EXHIBIT 10.1
FIRST AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
This FIRST AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
(this "AMENDMENT") is dated as of November 8, 2004 and entered into by and among
INTERMET CORPORATION, a Georgia corporation ("COMPANY"), THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "BORROWERS" and each a "BORROWER"), THE
BANK OF NOVA SCOTIA, as Administrative Agent for the Lenders ("ADMINISTRATIVE
AGENT") and as a Lead Lender, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent and Co-Agent for the Lenders ("COLLATERAL AGENT") and as a Lead
Lender, and the undersigned Lenders, and is made with reference to that certain
Debtor-In-Possession Revolving Credit Agreement dated as of October 22, 2004
(the "CREDIT AGREEMENT"), by and among Borrowers, the Lenders, Administrative
Agent and Collateral Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers, Lead Lenders and the undersigned Lenders
desire to amend the Credit Agreement on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 1.1.
A. Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions in appropriate alphabetical order:
"FIRST AMENDMENT" means that certain First Amendment
to Debtor-In Possession Credit Agreement dated as of November
8, 2004 by and among Borrowers, Agents, Lead Lenders and the
Lenders party thereto.
"FIRST AMENDMENT EFFECTIVE DATE" has the meaning
assigned to that term in the First Amendment.
B. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting the definitions of "Final Borrowing Order", "Incremental
Commitment Effective Date" and "Subsequent Funding Date" contained therein in
their entirety and substituting therefor the following, respectively:
"FINAL BORROWING ORDER" means the order (which order was
entered in substantially the form of the Interim Borrowing
Order, with modifications
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approved by Agents) entered by the Bankruptcy Court in the
Chapter 11 Cases on November 5, 2004 after a final hearing
under Bankruptcy Rule 4001(c)(2), as the same may be amended,
supplemented or otherwise modified from time to time;
provided, however, that such order shall not be deemed the
Final Borrowing Order for purposes of this Agreement unless
(i) the First Amendment Effective Date has occurred, (ii) such
order has not been reversed or stayed by the Bankruptcy Court
or any other court of competent jurisdiction, and (iii) such
order is in full force and effect substantially in the form of
the Interim Borrowing Order without amendment, supplement or
other modification other than amendments, supplements or
modifications made with the express written consent or joinder
of Agents and Requisite Lenders and approved by the Bankruptcy
Court.
"INCREMENTAL COMMITMENT EFFECTIVE DATE" means the
earliest time as of which all conditions set forth in
subsection 4.2 shall have been deemed satisfied or otherwise
waived in accordance with the last paragraph of such
subsection; provided, however, that solely for purposes of
each of the definition of "Budget", subsection 6.1(xvi) and
subsection 7.1(iv), each reference to "Incremental Commitment
Effective Date" shall mean the date after the First Amendment
Effective Date on which the last of the conditions set forth
in subsections 4.2A through 4.2K and subsection 4.2M shall
have been satisfied pursuant to clause (iii) of the last
paragraph of subsection 4.2.
"SUBSEQUENT FUNDING DATE" means the First Amendment
Effective Date.
1.2 AMENDMENT TO SUBSECTION 2.3.
Subsection 2.3B of the Credit Agreement is hereby amended by
adding at the end thereof the following sentence:
"Notwithstanding anything herein, in the other Loan Documents
or in any other agreement between Company and Agents to the contrary, all fees
previously agreed upon between Agents and Company payable on the "Incremental
Commitment Date" (as defined in the letter agreement dated October 13, 2004
among Agents and Company) shall be due and payable no later than the date on
which the conditions in subsections 4.2A through 4.2K and subsection 4.2M are
due pursuant to clause (iii) of the last paragraph of subsection 4.2."
1.3 AMENDMENTS TO SUBSECTION 2.10.
A. Subsection 2.10 of the Credit Agreement is hereby amended
by inserting immediately prior to the "and" preceding clause (iii) thereof the
phrase "it being understood that any retainers paid to Borrowers' professionals
as of the Petition Date shall not be deemed to reduce the foregoing amount,".
B. Subsection 2.10 of the Credit Agreement is hereby further
amended by deleting the reference to "$50,000" contained therein and
substituting therefor "$75,000".
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1.4 AMENDMENT TO SUBSECTION 4.2.
Subsection 4.2 of the Credit Agreement is hereby amended by
adding the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, (i) the Incremental Commitment Effective Date (and,
except for purposes of the definition of Termination Notice,
the satisfaction or waiver of the conditions set forth in
subsection 4.2) shall be deemed to occur on the First
Amendment Effective Date, so long as the conditions set forth
in subsections 4.2A, 4.2B and 4.2L shall have been satisfied
on such date; (ii) the Lenders and Lead Lenders shall be
deemed to waive (subject to clause (iii) of this sentence)
satisfaction of the conditions set forth in subsections 4.2C,
4.2E, 4.2F, 4.2G, 4.2H, 4.2I, 4.2J, 4.2K and 4.2M for purposes
of permitting the Incremental Commitment Effective Date to
occur on the First Amendment Effective Date (but not for
purposes of the definition of Termination Notice); (iii)
Borrowers and Lenders hereby agree that (a) Borrowers shall be
required to satisfy of all the conditions set forth in
subsections 4.2A through 4.2K and subsection 4.2M on a date
that is after the First Amendment Effective Date but prior to
the 11th day after the First Amendment Effective Date and (b)
failure to satisfy such conditions as required under clause
(a) shall be an immediate Event of Default on such 11th day
(it being understood and agreed that for purposes of this
clause (iii), each reference to "Incremental Commitment
Effective Date" in subsections 4.2A through 4.2K and the
reference to "Closing Date" in subsection 4.2J shall be deemed
to refer to the date on which all the conditions set forth in
such subsections shall have been satisfied pursuant to this
clause (iii)); and (iv) nothing in this paragraph shall
prejudice the right of any Lead Lender to deliver the
Termination Notice prior to the earlier of (A) 30 days after
the entry of the Interim Borrowing Order or (B) the date on
which all of the conditions set forth in clause (iii) above
are satisfied in accordance with the terms therein."
1.5 AMENDMENT TO SUBSECTION 4.3B.
Subsection 4.3B(vii) of the Credit Agreement is hereby amended
by adding immediately after the ";" at the end thereof the following proviso:
"provided, that if Company has not received such notices prior
to December 31, 2004 or such later date as Lead Lenders shall
agree upon, solely during the 90-day period beginning on the
later of such dates, this clause (vii) shall not be a
condition precedent to the making of any Loan or the issuance
of any Letter of Credit to the extent that after giving effect
to such Loan or Letter of Credit the Total Utilization of
Revolving Commitments would not exceed the Total Utilization
of Revolving Commitments immediately prior to the commencement
of such 90-day period;".
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1.6 AMENDMENT TO SUBSECTION 5.15A.
Subsection 5.15A(i) of the Credit Agreement is hereby amended
by adding immediately prior to the "." at the end thereof the following proviso:
"; provided, however, that upon the occurrence of the Customer
Program Approval Date, with respect to such customers that
have executed modified contracts with Debtors consenting to
such Liens, the Liens in favor of Collateral Agent for the
benefit of the Lenders shall be automatically deemed senior to
any offset, recoupment or other rights asserted by such
customers".
1.7 AMENDMENT TO SUBSECTION 6.13.
Subsection 6.13 of the Credit Agreement is hereby amended by
adding immediately after the reference to "Prepetition Scotia L/C" contained
therein the phrase "and payment of any unpaid adequate protection payments due
to Scotia Capital under the Borrowing Orders".
1.8 AMENDMENT TO SUBSECTION 7.5.
Subsection 7.5(i) of the Credit Agreement is hereby amended by
adding immediately after the ";" at the end thereof the following proviso:
"and provided, further, that after the Subsequent Funding Date
such payments shall be permitted on account of the Prepetition
Scotia L/C solely to the extent drawings made prior to the
Subsequent Funding Date under the Prepetition Scotia L/C shall
not have been reimbursed in full;".
1.9 AMENDMENT TO SUBSECTION 10.23.
Subsection 10.23C of the Credit Agreement is hereby amended by
deleting the phrase "60 days after the appointment of such committee" contained
therein and substituting therefor the phrase "90 days after the date of entry by
the Bankruptcy Court of the order that constitutes the Final Borrowing Order".
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Lenders and the Lenders to enter
into this Amendment and to amend the Credit Agreement in the manner provided
herein, Borrowers represent and warrant to each Lead Lender and Lender that the
following statements are true, correct and complete:
2.1 CORPORATE POWER AND AUTHORITY. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
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2.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment has been duly authorized by all necessary action on the part of each
Borrower and the performance of the Amended Agreement has been duly authorized
by all necessary action on the part of each Borrower.
2.3 NO CONFLICT. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Borrower or any of its Subsidiaries, or the
Organizational Documents of any Borrower or any of its Subsidiaries or any
order, judgment or decree of the Bankruptcy Court of any other Government
Authority binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
Subsidiaries or any applicable order of the Bankruptcy Court, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of any Borrower or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Borrower or any of
its Subsidiaries.
2.4 GOVERNMENTAL CONSENTS. The execution and delivery by each Borrower
of this Amendment and the performance by each Borrower of the Amended Agreement
do not and will not require any Governmental Authorization.
2.5 BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Borrower, and each of this Amendment and the Amended Agreement
is the legally valid and binding obligations of each Borrower enforceable
against each Borrower in accordance with its respective terms.
2.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 ABSENCE OF DEFAULT. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
2.8 FINAL BORROWING ORDER. The Final Borrowing Order has been entered
by the Bankruptcy Court, is in full force and effect and has not been stayed by
the Bankruptcy Court or any other court of competent jurisdiction.
2.9 NO MATERIAL ADVERSE CHANGE. There has been no material adverse
change since the Petition Date in the business, assets, condition (financial or
otherwise), operations, liabilities (whether contractual, environmental or
otherwise), projections or prospects of Company and its Subsidiaries, taken as a
whole (other than the commencement of the Chapter 11 Cases and increases in the
cost of Raw Materials occurring prior to the Closing Date and except as
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disclosed prior to the Closing Date in public filings or in writing to the
Prepetition Senior Lenders or in the Credit Agreement).
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective on the date
(such date being referred to herein as the "FIRST AMENDMENT EFFECTIVE DATE") on
which Agents shall have received duly executed copies of this Amendment from
each Borrower, each Lead Lender and Requisite Lenders.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower hereby acknowledges that such Borrower has read
this Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Borrower under each of the Loan Documents to which such
Borrower is a party shall not be impaired and each of the Loan Documents to
which such Borrower is a party are, and shall continue to be, in full force and
effect and are hereby confirmed and ratified in all respects.
SECTION 5. MISCELLANEOUS
5.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
A. On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment
shall not constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent or any Lender under, the Credit Agreement or
any of the other Loan Documents.
5.2 FEES AND EXPENSES. Each Borrower acknowledges that all costs, fees
and expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent and Collateral Agent and their respective counsel
(including, without limitation, O'Melveny & Xxxxx LLP and Wachtell, Lipton,
Xxxxx & Xxxx) with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Borrowers.
5.3 HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
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5.4 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
INTERMET CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CAST-MATIC CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
COLUMBUS FOUNDRY, L.P.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
DIVERSIFIED DIEMAKERS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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GANTON TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET HOLDING COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET ILLINOIS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET U.S. HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
IRONTON IRON, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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LYNCHBURG FOUNDRY COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
NORTHERN CASTINGS CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SUDBURY, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SUDM, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
TOOL PRODUCTS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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XXXXXX CASTINGS COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HAVANA, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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AGENTS AND LENDERS:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lead Lender and a
Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and as a Lead Lender and a Lender
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
Title: Director
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