Exhibit 4.10 Last-In-First-Out Credit Agreement
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This LAST-IN-FIRST-OUT CREDIT AGREEMENT (as the same may from time to
time be amended, restated or otherwise modified, this "Agreement") is made
effective as of the 5th day of June, 2001, by and among AMCAST INDUSTRIAL
CORPORATION, an Ohio corporation, 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx
00000 ("Borrower"), the banking institutions named in Schedule 1 hereto
(collectively, "Banks" and, individually, "Bank") and KEYBANK NATIONAL
ASSOCIATION, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, as administrative
agent for the Banks under this Agreement ("Agent").
WITNESSETH:
WHEREAS, Borrower and the Banks desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrower upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Account" shall mean an Account as defined in each of the Security
Agreements executed by Borrower and each Guarantor of Payment.
"Account Debtor" shall mean any Person obligated to pay all or any part
of an Account in any manner and includes (without limitation) any Guarantor
therefor or other accommodation party therefor.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Bank in respect of the Debt, if such payment results in that
Bank having less than its pro rata share of the Debt then outstanding, than was
the case immediately before such payment.
"Affiliate" shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with a Company and "control" (including
the correlative meanings, the terms "controlling", "controlled by" and "under
common control with") shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Company, whether through the ownership of voting securities, by contract or
otherwise.
"Asset Based Lending Examination" shall mean a comprehensive asset
based lending field examination conducted by Agent (or its affiliates or
representatives, as the case may be) of the inventory, accounts receivable and
other personal property of the Companies.
"Base Rate" shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent (1/2 of 1%) in excess of the Federal
Funds Effective Rate. Any change in the Base Rate shall be effective immediately
from and after such change in the Base Rate.
"Borrower Business Plan" shall mean a comprehensive business plan for
the Companies, including month-by-month balance sheets, income statements and
cash flows, and appropriate explanatory narrative, for the fiscal year ending in
August of 2002, in form and detail satisfactory to Agent and the Required Banks.
"Borrower Thirteen Week Forecast" shall mean a thirteen (13) week cash
flow report, prepared in form and substance satisfactory to Agent and the
Required Banks, with the results of such cash flow report to be satisfactory to
Agent and the Required Banks, in their sole discretion.
"Borrowing Base" shall mean, at any time, an amount not in excess of
the sum of the following: (a) the Current Asset Borrowing Base, as calculated in
accordance with the Borrowing Base Certificate delivered pursuant to Section
4.3(a) hereof, for the most recently completed week and otherwise acceptable to
Agent and the Required Banks, plus (b) fifty percent (50%) of the lesser of (i)
an amount equal to eighty percent (80%) of the forced liquidation value of the
machinery and equipment of Borrower and the Guarantors of Payment, as set forth
in the M&E Appraisal, or (ii) an amount equal to sixty-five percent (65%) of the
orderly liquidation value of the machinery and equipment of Borrower and the
Guarantors of Payment, as set forth in the M&E Appraisal; provided, however,
that the foregoing amounts or advance rates (A) shall be subject to such
eligibility requirements and reserves as Agent and the Required Banks shall deem
necessary or appropriate, in their sole discretion, and (B) shall at all times
be subject to modification or reduction, in the sole discretion of Agent and the
Required Banks.
"Borrowing Base Certificate" shall mean a Borrowing Base Certificate,
in form and substance satisfactory to Agent and the Required Banks.
"Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Cleveland, Ohio.
"Capital Distribution" shall mean a payment made, liability incurred or
other consideration given for the purchase, acquisition, redemption or
retirement of any capital stock or other equity interest of any Company or as a
dividend, return of capital or other distribution (other than any stock
dividend, stock split or other equity distribution payable only in capital stock
or other equity of the Company in question) in respect of any Company's capital
stock or other equity interest.
"Cash Collateral Account" shall mean a Cash Collateral Account, as
defined in each of the Security Agreements executed by Borrower and each
Guarantor of Payment.
"Change in Control" shall mean (a) the acquisition of, or, if earlier,
the shareholder or director approval of the acquisition of, ownership or voting
control, directly or indirectly, beneficially or of record, on or after the
Closing Date, by any Person or group (within the meaning of Rule 13d-3 of the
SEC under the Securities Exchange Act of 1934, as then in effect), of shares
representing more than thirty-three percent (33%) of the aggregate ordinary
Voting Power represented by the issued and outstanding capital stock of
Borrower; or (b) the occupation of a majority of the seats (other than vacant
seats) on the board of directors of Borrower by Persons who were neither (i)
nominated by the board of directors of Borrower nor (ii) appointed by directors
so nominated.
"Closing Date" shall mean the effective date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
together with the rules and regulations promulgated thereunder.
"Collateral" shall mean all collateral or other property at any time
securing the Debt, whether in whole or in part.
"Collateral Assignment and Security Agreement" shall mean a Collateral
Assignment and Security Agreement, in form and substance satisfactory to Agent
and the Required Banks, executed and delivered by Borrower or a Guarantor of
Payment, as the case may be, wherein Borrower or such Guarantor of Payment shall
have granted to Agent, for the benefit of the Banks, a security interest in and
an assignment of all intellectual property owned by Borrower or such Guarantor
of Payment, as the same may from time to time be amended, restated or otherwise
modified.
"Commitment" shall mean the obligation hereunder of each Bank to make
Revolving Loans pursuant to the Revolving Credit Commitment up to the Maximum
Amount for such Bank.
"Commitment Percentage" shall mean, for each Bank, the percentage set
forth opposite such Bank's name under the column headed "Commitment Percentage"
as described in Schedule 1 hereto.
"Commitment Period" shall mean the period from the Closing Date to
[April 15, 2002], or such earlier date on which the Commitments shall have been
terminated pursuant to Article VII hereof.
"Company" shall mean Borrower or a Subsidiary.
"Companies" shall mean Borrower and all Subsidiaries.
"Consolidated" shall mean the resultant consolidation of the financial
statements of Borrower and its Subsidiaries in accordance with GAAP, including
principles of consolidation consistent with those applied in preparation of the
consolidated financial statements referred to in Section 5.13 hereof.
"Controlled Group" shall mean a Company and each Person required to be
aggregated with a Company under Code Sections 414(b), (c), (m) or (o).
"CTC Company" shall mean Casting Technology Company, an Indiana general
partnership, Amcast Casting Technologies, Inc., an Indiana corporation, or
Izumi, Inc., a Delaware corporation.
"CTC Forbearance Agreement" shall mean the Forbearance and Waiver
Agreement among Borrower, Agent on behalf of itself and on behalf of and for the
benefit of the Banks and Bank One, Indiana, National Association, on behalf of
itself, in its capacity as CTC Agent and on behalf of the CTC Banks, dated as of
the date hereof, as the same may from time to time be amended, restated or
otherwise modified.
"Current Asset Borrowing Base" shall mean an amount determined by Agent
and the Required Banks, in their sole discretion, based upon the results of the
Asset Based Lending Examination, which amount shall be established by using
advance rates for the inventory and accounts receivable of Borrower and each
Guarantor of Payment; provided, however, that such advance rates (a) shall be
determined by Agent and the Required Banks in their sole discretion, (b) shall
be subject to such eligibility requirements and reserves as Agent and the
Required Banks shall deem necessary or appropriate, in their sole discretion,
and (c) shall at all times be subject to modification or reduction, in the sole
discretion of Agent and the Required Banks.
"Debt" shall mean, collectively, (a) all Indebtedness incurred by
Borrower to Agent and the Banks pursuant to this Agreement and includes the
principal of and interest on all Notes; (b) each extension, renewal or
refinancing thereof in whole or in part; (c) the commitment fees, other fees and
any prepayment fees payable hereunder; and (d) all Related Expenses.
"Default" shall mean an event or condition that constitutes, or with
the lapse of any applicable grace period or the giving of notice or both would
constitute, an Event of Default and that has not been waived by the Required
Banks in writing.
"Default Rate" shall mean a rate per annum equal to two percent (2%) in
excess of the Derived Base Rate from time to time in effect.
"Derived Base Rate" shall mean a rate per annum equal to four hundred
(400) basis points in excess the Base Rate from time to time in effect.
"Domestic Subsidiary" shall mean a Subsidiary that is not a Foreign
Subsidiary.
"Environmental Laws" shall mean all provisions of law, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the government
of the United States of America or by any state or municipality thereof or by
any court, agency, instrumentality, regulatory authority or commission of any of
the foregoing concerning health, safety and protection of, or regulation of the
discharge of substances into, the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated pursuant thereto.
"ERISA Event" shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a risk of the imposition of an excise tax
or any other liability on a Company or of the imposition of a Lien on the assets
of a Company; (b) the engagement by a Controlled Group member in a non-exempt
"prohibited transaction" (as defined under ERISA Section 406 or Code Section
4975) or a breach of a fiduciary duty under ERISA that could result in liability
to a Company; (c) the application by a Controlled Group member for a waiver from
the minimum funding requirements of Code Section 412 or ERISA Section 302 or a
Controlled Group member is required to provide security under Code Section
401(a)(29) or ERISA Section 307; (d) the occurrence of a Reportable Event with
respect to any Pension Plan as to which notice is required to be provided to the
PBGC; (e) the withdrawal by a Controlled Group member from a Multiemployer Plan
in a "complete withdrawal" or a "partial withdrawal" (as such terms are defined
in ERISA Sections 4203 and 4205, respectively); (f) the involvement of, or
occurrence or existence of any event or condition that makes likely the
involvement of, a Multiemployer Plan in any reorganization under ERISA Section
4241; (g) the failure of an ERISA Plan (and any related trust) that is intended
to be qualified under Code Sections 401 and 501 to be so qualified or the
failure of any "cash or deferred arrangement" under any such ERISA Plan to meet
the requirements of Code Section 401(k); (h) the taking by the PBGC of any steps
to terminate a Pension Plan or appoint a trustee to administer a Pension Plan,
or the taking by a Controlled Group member of any steps to terminate a Pension
Plan; (i) the failure by a Controlled Group member or an ERISA Plan to satisfy
any requirements of law applicable to an ERISA Plan; (j) the commencement,
existence or threatening of a claim, action, suit, audit or investigation with
respect to an ERISA Plan, other than a routine claim for benefits; or (k) any
occurrence by or any expectation of the incurrence by a Controlled Group member
of any liability for post-retirement benefits under any Welfare Plan, other than
as required by ERISA Section 601, et. seq. or Code Section 4980B.
"ERISA Plan" shall mean an "employee benefit plan" (within the meaning
of ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation to
contribute to such plan.
"Existing Credit Agreement" shall mean the Credit Agreement among
Borrower, the banks party thereto, and KeyBank National Association, as agent
for the banks, dated as of August 14, 1997, as amended and as the same may,
subject to the terms hereof, from time to time be further amended, restated or
otherwise modified.
"Existing Credit Agreement Agent" shall mean KeyBank National
Association in its capacity as Agent under the Existing Credit Agreement,
together with its successors and assigns.
"Existing Credit Agreement Bank" shall mean a Bank, as defined in the
Existing Credit Agreement, and its successors and assigns.
"Event of Default" shall mean an event or condition that constitutes an
event of default as defined in Article VI hereof.
"Federal Funds Effective Rate" shall mean, for any day, the rate per
annum (rounded upward to the nearest one one-hundredth of one percent (1/100 of
1%)) announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the Closing Date.
"Fee Reserve" shall mean an amount determined by Agent, in its sole
discretion, as necessary or appropriate in order to cover Related Expenses.
"Financial Covenant Amendment" shall have the meaning given to such
term in Section 4.7 hereof.
"Financial Officer" shall mean any of the following officers: chief
executive officer, president, chief financial officer or treasurer. Unless
otherwise qualified, all references to a Financial Officer in this Agreement
shall refer to a Financial Officer of Borrower.
"Foreign Subsidiary" shall mean a Subsidiary that is organized outside
of the United States.
"GAAP" shall mean generally accepted accounting principles as then in
effect, which shall include the official interpretations thereof by the
Financial Accounting Standards Board, applied on a basis consistent with the
past accounting practices and procedures of Borrower.
"Guarantor" shall mean a Person that pledges its credit or property in
any manner for the payment or other performance of the indebtedness, contract or
other obligation of another and includes (without limitation) any guarantor
(whether of payment or of collection), surety, co-maker, endorser or Person that
agrees conditionally or otherwise to make any purchase, loan or investment in
order thereby to enable another to prevent or correct a default of any kind.
"Guarantor of Payment" shall mean each of the Companies set forth on
Schedule 2 hereof, that are each executing and delivering a Guaranty of Payment,
or any other Person that shall deliver a Guaranty of Payment to Agent subsequent
to the Closing Date.
"Guaranty of Payment" shall mean each Guaranty of Payment of Debt
executed and delivered on or after the Closing Date in connection herewith by
the Guarantors of Payment, as the same may from time to time be amended,
restated or otherwise modified.
"Indebtedness" shall mean, for any Company (excluding in all cases
trade payables payable in the ordinary course of business by such Company),
without duplication, (a) all obligations to repay borrowed money, direct or
indirect, incurred, assumed, or guaranteed, (b) all obligations for the deferred
purchase price of capital assets, (c) all obligations under conditional sales or
other title retention agreements, (d) all obligations (contingent or otherwise)
under any letter of credit, banker's acceptance, currency swap agreement,
interest rate swap, cap, collar or floor agreement or other interest rate
management device, (e) all synthetic leases, (f) all lease obligations that have
been or should be capitalized on the books of such Company in accordance with
GAAP, (g) all obligations of such Company with respect to asset securitization
financing programs to the extent that there is recourse against such Company or
such Company is liable (contingent or otherwise) under any such program, (h) all
obligations to advance funds to, or to purchase assets, property or services
from, any other Person in order to maintain the financial condition of such
Person, and (i) any other transaction (including forward sale or purchase
agreements) having the commercial effect of a borrowing of money entered into by
such Company to finance its operations or capital requirements.
"Level I Availability" shall have the meaning given to such term in
Section 2.3(a) hereof.
"Level II Availability" shall have the meaning given to such term in
Section 2.3(b) hereof.
"Level II Availability Conditions" shall mean (a) delivery by Borrower
to Agent, the Banks and the Noteholders of the Borrower Thirteen Week Forecast,
(b) delivery to Agent, the Banks and the Noteholders of the Thirteen Week
Forecast Review and Assessment Report, and (c) completion by Agent (or its
affiliates or representatives, as the case may be) of the Asset Based Lending
Examination, with the results of such audit to be satisfactory to Agent and the
Required Banks, in their sole discretion.
"Level III Availability" shall have the meaning given to such term in
Section 2.3(c) hereof.
"Level III Availability Conditions" shall mean (a) Borrower shall have
demonstrated, in the opinion of Agent, the ability to deliver, on a weekly basis
in accordance with Section 4.3(a) hereof, a Borrowing Base Certificate, in form
and substance satisfactory to Agent and the Required Banks, (b) the completion
of the M&E Appraisal, with the results of such M&E Appraisal to be satisfactory
to Agent and the Required Banks, in their sole discretion, (c) the
implementation of a cash collateral system that provides for daily application
of the proceeds of the accounts receivable of the Companies to the Debt, and (c)
establishment of financial covenants pursuant to the Financial Covenant
Amendment.
"Lien" shall mean any mortgage, security interest, lien (statutory or
other), charge, encumbrance on, pledge or deposit of, or conditional sale,
leasing, sale with a right of redemption or other title retention agreement and
any capitalized lease with respect to any property (real or personal) or asset.
"Loan" or "Loans" shall mean the credit extended to Borrower by the
Banks in accordance with Section 2.1 hereof.
"Loan Documents" shall mean, collectively, this Agreement, each Note,
each Guaranty of Payment, the Subordination Agreement, each Security Document
and any other documents relating to any of the foregoing, as any of the
foregoing may from time to time be amended, restated or otherwise modified or
replaced.
"Lockbox" shall mean a post office box located in Cleveland, Ohio, or
any other location as Agent shall request, pursuant to which Agent shall have
access in accordance with the provisions of the Lockbox Agreement.
"Lockbox Agreement" shall mean Agent's customary lockbox agreement or
any other such agreement in form and substance satisfactory to Agent.
"M&E Appraisal" shall mean appraisals, conducted by such firms or
consultants as are acceptable to Agent and the Required Banks, in their sole
discretion, of the machinery and equipment of Borrower and each Guarantor of
Payment, which appraisals shall include, among other things, both a "forced
liquidation value" and an "orderly liquidation value" for such machinery and
equipment.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise) or
prospects of any Company, (b) the business, operations, property, condition
(financial or otherwise) or prospects of Borrower and its Subsidiaries taken as
a whole, or (c) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights and remedies of Agent or the Banks hereunder
or thereunder.
"Maximum Amount" shall mean, for each Bank, the amount set forth
opposite such Bank's name under the column headed "Maximum Amount" as listed on
Schedule 1 hereto.
"Maximum Revolving Amount" shall mean (a) while the Level I
Availability is in effect, Fifteen Million Dollars ($15,000,000), (b) while the
Level II Availability in effect, Thirty Million Dollars ($30,000,000), and (c)
while the Level III Availability is in effect, Thirty-Five Million Dollars
($35,000,000).
"Mortgage" shall mean a mortgage, deed of trust or other instrument, in
form and substance satisfactory to Agent and the Required Banks, executed by
Borrower or a Guarantor of Payment, as the case may be, with respect to any
Mortgaged Real Property, as the same may from time to time be amended, restated
or otherwise modified.
"Mortgaged Real Property" shall mean each of the parcels of real
property, or interests therein, owned or leased by Borrower or a Guarantor of
Payment, as appropriate, together with each other parcel of real property that
shall become subject to a Mortgage, in each case together with all of the right,
title and interest of Borrower or such Guarantor of Payment, as the case may be,
in the improvements and buildings thereon and all appurtenances, easements or
other rights belonging thereto.
"Multiemployer Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
"Note" shall mean each Revolving Credit Note, or any other note
delivered pursuant to this Agreement.
"Note Agreement" shall mean (a) the Note Agreement dated as of November
1, 1995, as amended, executed by Borrower in favor of Principal Mutual Life
Insurance Company, as Purchaser, with respect to $25,000,000 7.09% Senior Notes
Due November 7, 2005, or (b) the Note Agreement dated as of November 1, 1995, as
amended, executed by Borrower in favor of Northwestern Mutual Life Insurance
Company, as Purchaser, with respect to $25,000,000 7.09% Senior Notes Due
November 7, 2005.
"Noteholders" shall mean, collectively, Northwestern Mutual Life
Insurance Company and Principal Mutual Life Insurance Company, and their
respective successors and assigns.
"Notice of Loan" shall mean a Notice of Loan in the form of the
attached Exhibit B.
"Obligor" shall mean (a) a Person whose credit or any of whose property
is pledged to the payment of the Debt and includes, without limitation, any
Guarantor, and (b) any signatory to a Related Writing.
"Organizational Documents" shall mean, with respect to any Person
(other than an individual), such Person's Articles (Certificate) of
Incorporation, or equivalent formation documents, and Regulations (Bylaws), or
equivalent governing documents, and any amendments to any of the foregoing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan" shall mean an ERISA Plan that is a "pension plan"
(within the meaning of ERISA Section 3(2)).
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, institution, trust, estate, government or other agency or political
subdivision thereof or any other entity.
"Pledge Agreement" shall mean a Pledge Agreement, in form and substance
satisfactory to Agent and the Required Banks, executed and delivered to Agent,
for the benefit of the Banks, by Borrower or a Guarantor of Payment, as
appropriate, as the same may from time to time be amended, restated or otherwise
modified.
"Prime Rate" shall mean the interest rate established from time to time
by Agent as Agent's prime rate, whether or not such rate is publicly announced;
the Prime Rate may not be the lowest interest rate charged by Agent for
commercial or other extensions of credit. Each change in the Prime Rate shall be
effective immediately from and after such change.
"Proceeds" shall mean Proceeds, as defined in each of the Security
Agreements executed by Borrower and each Guarantor of Payment.
"Related Expenses" shall mean any and all costs, liabilities and
expenses (including, without limitation, losses, damages, penalties, claims,
actions, reasonable attorneys' fees (both in-house and outside retained
counsel), legal expenses, judgments, suits and disbursements) incurred by,
imposed upon, or asserted against, Agent or any Bank in any attempt by Agent and
the Banks (a) to obtain, preserve, perfect or enforce any security interest
evidenced by this Agreement or any Related Writing; (b) to obtain payment,
performance or observance of any and all of the Debt; (c) to maintain, insure,
audit, collect, preserve, repossess or dispose of any of the collateral securing
the Debt or any thereof, including, without limitation, costs and expenses for
appraisals, assessments, Asset Based Lending Field Examination or audits of any
Borrower or any such collateral; and (d) incidental or related to (a) through
(c) above, including, without limitation, interest thereupon from the date
incurred, imposed or asserted until paid at the Default Rate.
"Related Writing" shall mean each Loan Document and any other
assignment, mortgage, security agreement, guaranty agreement, subordination
agreement, financial statement, audit report, Borrowing Base Certificate or
other writing furnished by Borrower, any Subsidiary or any Obligor, or any of
their respective officers, to Agent or the Banks pursuant to or otherwise in
connection with this Agreement.
"Reportable Event" shall mean a reportable event as that term is
defined in Title IV of ERISA, except actions of general applicability by the
Secretary of Labor under Section 110 of such Act.
"Required Banks" shall mean the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the Maximum Revolving Amount, or, if there is
any borrowing hereunder, the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the aggregate principal amount outstanding under the Notes.
"Restricted Payment" shall mean, with respect to any Company, (a) any
Capital Distribution, (b) any Stock Repurchase, as defined in the Existing
Credit Agreement, or (c) any amount paid by such Company in repayment,
redemption, retirement, repurchase, direct or indirect, of any Subordinated
Indebtedness, including, but not limited to, the Indebtedness incurred pursuant
to the Existing Credit Agreement, the Note Agreements or in respect of the Line
of Credit Obligations, as defined in the Existing Credit Agreement.
"Revolving Credit Commitment" shall mean the obligation hereunder of
the Banks, during the Commitment Period, to make Revolving Loans up to the
amounts determined in accordance with Section 2.2 hereof.
"Revolving Credit Note" shall mean a Revolving Credit Note executed and
delivered pursuant to Section 2.1 hereof.
"Revolving Loan" shall mean a Loan granted to Borrower by the Banks in
accordance with Section 2.1 hereof.
"SEC" shall mean the United States Securities and Exchange Commission,
or any governmental body or agency succeeding to any of its principal functions.
"Security Agreement" shall mean a Security Agreement, in form and
substance satisfactory to Agent and the Required Banks, executed and delivered
by Borrower or a Guarantor of Payment to Agent, for the benefit of the Banks, in
connection with this Agreement, as the same may from time to time be amended,
restated or otherwise modified.
"Security Documents" shall mean each Security Agreement, each Mortgage,
each Pledge Agreement, each Collateral Assignment and Security Agreement, each
U.C.C. financing statement executed in connection therewith or securing any
interest created in any of the foregoing documents, and any other documents
relating to any of the foregoing, as any of the foregoing may from time to time
be amended, restated or otherwise modified or replaced.
"Subordinated", as applied to Indebtedness, shall mean that the
Indebtedness has been subordinated (by written terms or written agreement being,
in either case, in form and substance satisfactory to Agent and the Required
Banks) in favor of the prior payment in full of the Debt.
"Subordination Agreement" shall mean the Subordination, Waiver and
Consent Agreement, dated as of the Closing Date, among Agent, the Banks, the
Existing Credit Agreement Banks, the Existing Credit Agreement Agent, the
Noteholders, the Line of Credit Lenders, as defined in the Existing Credit
Agreement, and the Collateral Agent( as defined in the Existing Credit
Agreement) as the same may from time to time be amended, restated or otherwise
modified.
"Subsidiary" of Borrower or any of its Subsidiaries shall mean (a) a
corporation more than fifty percent (50%) of the Voting Power of which is owned,
directly or indirectly, by Borrower or by one or more other subsidiaries of
Borrower or by Borrower and one or more subsidiaries of Borrower, (b) a
partnership or limited liability company of which Borrower, one or more other
subsidiaries of Borrower or Borrower and one or more subsidiaries of Borrower,
directly or indirectly, is a general partner or managing member, as the case may
be, or otherwise has the power to direct the policies, management and affairs
thereof, or (c) any other Person (other than a corporation) in which Borrower,
one or more other subsidiaries of Borrower or Borrower and one or more
subsidiaries of Borrower, directly or indirectly, has at least a majority
interest in the Voting Power or the power to direct the policies, management and
affairs thereof.
"Thirteen Week Forecast Review and Assessment Report" shall mean a
detailed written review, analysis and assessment by the Turnaround Financial
Consultant selected by Agent and the Banks pursuant to Section 3.1(k) hereof of
the Borrower Thirteen Week Forecast, with the results of such report to be
satisfactory to Agent and the Required Banks, in their sole discretion.
"Voting Power" shall mean, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person, and the holding of a designated percentage of Voting Power of a Person
means the ownership of shares of capital stock, partnership interests,
membership interests or other interests of such Person sufficient to control
exclusively the election of that percentage of the members of the board of
directors or similar governing body of such Person.
"Welfare Plan" shall mean an ERISA Plan that is a "welfare plan" within
the meaning of ERISA Section 3 (l).
"Wholly-Owned Subsidiary" shall mean, with respect to any Person, any
corporation, limited liability company or other entity, all of the securities or
other ownership interest of which having ordinary voting power to elect a
majority of the board of directors, or other persons performing similar
functions, are at the time directly or indirectly owned by such Person.
Any accounting term not specifically defined in this Article I shall
have the meaning ascribed thereto by GAAP.
The foregoing definitions shall be applicable to the singular and
plurals of the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
Section 2.1. Amount and Nature of Credit. Subject to the terms and
conditions of this Agreement, during the Commitment Period, each Bank shall
participate, to the extent hereinafter provided, in making Revolving Loans to
Borrower, in such aggregate amount as Borrower shall from time to time request
pursuant to the Commitments; provided, however, that in no event shall the
aggregate principal amount of all Revolving Loans outstanding under this
Agreement be in excess of the Revolving Credit Commitment. The Revolving Loans
shall mature on the last day of the Commitment Period.
Each Bank, for itself and not one for any other, agrees to participate
in Revolving Loans made hereunder during the Commitment Period on such basis
that (a) immediately after the completion of any borrowing by Borrower
hereunder, the aggregate principal amount then outstanding on the Notes issued
to such Bank shall not be in excess of the Maximum Amount for such Bank, and (b)
such aggregate principal amount outstanding on the Notes issued to such Bank
shall represent that percentage of the aggregate principal amount then
outstanding on all Notes (including the Notes held by such Bank) that is such
Bank's Commitment Percentage. Each borrowing from the Banks hereunder shall be
made pro rata according to the respective Commitment Percentages of the Banks.
Borrower shall pay interest on the unpaid principal amount of Revolving
Loans outstanding from time to time from the date thereof until paid at the
Derived Base Rate from time to time in effect. Interest on such Revolving Loans
shall be payable, commencing on July 1, 2001, and on the first day of each month
thereafter and at the maturity thereof.
The obligation of Borrower to repay the Revolving Loans made by each
Bank and to pay interest thereon shall be evidenced by a Revolving Credit Note
of Borrower in the form of Exhibit A hereto, payable to the order of such Bank
in the maximum amount of its Commitment, or, if less, the aggregate unpaid
principal amount of Revolving Loans made hereunder by such Bank. Subject to the
provisions of this Agreement, Borrower shall be entitled to borrow funds, repay
(in accordance with the requirements of Section 2.10 hereof) the same in whole
or in part and re-borrow hereunder at any time and from time to time during the
Commitment Period up to the amounts determined in accordance with Section 2.2
hereof.
Section 2.2. Amount of Revolving Credit Commitment. Subject to the
other terms and conditions of this Agreement, the amount of the Revolving Credit
Commitment in effect at any time shall be the amount determined in accordance
with the following provisions:
(a) Level I Availability. For the period from the Closing Date until
the date upon which Borrower shall have satisfied, in the sole opinion of Agent
and the Required Banks, the Level II Availability Conditions (the "Level II
Availability Date"), the Revolving Credit Commitment shall be equal to (i)
Fifteen Million Dollars ($15,000,000) (or such lesser amount as shall be
determined in accordance with Section 2.6 hereof) minus (ii) the Fee Reserve in
effect from time to time (the foregoing being referred to herein as the "Level I
Availability").
(b) Level II Availability. On and after the Level II Availability Date
until the date upon which Borrower shall have satisfied, in the sole opinion of
Agent and the Required Banks, the Level III Availability Conditions (the "Level
III Availability Date"), the Revolving Credit Commitment shall be an amount
equal to (i) the lesser of (A) Thirty Million Dollars ($30,000,000) (or such
lesser amount as shall be determined in accordance with Section 2.6 hereof) or
(B) eighty percent (80%) of the Current Asset Borrowing Base minus (ii) the Fee
Reserve in effect from time to time (the foregoing being referred to herein as
the "Level II Availability").
(c) Level III Availability. On and after the Level III Availability
Date, the Revolving Credit Commitment shall be an amount equal to (i) the lesser
of (A) Thirty-Five Million Dollars ($35,000,000) (or such lesser amount as shall
be determined in accordance with Section 2.6 hereof) or (B) the Borrowing Base,
minus (ii) the Fee Reserve in effect from time to time (the foregoing being
referred to herein as the "Level III Availability").
(d) Changes in Revolving Credit Commitment. No change in the amount of
the Revolving Credit Commitment shall be effective unless Agent shall have
confirmed in writing to Borrower, with a copy to each of the Banks and to each
of the Noteholders , that such change is effective. In addition, the
determination as to whether or not any of the foregoing conditions shall have
been satisfied by Borrower shall be in the sole opinion of Agent and the
Required Banks.
Section 2.3. Conditions to Loans. The obligation of the Banks to make a
Loan is conditioned upon:
(a) all conditions precedent as listed in Article III hereof shall have
been satisfied;
(b) receipt by Agent of a Notice of Loan, such notice to be received by
11:00 A.M. (Cleveland, Ohio time) on the proposed date of borrowing. Agent shall
notify each Bank of the date, amount and initial Interest Period (if applicable)
promptly upon the receipt of such notice, and, in any event, by 2:00 P.M.
(Cleveland, Ohio time) on the date such notice is received. On the date such
Loan is to be made, each Bank shall provide Agent, not later than 3:00 P.M.
(Cleveland, Ohio time), with the amount in federal or other immediately
available funds, required of it. If Agent elects to advance the proceeds of such
Loan prior to receiving funds from such Bank, Agent shall have the right, upon
prior notice to Borrower, to debit any account of Borrower or otherwise receive
from Borrower, on demand, such amount, in the event that such Bank fails to
reimburse Agent in accordance with this subsection. Agent shall also have the
right to receive interest from such Bank at the Federal Funds Effective Rate in
the event that such Bank shall fail to provide its portion of the Loan on the
date requested and Agent elects to provide such funds;
(c) Borrower's request for a Loan shall be in an amount of not less
than Five Hundred Thousand Dollars ($500,000), increased by increments of One
Hundred Thousand Dollars ($100,000);
(d) the fact that no Default or Event of Default shall then exist or
immediately after the making of the Loan would exist; and
(e) the fact that each of the representations and warranties contained
in Article V hereof shall be true and correct with the same force and effect as
if made on and as of the date of the making of such Loan, except to the extent
that any thereof expressly relate to an earlier date.
Each request by Borrower for the making of a Loan hereunder shall be
deemed to be a representation and warranty by Borrower as of the date of such
request as to the facts specified in (d) and (e) above.
Section 2.4. Payment on Notes, Etc.
---------------------
(a) All payments of principal, interest and other fees shall be made to
Agent in immediately available funds for the account of the Banks. Agent, on the
same Business Day, shall distribute to each Bank its ratable share of the amount
of principal, interest, and commitment and other fees received by it for the
account of such Bank. Each Bank shall record (i) any principal, interest or
other payment, and (ii) the principal amount of the Loans and all prepayments
thereof and the applicable dates with respect thereto, by such method as such
Bank may generally employ; provided, however, that failure to make any such
entry shall in no way detract from Borrower's obligations under each Note. The
aggregate unpaid amount of Loans set forth on the records of Agent shall be
rebuttably presumptive evidence of the principal and interest owing and unpaid
on each Note.
(b) All payments under this Agreement or any other Loan Document shall
be made absolutely net of, without deduction or offset for, and altogether free
and clear of, any and all present and future taxes, levies, deductions, charges
and withholdings and all liabilities with respect thereto, under the laws of the
United States of America or any foreign jurisdiction (or any state or political
subdivision thereof), excluding income and franchise taxes imposed on any Bank
(and withholding relating thereto) under the laws of the United States of
America or any other foreign jurisdiction (or any state or political subdivision
thereof). If Borrower or any Guarantor of Payment is compelled by law to deduct
any such taxes or levies (other than such excluded taxes) or to make any such
other deductions, charges or withholdings, then Borrower or such Guarantor of
Payment, as the case may be, shall pay such additional amounts as may be
necessary in order that the net payments after such deduction, and after giving
effect to any United States or foreign jurisdiction (or any state or political
subdivision thereof) income taxes required to be paid by the Banks in respect of
such additional amounts, shall equal the amount of interest provided in Section
2.1 hereof for each Loan plus any principal then due.
(c) Whenever any payment to be made hereunder, including, without
limitation, any payment to be made on any Note, shall be stated to be due on a
day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall in each case be
included in the computation of the interest payable on such Note.
Section 2.5. Prepayment. Borrower shall have the right at any time or
from time to time to prepay, on a pro rata basis for all of the Banks, all or
any part of the principal amount of the Notes then outstanding, as designated by
Borrower, plus interest accrued on the amount so prepaid to the date of such
prepayment. Each prepayment shall be in an amount of not less than Five Hundred
Thousand Dollars ($500,000), increased by increments of Five Hundred Thousand
Dollars ($500,000). Borrower shall give Agent notice of prepayment of any Loan
by not later than 11:00 A.M. (Cleveland, Ohio time) on the Business Day such
prepayment is to be made. Prepayments of Loans shall be without any premium or
penalty.
Section 2.6. Reduction of Commitment. Borrower may at any time or from
time to time permanently reduce in whole or ratably in part the Revolving Credit
Commitment hereunder to an amount not less than the then existing aggregate
principal amount of the Loans then outstanding, by giving Agent not fewer than
five (5) Business Days' notice of such reduction, provided that any such partial
reduction shall be in an aggregate amount, for all of the Banks, of not less
than One Million Dollars ($1,000,000), increased by increments of Five Hundred
Thousand Dollars ($500,000). Agent shall promptly notify each Bank and each
Noteholder of the date of each such reduction and such Bank's proportionate
share thereof. If Borrower reduces in whole the Revolving Credit Commitment, on
the effective date of such reduction (Borrower having prepaid in full the unpaid
principal balance, if any, of the Notes, together with all interest and other
fees accrued and unpaid, as well as all Related Expenses charged or incurred and
unpaid), all of the Notes shall be delivered to Agent marked "Canceled" and
Agent shall redeliver such Notes to Borrower. Any partial reduction in the
Revolving Credit Commitment shall be effective during the remainder of the
Commitment Period.
Section 2.7. Fees. Borrower agrees to pay the following fees:
----
(a) on the Closing Date, Borrower shall pay to Agent, for the pro rata
benefit of the Banks, as a consideration for the Commitments
hereunder, the closing fee set forth in Section 3.1(h) hereof;
(b) if the Maximum Revolving Amount is increased pursuant to
Section 2.2(b) hereof, on the date of each such increase, Borrower
shall pay a fee, for the pro rata benefit of the Banks, in the amount
of two hundred (200) basis points times the difference between the
Maximum Revolving Amount prior to the increase and the Maximum
Revolving Amount subsequent to the increase;
(c) if the Maximum Revolving Amount is increased pursuant to
Section 2.2(c) hereof, on the date of each such increase, Borrower
shall pay a fee, for the pro rata benefit of the Banks, in the amount
of two hundred (200) basis points times the difference between the
Maximum Revolving Amount prior to the increase and the Maximum
Revolving Amount subsequent to the increase;
(d) a weekly fee shall accrue for the pro rata benefit of the
Banks in the amount of One Hundred Thousand Dollars ($100,000) per week
for the period from and including April 30, 2001 through June 24, 2001,
when all such fees shall be paid by Borrower. Notwithstanding the
foregoing, so long as no event shall have occurred prior to June 24,
2001, that might, in the opinion of Agent, result in the invalidation
or avoidance of the Liens of the Existing Credit Agreement Banks, then
the fees set forth in this subpart (d) shall be waived by the Banks;
and
(e) all of the fees set forth in the Agent Fee Letter between Borrower and
Agent dated as of the Closing Date.
Section 2.8. Computation of Interest and Fees; Default Rate. Interest
on Loans and other fees and charges hereunder shall be computed on the basis of
a year having three hundred sixty (360) days and calculated for the actual
number of days elapsed. Anything herein to the contrary notwithstanding, if an
Event of Default shall occur hereunder, the principal of each Note and the
unpaid interest thereon shall bear interest, until paid, at the Default Rate. In
no event shall the rate of interest hereunder exceed the maximum rate allowable
by law.
Section 2.9. Mandatory Payment. If the sum of the aggregate principal
amount of all Loans outstanding shall exceed the Revolving Credit Commitment,
Borrower shall, as promptly as practicable, but in no event later than the next
Business Day, prepay an aggregate principal amount of the Loans sufficient to
bring the aggregate outstanding principal amount of all such Loans within the
Revolving Credit Commitment. In addition, Agent shall have the right, at any
time or from time to time, without notice of any kind to Borrower to apply any
funds held in any Cash Collateral Account in accordance with Section 2.10 hereof
to prepay Loans sufficient to bring the aggregate outstanding principal amount
of all such Loans within the Revolving Credit Commitment.
Section 2.10. Proceeds of Accounts and Inventory; Lockbox.
-------------------------------------------
(a) Maintenance of Lockbox. Borrower and each Guarantor of Payment
shall establish such Lockboxes as Agent shall require and shall notify (which
notice shall be in form and substance satisfactory to Agent) all of its
customers and Account Debtors to forward all payments with respect to any
Account and all other Proceeds due to Borrower or such Guarantor of Payment to
the appropriate Lockbox or Cash Collateral Account, as the case may be. Borrower
and each Guarantor of Payment shall deposit all Proceeds, including but not
limited to, all collections, with respect to Accounts, in the identical form in
which such Proceeds were received (except for any necessary endorsements),
whether by cash or check, into the appropriate Cash Collateral Account. Agent
shall at all times have sole access to each Lockbox. Borrower and each Guarantor
of Payment shall take all action necessary to grant Agent such access. At no
time shall Borrower or any Guarantor of Payment remove any item from a Lockbox
without the prior written consent of Agent. Neither Borrower nor any Guarantor
of Payment shall instruct any Account Debtor to pay any Account to any place
other than a Lockbox or Cash Collateral Account. Borrower and each Guarantor of
Payment hereby grant to Agent an irrevocable power of attorney, coupled with an
interest, to take, in the name of Borrower or such Guarantor of Payment, all
action necessary to (i) grant Agent sole access to each Lockbox, (ii) contact
Account Debtors to pay Accounts to a Lockbox, and (iii) endorse collections or
other items delivered to a Lockbox for deposit in a Cash Collateral Account.
(b) Receipt in Trust. Any Proceeds received directly by Borrower or any
Guarantor of Payment shall be deemed to be held by Borrower or such Guarantor of
Payment in trust for Agent, for the benefit of the Banks. Borrower or such
Guarantor of Payment shall immediately deposit any such Proceeds, in its
original form, into the appropriate Cash Collateral Account. Pending such
deposit, Borrower and each Guarantor of Payment agrees that it will not
commingle any such collection with any other funds or property, but will hold
all such Proceeds separate and apart therefrom in trust for Agent until
deposited in the appropriate Cash Collateral Account.
(c) Cash Collateral Accounts. In accordance with the terms of the
Lockbox Agreement, all Proceeds and other funds in each Lockbox shall be
immediately transferred to the appropriate Cash Collateral Account on a daily
basis. All Proceeds and funds in the Cash Collateral Account shall be deemed to
be the property of Agent, for the benefit of the Banks. No Company shall have
any interest therein or control over such Proceeds or funds. Borrower and each
Guarantor of Payment shall grant to Agent, for the benefit of the Banks, a
security interest in all Proceeds and funds held in each Lockbox pursuant to the
Security Agreement to which each is a party. No Cash Collateral Account shall be
subject to any deduction, set-off, banker's lien or any other right in favor of
any Person other than Agent or such other Persons to which Agent shall consent
in writing.
(d) Application of Deposits to the Debt. Unless otherwise agreed to by
Borrower, Agent and the Required Banks, all Proceeds held in each Cash
Collateral Account shall be applied by Agent to payment of the Debt, in Agent's
sole discretion.
(e) Cost of Collection. All costs of collection of the Accounts and of
any other Proceeds, including out-of-pocket expenses, administrative and
record-keeping costs, reasonable attorney's fees, and all service charges and
costs related to the establishment and maintenance of any Lockbox or Cash
Collateral Account, shall be the sole responsibility of Borrower. Agent, in its
sole discretion, may charge Borrower for such costs and fees, or deduct such
costs and fees from any account maintained by Borrower or any Guarantor of
Payment, and such costs and expenses shall constitute part of the Debt. Borrower
shall indemnify and hold Agent and the Banks harmless from and against any loss
or damage with respect to any item of Proceeds deposited in any Cash Collateral
Account that is dishonored or returned for any reason. If any item of Proceeds
deposited in any Cash Collateral Account shall be dishonored or returned unpaid
for any reason, Agent, in its sole discretion, may charge the amount of such
dishonored or returned item directly against Borrower or any account maintained
by Borrower or any Guarantor of Payment with Agent or any Bank and such amount
shall be deemed to be part of the Debt. Agent shall not be liable for any loss
or damage resulting from any error, omission, failure or negligence on the part
of Agent under this Agreement, except losses or damages resulting from Agent's
gross negligence or willful misconduct as determined by a final judgment of a
court of competent jurisdiction or settled by the parties in writing without a
judgment.
ARTICLE III. CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to the First Loan. The obligation of
the Banks to make the first Loan is subject to Borrower satisfying each of the
following conditions:
(a) Notes. Borrower shall have executed and delivered to each Bank its
Revolving Credit ----- Note.
(b) Guaranties of Payment of Debt. Each Guarantor of Payment
shall have executed and delivered to Agent, for the benefit of the
Banks, a Guaranty of Payment in form and substance satisfactory to
Agent and the Required Banks.
(c) Security Documents. Borrower and each Guarantor of Payment
shall have executed and delivered to Agent, for the benefit of the
Banks, a Security Agreement, Pledge Agreement and Collateral Assignment
and Security Agreement, each of which shall be in form and substance
satisfactory to Agent and the Required Banks.
(d) Subordination Agreement. The Subordination Agreement shall have been
executed by each of the parties thereto and
shall be in form and substance satisfactory to Agent and the Banks.
(e) Mortgages. Upon request of Agent whenever made, execute
and deliver, and cause each Guarantor of Payment to execute and
deliver, as appropriate, to Agent, for the benefit of the Banks, a
Mortgage, in form and substance satisfactory to Agent and the Required
Banks, with respect to each parcel of Mortgaged Real Property, together
with such other items with respect to the Mortgaged Real Property as
Agent and the Required Banks shall require.
(f) Officer's Certificate, Resolutions, Organizational
Documents. Borrower and each Guarantor of Payment shall have delivered
to Agent an officer's certificate certifying the names of the officers
of Borrower or such Guarantor of Payment, as the case may be,
authorized to sign the Loan Documents, together with the true
signatures of such officers and certified copies of (i) the resolutions
of the board of directors of Borrower and each Guarantor of Payment
evidencing approval of the execution and delivery of the Loan Documents
and the execution of other Related Writings to which Borrower or such
Guarantor of Payment, as the case may be, is a party, and (ii) the
Organizational Documents of Borrower and each Guarantor of Payment.
(g) Legal Opinion. Borrower shall have delivered to Agent an opinion of
counsel for Borrower and each Guarantor of Payment, in
form and substance satisfactory to Agent and the Required Banks.
(h) Closing and Legal Fees. Borrower shall have paid to Agent,
for the pro rata benefit of the Banks, a closing fee in the amount of
two hundred (200) basis points times the Maximum Revolving Amount in
effect on the Closing Date and shall have paid all legal fees and
expenses of Agent in connection with the preparation and negotiation of
the Loan Documents.
(i) Collateral Audit and Appraisals. An Asset Based Lending
Field Examination and appraisals of the personal and real property of
the Companies shall have been commenced by such Persons as Agent and
the Required Banks shall approve in their discretion, the fees and
expenses of which shall be paid by Borrower.
(j) Turnaround Manager. Borrower shall have selected and retained a
Turnaround Management Firm acceptable to Agent and
the Required Banks, the fees and expenses of which shall be paid by
Borrower.
(k) Financial Consultant. Agent and the Banks shall have retained a
Turnaround Financial Consultant acceptable to
Agent and the Required Banks, whose fees shall be paid by Borrower.
(l) Insurance Certificate. Borrower shall have delivered to
Agent evidence of insurance on XXXXX 27 form, with a standard
mortgagee's endorsement in favor of Agent, for the benefit of the
Banks, and otherwise satisfactory to Agent, of adequate personal and
real property and liability insurance of each Company, with Agent
listed as loss payee and additional insured.
(m) Financing Statements. With respect to the property owned or leased by
Borrower and each Guarantor of Payment, Borrower
shall have caused to be delivered to Agent, U.C.C. financing
statements satisfactory to Agent.
(n) No Material Adverse Change. No material adverse change, in the opinion
of Agent, shall have occurred in the
financial condition, operations or prospects of the Companies since
March 4, 2001.
(o) Sixth Amendment. The Existing Credit Agreement Banks shall have
executed a Sixth Amendment Agreement in form and
substance satisfactory to Agent and the Banks.
(p) CTC Forbearance Agreement. The CTC Forbearance Agreement shall have
been executed and delivered by the parties
thereto.
(q) Borrower Thirteen Week Forecast. On or before April 30,
2001, Agent and the Banks shall have received the Borrower Thirteen
Week Forecast and on or before the Closing Date Agent and the Banks
shall have received the Thirteen Week Forecast Review and Assessment
Report.
(r) Miscellaneous. Borrower shall have provided to Agent and
the Banks such other items and shall have satisfied such other
conditions as may be reasonably required by Agent or the Banks.
Section 3.2 Conditions Subsequent to Closing. The obligation of the
Banks to continue to make Loans subsequent to the Closing Date shall be subject
to Borrower satisfying each of the following conditions on the date specified
below:
(a) Good Standing Certificates. Within ten (10) days of the
Closing Date, Borrower shall have delivered to each Agent a good
standing certificate for Borrower and each Guarantor of Payment, issued
on or about the Closing Date (or within ten (10) days thereof) by the
Secretary of State in the state(s) where Borrower or such Guarantor of
Payment is incorporated or qualified as a foreign corporation.
(b) Lien Searches. Within fourteen (14) days of the Closing
Date, with respect to the property owned or leased by Borrower and each
Guarantor of Payment, Borrower shall have caused to be delivered to
each Bank (i) the results of U.C.C. lien searches, satisfactory to
Agent and the Required Banks; (ii) the results of federal and state tax
lien and judicial lien searches, satisfactory to Agent and the Required
Banks; and (ii) U.C.C. termination statements reflecting termination of
all financing statements previously filed by any party having a
security interest in any part of any property securing the Debt and
whose Lien is not permitted pursuant to Section 4.9 hereof.
(c) Borrower Business Plan. On or before June 29, 2001, Agent, the
Noteholders and the Banks shall have received
the Borrower Business Plan.
(d) Financial Consultant Review of Borrower Business Plan. On
or before July 10, 2001, the Turnaround Management Firm, shall have
delivered to Agent, the Noteholders and the Banks a review and
assessment of the reasonableness of the Borrower Business Plan, with
the results of such review and assessment to be satisfactory to Agent
and the Required Banks.
(e) Real Property. Within sixty (60) days of the Closing Date,
(i) with respect to each Mortgaged Real Property, or
such thereof as Agent and the Required Banks may require, at
Borrower's cost and expense, a Loan Policy of title insurance,
ALTA 1970 Form B (amended 10/17/70 and 10/17/84) (unless such
form is unavailable in any particular state, in which case
Borrower shall provide such other form of a Loan Policy of
title insurance as may reasonably requested by Agent and the
Required Banks) issued by a title company satisfactory to
Agent and the Required Banks (collectively, the "Loan
Policies" and individually, a "Loan Policy") in an amount
equal to the fair market value of such Mortgaged Real Property
insuring each Mortgage to be a valid first priority Lien on
such Mortgaged Real Property, free and clear of all defects
and encumbrances except such matters of record as permitted
pursuant to this Agreement, with such endorsements and
affirmative insurance as Agent and the Required Banks, in its
reasonable discretion, may require; each such Loan Policy
required pursuant to this subpart (i) shall have any and all
exceptions relating to a survey removed therefrom;
(ii) Borrower shall provide to Agent and the Banks,
with respect to each Mortgaged Real Property, or such thereof
as Agent may require, at Borrower's cost and expense,
environmental reports or studies prepared by environmental
engineering firms acceptable to Agent and the Required Banks
(the "Reports"), which Reports shall be in form acceptable to
Agent and the Required Banks, in their sole discretion; and
(iii) Borrower shall provide to Agent with respect to
each Mortgaged Real Property, or such thereof as Agent and the
Required Banks may require, at Borrower's cost and expense,
(i) a current (certified not more than sixty (60) days prior
to the date of such request) "as-built" survey of the such
Mortgaged Real Property, prepared by a licensed surveyor
acceptable to Agent and the Required Banks, certified to
Agent, the Collateral Agent and the Banks and the title
company pursuant to certificate of survey acceptable to Agent
and the Required Banks; such survey shall be in form and
substance acceptable to Agent and the Required Banks, in their
sole discretion, shall be made in accordance with the "Minimum
Standard Detail Requirements for Land Title Surveys" adopted
by the American Land Title Association in 1999; (ii) a copy of
the certificate of occupancy for each building located on each
such Mortgaged Real Property; (iii) evidence satisfactory to
Agent and the Required Banks of compliance with all building
and zoning codes applicable to the Mortgaged Real Property,
(iv) evidence of the availability and adequacy of utilities
for the buildings located on the Mortgaged Real Property; and
(v) evidence, satisfactory to Agent and the Required Banks,
that no portion of any of the Mortgaged Real Property is
located in a Special Flood Hazard Area or is otherwise
classified as Class A or Class BX on the Flood Maps maintained
by the Federal Emergency Management Agency.
ARTICLE IV. COVENANTS
Borrower agrees that, so long as the Commitments remain in effect and
thereafter until all of the Debt shall have been paid in full, Borrower shall
perform and observe, and shall cause each other Company to perform and observe
all of the covenants set forth in Article V of the Existing Credit Agreement
together with each of the following provisions (provided that if two provisions
encompass the same subject matter, the more restrictive of the two provisions
shall control):
Section 4.1. Insurance. Each Company shall (a) maintain insurance to
such extent and against such hazards and liabilities as is commonly maintained
by Persons similarly situated, with Agent listed as loss payee (including a
standard mortgagee's endorsement in favor of Agent, for the benefit of the
Banks) and additional insured; and (b) within ten (10) days of any Bank's
written request, furnish to such Bank such information about such Company's
insurance as that Bank may from time to time reasonably request, which
information shall be prepared in form and detail satisfactory to such Bank and
certified by a Financial Officer of such Company.
Section 4.2. Money Obligations. Each Company shall pay in full (a)
prior in each case to the date when penalties would attach, all taxes,
assessments and governmental charges and levies (except only those so long as
and to the extent that the same shall be contested in good faith by appropriate
and timely proceedings and for which adequate reserves have been established in
accordance with GAAP) for which it may be or become liable or to which any or
all of its properties may be or become subject; (b) all of its wage obligations
to its employees in compliance with the Fair Labor Standards Act (29 U.S.C. 206
& 207) or any comparable provisions; and (c) all of its other obligations
calling for the payment of money (except only those so long as and to the extent
that the same shall be contested in good faith and for which adequate reserves
have been established in accordance with GAAP) before such payment becomes
overdue.
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 the Turnaround
Financial Consultant 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.
Section 4.4. Financial Records. Each Company shall at all times
maintain true and complete records and books of account, including, without
limiting the generality of the foregoing, appropriate reserves for possible
losses and liabilities, all in accordance with GAAP, and at all reasonable times
(during normal business hours and upon notice to such Company) permit Agent, or
any representative of Agent, to examine that Company's books and records and to
make excerpts therefrom and transcripts thereof.
Section 4.5. Franchises. Except as permitted pursuant to Section 4.12
hereof, each Company shall preserve and maintain at all
times its existence, rights and franchises.
Section 4.6. ERISA Compliance. No Company shall incur any material
accumulated funding deficiency within the meaning of ERISA, or any material
liability to the PBGC, established thereunder in connection with any ERISA Plan.
Borrower shall furnish to the Banks (a) as soon as possible and in any event
within thirty (30) days after any Company knows or has reason to know that any
Reportable Event with respect to any ERISA Plan has occurred, a statement of the
Financial Officer of such Company, setting forth details as to such Reportable
Event and the action that such Company proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to the PBGC if
a copy of such notice is available to such Company, and (b) promptly after
receipt thereof a copy of any notice such Company, or any member of the
Controlled Group may receive from the PBGC or the Internal Revenue Service with
respect to any ERISA Plan administered by such Company; provided, that this
latter clause shall not apply to notices of general application promulgated by
the PBGC or the Internal Revenue Service. Borrower shall promptly notify the
Banks of any material taxes assessed, proposed to be assessed or that Borrower
has reason to believe may be assessed against a Company by the Internal Revenue
Service with respect to any ERISA Plan. As used in this Section "material" means
the measure of a matter of significance that shall be determined as being an
amount equal to five percent (5%) of the consolidated net worth of Borrower. As
soon as practicable, and in any event within twenty (20) days, after any Company
becomes aware that an ERISA Event has occurred, such Company shall provide Bank
with notice of such ERISA Event with a certificate by a Financial Officer of
such Company setting forth the details of the event and the action such Company
or another Controlled Group member proposes to take with respect thereto.
Borrower shall, at the request of Agent or any Bank, deliver or cause to be
delivered to Agent or such Bank, as the case may be, true and correct copies of
any documents relating to the ERISA Plan of any Company.
Section 4.7. Financial Covenants. On the Level III Availability Date,
Borrower shall enter into an amendment to this Agreement (the "Financial
Covenant Amendment") with Agent and the Banks which Financial Covenant Amendment
shall provide for such financial covenants as Agent and the Banks deem necessary
or appropriate based upon the Borrower Business Plan and then current financial
conditions of the Companies, which Financial Covenant Amendment shall be in form
and substance satisfactory to Agent and the Banks.
Section 4.8. Borrowing. No Company shall create, incur or have
outstanding any obligation for borrowed money or any Indebtedness of any kind;
provided, however, that this Section shall not apply to (a) the Loans or any
other Indebtedness under this Agreement; (b) the Indebtedness under the Existing
Credit Agreement; (c) the Indebtedness under the Note Agreements (including the
PIK Interest, as defined in the Subordination Agreement), so long as the
aggregate principal amount thereof is not increased; (d) the Indebtedness under
the Line of Credit Documents, as defined in the Existing Credit Agreement; (e)
the Indebtedness existing on the Closing Date as set forth in Schedule 4.8
hereto (including any refinancing thereof; provided, however, that no Company
shall increase the principal amount thereof); (f) Indebtedness of Speedline
S.r.l up to the aggregate principal amount not to exceed Twenty-Nine Million
Dollars ($29,000,000) (or the equivalent amount of Italian Lira) and (g) loans
to a Company from a Company so long as each such Company is Borrower or a
Guarantor of Payment and not a CTC Company.
Section 4.9. Liens. No Company shall create, assume or suffer to exist
any Lien upon any of its property or assets, whether now owned or hereafter
acquired; provided that this Section shall not apply to the following:
(a) Liens for taxes not yet due or that are being actively
contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP;
(b) other statutory Liens incidental to the conduct of its
business or the ownership of its property and assets that (i) were not
incurred in connection with the borrowing of money or the obtaining of
advances or credit, and (ii) do not in the aggregate materially detract
from the value of its property or assets or materially impair the use
thereof in the operation of its business;
(c) Liens on property or assets of a Subsidiary to secure obligations of
such Subsidiary to Borrower or a Guarantor of Payment (other than a
CTC Company);
(d) Liens existing as of the Closing Date and described on Schedule 5.8 to
the Existing Credit Agreement;
(e) the Liens on the property or assets of Casting Technology
Company granted to Bank One, Indiana, National Association pursuant to
the CTC Documents, as defined in the CTC Forbearance Agreement;
(f) Liens on the assets of Speedline S.r.l in connection with the
Indebtedness permitted pursuant to Section 5.25(f) hereof; or
(g) Liens granted to the Collateral Agent, as defined in the
Existing Credit Agreement, to secure the Obligations, as defined in the
Credit Agreement, so long as any such Liens are at all times
subordinated to the Liens of Agent, for the benefit of the Banks, under
this Agreement and the Security Documents.
No Company shall enter into any contract or agreement that would prohibit Agent
or the Banks from acquiring a security interest, mortgage or other Lien on, or a
collateral assignment of, any of the property or assets of a Company.
Section 4.10. Regulations U and X. No Company shall take any action
that would result in any non-compliance of the Loans with Regulations U and X,
or any other applicable regulation, of the Board of Governors of the Federal
Reserve System.
Section 4.11. Investments and Loans. No Company shall, without the
prior written consent of Agent and the Required Banks, (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;
or (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.
Section 4.12. Merger; Acquisition; Sale of Assets. Without the prior
written consent of Agent and the Required Banks, no Company shall (a) merge or
consolidate with any other Person; (b) sell, lease or transfer or otherwise
dispose of any assets to any Person other than in the ordinary course of
business; or (c) acquire the assets or stock of any Person.
Section 4.13. Notice. Borrower shall cause a Financial Officer of
Borrower to promptly notify Agent and the Banks whenever any Default or Event of
Default may occur hereunder or any representation or warranty made in Article V
hereof or elsewhere in this Agreement or in any Related Writing may for any
reason cease in any material respect to be true and complete.
Section 4.14. Environmental Compliance. Each Company shall comply in
all respects with any and all Environmental Laws including, without limitation,
all Environmental Laws in jurisdictions in which any Company owns or operates a
facility or site, arranges for disposal or treatment of hazardous substances,
solid waste or other wastes, accepts for transport any hazardous substances,
solid waste or other wastes or holds any interest in real property or otherwise.
Borrower shall defend, indemnify and hold Agent and the Banks harmless against
all costs, expenses, claims, damages, penalties and liabilities of every kind or
nature whatsoever (including attorneys' fees) arising out of or resulting from
the noncompliance of any Company with any Environmental Law. Such
indemnification shall survive any termination of this Agreement.
Section 4.15. Affiliate Transactions. No Company shall, or shall permit
any Subsidiary to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
a Company on terms that are less favorable to such Company or such Subsidiary,
as the case may be, than those that might be obtained at the time in a
transaction with a non-Affiliate; provided, however, that the foregoing shall
not prohibit any transaction between Borrower and an Affiliate (if a Guarantor
of Payment) that Borrower reasonably determines in good faith is beneficial to
Borrower and its Affiliates as a whole and that is not entered into for the
purpose of hindering the exercise by Agent or the Banks of their rights or
remedies under this Agreement.
Section 4.16. Use of Proceeds. Borrower's use of the proceeds of the
Revolving Credit Notes shall be solely for working capital and other general
corporate purposes of Borrower and its Subsidiaries consistent with the
provisions of this Agreement.
Section 4.17. Restricted Payments. No Company shall make or commit itself
to make any Restricted Payment, except that:
(a) any Subsidiary may make Capital Distributions to Borrower or a
Guarantor of Payment;
(b) so long as no Default or Event of Default exists or thereafter
shall begin to exist, Borrower may make regularly scheduled
payments of interest under the Existing Credit Agreement, the
Note Agreements and the Line of Credit Documents; and
(c) employees of Borrower may exercise employee options through a
"cashless exercise".
Section 4.18. Property Acquired or Held Subsequent to the Closing Date.
At the request of Agent, Borrower or each Guarantor of Payment shall, with
respect to any real property acquired or held by a Company with a fair market
value in excess of One Hundred Thousand Dollars ($100,000), provide, or cause
such Company to provide, to Agent, for the benefit of the Banks, (a) a Mortgage,
(b) such other information, documents or agreements as may be deemed necessary
or advisable by Agent in connection with such Mortgage, and (c) such corporate
governance and authorization documents and an opinion of counsel as may be
deemed necessary or advisable by Agent.
Section 4.19. Amendment of Organizational Documents. No Company shall amend
any of its Organizational
Documents without the prior written consent of Agent.
Section 4.20. Material Agreements. Without the prior written consent of
Agent and the Required Banks, no Company shall amend, restate or otherwise
modify in any respect (a) the Existing Credit Agreement or any document,
instrument or agreement executed in connection therewith, (b) the Note
Agreements, or any document, instrument or agreement executed in connection
therewith, or (c) any other agreement that evidences Indebtedness of any Company
in the aggregate principal amount greater than Five Million Dollars
($5,000,000).
Section 4.21. Change of Fiscal Year. No Company shall change its fiscal
year end or any other accounting period without
the prior written consent of Agent.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that the statements set forth in
Article VI of the Existing Credit Agreement and in this Article V are true,
correct and complete.
Section 5.1. Corporate Existence; Subsidiaries; Foreign Qualification.
Each Company is a corporation duly organized, validly existing, and in good
standing under the laws of its state of incorporation and is duly qualified and
authorized to do business and is in good standing as a foreign corporation in
the jurisdictions set forth opposite its name on Schedule 6.1 to the Existing
Credit Agreement, which are all of the states or jurisdictions where the
character of its property or its business activities makes such qualification
necessary, except where the failure to so qualify will not cause or result in a
Material Adverse Effect. Schedule 6.1 to the Existing Credit Agreement sets
forth each Subsidiary of Borrower, its state of incorporation, the location of
its chief executive offices and its principal place of business. Except as set
forth on Schedule 6.1 to the Existing Credit Agreement, Borrower owns all of the
capital stock of each of its Subsidiaries.
Section 5.2. Corporate Authority. Borrower has the right and power and
is duly authorized and empowered to enter into, execute and deliver the Loan
Documents to which it is a party and to perform and observe the provisions of
the Loan Documents. The Loan Documents to which Borrower is a party have been
duly authorized and approved by Borrower's Board of Directors and are the valid
and binding obligations of Borrower, enforceable against Borrower in accordance
with their respective terms. The execution, delivery and performance of the Loan
Documents will not conflict with nor result in any breach in any of the
provisions of, or constitute a default under, or result in the creation of any
Lien (other than Liens permitted under Section 4.9 of this Agreement) upon any
assets or property of any Company under the provisions of, such Company's
Organizational Documents or any agreement.
Section 5.3. Compliance With Laws. Each Company:
--------------------
(a) holds all material permits, certificates, licenses, orders,
registrations, franchises, authorizations, and other approvals from federal,
state, local, and foreign governmental and regulatory bodies necessary for the
conduct of its business and is in compliance with all applicable laws relating
thereto;
(b) is in material compliance with all federal, state, local, or
foreign applicable statutes, rules, regulations, and orders including, without
limitation, those relating to environmental protection, occupational safety and
health, and equal employment practices; and
(c) is not in material violation of or in default under any agreement to
which it is a party or by which its assets are subject or bound.
Section 5.4. Litigation and Administrative Proceedings. Except as
disclosed on Schedule 6.4 to the Existing Credit Agreement, as to any of which,
if determined adversely, would not have a Material Adverse Effect, there are (a)
no lawsuits, actions, investigations, or other proceedings pending or threatened
against any Company, or in respect of which any Company may have any liability,
in any court or before any governmental authority, arbitration board, or other
tribunal, (b) no orders, writs, injunctions, judgments, or decrees of any court
or government agency or instrumentality to which any Company is a party or by
which the property or assets of any Company are bound, and (c) no grievances,
disputes, or controversies outstanding with any union or other organization of
the employees of any Company, or threats of work stoppage, strike, or pending
demands for collective bargaining.
Section 5.5. Location. The Companies have places of business or
maintain their inventory or equipment and keeps their records concerning their
accounts at the locations set forth in Schedule 6.5 to the Existing Credit
Agreement.
Section 5.6. Title to Assets. Each Company has good title to and
ownership of all property it purports to own, which property is free and clear
of all Liens, except those permitted under Section 4.9 hereof.
Section 5.7. Liens and Security Interests. On and after the Closing
Date, except for Liens permitted pursuant to Section 4.9 hereof, (a) there is no
financing statement outstanding covering any personal property of any Company,
other than a financing statement in favor of Agent, for the benefit of the
Banks, if any; (b) there is no mortgage outstanding covering any real property
of any Company, other than a mortgage in favor of Agent, for the benefit of the
Banks, if any; and (c) no real or personal property of any Company is subject to
any security interest or Lien of any kind other than any security interest or
Lien that may be granted to Agent, for the benefit of the Banks. No Company has
entered into any contract or agreement that exists on or after the Closing Date
that would prohibit Agent or the Banks from acquiring a security interest,
mortgage or other Lien on, or a collateral assignment of, any of the property or
assets of any Company.
Section 5.8. Tax Returns. All federal, state and local tax returns and
other reports required by law to be filed in respect of the income, business,
properties and employees of each Company have been filed and all taxes,
assessments, fees and other governmental charges that are due and payable have
been paid, except as otherwise permitted herein or the failure to do so does not
and will not cause or result in a Material Adverse Effect. The provision for
taxes on the books of each Company is adequate for all years not closed by
applicable statutes and for the current fiscal year.
Section 5.9. Environmental Laws. Each Company is material in compliance
with any and all Environmental Laws, including, without limitation, all
Environmental Laws in all jurisdictions in which any Company owns or operates,
or has owned or operated, a facility or site, arranges or has arranged for
disposal or treatment of hazardous substances, solid waste or other wastes,
accepts or has accepted for transport any hazardous substances, solid waste or
other wastes or holds or has held any interest in real property or otherwise. No
litigation or proceeding arising under, relating to or in connection with any
Environmental Law is pending or, to the best knowledge of each Company,
threatened, against any Company, any real property in which any Company holds or
has held an interest or any past or present operation of any Company. No
release, threatened release or disposal of hazardous waste, solid waste or other
wastes is occurring, or has occurred (other than those that are currently being
cleaned up in accordance with Environmental Laws), on, under or to any real
property in which any Company holds any interest or performs any of its
operations, in violation of any Environmental Law. As used in this Section,
"litigation or proceeding" means any demand, claim, notice, suit, suit in
equity, action, administrative action, investigation or inquiry whether brought
by any governmental authority, private Person or otherwise.
Section 5.10. Employee Benefits Plans. No ERISA Event has occurred or
is expected to occur with respect to an ERISA Plan. Full payment has been made
of all amounts which a Controlled Group member is required, under applicable law
or under the governing documents, to have been paid as a contribution to or a
benefit under each ERISA Plan. The liability of each Controlled Group member
with respect to each ERISA Plan has been fully funded based upon reasonable and
proper actuarial assumptions, has been fully insured, or has been fully reserved
for on its financial statements. No changes have occurred or are expected to
occur that would cause a material increase in the cost of providing benefits
under the ERISA Plan. With respect to each ERISA Plan that is intended to be
qualified under Code Section 401(a): (a) the ERISA Plan and any associated trust
operationally comply with the applicable requirements of Code Section 401(a),
(b) the ERISA Plan and any associated trust have been amended to comply with all
such requirements as currently in effect, other than those requirements for
which a retroactive amendment can be made within the "remedial amendment period"
available under Code Section 401(b) (as extended under Treasury Regulations and
other Treasury pronouncements upon which taxpayers may rely), (c) the ERISA Plan
and any associated trust have received a favorable determination letter from the
Internal Revenue Service stating that the ERISA Plan qualifies under Code
Section 401(a), that the associated trust qualifies under Code Section 501(a)
and, if applicable, that any cash or deferred arrangement under the ERISA Plan
qualifies under Code Section 401(k), unless the ERISA Plan was first adopted at
a time for which the above-described "remedial amendment period" has not yet
expired, (d) the ERISA Plan currently satisfies the requirements of Code Section
410(b), without regard to any retroactive amendment that may be made within the
above-described "remedial amendment period", and (e) no contribution made to the
ERISA Plan is subject to an excise tax under Code Section 4972. With respect to
any Pension Plan, the "accumulated benefit obligation" of Controlled Group
members with respect to the Pension Plan (as determined in accordance with
Statement of Accounting Standards No. 87, "Employers' Accounting for Pensions")
does not exceed the fair market value of Pension Plan assets.
Section 5.11. Consents or Approvals. No consent, approval or
authorization of, or filing, registration or qualification with, any
governmental authority or any other Person is required to be obtained or
completed by Borrower in connection with the execution, delivery or performance
of any of the Loan Documents, that has not already been obtained or completed.
Section 5.12. Solvency. Borrower has received consideration that is the
reasonable equivalent value of the obligations and liabilities that Borrower has
incurred to the Banks. Borrower is not insolvent as defined in any applicable
state or federal statute, nor will Borrower be rendered insolvent by the
execution and delivery of the Loan Documents to Agent and the Banks. Borrower is
not engaged or about to engage in any business or transaction for which the
assets retained by it are or will be an unreasonably small amount of capital,
taking into consideration the obligations to Agent and the Banks incurred
hereunder. Borrower does not intend to, nor does it believe that it will, incur
debts beyond its ability to pay such debts as they mature.
Section 5.13. Financial Statements. The audited Consolidated financial
statements of Borrower for the most recently completed fiscal year of Borrower
and the most recently prepared interim financial statements, furnished to Agent
and the Banks, are true and complete, have been prepared in accordance with
GAAP, and fairly present the financial condition of the Companies as of the
dates of such financial statements and the results of their operations for the
periods then ending. Since the dates of such statements, except as disclosed to
Agent and the Banks, there has been no material adverse change in any Company's
financial condition, properties or business nor any change in any Company's
accounting procedures.
Section 5.14. Regulations. Borrower is not engaged principally or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any "margin stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System of the
United States of America). Neither the granting of any Loan (or any conversion
thereof) nor the use of the proceeds of any Loan will violate, or be
inconsistent with, the provisions of Regulation U or X or any other Regulation
of such Board of Governors.
Section 5.15. Accurate and Complete Statements. Neither the Loan
Documents nor any written statement made by any Company in connection with any
of the Loan Documents contains any untrue statement of a material fact or omits
a material fact necessary to make the statements contained therein or in the
Loan Documents not misleading. After due inquiry by Borrower, there is no known
fact that any Company has not disclosed to Agent and the Banks that has or would
have a Material Adverse Effect.
Section 5.16. Defaults. No Default or Event of Default exists hereunder,
nor will any begin to exist immediately after the execution
and delivery hereof.
ARTICLE VI. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default hereunder:
Section 6.1. Payments. If the principal of or interest on any Note or any
other fee shall not be paid in full punctually when due and
payable.
Section 6.2. Special Covenants. If any Company shall fail or omit to
perform and observe any provision of Section 2.10
or Section 4.7 hereof.
Section 6.3. Other Covenants. If any Company shall fail or omit to
perform and observe any agreement or other provision (other than those referred
to in Sections 6.1 or 6.2 hereof) contained or referred to in this Agreement or
any Related Writing that is on such Company's part to be complied with, and that
Default shall not have been fully corrected within fifteen (15) days after the
giving of written notice thereof to Borrower by Agent or any Bank that the
specified Default is to be remedied.
Section 6.4. Representations and Warranties. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company or any
Obligor to the Banks or any thereof or any other holder of any Note, shall be
false or erroneous.
Section 6.5. Cross Default. If any Company or any Obligor shall default
in the payment of principal or interest due and owing upon any other obligation
for borrowed money in excess of the aggregate, for all such obligations for all
such Companies and Obligors, of Five Million Dollars ($5,000,000) beyond any
period of grace provided with respect thereto or in the performance or
observance of any other agreement, term or condition contained in any agreement
under which such obligation is created, if the effect of such default is to
allow the acceleration of the maturity of such Indebtedness or to permit the
holder thereof to cause such Indebtedness to become due prior to its stated
maturity.
Section 6.6. ERISA Default. The occurrence of one or more ERISA Events
that (a) the Required Banks determine could have a Material Adverse Effect, or
(b) results in a Lien on any of the assets of any Company.
Section 6.7. Change In Control. If any Change in Control shall occur.
Section 6.8. Money Judgment. A final judgment or order for the payment
of money shall be rendered against any Company or any Obligor by a court of
competent jurisdiction, that remains unpaid or unstayed and undischarged for a
period (during which execution shall not be effectively stayed) of thirty (30)
days after the date on which the right to appeal has expired, provided that the
aggregate of all such judgments for all such Companies and Obligors shall exceed
Five Million Dollars ($5,000,000).
Section 6.9. Material Adverse Change. There shall have occurred any
condition or event that Agent or the Required Banks determine has or is
reasonably likely to have a material adverse effect on the business, prospects,
operations or financial condition of Borrower or any of its Subsidiaries or on
the rights and remedies of Agent or the Banks under the Loan Documents or the
ability of Borrower or any of its Subsidiaries to perform their respective
obligations under the Loan Documents.
Section 6.10. Validity of Loan Documents. (a) Any material provision,
in the sole opinion of Agent, of any Loan Document shall at any time for any
reason cease to be valid and binding and enforceable against Borrower or any
Guarantor of Payment; (b) the validity, binding effect or enforceability of any
Loan Document against Borrower or any Guarantor of Payment shall be contested by
any Company or any other Obligor; (c) Borrower or any Guarantor of Payment shall
deny that it has any or further liability or obligation thereunder; or (d) any
Loan Document shall be terminated, invalidated or set aside, or be declared
ineffective or inoperative or in any way cease to give or provide to Agent and
the Banks the benefits purported to be created thereby.
Section 6.11. Existing Credit Agreement. If an Event of Default (as defined
in the Existing Credit Agreement) shall occur under the Existing
Credit Agreement.
Section 6.12. Solvency. If any Company shall (a) discontinue business,
(b) generally not pay its debts as such debts become due, (c) make a general
assignment for the benefit of creditors, (d) apply for or consent to the
appointment of a receiver, a custodian, a trustee, an interim trustee or
liquidator of all or a substantial part of its assets, (e) be adjudicated a
debtor or have entered against it an order for relief under Title 11 of the
United States Code, as the same may be amended from time to time, (f) file a
voluntary petition in bankruptcy or file a petition or an answer seeking
reorganization or an arrangement with creditors or seeking to take advantage of
any other law (whether federal or state) relating to relief of debtors, or admit
(by answer, by default or otherwise) the material allegations of a petition
filed against it in any bankruptcy, reorganization, insolvency or other
proceeding (whether federal or state) relating to relief of debtors, (g) suffer
or permit to continue unstayed and in effect for thirty (30) consecutive days
any judgment, decree or order entered by a court of competent jurisdiction, that
approves a petition seeking its reorganization or appoints a receiver,
custodian, trustee, interim trustee or liquidator of all or a substantial part
of its assets, or (h) take, or omit to take, any action in order thereby to
effect any of the foregoing.
ARTICLE VII. REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere,
Section 7.1. Optional Defaults. If any Event of Default referred to in
Section 6.1, 6.2., 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10 or 6.11 hereof shall
occur, Agent may, with the consent of the Required Banks, and shall, at the
request of the Required Banks, give written notice to Borrower, to:
(a) terminate the Commitments and the credits hereby established, if
not previously terminated, and, immediately upon such election, the obligations
of the Banks, and each thereof, to make any further Loan hereunder immediately
shall be terminated, and/or
(b) accelerate the maturity of all of the Debt (if the Debt is not
already due and payable), whereupon all of the Debt shall become and thereafter
be immediately due and payable in full without any presentment or demand and
without any further or other notice of any kind, all of which are hereby waived
by Borrower.
Section 7.2. Automatic Defaults. If any Event of Default referred to in
Section 6.12 hereof shall occur:
(a) all of the Commitments and the credits hereby established shall
automatically and immediately terminate, if not previously terminated, and no
Bank thereafter shall be under any obligation to grant any further Loan
hereunder; and
(b) the principal of and interest then outstanding on all of the Notes,
and all of the other Debt, shall thereupon become and thereafter be immediately
due and payable in full (if the Debt is not already due and payable), all
without any presentment, demand or notice of any kind, which are hereby waived
by Borrower.
Section 7.3. Offsets. If there shall occur or exist any Event of
Default referred to in Section 6.12 hereof or if the maturity of the Notes is
accelerated pursuant to Section 7.1 or 7.2 hereof, each Bank shall have the
right at any time to set off against, and to appropriate and apply toward the
payment of, any and all Debt then owing by Borrower to that Bank (including,
without limitation, any participation purchased or to be purchased pursuant to
Section 7.4 hereof), whether or not the same shall then have matured, any and
all deposit balances and all other indebtedness then held or owing by that Bank
to or for the credit or account of Borrower or any Guarantor of Payment, all
without notice to or demand upon Borrower or any other Person, all such notices
and demands being hereby expressly waived by Borrower.
Section 7.4. Equalization Provisions. Each Bank agrees with the other
Banks that if it, at any time, shall obtain any Advantage over the other Banks
or any thereof in respect of the Debt, it shall purchase from the other Banks,
for cash and at par, such additional participation in the Debt as shall be
necessary to nullify the Advantage. If any such Advantage resulting in the
purchase of an additional participation as aforesaid shall be recovered in whole
or in part from the Bank receiving the Advantage, each such purchase shall be
rescinded, and the purchase price restored (but without interest unless the Bank
receiving the Advantage is required to pay interest on the Advantage to the
Person recovering the Advantage from such Bank) ratably to the extent of the
recovery. Each Bank further agrees with the other Banks that if it at any time
shall receive any payment for or on behalf of Borrower on any indebtedness owing
by Borrower to that Bank by reason of offset of any deposit or other
indebtedness, it will apply such payment first to any and all Debt owing by
Borrower to that Bank (including, without limitation, any participation
purchased or to be purchased pursuant to this Section or any other Section of
this Agreement). Borrower agrees that any Bank so purchasing a participation
from the other Banks or any thereof pursuant to this Section may exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank was a direct creditor of Borrower in the
amount of such participation.
ARTICLE VIII. THE AGENT
The Banks authorize KeyBank National Association and KeyBank National
Association hereby agrees to act as agent for the Banks in respect of this
Agreement upon the terms and conditions set forth elsewhere in this Agreement,
and upon the following terms and conditions:
Section 8.1. Appointment And Authorization. Each Bank hereby
irrevocably appoints and authorizes Agent to take such action as agent on its
behalf and to exercise such powers hereunder as are delegated to Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
Neither Agent nor any of its affiliates, directors, officers, attorneys or
employees shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct.
Section 8.2. Noteholders. Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have
been filed with it, signed by such payee and in form satisfactory to
Agent.
Section 8.3. Consultation with Counsel. Agent may consult with legal
counsel selected by it and shall not be liable for any action taken or suffered
in good faith by Agent in accordance with the opinion of such counsel.
Section 8.4. Documents. Agent shall not be under any duty to examine
into or pass upon the validity, effectiveness, genuineness or value of any Loan
Documents or any other Related Writing furnished pursuant hereto or in
connection herewith or the value of any collateral obtained hereunder, and Agent
shall be entitled to assume that the same are valid, effective and genuine and
what they purport to be.
Section 8.5. Agent and Affiliates. With respect to the Loans, Agent
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not Agent, and Agent and its affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with any Company or any affiliate thereof.
Section 8.6. Knowledge of Default. It is expressly understood and
agreed that Agent shall be entitled to assume that no Default or Event of
Default has occurred, unless Agent has been notified by Bank in writing that
such Bank believes that a Default or Event of Default has occurred and is
continuing and specifying the nature thereof.
Section 8.7. Action by Agent. Subject to the other terms and conditions
hereof, so long as Agent shall be entitled, pursuant to Section 8.6 hereof, to
assume that no Default or Event of Default shall have occurred and be
continuing, Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights that may be vested in it by,
or with respect to taking or refraining from taking any action or actions that
it may be able to take under or in respect of, this Agreement. Agent shall incur
no liability under or in respect of this Agreement by acting upon any notice,
certificate, warranty or other paper or instrument believed by it to be genuine
or authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable in the premises.
Section 8.8. Notices, Default, Etc. In the event that Agent shall have
acquired actual knowledge of any Default or Event of Default, Agent shall
promptly notify the Banks and shall take such action and assert such rights
under this Agreement as the Required Banks shall direct and Agent shall inform
the other Banks in writing of the action taken. Subject to the other terms and
conditions hereof, Agent may take such action and assert such rights as it deems
to be advisable, in its discretion, for the protection of the interests of the
holders of the Notes.
Section 8.9. Indemnification of Agent. The Banks agree to indemnify
Agent (to the extent not reimbursed by Borrower) ratably, according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against Agent in its capacity as agent in any way
relating to or arising out of this Agreement or any Loan Document or any action
taken or omitted by Agent with respect to this Agreement or any Loan Document,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements resulting from Agent's
gross negligence, willful misconduct or from any action taken or omitted by
Agent in any capacity other than as agent under this Agreement.
Section 8.10. Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days prior written notice to Borrower and the
Banks. If Agent shall resign under this Agreement, then either (a) the Required
Banks shall appoint from among the Banks a successor agent for the Banks (with
the consent of Borrower so long as an Event of Default has not occurred and
which consent shall not be unreasonably withheld), or (b) if a successor agent
shall not be so appointed and approved within the thirty (30) day period
following Agent's notice to the Banks of its resignation, then Agent shall
appoint a successor agent that shall serve as agent until such time as the
Required Banks appoint a successor agent. Upon its appointment, such successor
agent shall succeed to the rights, powers and duties as agent, and the term
"Agent" shall mean such successor effective upon its appointment, and the former
agent's rights, powers and duties as agent shall be terminated without any other
or further act or deed on the part of such former agent or any of the parties to
this Agreement.
ARTICLE IX. MISCELLANEOUS
Section 9.1. Banks' Independent Investigation. Each Bank, by its
signature to this Agreement, acknowledges and agrees that Agent has made no
representation or warranty, express or implied, with respect to the
creditworthiness, financial condition, or any other condition of any Company or
with respect to the statements contained in any information memorandum furnished
in connection herewith or in any other oral or written communication between
Agent and such Bank. Each Bank represents that it has made and shall continue to
make its own independent investigation of the creditworthiness, financial
condition and affairs of the Companies in connection with the extension of
credit hereunder, and agrees that Agent has no duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or other
information with respect thereto (other than such notices as may be expressly
required to be given by Agent to the Banks hereunder), whether coming into its
possession before the granting of the first Loans hereunder or at any time or
times thereafter.
Section 9.2. No Waiver; Cumulative Remedies. No omission or course of
dealing on the part of Agent, any Bank or the holder of any Note in exercising
any right, power or remedy hereunder or under any of the Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder or under any of the
Loan Documents. The remedies herein provided are cumulative and in addition to
any other rights, powers or privileges held by operation of law, by contract or
otherwise.
Section 9.3. Amendments, Consents. No amendment, modification,
termination, or waiver of any provision of any Loan Document nor consent to any
variance therefrom, shall be effective unless the same shall be in writing and
signed by the Required Banks and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Anything herein to the contrary notwithstanding, unanimous consent of the Banks
shall be required with respect to (a) any increase in the aggregate amount of
the Commitments hereunder or of the amount of any Bank's Commitment, (b) the
extension of maturity of the Notes, the payment date of interest or principal
thereunder, or the payment of commitment or other fees or amounts payable
hereunder, (c) any reduction in the rate of interest on the Notes, or in any
amount of principal or interest due on any Note, or the payment of commitment or
other fees hereunder or any change in the manner of pro rata application of any
payments made by Borrower to the Banks hereunder, (d) any change in any
percentage voting requirement, voting rights, or the Required Banks definition
in this Agreement, (e) the release of any Guarantor of Payment or of any
collateral securing the Debt or any part thereof, or (f) any amendment to this
Section 9.3 or Section 8.4 hereof. Notice of amendments or consents ratified by
the Banks hereunder shall immediately be forwarded by Borrower to all Banks.
Each Bank or other holder of a Note shall be bound by any amendment, waiver or
consent obtained as authorized by this Section, regardless of its failure to
agree thereto.
Section 9.4. Capital Adequacy. If any Bank shall have determined, after
the Closing Date, that the adoption of any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its lending office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Bank's capital (or
the capital of its holding company) as a consequence of its obligations
hereunder to a level below that which such Bank (or its holding company) could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies or the policies of its holding company with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within fifteen (15) days after demand by such Bank (with
a copy to Agent), Borrower shall pay to such Bank such additional amount or
amounts as shall compensate such Bank (or its holding company) for such
reduction. Each Bank shall designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods. Failure on the
part of any Bank to demand compensation for any reduction in return on capital
with respect to any period shall not constitute a waiver of such Bank's rights
to demand compensation for any reduction in return on capital in such period or
in any other period. The protection of this Section shall be available to each
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, regulation or other condition that shall have been imposed.
Section 9.5. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, if to a Bank, mailed or delivered to it,
addressed to the address of such Bank specified on the signature pages of this
Agreement, or, as to each party, at such other address as shall be designated by
such party in a written notice to each of the other parties. All notices,
statements, requests, demands and other communications provided for hereunder
shall be deemed to be given or made when delivered or forty-eight (48) hours
after being deposited in the mails with postage prepaid by registered or
certified mail, addressed as aforesaid, or sent by facsimile with telephonic
confirmation of receipt, except that notices from Borrower to Agent or the Banks
pursuant to any of the provisions hereof shall not be effective until received
by Agent or the Banks, as the case may be.
Section 9.6. Costs, Expenses and Taxes. Borrower agrees to pay on
demand all costs and expenses of Agent, including, but not limited to, (a)
administration, travel and out-of-pocket expenses, including but not limited to
attorneys' fees (both in-house and outside retained counsel) and expenses, of
Agent in connection with the preparation, negotiation and closing of the Loan
Documents and the administration of the Loan Documents, the collection and
disbursement of all funds hereunder and the other instruments and documents to
be delivered hereunder, (b) extraordinary expenses of Agent in connection with
the administration of the Loan Documents and the other instruments and documents
to be delivered hereunder, and (c) the reasonable fees and out-of-pocket
expenses of special counsel for the Banks, with respect to the foregoing, and of
local counsel, if any, who may be retained by said special counsel with respect
thereto. Borrower also agrees to pay on demand all costs and expenses of Agent
and the Banks, including reasonable attorneys' fees (both in-house and outside
retained counsel), in connection with the restructuring or enforcement of the
Debt, this Agreement or any Related Writing. In addition, Borrower shall pay any
and all stamp and other taxes and fees payable or determined to be payable in
connection with the execution and delivery of the Loan Documents, and the other
instruments and documents to be delivered hereunder, and agrees to hold Agent
and each Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes or fees.
Section 9.7. Indemnification. Borrower agrees to defend, indemnify and
hold harmless Agent and the Banks (and their respective affiliates, officers,
directors, attorneys, agents and employees) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees (both in-house and outside retained
counsel)) or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against Agent or any Bank in connection with any
investigative, administrative or judicial proceeding (whether or not such Bank
or Agent shall be designated a party thereto) or any other claim by any Person
relating to or arising out of any Loan Document or any actual or proposed use of
proceeds of the Loans or any of the Debt, or any activities of any Company or
any Obligor or any of their respective Affiliates; provided that no Bank nor
Agent shall have the right to be indemnified under this Section for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. All obligations provided for in this Section 9.7 shall survive any
termination of this Agreement.
Section 9.8. Obligations Several; No Fiduciary Obligations. The
obligations of the Banks hereunder are several and not joint. Nothing contained
in this Agreement and no action taken by Agent or the Banks pursuant hereto
shall be deemed to constitute the Banks a partnership, association, joint
venture or other entity. No default by any Bank hereunder shall excuse the other
Banks from any obligation under this Agreement; but no Bank shall have or
acquire any additional obligation of any kind by reason of such default. The
relationship among Borrower and the Banks with respect to the Loan Documents and
the Related Writings is and shall be solely that of debtor and creditors,
respectively, and neither Agent nor any Bank shall have any fiduciary obligation
toward Borrower with respect to any such documents or the transactions
contemplated thereby. In addition, notwithstanding any provision set forth in
this Agreement, Agent shall not be deemed to be the agent for the Noteholders
and Agent shall not have any fiduciary obligation toward the Noteholders.
Section 9.9. Execution In Counterparts. This Agreement 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 to be
an original and all of which taken together shall constitute but one and the
same agreement.
Section 9.10. Binding Effect; Borrower's Assignment. This Agreement
shall become effective when it shall have been executed by Borrower, Agent and
by each Bank and thereafter shall be binding upon and inure to the benefit of
Borrower, Agent and each of the Banks and their respective successors and
assigns, except that Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of Agent and
all of the Banks.
Section 9.11. Bank Assignments/Participations.
-------------------------------
A. Assignments of Commitments. Each Bank shall have the right at any
time or times to assign to another financial institution, without recourse, all
or a percentage of all of the following: (a) that Bank's Commitment, (b) all
Loans made by that Bank, and (c) that Bank's Notes, and (d) that Bank's interest
in any participation purchased pursuant to 7.4 hereof; provided, however, in
each such case, that the assignor and the assignee shall have complied with the
following requirements:
(i) Prior Consent. No assignment may be consummated pursuant
to this Section 9.11 without the prior written consent of Agent (other
than an assignment by any Bank to any affiliate of such Bank which
affiliate is either wholly-owned by such Bank or is wholly-owned by a
Person that wholly owns, either directly or indirectly, such Bank),
which consent of Agent shall not be unreasonably withheld. Anything
herein to the contrary notwithstanding, any Bank may at any time make a
collateral assignment of all or any portion of its rights under the
Loan Documents to a Federal Reserve Bank, and no such assignment shall
release such assigning Bank from its obligations hereunder;
(ii) Minimum Amount. Each such assignment shall be in a minimum amount of
One Million Dollars ($1,000,000) or, if less, the full amount of such
Bank's Commitment;
(iii) Assignment Fee; Assignment Agreement. Unless the
assignment shall be to an affiliate of the assignor or the assignment
shall be due to merger of the assignor or for regulatory purposes,
either the assignor or the assignee shall remit to Agent, for its own
account, an administrative fee of Two Thousand Five Hundred Dollars
($2,500). Unless the assignment shall be due to merger of the assignor
or a collateral assignment for regulatory purposes, the assignor shall
(A) cause the assignee to execute and deliver to Borrower and Agent an
Assignment Agreement, in form and substance satisfactory to Agent, and
(B) execute and deliver, or cause the assignee to execute and deliver,
as the case may be, to Agent such additional amendments, assurances and
other writings as Agent may reasonably require; and
(iv) Non-U.S. Assignee. If the assignment is to be made to an
assignee which is organized under the laws of any jurisdiction other
than the United States or any state thereof, the assignor Bank shall
cause such assignee, at least five (5) Business Days prior to the
effective date of such assignment, (A) to represent to the assignor
Bank (for the benefit of the assignor Bank, Agent and Borrower) that
under applicable law and treaties no taxes will be required to be
withheld by Agent, Borrower or the assignor with respect to any
payments to be made to such assignee in respect of the Loans hereunder,
(B) to furnish to the assignor (and, in the case of any assignee
registered in the Register (as defined below), Agent and Borrower)
either (1) U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or (2) United States Internal Revenue Service
Form W-8 or W-9, as applicable (wherein such assignee claims
entitlement to complete exemption from U.S. federal withholding tax on
all interest payments hereunder), and (C) to agree (for the benefit of
the assignor, Agent and Borrower) to provide the assignor Bank (and, in
the case of any assignee registered in the Register, Agent and
Borrower) a new Form 4224 or Form 1001 or Form W-8 or W-9, as
applicable, upon the expiration or obsolescence of any previously
delivered form and comparable statements in accordance with applicable
U.S. laws and regulations and amendments duly executed and completed by
such assignee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
Upon satisfaction of the requirements specified in clauses (i) through
(iv) above, Borrower shall execute and deliver (A) to Agent, the assignor and
the assignee, any consent or release (of all or a portion of the obligations of
the assignor) required to be delivered by Borrower in connection with the
Assignment Agreement, and (B) to the assignee, an appropriate Note or Notes.
After delivery of the new Note or Notes, the assignor's Note or Notes being
replaced shall be returned to Borrower marked "replaced".
Upon satisfaction of the requirements of set forth in (i) through (iv),
and any other condition contained in this Section 9.11A, (A) the assignee shall
become and thereafter be deemed to be a "Bank" for the purposes of this
Agreement, (B) in the event that the assignor's entire interest has been
assigned, the assignor shall cease to be and thereafter shall no longer be
deemed to be a "Bank" and (C) the signature pages hereto and Schedule 1 hereto
shall be automatically amended, without further action, to reflect the result of
any such assignment.
Agent shall maintain at its address referred to in Section 9.5 hereof a
copy of each Assignment Agreement delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Banks and the
Commitments of, and principal amount of the Loans owing to, each Bank from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and Borrower, Agent and the Banks may treat each financial
institution whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by Borrower or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
B. Sale of Participations. Each Bank shall have the right at any time
or times, without the consent of Agent or Borrower, to sell one or more
participations or sub-participations to a financial institution, as the case may
be, in all or any part of (a) that Bank's Commitment, (b) that Bank's Commitment
Percentage, (c) any Loan made by that Bank, (d) any Note delivered to that Bank
pursuant to this Agreement, and (e) that Bank's interest in any Letter of Credit
and any participation, if any, purchased pursuant to 7.4 hereof or this Section
9.11B.
The provisions of Section 9.7 shall inure to the benefit of each
purchaser of a participation or sub-participation and Agent shall continue to
distribute payments pursuant to this Agreement as if no participation has been
sold.
If any Bank shall sell any participation or sub-participation, that
Bank shall, as between itself and the purchaser (other than a purchaser that is
an affiliate of such Bank), retain all of its rights (including, without
limitation, rights to enforce against Borrower the Loan Documents and the
Related Writings) and duties pursuant to the Loan Documents and the Related
Writings, including, without limitation, that Bank's right to approve any
waiver, consent or amendment pursuant to Section 9.3, except if and to the
extent that any such waiver, consent or amendment would:
(i) reduce any fee or commission allocated to the participation or
sub-participation, as the case may be,
(ii) reduce the amount of any principal payment on any Loan
allocated to the participation or sub-participation, as the
case may be, or reduce the principal amount of any Loan so
allocated or the rate of interest payable thereon, or
(iii)extend the time for payment of any amount allocated to the
participation or sub-participation, as the case may be.
No participation or sub-participation shall operate as a delegation of
any duty of the seller thereof. Under no circumstance shall any participation or
sub-participation be deemed a novation in respect of all or any part of the
seller's obligations pursuant to this Agreement.
Section 9.12. Severability Of Provisions; Captions; Attachments. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. The several captions to Sections and subsections
herein are inserted for convenience only and shall be ignored in interpreting
the provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be a part hereof.
Section 9.13. Investment Purpose. Each of the Banks represents and
warrants to Borrower that it is entering into this Agreement with the present
intention of acquiring any Note issued pursuant hereto for investment purposes
only and not for the purpose of distribution or resale, it being understood,
however, that each Bank shall at all times retain full control over the
disposition of its assets.
Section 9.14. Entire Agreement. This Agreement, any Note and any other
Loan Document or other agreement, document or instrument attached hereto or
executed on or as of the Closing Date integrate all the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
Section 9.15. Governing Law; Submission To Jurisdiction. This
Agreement, each of the Notes and any Related Writing shall be governed by and
construed in accordance with the laws of the State of Ohio and the respective
rights and obligations of Borrower and the Banks shall be governed by Ohio law,
without regard to principles of conflict of laws. Borrower hereby irrevocably
submits to the non-exclusive jurisdiction of any Ohio state or federal court
sitting in Cleveland or Dayton, Ohio, over any action or proceeding arising out
of or relating to this Agreement, the Debt or any Related Writing, and Borrower
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Ohio state or federal court.
Borrower, on behalf of itself and its Subsidiaries, hereby irrevocably waives,
to the fullest extent permitted by law, any objection it may now or hereafter
have to the laying of venue in any action or proceeding in any such court as
well as any right it may now or hereafter have to remove such action or
proceeding, once commenced, to another court on the grounds of FORUM NON
CONVENIENS or otherwise. Borrower agrees that a final, nonappealable judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Section 9.16. Legal Representation Of Parties. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
[Remainder of page left intentionally blank]
SECTION 9.17. JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, 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.
Address: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx AMCAST INDUSTRIAL CORPORATION
Xxxxxx, Xxxx 00000
Attention: President and CEO By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: CFO
Address: 000 Xxxxxx Xxxxxx XXXXXXX NATIONAL ASSOCIATION,
Xxxxxxxxx, Xxxx 00000-0000 as Agent and as a Bank
Attention: Xxxx X. Xxxxx
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: S.V.P.
Address: 000 X.Xxxxx Xxxxxx BANK ONE INDIANA, N.A.
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: 000 0xx Xxxxxx Xxxxx FIRSTAR BANK, N.A.
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: AVP/Its Attorney-in-Fact
Address: Credit Agricole Indosuez CREDIT AGRICOLE INDOSUEZ
00 Xxxx Xxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, XX 00000 By: /s/ Xxxxx Xxxxxx
Attention: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Vice President
and: /s/ Xxxx X. Dyrtrych
Name: Xxxx X. Dyrtrych
Title: V.P./Sr.Rel.Mgr.
Address: 0 X. Xxxx Xxxxxx NATIONAL CITY BANK
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Address: Comerica Bank COMERICA BANK
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000 By: /s/ X. X. Xxxxxxxx
Attention: X.X. Xxxxxxxx Name: X. X. Xxxxxxxx
Title: First Vice President
Address: Xxx Xxxx Xxxxxx XXX XXXX XX XXX XXXX
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Financial Institution Percentage Maximum Amount
KeyBank National Association 25.000000% $ 8,750,000.00
Bank One, N.A. 24.464286% $ 8,562,500.10
Firstar Bank, N.A. 17.142857% $ 5,999,999.95
Credit Agricole Indosuez 10.000000% $ 3,500,000.00
National City Bank 9.642857% $ 3,062,500.00
Comerica Bank 8.750000% $ 3,374,999.95
Bank of New York 5.000000% $ 1,750,000.00
-----------------
Total Amount: $135,000,000.00
SCHEDULE 2
Guarantors of Payment
1. Amcast Automotive of Indiana, Inc.
2. Amcast Investment Services Corporation
3. AS International, Inc.
4. Elkhart Products Corporation
5. LBC Group Corp.
6. Xxx Brass Company
7. Amcast Casting Technologies Inc., an Indiana general partnership
8. Amcast Casting Technologies, Inc., an Indiana corporation
9. Izumi, Inc., a Delaware corporation
EXHIBIT A
REVOLVING CREDIT NOTE
$ Cleveland, Ohio
-----------------
June 5, 2001
FOR VALUE RECEIVED, the undersigned, AMCAST INDUSTRIAL CORPORATION, an
Ohio corporation ("Borrower"), promises to pay on the last day of the Commitment
Period, as defined in the Credit Agreement (as hereinafter defined), to the
order of _________ ("Bank") at the Main Office of KEYBANK NATIONAL ASSOCIATION,
as Agent, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000 the principal sum of
.................................................................... DOLLARS
or the aggregate unpaid principal amount of all Revolving Loans made by Bank to
Borrower pursuant to Section 2.1 of the Credit Agreement, whichever is less, in
lawful money of the United States of America. As used herein, "Credit Agreement"
means the Last-In-First-Out Credit Agreement dated as of June 5, 2001, among
Borrower, the banks named therein and KeyBank National Association, as Agent, as
the same may from time to time be amended, restated or otherwise modified.
Capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement.
Borrower also promises to pay interest on the unpaid principal amount
of each Revolving Loan from time to time outstanding, from the date of such
Revolving Loan until the payment in full thereof, at the rates per annum that
shall be determined in accordance with the provisions of Section 2.1 of the
Credit Agreement. Such interest shall be payable on each date provided for in
such Section 2.1; provided, however, that interest on any principal portion that
is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Revolving Loans and payments of principal of any thereof, shall be shown on the
records of Bank by such method as Bank may generally employ; provided, however,
that failure to make any such entry shall in no way detract from Borrower's
obligations under this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum equal to the Default Rate. All payments of principal of and interest on
this Note shall be made in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement. Reference is made to the Credit Agreement for a description of
the right of the undersigned to anticipate payments hereof, the right of the
holder hereof to declare this Note due prior to its stated maturity, and other
terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, Borrower
expressly waives presentment, demand, protest and notice of any kind.
The undersigned authorizes any attorney at law at any time or times
after the maturity hereof (whether maturity occurs by lapse of time or by
acceleration) to appear in any state or federal court of record in the United
States of America, to waive the issuance and service of process, to admit the
maturity of this Note and the nonpayment thereof when due, to confess judgment
against the undersigned in favor of the holder of this Note for the amount then
appearing due, together with interest and costs of suit, and thereupon to
release all errors and to waive all rights of appeal and stay of execution. The
foregoing warrant of attorney shall survive any judgment, and if any judgment be
vacated for any reason, the holder hereof nevertheless may thereafter use the
foregoing warrant of attorney to obtain an additional judgment or judgments
against the undersigned. The undersigned agrees that Agent or the Banks'
attorney may confess judgment pursuant to the foregoing warrant of attorney. The
undersigned further agrees that the attorney confessing judgment pursuant to the
foregoing warrant of attorney may receive a legal fee or other compensation from
Agent or the Banks.
AMCAST INDUSTRIAL CORPORATION
By:
Name:
Title:
================================================================================
"WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE."
================================================================================
EXHIBIT B
NOTICE OF LOAN
[Date]_______________________, 20____
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
-------------------------
Ladies and Gentlemen:
The undersigned, AMCAST INDUSTRIAL CORPORATION, an Ohio corporation,
refers to the Last-In-First-Out Credit Agreement, dated as of June 5, 2001
("Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, the Banks, as defined in the Credit Agreement,
and KeyBank National Association, as Agent, and hereby gives you notice,
pursuant to Section 2.3 of the Credit Agreement that the undersigned hereby
requests a Loan under the Credit Agreement, and in connection therewith sets
forth below the information relating to the Loan (the "Proposed Loan") as
required by Section 2.3 of the Credit Agreement:
(a) The Business Day of the Proposed Loan is __________, 20__.
(b) The amount of the Proposed Loan is $_______________.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Loan:
(i) the representations and warranties contained in each Loan
Document are correct, before and after giving effect to the Proposed
Loan and the application of the proceeds therefrom, as though made on
and as of such date;
(ii) no event has occurred and is continuing, or would result
from such Proposed Loan, or the application of proceeds therefrom, that
constitutes a Default or Event of Default; and
(iii)the conditions set forth in Section 2.3 and Article IV of the Credit
Agreement have been satisfied.
Very truly yours,
AMCAST INDUSTRIAL CORPORATION
By:
Name:
Title:
