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EXHIBIT 4.3
MASTER NOTE
September 29, 1997 Chicago, Illinois
FOR VALUE RECEIVED, the undersigned, Intermet Corporation ("Borrower")
promises to pay, in lawful money of the United States of America and immediately
available funds, to the order of BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("Bank") at Bank's Corporate Service Center, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other place as the holder may from time
to time designate, the aggregate unpaid principal amount of all advances made by
Bank from time to time from and after the date hereof in its sole discretion to
or for the benefit of Borrower under this Note (each, an "Advance"), on the
maturity dates (each, a "Maturity Date") as may be offered by Bank and accepted
by Borrower with respect to such Advances (which acceptance shall in any event
be deemed to occur upon receipt by Borrower of the proceeds of any Advance),
together with interest accrued thereon, on the applicable Maturity Date and on
such other interest payment dates and at such rates as may be so offered and
accepted. Any amount not paid within five business days after the date due
(whether at maturity, by acceleration or otherwise) shall bear interest from
such due date until the date paid at a rate per annum equal to the rate
announced from time to time by Bank as its "reference rate" plus two percent
(2.0%).
The loan account records maintained by Bank shall at any time be
conclusive evidence as to the amount of any Advance, and its Maturity Date,
interest rate, interest payment dates and outstanding amount at such time,
absent manifest error. All interest will be calculated on the basis of a 360-day
year, actual days elapsed. If any payment of principal or of interest on this
Note shall become due on a day other than a business day, such payment shall be
made on the next succeeding business day and such extension of time shall be
included in computing the amount of interest due and payable. For purposes
hereof, "business day" means any day other than a Saturday, Sunday or other day
on which commercial banks in San Francisco, California are authorized or
required by law to close.
Any of the following shall constitute an "Event of Defaults" hereunder:
(a) Borrower shall fail to pay in full the amount of any Advance,
together with all accrued interest, on the applicable Maturity Date, or any
accrued interest on any applicable interest payment date;
(b) Borrower shall fail to pay when due any indebtedness under, or
shall fail to perform or observe any material term, covenant or condition under,
or there shall otherwise occur any default or event of default under, any
instrument or agreement relating to (i) borrowed money, (ii) reimbursement
obligations with respect to bonds, letters of credit or acceptances, (iii) the
deferred purchase price of property or services, or (iv) any capital lease; or
(c) (i) Borrower shall become insolvent, or (ii) any voluntary or
involuntary case, action or proceeding seeking liquidation, reorganization,
appointment of a receiver, trustee or custodian, assignment for the benefit of
creditors, or similar relief shall be commenced by or against, and with respect
to Xxxxxxxx.
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Upon the occurrence of any Event of Default, (i) the amount of all
unpaid Advances, together with all accrued interest, shall, at the option of the
holder (or, in the case of an Event of Default under clause (e)(ii),
automatically) become immediately due and payable, without demand, notice of
nonpayment, presentment, protest or notice of dishonor (all of which are
expressly waived), and (ii) Bank shall be under no obligation to fund any
further Advances, including any as to which an offer and acceptance of terms has
occurred. However, nothing in this Note shall be deemed a commitment by Bank to
make Advances to Borrower.
Xxxxxxxx agrees to notify Bank in writing immediately upon the
occurrence of any Event of Default pursuant to paragraph (b) or (c) above. No
Advance may be voluntarily prepaid in whole or in part prior to its applicable
Maturity Date.
The request of Borrower for any Advance and the receipt by Borrower of
the proceeds thereof shall be deemed a representation by Borrower as of each
such date that no Event of Default has occurred and that Borrower is duly
authorized to incur such indebtedness hereunder. Borrower acknowledges that it
may, for its convenience, request Bank to make Advances from time to time on the
basis of telephonic or written requests. Borrower assumes all risks regarding
the validity, authenticity, due authorization and correct interpretation of any
such request purported to be made by or on behalf of Xxxxxxxx and agrees that
its obligations hereunder shall not be affected in any way by Bank's failure to
receive or provide written confirmation of any such request or of the terms of
any offer or acceptance relating to any Advance. Borrower hereby authorizes Bank
to charge any deposit account of Borrower now or hereafter maintained with Bank
for amounts due hereunder.
Borrower shall pay holder upon demand for all costs, expenses and
attorneys' fees (including allocated costs of internal counsel) incurred in
connection with the enforcement or attempted enforcement of this Note.
At any time and from time to time, without prior notice to or consent
of Borrower, the holder may assign or otherwise transfer, in whole or in part,
to any person (an "Assignee") this Note or any Advance, or may sell a
participation therein to any person. Xxxxxxxx agrees not to assert against any
Assignee any claim or defense which Xxxxxxxx may have against Bank.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF ILLINOIS. No delay or omission on the part of the holder in
exercising any right hereunder shall operate as a waiver of such right. If any
provision of this Note shall be held invalid or unenforceable in whole or in
part, such invalidity or unenforceability shall not affect the remaining
provisions hereof.
INTERMET CORPORATION
By /s/ Xxxxxxx Xxxxxxxxxx
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Printed Name Xxxxxxx Xxxxxxxxxx
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Title Assistant Treasurer
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CONTINUING GUARANTY
To: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION and other
subsidiaries or affiliates of
BankAmerica Corporation ("Bank")
(1) For valuable consideration, the undersigned ("Guarantors") jointly and
severally unconditionally guarantee and promise to pay to Bank, or order, on
demand, in lawful money of the United States, any and all indebtedness of
INTERMET CORPORATION ("Borrowers") to Bank. The word "indebtedness" is used
herein in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of Borrowers or any one or more of them, heretofore,
now, or hereafter made, incurred or created, whether voluntary or involuntary
and however arising, whether direct or acquired by Bank by assignment or
succession, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether Borrowers may be liable
individually or jointly with others, or whether recovery upon such indebtedness
may be or hereafter become barred by any statute of limitations, or whether such
indebtedness may be or hereafter become otherwise unenforceable.
(2) The liability of Guarantors under this Guaranty (exclusive of
liability under any other guaranties executed by Guarantors) shall not exceed at
any one time the total of (a) Twenty Million U.S. Dollars ($20,000,000), for the
principal amount of the indebtedness and (b) all interest fees, and other costs
and expenses relating to or arising out of the indebtedness or such part of the
indebtedness as shall not exceed the foregoing limitation. Bank may permit the
indebtedness of Borrowers to exceed Guarantors' liability, and may apply any
amounts received from any source, other than from Guarantors, to the
unguaranteed portion of Borrowers' indebtedness. This is a Continuing Guaranty
relating to any indebtedness, including that arising under successive
transactions which shall either continue the indebtedness or from time to time
renew it after it has been satisfied. Any payment by Guarantors shall not reduce
their maximum obligation hereunder, unless written notice to that effect be
actually received by Bank at or prior to the time of such payment.
(3) The obligations hereunder are joint and several, and independent of
the obligations of Xxxxxxxxx, and a separate action or actions may be brought
and prosecuted against Guarantors whether action is brought against Borrowers or
whether Borrowers be joined in any such action or actions; and Guarantors waive
the benefit of any statute of limitations affecting their liability hereunder.
(4) Guarantors authorize Bank, without notice or demand and without
affecting their liability hereunder, from time to time, either before or after
revocation hereof, to (a) renew, compromise, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms of the
indebtedness or any part thereof, including increase or decrease of the rate of
interest thereon; and (b) release or substitute any one or more of the endorsers
or guarantors.
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(5) Guarantors waive any right to require Bank to (a) proceed against
Borrowers; (b) proceed against or exhaust any security held from Borrowers; or
(c) pursue any other remedy in Bank's power whatsoever. Guarantors waive any
defense arising by reason of any disability or other defense of Borrowers, or
the cessation from any cause whatsoever of the liability of Borrowers, or any
claim that Guarantors' obligations exceed or are more burdensome than those of
Borrowers. Guarantors waive any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory or otherwise),
including without limitation, any claim or right of subrogation under the
Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, arising
from the existence or performance of this Guaranty and Guarantors waive any
right to enforce any remedy which Bank now has or may hereafter have against
Borrowers, and waive any benefit of, and any right to participate in, any
security now or hereafter held by Bank. Bank may foreclose, either by judicial
foreclosure or by exercise of power of sale, any deed of trust securing the
indebtedness, and, even though the foreclosure may destroy or diminish
Guarantors, rights against Borrowers, Guarantors shall be liable to Bank for any
part of the indebtedness remaining unpaid after the foreclosure. Guarantors
waive all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, and notices of acceptance of
this Guaranty and of the existence, creation, or incurring of new or additional
indebtedness.
(6) Guarantors acknowledge and agree that they shall have the sole
responsibility for obtaining from Borrowers such information concerning
Borrowers' financial conditions or business operations as Guarantors may
require, and that Bank has no duty at any time to disclose to Guarantors any
information relating to the business operations or financial conditions of
Borrowers.
(7) This Guaranty may be revoked at any time by Guarantors in respect
to future transactions, unless there is a continuing consideration as to such
transactions which Guarantors do not renounce. Such revocation shall be
effective upon actual receipt by Bank at the address shown below of written
notice of revocation. Revocation shall not affect any of Guarantors' obligations
or Bank's rights with respect to transactions which precede Bank's receipt of
such notice, regardless of whether or not the indebtedness related to such
transactions, before or after revocation, has been renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms, including
time for payment or increase or decrease of the rate of interest thereon, and
regardless of any other act or omission of Bank authorized hereunder. Revocation
by any one or more of Guarantors shall not affect any obligations of any
nonrevoking Guarantors. If this Guaranty is revoked, returned, or canceled, and
subsequently any payment or transfer of any interest in property by Borrowers to
Bank is rescinded or must be returned by Bank to Borrowers, this Guaranty shall
be reinstated with respect to any such payment or transfer, regardless of any
such prior revocation, return, or cancellation.
(8) Where any one or more of Borrowers are corporations or partnerships
it is not necessary for Bank to inquire into the powers of Borrowers or of the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
(9) Bank may, without notice to Guarantors and without affecting
Guarantors' obligations hereunder, assign the indebtedness and this Guaranty, in
whole or in part. Guarantors agree that Bank may disclose to any prospective
purchaser and any purchaser of all or part of the indebtedness any and all
information in Bank's possession concerning Guarantors, this Guaranty and any
security for this Guaranty.
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(10) Guarantors agree to pay all attorneys' fees, the allocated cost of
internal legal services and all disbursements of internal counsel, and all other
costs and expenses which may be incurred by Bank in the enforcement of this
Guaranty.
(11) Where there is but a single Borrower, or where a single Guarantor
executes this Guaranty, then all words used herein in the plural shall be deemed
to have been used in the singular where the context and construction so require;
and when there is more than one Borrower named herein, or when this Guaranty is
executed by more than one Guarantor, the words "Borrowers" and "Guarantors"
respectively shall mean all and any one or more of them.
(12) This Guaranty shall be governed by and construed according to the
laws of the State of California, to the jurisdiction of which the parties hereto
submit.
Executed this 29 day of September, 1997 by the following joint and several
Guarantors:
LYNCHBURG FOUNDRY COMPANY
(Guarantor)
By: /s/ Xxxxxxx Xxxxxxxxxx
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Title: Assistant Treasurer
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IRONTON IRON, INC.
(Guarantor)
By: /s/ Xxxxxxx Xxxxxxxxxx
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Title: Assistant Treasurer
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NORTHERN CASTINGS CORPORATION
(Guarantor)
By: /s/ Xxxxxxx Xxxxxxxxxx
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Title: Assistant Treasurer
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INTERMET INTERNATIONAL, INC.
(Guarantor)
By: /s/ Xxxxxxx Xxxxxxxxxx
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Title: Assistant Treasurer
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NEW RIVER CASTINGS COMPANY
(Guarantor)
By: /s/ Xxxxxxx Xxxxxxxxxx
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Title: Assistant Treasurer
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