FOURTH AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
This FOURTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
(this "Amendment") is dated as of January 14, 2005 and entered into by and among
INTERMET CORPORATION, a Georgia corporation ("Company"), THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "Borrowers" and each a "Borrower"), THE
BANK OF NOVA SCOTIA, as Administrative Agent for the Lenders ("Administrative
Agent") and as a Lead Lender, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent and Co-Agent for the Lenders ("Collateral Agent") and as a Lead
Lender, and the undersigned Lenders, and is made with reference to that certain
Debtor-In-Possession Revolving Credit Agreement dated as of October 22, 2004 (as
amended, supplemented or otherwise modified to the date hereof, the "Credit
Agreement"), by and among Borrowers, the Lenders, Administrative Agent and
Collateral Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers, Lead Lenders and the undersigned Lenders
desire to amend the Credit Agreement on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendment to Subsection 1.1.
A. Subsection 1.1 of the Credit Agreement is hereby amended
by inserting the following definition in appropriate alphabetical order:
"Fourth Amendment" means that certain Fourth
Amendment to Debtor-In-Possession Credit Agreement dated as of
January 14, 2005 by and among Borrowers, Agents, Lead Lenders
and the Lenders party thereto.
B. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting clause (ii) of the definition of "Budget" and substituting
therefor the following:
"(ii) on and after the Third Amendment Effective Date until
the date on which Borrowers shall have delivered (and Agents
and Requisite Lenders shall be satisfied in their sole
discretion with) the documents required to be delivered under
clause (a) of the second sentence of subsection 6.16, the
weekly consolidated cash flow projections delivered pursuant
to Section 3.1 of the Third Amendment (it being understood and
agreed that the amount of all permitted disbursements and
expenditures, and the maximum Revolving Loan usage plus the
maximum Letter of Credit Usage, for the period commencing on
January 15, 2005 and ending on the date on which Borrowers
shall have delivered (and Agents and Requisite Lenders shall
be satisfied in their sole discretion with) the documents
required to be delivered under clause (a) of the second
sentence of subsection 6.16, shall be deemed to equal to the
amounts therefor set forth in the consolidated cash flow
projections delivered pursuant to Section 3 of the Fourth
Amendment) and that portion of the consolidated and
consolidating cash flow projections attached hereto as
Schedule 1.1B that shows monthly (and not weekly) anticipated
cash receipts and disbursements for the period from the
Closing Date through the Budget Period, and".
C. Subsection 1.1 of the Credit Agreement is hereby further
amended by adding at the end of the definition of "Eligible Accounts" contained
therein the following sentence:
"Notwithstanding anything to the contrary contained in this
definition or the definition of "Borrowing Base" or Exhibit
XII or subsection 6.12, after the effectiveness of the Fourth
Amendment, unless Collateral Agent shall request a more
frequent calculation of the amount of Accounts described in
any of clauses (a) through (t) of this definition, (A)
Borrowers shall be required to calculate those Accounts not
eligible to be included in Eligible Accounts by virtue of any
of such clauses of this definition only once monthly, in the
Borrowing Base Certificate delivered with respect to the week
during which each calendar month ends, and (B) the amounts
calculated pursuant to the preceding clause (A) shall apply
with respect to any calculation of the Borrowing Base for the
succeeding month, until the next calculation of such amounts
is made pursuant to the preceding clause (A).".
D. Subsection 1.1 of the Credit Agreement is hereby further
amended by adding at the end of the definition of "Eligible Inventory" contained
therein the following sentence:
"Notwithstanding anything to the contrary contained in this
definition or the definition of "Borrowing Base" or Exhibit
XII or subsection 6.12, after the effectiveness of the Fourth
Amendment, unless Collateral Agent shall request a more
frequent calculation of the amount of Inventory described in
any of clauses (a) through (k) of this definition, (A)
Borrowers shall be required to calculate those Inventory not
eligible to be included in Eligible Inventory by virtue of any
of such clauses of this definition only once monthly, in the
Borrowing Base Certificate delivered with respect to the week
during which each calendar month ends, and (B) the amounts
calculated pursuant to the preceding clause (A) shall apply
with respect to any calculation of the Borrowing Base for the
succeeding month, until the next calculation of such amounts
is made pursuant to the preceding clause (A).".
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1.2 Amendment to Subsection 3.1.
Subsection 3.1A(ii) of the Credit Agreement is hereby amended
by deleting the reference to "$5,000,000" contained therein and substituting
therefor "$10,000,000".
1.3 Amendment to Subsection 6.8.
Subsection 6.8C of the Credit Agreement is hereby amended by
deleting the reference to "90 days" contained therein and substituting therefor
"101 days".
1.4 Amendment to Subsection 6.16.
Subsection 6.16 of the Credit Agreement is hereby amended by
deleting clause (f) of the last sentence of such subsection in its entirety and
substituting therefor the following:
"(f) Borrowers shall deliver to Lead Lenders prior to 5:00
p.m. New York City time on January 26, 2005 a supplement to
the Covenant Addendum meeting the requirements set forth in
subsection 6.1(xvii) of this Agreement with respect to all
periods ending after December 31, 2004 (and any earlier date
of required delivery of such supplement shall not apply),
which supplement together with the Covenant Addendum delivered
to Agents on or about November 5, 2004 shall constitute the
Covenant Addendum for all purposes under the Loan Documents".
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Lenders and the Lenders to enter
into this Amendment and to amend the Credit Agreement in the manner provided
herein, Borrowers represent and warrant to each Lead Lender and Lender that the
following statements are true, correct and complete:
2.1 Corporate Power and Authority. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Amendment has been duly authorized by all necessary action on the part of each
Borrower and the performance of the Amended Agreement has been duly authorized
by all necessary action on the part of each Borrower.
2.3 No Conflict. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Borrower or any of its Subsidiaries, or the
Organizational Documents of any Borrower or any of its Subsidiaries or any
order, judgment or decree of the Bankruptcy Court of any other Government
Authority binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
Subsidiaries or any applicable order of the Bankruptcy Court, (iii) result in or
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require the creation or imposition of any Lien upon any of the properties or
assets of any Borrower or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Borrower or any of
its Subsidiaries.
2.4 Governmental Consents. The execution and delivery by each
Borrower of this Amendment and the performance by each Borrower of the Amended
Agreement do not and will not require any Governmental Authorization.
2.5 Binding Obligation. This Amendment has been duly executed and
delivered by each Borrower, and each of this Amendment and the Amended Agreement
is the legally valid and binding obligations of each Borrower enforceable
against each Borrower in accordance with its respective terms.
2.6 Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Fourth Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 Absence of Default. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
2.8 Final Borrowing Order. The Final Borrowing Order is in full
force and effect and has not been stayed by the Bankruptcy Court or any other
court of competent jurisdiction and has not been reversed, vacated or otherwise
modified after the entry thereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective on the
first date (such date being referred to herein as the "Fourth Amendment
Effective Date") on which Agents shall have received revised weekly consolidated
cash flow projections for the period commencing January 16, 2005 and ending with
the week including January 26, 2005, setting forth on a line-item basis weekly
anticipated cash receipts and disbursements during such period together with
weekly projected utilization of Revolving Loans and Revolving Letters of Credit,
such projections to be in form and substance satisfactory to Agents.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower hereby acknowledges that such Borrower has read
this Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Borrower under each of the Loan Documents to which such
Borrower is a party shall not be impaired and each of the Loan Documents to
which such Borrower is a party are, and shall continue to be, in full force and
effect and are hereby confirmed and ratified in all respects.
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SECTION 5. MISCELLANEOUS
5.1 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
A. On and after the Fourth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this
Amendment shall not constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of any Agent or any Lender under, the
Credit Agreement or any of the other Loan Documents.
5.2 Fees and Expenses. Each Borrower acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and Collateral Agent and their respective
counsel (including, without limitation, O'Melveny & Xxxxx LLP, Wachtell, Lipton,
Xxxxx & Xxxx, Xxxxxx Xxxxxxxx LLP and Capstone Corporate Recovery LLC) with
respect to this Amendment and the documents and transactions contemplated hereby
shall be for the account of Borrowers.
5.3 Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
5.4 Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment (other than Section 1 hereof, the
effectiveness of which shall be governed by Section 3) shall become effective
upon the first date on which: (i) Borrowers, Lenders and each Lead Lender shall
have each executed a counterpart hereof, and (ii) Company and Agents shall have
received written or telephonic notification of such execution and authorization
of delivery of such counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
INTERMET CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CAST-MATIC CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
COLUMBUS FOUNDRY, L.P.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
DIVERSIFIED DIEMAKERS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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GANTON TECHNOLOGIES INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET HOLDING COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET ILLINOIS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
INTERMET U.S. HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
IRONTON IRON, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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LYNCHBURG FOUNDRY COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
NORTHERN CASTINGS CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SUDBURY, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SUDM, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
TOOL PRODUCTS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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XXXXXX CASTINGS COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HAVANA, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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AGENTS AND LENDERS:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lead
Lender and a Lender
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and as a Lead Lender
and a Lender
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Director
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