------
Its:
---------------------------------
[Signatures continued on the following page]
27
[Signatures continued from the previous page]
PRINCIPAL LIFE INSURANCE COMPANY
By:
-----------------------------------------------
Its:
--------------------------------------
[Signatures continued on the following page]
28
[Signatures continued from the previous page]
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:
----------------------------------------------
Its:
--------------------------------------
DET_C\562229.4
