Exhibit - 4.13 - Forbearance and Waiver Agreement Dated June 5, 2001
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FORBEARANCE AND WAIVER AGREEMENT
THIS FORBEARANCE AND WAIVER AGREEMENT (as the same may from time to
time be amended, restated or otherwise modified, this "Agreement") is made as of
June 5, 2001, and entered into by and among:
(a) AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Amcast");
(b) the LIFO Agent, as hereinafter defined, for itself as agent and on
behalf of and for the benefit of the LIFO Banks, as hereinafter
defined;
(c) BANK ONE, INDIANA, NATIONAL ASSOCIATION, for itself and as agent on
behalf of and for the benefit of the CTC Banks, as hereinafter
defined, (the "CTC Agent"); and
(d) BANK ONE, INDIANA, NATIONAL ASSOCIATION, ("Bank One").
RECITALS
WHEREAS, Amcast has entered into a Credit Agreement dated as of August
14, 1997 with the financial institutions listed on Schedule 1 thereto (together
with their respective successors and assigns, collectively, the "Existing
Banks"), and KeyBank National Association, as Agent for the Existing Banks
("Existing Agent") (as amended and as the same may from time to time be further
amended, restated or otherwise modified, the "Existing Credit Agreement");
WHEREAS, CASTING TECHNOLOGY COMPANY, an Indiana general partnership
(together with its successors and assigns, "CTC") has entered into a Creditor
and Intercreditor Agreement dated August 26, 1999, with the financial
institutions named therein (together with their respective successors and
assigns, collectively, the "CTC Banks"), and the CTC Agent (as amended and as
the same may from time to time be further amended, restated or otherwise
modified or replaced, the "CTC Credit Agreement");
WHEREAS, in connection with the CTC Credit Agreement, Amcast has
executed an Amended and Restated Guaranty Agreement-Bank One dated as of August
26, 1999, in favor of Bank One wherein Amcast has guaranteed all of the
indebtedness owing to Bank One under the CTC Credit Agreement, as such guaranty
may be amended or replaced, so long as the obligations of Amcast and its
subsidiaries (other than CTC) shall not be in excess of the amount of such
obligations on the date of this Agreement, the "Amcast Guaranty";
WHEREAS, certain defaults exist under the Existing Credit Agreement
and, as a result thereof certain Events of Default, as defined in the Amcast
Guaranty, have occurred under the Amcast Guaranty (collectively, the "Amcast
Guaranty Defaults");
WHEREAS, as a result of the Amcast Guaranty Defaults, a Guarantor
Default, as defined in the CTC Credit Agreement, exists under the CTC Credit
Agreement and in accordance with the terms and conditions of the CTC Credit
Agreement, the CTC Agent, acting on behalf of the CTC Banks, in a letter dated
as of April 11, 2001 to CTC (the "Acceleration Notice") has (a) accelerated all
of the indebtedness and other obligations under the CTC Credit Agreement, (b)
demanded payment from CTC of all amounts due and owing under the CTC Credit
Agreement, and (c) declared a default under the Amcast Guaranty;
WHEREAS, in order to provide Amcast with temporary working capital
while Amcast develops and implements a financial plan to refinance or
restructure its existing indebtedness, Amcast desires to enter into a
Last-In-First-Out Credit Agreement, dated as of the date hereof with the
financial institutions listed on Schedule 1 thereto (together with their
successors and assigns, collectively, the "LIFO Banks") and KeyBank National
Association, as Agent for the LIFO Banks ("LIFO Agent") (as the same may from
time to time be amended, restated or otherwise modified, the "LIFO Credit
Agreement");
WHEREAS, the LIFO Agent and the LIFO Banks are willing to enter into
the LIFO Credit Agreement with Amcast only on certain terms and conditions, one
of which is that the parties hereto enter into this Agreement; and
WHEREAS, Amcast, Bank One and the CTC Agent deem it to be in the
respective pecuniary and business interests of Amcast, Bank One, the CTC Agent
and the CTC Banks for the LIFO Banks to provide loans and other extensions of
credit to Amcast pursuant to the LIFO Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"CTC Cash Collateral" shall mean One Million Fifty Thousand
Dollars ($1,050,000), which amount shall be pledged by Amcast to Bank
One to secure the obligations of Amcast to Bank One under the Amcast
Guaranty, and held in the CTC Cash Collateral Account.
"CTC Cash Collateral Account" shall mean a deposit account
opened by Amcast for the benefit of Bank One and located at Bank One.
"CTC Documents" shall mean the CTC Credit Agreement, the
Security Documents, as defined in the CTC Credit Agreement, the Amcast
Guaranty, and the other documents, instruments or agreements executed
in connection with the foregoing, as amended and as any of the
foregoing may from time to time be further amended, restated or
otherwise modified or replaced.
"CTC Default" shall mean any Default or Event of Default, as
defined in the CTC Credit Agreement, that may now exist or shall
hereafter occur, including, but not limited to, any Default or Event of
Default that shall exist as a result of the Amcast Guaranty Defaults.
"CTC Refinancing Event of Default" shall mean any Event of
Default, as defined in the CTC Credit Agreement to be executed in
connection with the refinancing described in Section 6 hereof, that
shall occur subsequent to the date of such refinancing.
"Subordination Agreement" shall mean the Subordination, Waiver
and Consent Agreement, dated as of the date hereof, among various
creditors of Amcast, as specified therein.
SECTION 2. Forbearance. The CTC Agent and the CTC Banks hereby agree to
forbear from exercising any of the rights or remedies available to the CTC
Agent, the CTC Banks or Bank One under the Amcast Guaranty as a result of the
occurrence or existence of any CTC Default for the period from March 4, 2001
through the latest of (a) Xxxxx 00, 0000, (x) the last day of the Commitment
Period, as defined in the LIFO Credit Agreement, (c) the date of the
acceleration of the indebtedness under the Existing Credit Agreement or (d) the
date of the irrevocable payment in full of all indebtedness under the LIFO
Credit Agreement and termination of all commitments thereunder (whether at
maturity, by acceleration or otherwise) (the "Forbearance Period").
SECTION 3. Waiver of Certain Defaults. In addition to the agreements of
CTC Agent and the CTC Banks set forth in Section 2 hereof, effective as of the
date hereof, CTC Agent and the CTC Banks hereby waive the Amcast Guaranty
Defaults.
SECTION 4. Rescission of Acceleration Notice. CTC Agent, on behalf of
the CTC Banks, hereby rescinds the Acceleration Notice with respect to Amcast.
Effective as of the date hereof, no amounts shall be due from Amcast under the
Amcast Guaranty. The foregoing shall in no way affect or apply to the
Acceleration Notice as it applies to CTC and the indebtedness and other
obligations under the CTC Credit Agreement shall continue to be due and payable.
SECTION 5. CTC Cash Collateral. Concurrently with the execution of this
Agreement, Amcast shall deliver the CTC Cash Collateral to Bank One and the same
shall be deposited in the CTC Cash Collateral Account. The CTC Cash Collateral
and the CTC Cash Collateral Account shall be subject to an Assignment of Deposit
Account Agreement consistent with the terms of this Agreement. Notwithstanding
anything in any CTC Document to the contrary, Bank One shall not enforce its
rights with respect to, or otherwise apply, in whole or in part, the CTC Cash
Collateral during the Forbearance Period unless a CTC Refinancing Event of
Default shall have occurred and be continuing. If a CTC Refinancing Event of
Default shall occur during the Forbearance Period that results from (a) the
failure of CTC to make a scheduled payment of principal (assuming equal
principal payments) or interest when due under the note or notes executed in
connection with the refinancing (as described in Section 6 hereof) of the
indebtedness that exists under the CTC Credit Agreement or (b) a violation of
the insolvency/bankruptcy event of default provision, then Bank One shall be
entitled to immediately enforce its rights with respect to the CTC Cash
Collateral. However, if a CTC Refinancing Event of Default shall occur during
the Forbearance Period for any reason not referenced in the foregoing sentence,
then Bank One shall only be entitled to enforce its rights with respect to the
CTC Cash Collateral upon thirty (30) days' prior written notice to CTC, Amcast,
Existing Agent and LIFO Agent. Upon the expiration of the Forbearance Period,
Bank One shall be permitted to apply all or part of the CTC Cash Collateral to
the payment of any indebtedness due and owing under the Amcast Guaranty.
SECTION 6. Authorization; CTC Documents. The CTC Agent hereby
represents and warrants to the other parties hereto that that CTC Agent is
authorized to execute and deliver this Agreement on behalf of the CTC Banks.
Except as herein otherwise specifically provided, all provisions of the CTC
Documents shall remain in full force and effect and be unaffected hereby. In
addition, the parties hereto acknowledge that the CTC Agent and the CTC Banks
intend to refinance or restructure the indebtedness evidenced by the CTC
Documents. The parties hereto agree that the provisions of this Agreement shall
apply to any such refinancing or restructuring, including any facility of Bank
One or any of its affiliates and whether or not such facility shall be an
agented credit facility. The parties further agree that the loan documents
prepared by Bank One or CTC Agent in connection with the aforesaid refinancing
shall be drafted such that no CTC Default or CTC Refinancing Event of Default
shall exist on the Closing Date of such refinancing.
SECTION 7. No Waiver of Rights. No waiver shall be deemed to have been
made by any party hereunder of any of its rights hereunder unless the same shall
be in writing signed on behalf of such party; provided that the LIFO Agent shall
have the right to act on behalf of the LIFO Banks in accordance with the terms
of the LIFO Credit Agreement. Each waiver, if any, shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights
of any party.
SECTION 8. Successors and Assigns. This Agreement shall be immediately
binding upon Amcast, the LIFO Agent, the LIFO Banks, CTC Agent, the CTC Banks
and Bank One, and their respective successors and assigns, and shall benefit
each of the Creditors, as defined in the Subordination Agreement, and their
respective successors and assigns, whether any such person or entity shall be a
party hereto.
SECTION 9. Governing Law. This Agreement shall be construed according to
the laws of the State of Ohio, without regard to
principles of conflicts of laws.
SECTION 10. Entire Agreement. This Agreement sets forth the entire
agreement and understanding among the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements, and undertakings of
every kind and nature among them with respect to the subject matter hereof.
SECTION 11. Counterparts. This Agreement may be executed in any number
of counterparts, and by the parties hereto on the same or separate counterparts
and by facsimile signature, and each such counterpart, when executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement.
SECTION 12. Notice. All notices, requests, demands and other
communications provided for hereunder shall be in writing and mailed or
delivered to any party, addressed to the address of such party specified on the
signature page of this Agreement. 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
pursuant to any of the provisions hereof shall not be effective until received.
SECTION 13. Severability of Provisions; Captions; Attachments. Wherever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law. 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 an shall be deemed to be a part hereof.
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SECTION 14. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT
PERMITTED BY LAW, HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THEM, OR ANY
OF THEM, ARISING OUT OF, IN CONNECTION WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR
MODIFY THE ABILITY OF ANY OF THE UNDERSIGNED TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT AMONG THE UNDERSIGNED.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date referenced in the first paragraph of this Agreement.
Address: 7887 Washington Village Dr. AMCAST INDUSTRIAL CORPORATION
Xxxxxx, Xxxx 00000
Attn: President and CEO By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address: 000 X. Xxxxx Xxxxxx BANK ONE INDIANA, N.A.,
Xxxxxxxx, XX 00000 as CTC Agent, on behalf of the
Attn: Xxxxxxx X. Xxxxxx CTC Banks, as a CTC Bank, and on
its own behalf
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx XXXXXXX NATIONAL ASSOCIATION,
Xxxxxxxxx, Xxxx 00000 as LIFO Agent for and on behalf of
Attn: Xxxx Xxxxx the LIFO Banks
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
