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Exhibit 4.4
FIFTH AMENDMENT TO NOTE AGREEMENT
This Fifth Amendment to the Note Agreement (the "Fifth Amendment") is entered
into as of this 24th day of July, 1995, between AMCAST INDUSTRIAL CORPORATION,
an Ohio corporation (the "Company"), having an address at 0000 X. Xxxxx
Xxxxxx, X.X. Xxx 00, Xxxxxx, Xxxx, 00000 and PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY, an Iowa corporation, formerly known as Bankers Life Company
("Principal Mutual"), having its home office and principal mailing address at
000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000.
R E C I T A L S :
The Company and Principal Mutual entered into a Note Agreement dated May 1,
1986, as amended by a First Amendment dated February 27, 1987, Amendment No. 2
dated December 1, 1997, an Amendment Agreement dated September 1, 1989, and a
Fourth Amendment to Note Agreement dated December 20, 1994 (the "Note
Agreement"). In accordance with the terms of the Note Agreement, the Company
issued its 9.32% Senior Notes due June 5, 1996 to Principal Mutual in the
original principal amount of $20,000,000 (the "Notes"). Principal Mutual is
the owner and registered holder of the Notes.
The Company has requested, and Principal Mutual has agreed, that the Note
Agreement be amended in certain particulars as set forth in this Fifth
Amendment.
Terms used herein but not defined herein shall have the meaning set forth in
the Note Agreement.
NOW THEREFORE, in consideration of the premises set forth above and in
consideration of the mutual covenants and conditions herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged.
1. RECITALS INCORPORATED. The Recitals set forth above are incorporated
herein by reference.
2. AMENDMENT TO THE NOTE AGREEMENT.
2.1 Section 5.1 of the Note Agreement is hereby amended by
inserting the following definitions in their respective alphabetical order:
"ACT" shall mean Amcast Casting Technologies, Inc., an Indiana
corporation.
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"CTC" shall mean Casting Technologies Company, an Indiana
general partnership, the general partners of which are ACT and Izumi
Industries, Inc., a Delaware corporation.
"CTC INDEBTEDNESS" shall mean the Revolving Credit Agreement
dated July 1995, by and between CTC, as borrower, and NBD Bank and Asahi Bank,
as lenders, as the same may be amended, modified or supplemented from time to
time and in accordance with its terms, in an aggregate amount not to exceed
$25,000,000.
2.2 Section 6.8(b) is hereby amended to read in its entirety as
follows:
"(b) The Company (i) will not permit any Subsidiary to
create, assume, incur, guarantee, suffer to exist or otherwise become liable,
directly or indirectly, in respect of any Indebtedness described in clauses (i)
through (iv) of the definition of "Indebtedness" ("Specified Indebtedness")
except (w) Specified Indebtedness owed to the Company, (x) Specified
Indebtedness secured by mortgages, pledges, security interests, encumbrances,
liens or charges of any kind permitted in Section 6.9 hereof, (y) unsecured
Specified Indebtedness incurred in connection with the issuance of industrial
revenue bonds and (z) unsecured Specified Indebtedness of ACT incurred in
connection with and limited to the CTC Indebtedness, (ii) will not permit the
aggregate Specified Indebtedness of its Subsidiaries (excluding (x) Specified
Indebtedness owed to the Company and (y) Specified Indebtedness of ACT incurred
in connection with and limited to the CTC Indebtedness) to exceed 20% of
Consolidated Adjusted Net Worth and (iii) will not permit the aggregate
Specified Indebtedness of its Subsidiaries secured by mortgages, pledges,
security interests, encumbrances, liens or charges of any kind permitted in
Section 6.9 hereof (excluding (x) secured Specified Indebtedness incurred in
connection with the issuance of industrial revenue bonds and (y) only to the
extent secured by mortgages, liens or security interests on property or assets
of CTC, Specified Indebtedness of ACT incurred in connection with and limited
to the CTC Indebtedness) to exceed 10% of Consolidated Adjusted Net Worth."
2.3 Section 6.9 is hereby amended so that: (i) the word "and" at
the end of Section 6.9(f) is deleted; (ii) the "." at the end of Section 6.9(g)
is replaced with "; and"; and (iii) Section 6.9(h) is inserted immediately
after Section 6.9(g) to read as follows:
"(h) mortgages, liens or security interests on property or
assets of CTC securing the CTC Indebtedness."
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company,
by its execution and delivery of this Amendment, hereby represents and warrants
to Principal Mutual as follows:
3.1 As of the date of this Fifth Amendment, no Default or Event of
Default under the Note Agreement, or under any other agreement to which the
Company is subject, exists or is continuing, after giving effect to the
amendment set forth herein.
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3.2 The representations and warranties of the Company referred to
in Section 3.1 of the Note Agreement are true and correct and complete in all
material respects as if made on the date hereof, except as to those
representations and warranties made as of a specific date, which are true and
correct and materially complete as of such date.
3.3 No dissolution proceedings with respect to the Company have
been commenced or are contemplated, and there has been no material adverse
change in the business, condition or operations (financial or otherwise) of the
Company, taken as a whole, since May 1, 1986.
3.4 This Fifth Amendment has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company.
3.5 The Company has not modified any agreement with any creditor
of the Company, other than by this Fifth Amendment, unless the Company has
disclosed the terms of such modification to Principal Mutual in writing.
4. MISCELLANEOUS.
4.1 Except as expressly set forth in this Fifth Amendment, the
terms of this Fifth Amendment shall not operate as a waiver by Principal Mutual
of any provisions of, or otherwise prejudice, remedies or powers under the Note
Agreement, the Notes or applicable law and shall not operate as a waiver of or
otherwise prejudice any rights it may have against any other Person. Except as
set forth in this Fifth Amendment, none of the terms or provisions of either
the Note Agreement or the Notes shall be deemed to be modified hereby, and each
of the Note Agreement and the Notes, as modified herein, shall continue in full
force and effect.
4.2 All headings and captions preceding the text of the several
sections of this Fifth Amendment are intended solely for convenience of
reference and shall not constitute a part of this Fifth Amendment, nor shall
they affect its meaning, construction or effect.
4.3 This Fifth Amendment embodies the entire agreement and
understanding among the Company and Principal Mutual with regard to the matters
set forth herein, and supersedes all prior agreements and undertakings relating
to such matters.
4.4 This Fifth Amendment shall be governed by, and construed and
enforced in accordance with the law of the State of Ohio.
4.5 This Fifth Amendment may be executed by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be executed by their authorized officers as of the date first
written above.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: Vice President, Finance
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By:/s/ Xxxxxxxxxxx X. Xxxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxxx
Its: Counsel
By:/s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Its: Counsel
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