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EXHIBIT 4.16 (a)
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$200,000,000
TERM LOAN AGREEMENT
dated as of December 20, 1999
among
INTERMET CORPORATION,
THE LENDERS LISTED HEREIN,
THE BANK OF NOVA SCOTIA
as Administrative Agent
BANK ONE, MICHIGAN
as Syndication Agent
and
SUNTRUST BANK, ATLANTA
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; CONSTRUCTION.....................................................................1
Section 1.01. Definitions.............................................................1
Section 1.02. Accounting Terms and Determination.....................................18
Section 1.03. Other Definitional Terms...............................................19
Section 1.04. Exhibits and Schedules.................................................19
ARTICLE II. TERM LOANS...................................................................................19
Section 2.01. Commitments; Use of Proceeds...........................................19
Section 2.02. Notes; Repayment of Principal..........................................20
ARTICLE III. GENERAL LOAN TERMS...........................................................................20
Section 3.01. Funding Notices........................................................20
Section 3.02. Disbursement of Funds..................................................21
Section 3.03. Interest...............................................................22
Section 3.04. Interest Periods.......................................................23
Section 3.05. Fees...................................................................24
Section 3.06. Voluntary Prepayments of Borrowings....................................24
Section 3.07. Payments, etc..........................................................25
Section 3.08. Interest Rate Not Ascertainable, etc...................................27
Section 3.09. Illegality.............................................................27
Section 3.10. Increased Costs........................................................28
Section 3.11. Lending Offices........................................................29
Section 3.12. Funding Losses.........................................................30
Section 3.13. Assumptions Concerning Funding of Eurodollar Advances..................30
Section 3.14. Apportionment of Payments..............................................30
Section 3.15. Sharing of Payments, Etc...............................................31
Section 3.16. Benefits to Guarantors.................................................31
Section 3.17. Limitation on Certain Payment Obligations..............................31
Section 3.18. [Reserved].............................................................32
Section 3.19. Failure to Maintain Minimum Required Rating............................32
ARTICLE IV. CONDITIONS TO BORROWING......................................................................32
Section 4.01. Conditions Precedent to Loans..........................................32
Section 4.02. Additional Conditions to Loans.........................................35
ARTICLE V. REPRESENTATIONS AND WARRANTIES...............................................................36
Section 5.01. Corporate Existence; Compliance with Law...............................36
Section 5.02. Corporate Power; Authorization.........................................37
Section 5.03. Enforceable Obligations................................................37
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Section 5.04. No Legal Bar...........................................................37
Section 5.05. No Material Litigation or Investigations...............................37
Section 5.06. Investment Company Act, Etc............................................37
Section 5.07. Margin Regulations.....................................................38
Section 5.08. Compliance With Environmental Laws.....................................38
Section 5.09. Insurance..............................................................38
Section 5.10. No Default.............................................................39
Section 5.11. No Burdensome Restrictions.............................................39
Section 5.12. Taxes..................................................................39
Section 5.13. Subsidiaries...........................................................39
Section 5.14. Financial Statements...................................................39
Section 5.15. ERISA..................................................................40
Section 5.16. Patents, Trademarks, Licenses, Etc.....................................42
Section 5.17. Ownership of Property..................................................42
Section 5.18. Financial Condition....................................................42
Section 5.19. Labor Matters..........................................................42
Section 5.20. Payment or Dividend Restrictions.......................................43
Section 5.21. Disclosure.............................................................43
Section 5.22. Year 2000 Compliance...................................................43
Section 5.23. Target Acquisition Documents...........................................44
ARTICLE VI. AFFIRMATIVE COVENANTS........................................................................44
Section 6.01. Corporate Existence, Etc...............................................44
Section 6.02. Compliance with Laws, Etc..............................................44
Section 6.03. Payment of Taxes and Claims, Etc.......................................45
Section 6.04. Keeping of Books.......................................................45
Section 6.05. Visitation, Inspection, Etc............................................45
Section 6.06. Insurance; Maintenance of Properties...................................45
Section 6.07. Reporting Covenants....................................................46
Section 6.08. Financial Covenants....................................................49
Section 6.09. Notices Under Certain Other Indebtedness...............................49
Section 6.10. Additional Credit Parties and Collateral...............................50
Section 6.11. Amendment to Note Purchase Agreement...................................50
ARTICLE VII. NEGATIVE COVENANTS...........................................................................50
Section 7.01. Indebtedness...........................................................51
Section 7.02. Liens..................................................................51
Section 7.03. Mergers, Acquisitions, Divestitures....................................52
Section 7.04. Asset Sales............................................................53
Section 7.05. Dividends, Etc.........................................................55
Section 7.06. Investments, Loans, Etc................................................55
Section 7.07. Sale and Leaseback Transactions........................................56
Section 7.08. Transactions with Affiliates...........................................56
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Section 7.09. Prepayments of Subordinated Debt in Violation
Thereof..............................................................57
Section 7.10. Changes in Business....................................................57
Section 7.11. Limitation on Payment Restrictions Affecting
Consolidated Companies...............................................57
Section 7.12. Actions Under Certain Documents........................................58
ARTICLE VIII. EVENTS OF DEFAULT............................................................................58
Section 8.01. Payments...............................................................58
Section 8.02. Covenants Without Notice...............................................58
Section 8.03. Other Covenants........................................................58
Section 8.04. Representations........................................................58
Section 8.05. Non-Payments of Other Indebtedness.....................................59
Section 8.06. Defaults Under Other Agreements........................................59
Section 8.07. Bankruptcy.............................................................59
Section 8.08. ERISA..................................................................60
Section 8.09. Money Judgment.........................................................60
Section 8.10. Ownership of Credit Parties............................................60
Section 8.11. Change in Control of Intermet..........................................61
Section 8.12. Default Under Other Credit Documents...................................61
Section 8.13. Attachments............................................................61
Section 8.14. Default Under Other Credit Agreements..................................61
ARTICLE IX. THE ADMINISTRATIVE AGENT.....................................................................62
Section 9.01. Appointment of Administrative Agent....................................62
Section 9.02. Authorization of Administrative Agent with Respect to the
Security Documents...........................................................................62
Section 9.03. Nature of Duties of Administrative Agent...............................63
Section 9.04. Lack of Reliance on the Administrative Agent...........................63
Section 9.05. Certain Rights of the Administrative Agent.............................64
Section 9.06. Reliance by Administrative Agent.......................................64
Section 9.07. Indemnification of Administrative Agent................................64
Section 9.08. The Administrative Agent in its Individual
Capacity.............................................................65
Section 9.09. Holders of Notes.......................................................65
Section 9.10. Successor Administrative Agent.........................................65
Section 9.11. Arrangers and Other Agents. ..........................................66
ARTICLE X. MISCELLANEOUS................................................................................66
Section 10.01. Notices...............................................................66
Section 10.02. Amendments, Etc.......................................................66
Section 10.03. No Waiver; Remedies Cumulative........................................67
Section 10.04. Payment of Expenses, Etc..............................................67
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Section 10.05. Right of Setoff.......................................................69
Section 10.06. Benefit of Agreement..................................................69
Section 10.07. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial.................................................71
Section 10.08. Independent Nature of Lenders' Rights.................................73
Section 10.09. Counterparts..........................................................73
Section 10.10. Effectiveness; Survival...............................................73
Section 10.11. Severability..........................................................73
Section 10.12. Independence of Covenants.............................................74
Section 10.13. Change in Accounting Principles, Fiscal Year or
Tax Laws.............................................................74
Section 10.14. Headings Descriptive; Entire Agreement................................74
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SCHEDULES
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SCHEDULE 1 Commitments
SCHEDULE 5.01 Organization and Ownership of Subsidiaries
SCHEDULE 5.01(A) Lack of Qualification
SCHEDULE 5.05 Certain Pending and Threatened Litigation
SCHEDULE 5.08 Environmental Matters
SCHEDULE 5.11 Burdensome Restrictions
SCHEDULE 5.12 Tax Filings and Payments
SCHEDULE 5.15 Employee Benefit Matters
SCHEDULE 5.16 Patent, Trademark, License, and Other Intellectual Property Matters
SCHEDULE 5.17 Ownership of Properties
SCHEDULE 5.20 Dividend Restrictions
SCHEDULE 6.08 Financial Covenant Calculations Second Quarter 1999
SCHEDULE 7.01 Existing Indebtedness
SCHEDULE 7.02 Existing Liens
SCHEDULE 7.06 Existing Investments
SCHEDULE 7.07 Permitted Sale and Leaseback Transactions
SCHEDULE 10.01 Notice Information
EXHIBITS
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EXHIBIT A - Form of Term Note
EXHIBIT B - [Reserved]
EXHIBIT C - [Reserved]
EXHIBIT D-1 - Form of Notice of Borrowing
EXHIBIT D-2 - Form of Notice of Conversion/Continuation
EXHIBIT E - Form of Guaranty Agreement
EXHIBIT F - Form of Closing Certificate
EXHIBIT G-1 - Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC
EXHIBIT G-2 - Form of Opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
EXHIBIT G-3 - Form of Opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
EXHIBIT H - Form of Assignment and Acceptance
EXHIBIT I - Form of Compliance Certificate
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TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT made and entered into as of December 20, 1999, by
and among INTERMET CORPORATION, a Georgia corporation ("Intermet"), THE BANK OF
NOVA SCOTIA, a Canadian chartered bank ("BNS"), acting through its Atlanta
Agency, the other banks and lending institutions listed on the signature pages
hereof, and any assignees of BNS, or such other banks and lending institutions
which become "Lenders" as provided herein (BNS, and such other banks, lending
institutions, and assignees referred to collectively herein as the "Lenders"),
BNS, in its capacity as administrative agent for the Lenders and each successor
agent for such Lenders as may be appointed from time to time pursuant to Article
IX hereof (the "Administrative Agent"), BANK ONE, MICHIGAN, as Syndication
Agent, and SUNTRUST BANK, ATLANTA, as Documentation Agent, (the Administrative
Agent, the Syndication Agent and the Documentation Agent are herein referred to
individually as an "Agent" and collectively as the "Agents").
W I T N E S S E T H:
WHEREAS, Intermet has requested, and the Administrative Agent, the
other Agents, the Arrangers and the Lenders have agreed, subject to the terms
and conditions of this Agreement, to make available to Intermet a term loan
facility to finance in part the Target Acquisition;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Intermet, the Lenders, the Administrative Agent and
the other Agents agree, upon the terms and subject to the conditions set forth
herein as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Acquisition" shall mean any transaction, or any series of related
transactions, by which Intermet and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of the
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise, (b) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority in
ordinary voting power of the securities of a Person which have ordinary voting
power for the election of directors or (c) otherwise acquires control of a 50%
or more ownership interest in any such Person.
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"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Advance, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) determined pursuant to the following formula:
Adjusted LIBO Rate = LIBOR
1.00 - LIBOR Reserve Percentage
As used herein, LIBOR Reserve Percentage shall mean, for any Interest Period for
a Eurodollar Advance, the reserve percentage (expressed as a decimal) equal to
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D).
"Administrative Agent" shall have the meaning set forth in the
preamble.
"Advance" shall mean any principal amount advanced on the Closing Date
and remaining outstanding at any time under the Term Loans, which Advances shall
be made or outstanding as Base Rate Advances or Eurodollar Advances, as the case
may be.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"Agreement" shall mean this Term Loan Agreement, as amended, modified,
restated, or supplemented from time to time.
"Applicable Margin" shall mean, with respect to all outstanding
Eurodollar Advances, the percentage determined from time to time from the chart
set forth below based on Intermet's ratio of Funded Debt to Consolidated EBITDA
determined as of the end of each fiscal quarter, with any change to the
Applicable Margin to be immediately effective on the 60th day of the next fiscal
quarter thereafter:
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FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO MARGIN
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Greater than or Equal to
3.00:1.0 1.750%
Less than 3.00:1.0 and
Greater than or Equal to
2.50:1.0 1.500%
Less than 2.50:1.0 and
Greater than or Equal to
2.00:1.0 1.250%
Less than 2.00:1.0 and
Greater than or Equal to
1.50:1.0 1.000%
Less than 1.50:1.0 0.750%
provided, however, that the Applicable Margin shall be no less than 2.00% until
June 20, 2000; and provided, further, that after June 20, 2000, if Intermet
fails to deliver its financial statements for such preceding fiscal quarter
pursuant to Section 6.07 prior to the 60th day of the then-current fiscal
quarter, the Applicable Margin with respect to Eurodollar Advances shall be
1.75% until such financial statements are delivered.
"Arrangers" shall mean BNS; Bank One, Michigan; SunTrust Bank, Atlanta;
Comerica Bank and KeyBank National Association.
"Asset Sale" shall mean any sale or other disposition (or a series of
related sales or other dispositions), including without limitation, loss,
damage, destruction or taking, by any Consolidated Company to any Person other
than a Consolidated Company, of any property or asset (including capital stock
but excluding the issuance and sale by Intermet of its own capital stock) having
an aggregate Asset Value in excess of $1,000,000, other than sales or other
dispositions made in the ordinary course of business of any Consolidated
Company.
"Asset Value" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as established
in accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by such Consolidated Company.
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"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of Exhibit H.
"Bankruptcy Code" shall mean The Federal Bankruptcy Reform Act of
1978, as amended and in effect from time to time (11 U.S.C. ss. 101 et seq.).
"Base Rate" shall mean the higher of (with any change in the Base Rate
to be effective as of the date of change of either of the following rates):
(a) the rate of interest then most recently established by the
Administrative Agent in New York from time to time to be its base rate for
Dollars loaned in the United States, as in effect from time to time, and
(b) the Federal Funds Rate, as in effect from time to time, plus
one-half of one percent (0.50%) per annum.
The Administrative Agent's base rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers; the
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's base rate.
"Base Rate Advance" shall mean an Advance made or outstanding as (i) a
Loan bearing interest based on the Base Rate, or (ii) an Advance bearing
interest at the rate agreed upon between Intermet and the Lenders pursuant to
Section 3.08, Section 3.09 or Section 3.10.
"Base Rate Margin" shall mean, with respect to all outstanding Base
Rate Advances, the percentage determined from time to time from the chart set
forth below based on Intermet's ratio of Funded Debt to Consolidated EBITDA
determined as of the end of each fiscal quarter, with any change to the Base
Rate Margin to be immediately effective on the 60th day of the next fiscal
quarter thereafter:
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FUNDED DEBT TO
CONSOLIDATED BASE RATE
EBITDA RATIO MARGIN
------------ ---------
Greater than or Equal to
3.00:1.0 0.750%
Less than 3.00:1.0 and
Greater than or Equal to
2.50:1.0 0.500%
Less than 2.50:1.0 and
Greater than or Equal to
2.00:1.0 0.250%
Less than 2.00:1.0 0%
provided, however, that the Base Rate Margin shall be no less than 1.00% until
June 20, 2000; and provided, further, that after June 20, 2000, if Intermet
fails to deliver its financial statements for any fiscal quarter pursuant to
Section 6.07 prior to the 60th day of the next fiscal quarter, the Base Rate
Margin with respect to Base Rate Advances shall be 0.75% until such financial
statements are delivered.
"BNS" shall have the meaning set forth in the preamble.
"Borrowing" shall mean the incurrence by Intermet under the Facility
of Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean:
(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are required or authorized to close in Atlanta, Georgia or New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
Eurodollar Advances, any day on which trading is carried on by and between banks
in deposits of Dollars in the London interbank market.
"Change in Control Provision" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Intermet evidencing debt or a commitment
to extend loans in excess of $5,000,000 which requires, or permits the holder(s)
of such Indebtedness of Intermet to require that such Indebtedness of Intermet
be redeemed, repurchased, defeased, prepaid or repaid, either
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in whole or in part, or the maturity of such Indebtedness of Intermet to be
accelerated in any respect, as a result of a change in ownership of the capital
stock of Intermet or voting rights with respect thereto or a change in the
composition of the board of directors of Intermet.
"Closing Date" shall mean the date on or before December 30, 1999 on
which the Loans are made hereunder and the conditions set forth in Section 4.01
are satisfied or waived in accordance with Section 10.02.
"Commitment" shall mean, for any Lender at any time, the amount of
such commitment set forth opposite such Lender's name on Schedule 1, as the same
may be increased or decreased from time to time as a result of any assignment
thereof pursuant to Section 10.06 or any amendment thereof pursuant to Section
10.02.
"Consolidated Capital Expenditures" means, for any period, the
aggregate amount of all expenditures of Intermet and its Subsidiaries for fixed
or capital assets made during such period which, in accordance with GAAP, would
be classified as capital expenditures.
"Consolidated Companies" shall mean, collectively, Intermet and all of
its Subsidiaries (including, without limitation, the Targets).
"Consolidated EBIT" shall mean, for any fiscal period of Intermet, an
amount equal to (A) the sum for such fiscal period of Consolidated Net Income
(Loss) and, to the extent deducted in determining such Consolidated Net Income
(Loss), provisions for (i) taxes based on income and (ii) Consolidated Interest
Expense, minus (B) any items of gain (or plus any items of loss) which were
included in determining such Consolidated Net Income (Loss) and were (x) not
realized in the ordinary course of business (whether or not classified as
"ordinary" by GAAP), (y) the result of any sale of assets, or (z) resulting from
minority investments, together with, in the case of (x), (y) or (z), any related
provision for taxes included in Consolidated Net Income (Loss) with respect
thereto, plus (C) without duplication, the sum of the following items to the
extent not included in Consolidated Net Income (Loss) for such period:
(1) the net income (or net loss) for such period of any Person
which became a Subsidiary during such period (a "New Subsidiary");
(2) the net income (or net loss) derived during such period from
the assets of any plants, divisions or business units acquired by any
Consolidated Company during such period ("New Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any New Subsidiary or derived from any New Assets
during such period: (x) taxes based on income, (y) Consolidated Interest
Expense, and (z) any items of gain (or plus any items of loss) which were
included in determining such net income and were (aa) not realized in the
ordinary course of business (whether or not classified as
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"ordinary" by GAAP), (bb) the result of any sale of assets, or (cc)
resulting from minority investments, together in the case of (aa), (bb) or
(cc), any related provision for taxes included in such net income with
respect thereto;
minus (D) the sum of the following items to the extent included in determining
Consolidated Net Income (Loss) for such period:
(1) the net income (or net loss) for such period of any Person
which ceased to be a Subsidiary (other than due to merger or consolidated
with another Consolidated Company) during such period (an "Old
Subsidiary");
(2) the net income (or net loss) derived during such period from
the assets of any plants, divisions or business units sold or otherwise
disposed of by any Consolidated Company during such period ("Old Assets");
and
(3) the sum of the following items to the extent deducted in
determining net income of any Old Subsidiary or derived from any Old Assets
during such period: (x) taxes based on income, (y) Consolidated Interest
Expense, and (z) any items of gain (or plus any items of loss) which were
included in determining such net income and were (aa) not realized in the
ordinary course of business (whether or not classified as "ordinary" by
GAAP), (bb) the result of any sale of assets, or (cc) resulting from
minority investments, together in the case of (aa), (bb) or (cc), any
related provision for taxes included in such net income with respect
thereto.
For purposes of calculating any financial definitions based upon Consolidated
EBIT, the addition or subtraction of any other financial definitions to or from
Consolidated EBIT shall be calculated with appropriate adjustment for New
Subsidiaries, New Assets, Old Subsidiaries and Old Assets as is consistent with
this definition.
"Consolidated EBITDA" shall mean for any fiscal period of Intermet, an
amount equal to the sum of Consolidated EBIT plus depreciation and amortization
expense to the extent deducted in determining Consolidated Net Income (Loss),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any fiscal period of
Intermet, total interest expense of the Consolidated Companies (including
without limitation, interest expense attributable to capitalized leases in
accordance with GAAP, all commissions, discounts and other fees and charges owed
with respect to bankers acceptance financing, and total interest expense
(whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period of
Intermet, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period
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(taken as a single accounting period) determined in conformity with GAAP, but
excluding therefrom (to the extent otherwise included therein) (i) any income or
loss of any Person accrued prior to the date such Person becomes a Subsidiary of
Intermet or is merged into or consolidated with any Consolidated Company or all
or substantially all of such Person's assets are acquired by any Consolidated
Company, and (ii) the income of any Consolidated Company to the extent that the
declaration or payment of dividends or similar distributions by such
Consolidated Company of that income is not at the time permitted by operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation.
"Consolidated Net Worth" shall mean, as of any date of determination,
Shareholders' Equity of Intermet.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound, which in the case of Intermet shall include, without limitation,
the Target Acquisition Documents.
"Credit Documents" shall mean, collectively, this Agreement, the
Notes, the Fee Letters, the Guaranty Agreements, and all other Security
Documents, if any.
"Credit Parties" shall mean, collectively, each of Intermet, the
Guarantors, and every other Person who from time to time executes a Security
Document with respect to all or any portion of the Obligations.
"Default" shall mean any condition or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money of
the United States of America.
"Domestic Subsidiary" shall mean each Consolidated Company that is
organized under the laws of the United States or any political subdivision
thereof.
"Eligible Assignee" shall mean (i) a commercial bank organized under
the laws of the United States, or any political subdivision thereof, having,
total assets in excess of $1,000,000,000 or (ii) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or any political subdivision
of any such country, and having total assets in excess of $1,000,000,000 (or its
equivalent in other currencies), provided that such bank is acting through a
branch or agency located in the United States or the Cayman Islands, (iii) any
Lender, or (iv) any commercial finance or asset based lending Affiliate of any
such commercial bank or Lender described in the foregoing clauses (i) through
(iii), in each case, which has the Minimum Required Rating, unless otherwise
agreed by the Administrative Agent.
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"Environmental Laws" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, now or hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing material or exposure to
asbestos or asbestos containing material), relating to pollution or protection
of the environment and relating to public health and safety, relating to (i)
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous Substance,
petroleum including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law into the
environment (including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of any Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks and
related piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (i) the Clean
Air Act (42 U.S.C. ss. 7401 et seq.), (ii) the Clean Water Act (33 U.S.C. ss.
1251 et seq.), (iii) the Resource Conservation and Recovery Act (42 U.S.C. ss.
6901 et seq.), (iv) the Toxic Substances Control Act (15 U.S.C. ss. 2601 et
seq.), (v) the Comprehensive Environmental Response Compensation and Liability
Act, as amended by the Superfund Amendments and Reauthorization Act (42 U.S.C.
ss. 9601 et seq.), and (vi) all applicable national and local laws or
regulations with respect to environmental control (including applicable laws of
the Federal Republic of Germany or any applicable international agreements).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each trade
or business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or outstanding as a
Term Loan bearing interest based on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning provided in Article VIII.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean with respect to any Person, the
President, Chief Executive Officer, Vice Presidents, Chief Financial Officer,
Treasurer, Secretary and any other individual holding comparable offices or
duties.
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"Facility" shall mean the Commitments.
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fee Letters" shall mean each of (i) the confidential fee letter,
dated as of November 19, 1999, between Intermet and the Arrangers, and (ii) the
confidential fee letter, dated as of November 19, 1999, between Intermet and
BNS.
"Five-Year Credit Agreement" shall mean the Five-Year Credit
Agreement, dated as of November 5, 1999 (as amended, modified, restated or
supplemented from time to time), among Intermet, the various financial
institutions that are or may become parties thereto and BNS, as administrative
agent.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
fiscal quarter of Intermet, the ratio of (A) Consolidated EBITDA minus
Consolidated Capital Expenditures to (B) the sum of the amounts of (i)
Consolidated Interest Expense, and (ii) principal payments on Indebtedness in
each case, calculated with respect to the immediately preceding four fiscal
quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing, deferred
compensation, or other employee benefit plan, program or arrangement maintained
by any Foreign Subsidiary which, under applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not include any
benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company that is not
a Domestic Subsidiary.
"Foreign 956 Subsidiary" means each Foreign Subsidiary a guaranty of
the Obligations by which would result in a deemed dividend of its current and
accumulated earnings and profits under section 956 of the Tax Code that would
result in material increased tax liabilities for the Consolidated Companies,
taken as a whole.
"Funded Debt" shall mean all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money Liens, capitalized leases,
conditional sales contracts and similar title retention debt instruments,
whether designated as long term or current debt under GAAP and all synthetic
leases even if not treated as Indebtedness under GAAP. The calculation
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of Funded Debt shall include (i) all Funded Debt of the Consolidated Companies,
plus (ii) all Funded Debt of other Persons to the extent guaranteed by a
Consolidated Company, to the extent supported by a letter of credit issued for
the account of a Consolidated Company, or as to which and to the extent which a
Consolidated Company or its assets otherwise have become liable for payment
thereof, plus (iii) the redemption amount with respect to the stock of any
Consolidated Company required to be redeemed during the next succeeding twelve
months.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantors" shall mean, collectively, each Domestic Subsidiary
(including, without limitation, each Target) other than those which are
designated on Schedule 5.01 as "inactive" and each Foreign Subsidiary that is
not a Foreign 956 Subsidiary.
"Guaranty" shall mean any contractual obligation, contingent or
otherwise, of a Person with respect to any Indebtedness or other obligation or
liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or an agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreement" shall mean the Guaranty Agreement, dated as of
even date herewith, executed by each of the Guarantors in favor of the Lenders
and the Administrative Agent, substantially in the form of Exhibit E as the same
may be amended, restated or supplemented from time to time.
"Hazardous Substances" shall mean (a) any "hazardous substance," as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. ss.9601 et. seq., and any amendments thereto or
regulations promulgated thereunder from time to time, (b) any "hazardous waste,"
as defined in the Resource Conversation and Recovery Act, 42 U.S.C. ss.6901 et.
seq. and any amendments thereto or regulations promulgated thereunder
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from time to time, and (c) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance (including any petroleum product) as
defined in any other Environmental Laws.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or
combinations thereof to the extent required to be disclosed in accordance with
GAAP; and (vi) all synthetic leases, even if not required to be disclosed in
accordance with GAAP.
"Interest Period" shall mean the interest period selected by Intermet
pursuant to Section 3.04(a) hereof.
"Intermet" shall mean Intermet Corporation, a Georgia corporation, its
successors and permitted assigns.
"Investment" shall mean, when used with respect to any Person, any
direct or indirect advance, loan or other extension of credit (other than the
creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person, in each case, other than an Acquisition. Each Investment shall
be valued as of the date made; provided that any Investment or portion of an
Investment consisting of Indebtedness shall be valued at the outstanding
principal balance thereof as of the date of determination.
"Lender" or "Lenders" shall mean BNS, the other banks and lending
institutions listed on the signature pages hereof, and each assignee thereof, if
any, pursuant to Section 10.06(c).
"Lending Office" shall mean for each Lender the office such Lender may
designate in writing from time to time to Intermet and the Administrative Agent
with respect to each Type of Loan.
"LIBOR" shall mean, for any Interest Period, with respect to
Eurodollar Advances under the Commitments, the offered rate for deposits in
Dollars, for a period comparable to the
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Interest Period and in an amount comparable to the Administrative Agent's
portion of such Advances, appearing on Telerate Page 3750 as of 11:00 AM
(London, England time) on the day that is two Business Days prior to the first
day of the Interest Period. If two or more of such rates appear on such Telerate
Page, the rate shall be the arithmetic mean of such rates. If the foregoing rate
is unavailable from Telerate for any reason, then such rate shall be determined
by the Administrative Agent from the Reuters Screen LIBO Page or, if such rate
is also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Administrative Agent
to Intermet and the Lenders; in any such case rounded, if necessary, to the next
higher 1/100 of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, lien,
charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title retention
agreement.
"Loans" shall mean the Term Loans.
"Margin Regulations" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"Margin Stock" shall have the meaning set forth in the Margin
Regulations.
"Materially Adverse Effect" shall mean any materially adverse change
in (i) the business, results of operations, financial condition, assets or
prospects of the Consolidated Companies, taken as a whole, (ii) the ability of
Intermet to perform its obligations under this Agreement, (iii) the ability of
the other Credit Parties (taken as a whole) to perform their respective
obligations under the Credit Documents, or (iv) the perfection or priority of
the Liens granted in favor of the Administrative Agent pursuant to the Security
Documents.
"Maturity Date" shall mean the earlier of (i) June 20, 2001, and (ii)
the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the provisions
of Article VIII.
"Minimum Required Rating" shall mean (i) from Moody's, a long-term
deposit rating of A1 or higher (or comparable rating in the event Moody's
hereafter modifies its rating system for long-term deposits of commercial
banks), and (ii) from S&P, a long-term deposit ratings of A+ or higher (or
comparable rating in the event S&P hereafter modifies its rating system for
long-term deposits of commercial banks).
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., and its
successors and assigns.
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"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Fixed Assets" shall mean, as of any date of determination, the
net property, plant and equipment of the Consolidated Companies determined in
accordance with GAAP and as reflected on the balance sheet of Intermet.
"Note Purchase Agreement" shall mean that certain Amended and Restated
Note Purchase Agreement dated as of March 21, 1996, by and between Intermet and
Prudential, as amended, modified or supplemented.
"Notes" shall mean, collectively, the Term Notes.
"Notice of Borrowing" shall mean a notification of Borrowing by
Intermet pursuant to Section 3.01 substantially in the form of Exhibit D-1.
"Notice of Conversion/Continuation" shall mean a notification of
continuation or conversion of a Borrowing by Intermet pursuant to Section 3.01
substantially in the form of Exhibit D-2.
"Obligations" shall mean all amounts owing to the Administrative Agent
or any Lender pursuant to the terms of this Agreement or any other Credit
Document, including without limitation, all Loans (including all principal and
interest payments due thereunder), fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the Credit
Parties, direct or indirect, absolute or contingent, liquidated or unliquidated,
now existing or hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof.
"Payment Office" shall mean the office specified as the "Payment
Office" for the Administrative Agent on Schedule 10.01, or such other location
as to which the Administrative Agent shall have given written notice to Intermet
and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted by
Section 7.02.
"Permitted Receivables" means all obligations of any obligor (whether
now existing or hereafter arising) under a contract for sale of goods or
services by Intermet or any of its Subsidiaries, which shall include any
obligation of such obligor (whether now existing or hereafter arising) to pay
interest, finance charges or amounts with respect thereto, and, with respect to
any of the foregoing receivables or obligations, (a) all of the interest of
Intermet or any of its Subsidiaries in the goods (including returned goods) the
sale of which gave rise to such
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receivable or obligation after the passage of title thereto to any obligor, (b)
all other Liens and property subject thereto from time to time purporting to
secure payment of such receivables or obligations, and (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such
receivables or obligations.
"Permitted Receivables Purchase Facility" means any agreement of
Intermet or any of its Subsidiaries providing for sales, transfers or
conveyances of Permitted Receivables purporting to be sales (and considered
sales under GAAP) that do not provide, directly or indirectly, for recourse
against the seller of such Permitted Receivables (or against any of such
seller's Affiliates) by way of a guaranty or any other support arrangement, with
respect to the amount of such Permitted Receivables (based on the financial
condition or circumstances of the obligor thereunder), other than such limited
recourse as is reasonable given market standards for transactions of a similar
type, taking into account such factors as historical bad debt loss experience
and obligor concentration levels.
"Person" shall mean any individual, limited liability company,
partnership, firm, corporation, association, joint venture, trust or other
entity, or any government or political subdivision or agency, department or
instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in Section
3(3) of ERISA), including, but not limited to, any defined benefit pension plan,
profit sharing plan, money purchase pension plan, savings or thrift plan, stock
bonus plan, employee stock ownership plan, Multiemployer Plan, or any plan,
fund, program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits, but shall exclude any Foreign Plan.
"Pro Rata Share" shall mean, with respect to Commitments, each Term
Loan to be made by and each payment (including, without limitation, any payment
of principal, interest or fees) to be made to each Lender, the percentage
designated as such Lender's Pro Rata Share of such Commitments, set forth under
the name of such Lender on Schedule 1, as such percentage may change based upon
amendments and assignments hereunder.
"Prudential" shall mean, The Prudential Insurance Company of America.
"Rating Agencies" shall mean, collectively, Moody's and S&P.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean at any time prior to the termination of
the Commitments, Lenders holding at least 51% of the then aggregate amount of
the Commitments,
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or, following the termination of the Commitments hereunder, Lenders holding at
least 51% of the sum of the aggregate outstanding Loans.
"Requirement of Law" for any Person shall mean the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Reuters Screen" shall mean, when used in connection with any designated
page and LIBOR, the display page so designated on the Reuters Monitor Money
Rates Service (or such other page as may replace that page on that service for
the purpose of displaying rates comparable to LIBOR).
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Security Documents" shall mean, collectively, the Guaranty Agreement and
each other guaranty agreement, mortgage, deed of trust, security agreement,
pledge agreement, or other security or collateral document guaranteeing or
securing the Obligations, as the same may be amended, restated, or supplemented
from time to time.
"Shareholders' Equity" shall mean, with respect to any Person as at any
date of determination, shareholders' equity of such Person determined on a
consolidated basis in conformity with GAAP.
"Solvent" shall mean, as to Intermet or any Guarantor at any time, that (i)
each of the fair value and the present fair saleable value of such Person's
assets (including any rights of subrogation or contribution to which such Person
is entitled, under any of the Loan Documents or otherwise) is greater than such
Person's debts and other liabilities (including contingent, unmatured and
unliquidated debts and liabilities) and the maximum estimated amount required to
pay such debts and liabilities as such debts and liabilities mature or otherwise
become payable; (ii) such Person is able and expects to be able to pay its debts
and other liabilities (including, without limitation, contingent, unmatured and
unliquidated debts and liabilities) as they mature; and (iii) such Person does
not have unreasonably small capital to carry on its business as conducted and as
proposed to be conducted.
"Subordinated Debt" shall mean other Indebtedness of Intermet subordinated
to all obligations of Intermet or any other Credit Party arising under this
Agreement, the Notes, and the Guaranty Agreements on terms and conditions
satisfactory in all respects to the Administrative Agent and the Required
Lenders, including without limitation, with respect to interest rates, payment
terms, maturities, amortization schedules, covenants, defaults, remedies,
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and subordination provisions, evidenced by the written approval of the
Administrative Agent and Required Lenders.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, limited liability
companies, joint ventures, and associations) regardless of its jurisdiction of
organization or formation, at least a majority of the total combined voting
power of all classes of voting stock or other ownership interests of which
shall, at the time as of which any determination is being made, be owned by such
Person, either directly or indirectly through one or more other Subsidiaries.
"Target Acquisition" means the acquisition of all of the outstanding
capital stock of the Targets pursuant to the Target Acquisition Documents, the
payment in full and termination of the Target Existing Indebtedness and the
payment of all of related fees and expenses in connection with either of the
foregoing.
"Target Acquisition Documents" means (i) the Stock Purchase Agreement,
dated as of November 16, 1999, among the Sellers listed on the signature pages
thereto, Ganton Technologies Inc., Intermet, JJM, LLC, Cerberus Partners, L.P.,
and ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, and the "Sale Documents" (as defined therein) and (ii)
the Stock Purchase Agreement, dated as of November 16, 1999, among the Sellers
listed on the signature pages thereto, Diversified Diemakers, Inc., Intermet,
JJM, LLC, Cerberus Partners, L.P., and ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, and the "Sale
Documents" (as defined therein).
"Target Existing Indebtedness" means all Indebtedness listed on Schedule
4.05(m) of either of the Stock Purchase Agreements described in the definition
of "Target Acquisition Documents."
"Targets" shall mean Ganton Technologies Inc., an Illinois corporation, and
Diversified Diemakers, Inc., a Delaware corporation.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
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"Telerate" shall mean, when used in connection with any designated page and
LIBOR, the display page so designated on the Dow ▇▇▇▇▇ Telerate Service (or such
other page as may replace that pace on that service for the purpose of
displaying rates comparable to LIBOR).
"Term Loans" shall mean, collectively, all outstanding Loans made to
Intermet by the Lenders pursuant to Section 2.01(a) hereof.
"Term Notes" shall mean, collectively, the promissory notes evidencing the
Term Loans in the form attached hereto as Exhibit A, either as originally
executed or as hereafter amended, modified or substituted.
"364-Day Credit Agreement" shall mean the 364-Day Credit Agreement, dated
as of November 5, 1999 (as amended, modified, restated or supplemented from time
to time), among Intermet, the various financial institutions that are or may
become parties thereto, and BNS, as administrative agent.
"Total Assets" shall mean the total assets of the Consolidated Companies,
determined in accordance with GAAP.
"Total Sales" shall mean, for any period of determination, the total
revenues of the Consolidated Companies, determined in accordance with GAAP.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate Advances
or Eurodollar Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise defined
or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP, except that financial records of
Foreign Subsidiaries may be maintained in accordance with generally accepted
accounting principles in effect from time to time in the jurisdiction of
organization of such Foreign Subsidiary; provided, however, that compliance with
the financial covenants and calculations set forth in Section 6.08, Article VII,
and elsewhere herein, and in the definitions used in such covenants and
calculations, shall be calculated, made and applied in accordance with GAAP and
such generally accepted accounting principles in such foreign jurisdictions, as
the case may be, as in effect on the date of this Agreement applied on a basis
consistent with the preparation of the financial statements referred to in
Section 5.14 unless and until Intermet and the Required Lenders enter into an
agreement with respect thereto in accordance with Section 10.13.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article,
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Section, Schedule, Exhibit and like references are to this Agreement unless
otherwise specified. Any of the terms defined in Section 1.01 may, unless the
context otherwise requires, be used in the singular or the plural depending on
the reference.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
ARTICLE II.
TERM LOANS
SECTION 2.01. COMMITMENTS; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth, each
Lender severally agrees to make to Intermet on the Closing Date, loans (each
such loan, a "Term Loan") in an aggregate amount not to exceed such Lender's
Commitment, subject, however, to the conditions that (i) at no time shall the
outstanding principal amount of all Term Loans exceed the sum of the
Commitments, and (ii) at all times shall the outstanding principal amount of the
Term Loans of each Lender equal the product of each Lender's Pro Rata Share of
the Commitments multiplied by the aggregate outstanding amount of the Term
Loans. Term Loans which are repaid or prepaid by Intermet may not be reborrowed.
No Loans may be made after the Closing Date.
(b) The initial Borrowing of Term Loans on the Closing Date shall consist
entirely of Base Rate Advances. Each Loan shall, at the option of Intermet, be
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances or Eurodollar Advances. The aggregate
principal amount of each Borrowing of Loans shall be not less than $5,000,000 or
a greater integral multiple of $1,000,000, provided that each Borrowing of Loans
comprised of Base Rate Advances shall be not less than $1,000,000 or a greater
integral multiple of $100,000 and provided, further, that this sentence shall
not otherwise apply to the initial Borrowing of Term Loans. At no time shall the
number of outstanding Borrowings comprised of Eurodollar Advances exceed eight
(8).
(c) The proceeds of Loans shall be used solely to finance the Target
Acquisition.
SECTION 2.02. NOTES; REPAYMENT OF PRINCIPAL.
(a) Intermet's obligations to pay the principal of, and interest on, the
Loans to each Lender shall be evidenced by the records of the Administrative
Agent and such Lender and by the Term Note payable to such Lender completed in
conformity with this Agreement.
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(b) All outstanding principal amounts under the Commitments shall be due
and payable in full on the Maturity Date.
ARTICLE III.
GENERAL LOAN TERMS
SECTION 3.01. FUNDING NOTICES.
(a) Intermet shall give the Administrative Agent a duly completed Notice of
Borrowing in the form of Exhibit D-1 attached hereto prior to 11:00 AM (local
time for the Administrative Agent) at its Payment Office on the Closing Date. If
the Notice of Borrowing does not conform substantially to the format of Exhibit
D-1, it may be rejected in the Administrative Agent's sole discretion, and the
Administrative Agent shall notify Intermet of such rejection by telecopy not
later than 12:00 noon (Atlanta, Georgia time) on the date of receipt. The Notice
of Borrowing shall be irrevocable and shall specify the aggregate principal
amount of the Borrowing, the date of Borrowing (which shall be the Closing
Date), and that the Borrowing is to consist entirely of Base Rate Advances.
(b) Whenever Intermet desires to convert all or a portion of an outstanding
Borrowing, which Borrowing consists of Base Rate Advances or Eurodollar
Advances, into one or more Borrowings consisting of Advances of another Type, or
to continue outstanding a Borrowing consisting of Eurodollar Advances for a new
Interest Period, it shall give the Administrative Agent a duly completed Notice
of Conversion/Continuation in the form of Exhibit D-2 attached hereto, such
Notice of Conversion/Continuation to be given at least three Business Days prior
to each such Borrowing to be converted into or continued as Eurodollar Advances.
Such Notice of Conversion/Continuation shall be given prior to 11:00 AM (local
time for the Administrative Agent) on the date specified at the Payment Office
of the Administrative Agent. Notices received after 11:00 AM (local time for the
Administrative Agent) shall be deemed received on the next Business Day. A
Notice of Conversion/ Continuation that does not conform substantially to the
format of Exhibit D-2 may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall notify Intermet of such rejection
by telecopy not later than 12:00 noon (Atlanta, Georgia time) on the date of
receipt. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the Advances are
being converted into or continued Eurodollar Advances and, if so, the Interest
Period applicable thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing, Intermet shall have failed to deliver the Notice of
Conversion/Continuation, Intermet shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long
as any Executive Officer of Intermet has knowledge that any Default or Event of
Default shall have occurred and be continuing, no Borrowing may be converted
into or continued as (upon expiration of the current Interest Period) Eurodollar
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Advances unless the Administrative Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any Borrowing of Eurodollar
Advances shall be permitted except on the last day of the Interest Period in
respect thereof.
(c) Without in any way limiting Intermet's obligation to confirm in writing
any telephonic notice, the Administrative Agent may act without liability upon
the basis of telephonic notice believed by the Administrative Agent in good
faith to be from Intermet prior to receipt of written confirmation. In each such
case, Intermet hereby waives the right to dispute the Administrative Agent's
record of the terms of such telephonic notice.
(d) The Administrative Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telex, telecopy or facsimile transmission
of the matters covered by the notices given to the Administrative Agent pursuant
to this Section 3.01 with respect to the Commitments.
SECTION 3.02. DISBURSEMENT OF FUNDS.
(a) No later than 2:00 PM (local time for the Administrative Agent) on the
Closing Date, each Lender will make available its Pro Rata Share of the Loans in
immediately available funds at the Payment Office of the Administrative Agent.
The Administrative Agent will make available to Intermet the aggregate of the
amounts (if any) so made available by the Lenders to the Administrative Agent in
a timely manner by crediting such amounts to Intermet's demand deposit account
maintained with the Administrative Agent or at Intermet's option, effecting a
wire transfer of such amounts to an account specified by Intermet, by the close
of business on such Business Day. In the event that the Lenders do not make such
amounts available to the Administrative Agent by the time prescribed above, but
such amount is received later that day, such amount may be credited to Intermet
in the manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business Day).
(b) [Reserved].
(c) Unless the Administrative Agent shall have been notified by any Lender
prior to 12:00 Noon on the Closing Date that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the Borrowing to
be made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date and the
Administrative Agent may make available to Intermet a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender on the Closing Date, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify Intermet, and Intermet
shall immediately pay such corresponding amount to the
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Administrative Agent together with interest at the rate specified for the
Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its Commitment hereunder or to prejudice any rights which
Intermet may have against any Lender as a result of any default by such Lender
hereunder.
(d) All Loans under the Commitments shall be loaned by the Lenders on the
basis of their Pro Rata Share of the Commitments. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Commitments hereunder.
SECTION 3.03. INTEREST.
(a) Intermet agrees to pay interest in respect of all unpaid principal
amounts of Loans from the respective dates such principal amounts were advanced
to maturity (whether by acceleration, notice of prepayment or otherwise) at
rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The relevant Base Rate in effect from time
to time plus the Base Rate Margin; or
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate plus the
Applicable Margin.
(b) Overdue principal and, to the extent not prohibited by applicable law,
overdue interest, in respect of the Loans, and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect to all
Loans outstanding as Eurodollar Advances, at the rate otherwise applicable
for the then-current Interest Period plus an additional two percent (2.0%)
per annum; thereafter at the rate in effect for Base Rate Advances plus an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with respect to all
other Loans outstanding as Base Rate Advances, and all other Obligations
hereunder (other than Loans), at a rate in effect for Base Rate Advances
plus an additional two percent (2.0%) per annum;
(c) Interest on each Loan shall accrue from and including the date of such
Loan to but excluding the date of any repayment thereof; provided that, if a
Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all Base Rate Advances shall be payable monthly in arrears on
the last calendar day of each calendar month.
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Interest on all outstanding Eurodollar Advances shall be payable on the last day
of each Interest Period applicable thereto, and, in the case of Interest Periods
in excess of three months, on each day which occurs every 3 months, as the case
may be, after the initial date of such Interest Period. Interest on all Loans
shall be payable on any conversion of any Advances comprising such Loans into
Advances of another type, prepayment (on the amount prepaid), at maturity
(whether by acceleration, notice of prepayment or otherwise) and, after
maturity, on demand; and
(d) The Administrative Agent, upon determining the Adjusted LIBO Rate for
any Interest Period, shall promptly notify by telephone (confirmed in writing)
or in writing Intermet and the other Lenders. Any such determination shall,
absent manifest error, be final, conclusive and binding for all purposes.
SECTION 3.04. INTEREST PERIODS.
(a) In connection with the continuation of, or conversion into, each
Borrowing of Eurodollar Advances, Intermet shall select an Interest Period to be
applicable to such Eurodollar Advances, which Interest Period shall be either a
1, 2, 3 or 6 month period.
(b) Notwithstanding paragraph (a) above:
(i) The initial Interest Period for any Borrowing of Eurodollar Advances
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing consisting of Advances of another Type) and each
Interest Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day, provided that if any Interest Period in respect of Eurodollar Advances
would otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which begins on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period shall, subject to part (iv) below, expire on
the last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend beyond the
Maturity Date.
SECTION 3.05. FEES. Intermet shall pay to the Arrangers (including BNS) for
their own accounts, such fees in the amounts and on the dates set forth in the
Fee Letters.
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SECTION 3.06. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Intermet may, at its option, prepay Borrowings consisting of Base Rate
Advances at any time in whole, or from time to time in part, in amounts
aggregating $100,000 or any greater integral multiple of $100,000, by paying the
principal amount to be prepaid together with interest accrued and unpaid thereon
to the date of prepayment. Those Borrowings consisting of Eurodollar Advances
may be prepaid, at Intermet's option, in whole, or from time to time in part, in
amounts aggregating $1,000,000 or any greater integral multiple of $100,000, by
paying the principal amount to be prepaid, together with interest accrued and
unpaid thereon to the date of prepayment, and all compensation payments pursuant
to Section 3.12 if such prepayment is made on a date other than the last day of
an Interest Period applicable thereto. Each such optional prepayment shall be
applied in accordance with Section 3.06(c) below.
(b) Intermet shall give written notice (or telephonic notice confirmed in
writing) to the Administrative Agent of any intended prepayment of the Loans (i)
prior to 12:00 noon (local time for the Administrative Agent), on the date of
any prepayment of Base Rate Advances and (ii) not less than three Business Days
prior to any prepayment of Eurodollar Advances. Such notice, once given, shall
be irrevocable. Upon receipt of such notice of prepayment, the Administrative
Agent shall promptly notify each Lender of the contents of such notice and of
such Lender's share of such prepayment.
(c) Intermet, when providing notice of prepayment pursuant to Section
3.06(b), may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid provided that each prepayment made pursuant
to a single Borrowing shall be applied pro rata among the Advances comprising
such Borrowing. In the absence of a designation by Intermet, the Administrative
Agent shall, subject to the foregoing, make such designation in its sole
discretion. All voluntary prepayments shall be applied to the payment of
interest on the Borrowings prepaid before application to principal.
SECTION 3.07. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all payments under
this Agreement and the other Credit Documents shall be made without defense,
set-off or counterclaim to the Administrative Agent not later than 1:00 PM
(local time for the Administrative Agent) on the date when due and shall be made
in Dollars in immediately available funds at its Payment Office.
(b) (i) All such payments shall be made free and clear of and without
set-off, deduction or withholding for any Taxes in respect of this Agreement,
the Notes or other Credit Documents, or any payments of principal, interest,
fees or other amounts payable hereunder or thereunder (but excluding, except as
provided in paragraph (iii) hereof, any Taxes imposed on the overall net income
of any Lender pursuant to the laws of the jurisdiction in which the principal
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executive office or appropriate Lending Office of such Lender is located).
If any Taxes are so levied or imposed, Intermet agrees (A) to pay the full
amount of such Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the Notes and other
Credit Documents, after withholding or deduction for or on account of any such
Taxes (including additional sums payable under this Section 3.07), will not be
less than the full amount provided for herein had no such deduction or
withholding been required, (B) to make such withholding or deduction and (C) to
pay the full amount deducted to the relevant authority in accordance with
applicable law. Intermet will furnish to the Administrative Agent and each
Lender, within 30 days after the date the payment of any Taxes is due pursuant
to applicable law, certified copies of tax receipts evidencing such payment by
Intermet. Intermet will indemnify and hold harmless the Administrative Agent and
each Lender and reimburse the Administrative Agent and each Lender upon written
request for the amount of any Taxes so levied or imposed and paid by the
Administrative Agent or Lender and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes were correctly or illegally asserted. A certificate as to the amount of
such payment by such Lender or the Administrative Agent, absent manifest error,
shall be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction other
than the United States of America or any State thereof (including the District
of Columbia) agrees to furnish to Intermet and the Administrative Agent, prior
to the time it becomes a Lender hereunder, two copies of either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any
successor forms thereto (wherein such Lender claims entitlement to complete
exemption from or reduced rate of U.S. Federal withholding tax on interest paid
by Intermet hereunder) and to provide to Intermet and the Administrative Agent a
new Form 4224 or Form 1001 or any successor forms thereto if any previously
delivered form is found to be incomplete or incorrect in any material respect or
upon the obsolescence of any previously delivered form; provided, however, that
no Lender shall be required to furnish a form under this paragraph (ii) if it is
not entitled to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law, promptly upon written request
of Intermet, shall so inform Intermet in writing.
(iii) Intermet shall also reimburse the Administrative Agent and each
Lender, upon written request, for any Taxes imposed (including, without
limitation, Taxes imposed on the overall net income of the Administrative Agent
or Lender or its applicable Lending Office pursuant to the laws of the
jurisdiction in which the principal executive office or the applicable Lending
Office of the Administrative Agent or Lender is located) as the Administrative
Agent or Lender shall determine are payable by the Administrative Agent or
Lender in respect of amounts paid by or on behalf of Intermet to or on behalf of
the Administrative Agent or Lender pursuant to paragraph (i) hereof.
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(c) Subject to Section 3.04(b)(ii), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed), except that
interest on Base Rate Advances shall be computed on the basis of a year of
365/366 days for the actual number of days. Interest on Base Rate Advances shall
be calculated based on the Base Rate from and including the date of such Loan to
but excluding the date of the repayment or conversion thereof. Interest on
Eurodollar Advances shall be calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
(e) Payment by Intermet to the Administrative Agent in accordance with the
terms of this Agreement shall, as to Intermet, constitute payment to the Lenders
under this Agreement.
SECTION 3.08. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that the
Administrative Agent shall have determined (which determination shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all parties) that on any date for determining the Adjusted LIBO Rate for
any Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Administrative Agent's
position in such market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
Adjusted LIBO Rate then, and in any such event, the Administrative Agent shall
forthwith give notice (by telephone confirmed in writing) to Intermet and to the
Lenders, of such determination and a summary of the basis for such
determination. Until the Administrative Agent notifies Intermet that the
circumstances giving rise to the suspension described herein no longer exist,
the obligations of the Lenders to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest Periods as Eurodollar
Advances shall be suspended, and such affected Advances shall bear interest at
the Base Rate (or at such other rate of interest per annum as Intermet and each
of the Administrative Agent and the Lenders shall have agreed to in writing).
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SECTION 3.09. ILLEGALITY.
(a) In the event that any Lender shall have determined (which determination
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to Intermet
and to the Administrative Agent of such determination and a summary of the basis
for such determination (which notice the Administrative Agent shall promptly
transmit to the other Lenders).
(b) Upon the giving of the notice to Intermet referred to in subsection (a)
above, (i) Intermet's right to request and such Lender's obligation to make
Eurodollar Advances shall be immediately suspended, and such Lender shall make
an Advance as part of the requested Borrowing of Eurodollar Advances, bearing
interest at the Base Rate plus the applicable Base Rate Margin (or at such other
rate of interest per annum as Intermet and each of the Administrative Agent and
such Lender shall have agreed to in writing), which Base Rate Advance shall, for
all other purposes, be considered part of such Borrowing, and (ii) if the
affected Eurodollar Advance or Advances are then outstanding, each such Advance
shall be automatically converted into a Base Rate Advance, provided that if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 3.09(b).
SECTION 3.10. INCREASED COSTS.
(a) (i) If, by reason of (x) after the date hereof, the introduction of or
any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not having
the force of law):
(1) any Lender (or its applicable Lending Office) shall be subject to
any tax, duty or other charge with respect to its Eurodollar Advances or
its obligation to make Eurodollar Advances, or the basis of taxation of
payments to any Lender of the principal of or interest on its Eurodollar
Advances or its obligation to make Eurodollar Advances shall have changed
(except for changes in the tax on the overall net income of such Lender or
its applicable Lending Office imposed by the jurisdiction in which such
Lender's principal executive office or applicable Lending Office is
located); or
(2) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or
similar
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requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender's applicable Lending Office shall be imposed
or deemed applicable or any other condition affecting its Eurodollar
Advances or its obligation to make Eurodollar Advances shall be imposed on
any Lender or its applicable Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate), or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office; or
(ii) in the event that any Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy not currently in effect or fully applicable as of the
Closing Date, or any change therein or in the interpretation or application
thereof after the Closing Date, or compliance by such Lender with any request or
directive regarding capital adequacy not currently in effect or fully applicable
as of the Closing Date (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) from a central bank or
governmental authority or body having jurisdiction, does or shall have the
effect of reducing the rate of return on such Lender's capital as a consequence
of its obligations hereunder to a level below that which such Lender could have
achieved but for such law, treaty, rule, regulation, guideline or order, or such
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then, in the case of (i) or (ii) above, upon written notice from and demand by
such Lender on Intermet (with a copy of such notice and demand to the
Administrative Agent), Intermet shall from time to time (subject, in the case of
certain Taxes, to the applicable provisions of Section 3.07(b)) pay to the
Administrative Agent for the account of such Lender within five Business Days
after the date of such notice and demand, additional amounts sufficient to
indemnify such Lender against such increased cost or reduced yield. A
certificate as to the amount of such increased cost or reduced yield submitted
to Intermet and the Administrative Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Administrative Agent that at any time,
because of the circumstances described in clauses (x) or (y) in Section 3.10(a)
or any other circumstances beyond such Lender's reasonable control arising after
the date of this Agreement affecting such Lender or the London interbank market
or such Lender's position in such markets, the Adjusted LIBO Rate as determined
by the Administrative Agent, will not adequately and fairly reflect the cost to
such Lender of funding its Eurodollar Advances, then, and in any such event:
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(i) the Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to Intermet and to the other Lenders of such advice;
(ii) Intermet's right to request and such Lender's obligation to make
or permit portions of the Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar Advances shall be
immediately suspended; and
(iii) such Lender shall make an Advance as part of the requested
Borrowing of Eurodollar Advances, as the case may be, bearing interest at
the Base Rate plus the applicable Base Rate Margin (or at such other rate
of interest per annum as Intermet and each of the Administrative Agent and
such Lender shall have agreed to in writing), which Base Rate Advance
shall, for all other purposes, be considered part of such Borrowing.
SECTION 3.11. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Intermet, it will use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate an alternate Lending Office with respect to any of its Eurodollar
Advances affected by the matters or circumstances described in Sections 3.07(b),
3.08, 3.09 or 3.10 to reduce the liability of Intermet or avoid the results
provided thereunder, so long as such designation is not disadvantageous to such
Lender as determined by such Lender, which determination if made in good faith,
shall be conclusive and binding on all parties hereto. Nothing in this Section
3.11 shall affect or postpone any of the obligations of Intermet or any right of
any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the closing
of its lending offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be required to be
made by Intermet thereafter pursuant to Section 3.07(b), such Lender shall use
reasonable efforts to furnish Intermet notice thereof as soon as practicable
thereafter; provided, however, that no delay or failure to furnish such notice
shall in any event release or discharge Intermet from its obligations to such
Lender pursuant to Section 3.07(b) or otherwise result in any liability of such
Lender.
SECTION 3.12. FUNDING LOSSES. Intermet shall compensate each Lender, upon
its written request to Intermet (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Advances, in either case to
the extent not recovered by such Lender in connection with the re-employment of
such funds and including loss of anticipated profits), which the Lender may
sustain: (i) if for any reason (other than a default by
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such Lender) a conversion to or continuation of, Eurodollar Advances to Intermet
does not occur on the date specified therefor in a Notice of
Conversion/Continuation (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and conversions pursuant to Section 3.09(b)) of
any Eurodollar Advances by Intermet occurs on a date which is not the last day
of an Interest Period applicable thereto, or (iii) if, for any reason, Intermet
defaults in its obligation to repay its Eurodollar Advances when required by the
terms of this Agreement.
SECTION 3.13. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
Calculation of all amounts payable to a Lender under this Article III shall be
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Eurodollar Advances in an amount equal to the amount of
the Eurodollar Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that Lender in the United
States of America; provided however, that each Lender may fund each of its
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall
be used only for calculation of amounts payable under this Article III.
SECTION 3.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments in respect of Loans shall be apportioned among all outstanding
Commitments and Loans to which such payments relate, proportionately to the
Lenders' respective pro rata portions of such Commitments and outstanding Loans.
The Administrative Agent shall promptly distribute to each Lender at its Payment
Office set forth beside its name on Schedule 10.01 or such other address as any
Lender may request its share of all such payments received by the Administrative
Agent.
SECTION 3.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders and
Administrative Agent of such receipt, and (ii) purchase from the other Lenders
such participations in the affected obligations as shall be necessary to cause
such purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender obligated to
return such funds is required to pay interest on such funds. Intermet agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 3.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of Intermet in
the amount of such participation.
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SECTION 3.16. BENEFITS TO GUARANTORS. In consideration of the execution and
delivery by the Guarantors of the Guaranty Agreement, Intermet agrees, subject
to the terms hereof, to make extensions of credit hereunder available to the
Guarantors.
SECTION 3.17. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or Administrative Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Section 3.07 no later
than 90 days after the earlier of (i) the date on which such Lender or
Administrative Agent makes payment of such Taxes, and (ii) the date on which the
relevant taxing authority or other governmental authority makes written demand
upon such Lender or Administrative Agent for payment of such Taxes.
(b) Each Lender or Administrative Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Section 3.12 no later
than 90 days after the event giving rise to the claim for indemnification or
compensation occurs.
(c) Each Lender or Administrative Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Section 3.10 no later
than 90 days after such Lender or Administrative Agent receives actual notice or
obtains actual knowledge of the promulgation of a law, rule, order or
interpretation or occurrence of another event giving rise to a claim pursuant to
such sections.
(d) In the event that the Lenders or Administrative Agent fail to give
Intermet notice within the time limitations prescribed in (a) or (b) above,
Intermet shall not have any obligation to pay such claim for compensation or
indemnification. In the event that any Lender or Administrative Agent fails to
give Intermet notice within the time limitation prescribed in (c) above,
Intermet shall not have any obligation to pay any amount with respect to claims
accruing prior to the ninetieth day preceding such written demand.
SECTION 3.18. [RESERVED].
SECTION 3.19. FAILURE TO MAINTAIN MINIMUM REQUIRED RATING. If any Lender
has either (a) had its long-term deposit rating reduced below the Minimum
Required Rating by either Rating Agency, or (b) in the case of a Lender that is
a party to this Agreement on the Closing Date and has, on such date, a long-term
deposit rating from the Rating Agencies below the applicable Minimum Required
Rating, such Lender has received from either Rating Agency a reduction in its
long-term deposit rating from the rating in effect on the Closing Date, such
Lender, will, upon the request of the Administrative Agent, assign at par its
Commitment and all of its right, title and interest in and to any Loans
outstanding thereunder, to an Eligible Assignee designated by the Administrative
Agent and acceptable to Intermet in accordance with the terms of this Agreement.
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ARTICLE IV.
CONDITIONS TO BORROWING
The obligations of each Lender to make Advances to Intermet hereunder is
subject to the satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO LOANS. On the Closing Date, all
obligations of Intermet hereunder incurred prior to such date (including,
without limitation, Intermet's obligations to reimburse the reasonable fees and
expenses of counsel to the Administrative Agent and any fees and expenses
payable to the Administrative Agent, the Lenders (including BNS and the other
Arrangers) and their Affiliates pursuant to the Fee Letters or as otherwise
previously agreed with Intermet), shall have been paid in full, and the
Administrative Agent shall have received the following, in form and substance
reasonably satisfactory in all respects to the Administrative Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly executed Term Notes evidencing the Commitments;
(c) the duly executed Guaranty Agreement;
(d) certificate of Intermet in substantially the form of Exhibit F attached
hereto and appropriately completed:
(e) certificates of the Secretary or Assistant Secretary of each of the
Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company
officer) attaching and certifying copies of the resolutions of the boards of
directors (or, in the case of any Foreign Subsidiary, the comparable governing
body of such entity) of the Credit Parties, authorizing as applicable the
execution, delivery and performance of the Credit Documents;
(f) certificates of the Secretary or an Assistant Secretary of each of the
Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company
officer) certifying (i) the name, title and true signature of each officer of
such entities executing the Credit Documents, and (ii) the bylaws or comparable
governing documents of such entities;
(g) certified copies of the certificate or articles of incorporation of
each Credit Party (or comparable organizational document) certified by the
Secretary of State or the Secretary or Assistant Secretary of such Credit Party,
together with certificates of good standing or existence, as may be available
from the Secretary of State (or comparable office or registry for each Foreign
Subsidiary) of the jurisdiction of incorporation or organization of such Credit
Party;
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(h) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of Law
(including, without limitation, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended) or by any material Contractual Obligation of the Credit
Parties, in connection with the Target Acquisition or the execution, delivery,
performance, validity and enforceability of the Credit Documents and the other
documents to be executed and delivered hereunder, and such consents,
authorizations, filings and orders shall be in full force and effect and all
applicable waiting periods shall have expired without any requests for
additional information;
(i) an internally prepared draft of Intermet's consolidated financial
statements for the fiscal period ending September 30, 1999, certified by the
chief financial officer of Intermet;
(j) [reserved];
(k) certificates, reports and other information as the Administrative Agent
may reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations arising
from matters relating to employees of the Consolidated Companies, including
employee relations, collective bargaining agreements, Plans, Foreign Plans, and
other compensation and employee benefit plans;
(l) certificates, reports, environmental audits and investigations, and
other information as the Administrative Agent may reasonably request from any
Consolidated Company in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from environmental and employee
health and safety exposures to which the Consolidated Companies may be subject,
and the plans of the Consolidated Companies with respect thereto;
(m) certificates, reports and other information as the Administrative Agent
may reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations arising
from litigation (including without limitation, products liability and patent
infringement claims) pending or threatened against the Consolidated Companies;
(n) a summary, set forth in format and detail reasonably acceptable to the
Administrative Agent, of the types and amounts of insurance (property and
liability) maintained by the Consolidated Companies;
(o) (i) the favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, counsel to the
Credit Parties, substantially in the form of Exhibit G-1, addressed to the
Administrative Agent and each of the Lenders, (ii) the favorable opinion of
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Georgia counsel to the Credit Parties,
substantially in the form of Exhibit G-2, addressed to the Administrative Agent
and each of the Lenders and (iii) the favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
special
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New York counsel to the Administrative Agent, substantially in the form of
Exhibit G-3, addressed to the Administrative Agent and each of the Lenders;
(p) all corporate proceedings and all other legal matters in connection
with the authorization, legality, validity and enforceability of the Credit
Documents shall be reasonably satisfactory in form and substance to the Required
Lenders;
(q) copies of each of the Target Acquisition Documents fully executed by
the parties thereto and of all material instruments, agreements and other
documents required to be delivered or furnished thereunder or in connection
therewith (including, in the case of opinions of counsel to Intermet, if any,
reliance letters expressly permitting the Administrative Agent and the Lenders
to rely thereon as if such opinions had been addressed thereto), in each case
certified by an Executive Officer of Intermet, and, except as expressly
permitted by the Administrative Agent and the Required Lenders, none of the
terms of the Target Acquisition (including any condition precedent to Intermet's
performance thereof or obligation to consummate the Target Acquisition) shall
have been amended, waived or otherwise modified in any respect;
(r) evidence that, after giving effect to the Loans to be made hereunder on
the Closing Date and the application thereof by Intermet, the Target Acquisition
shall have been or shall be duly consummated in accordance with the Target
Acquisition Documents for an amount not to exceed $285,000,000 (including
payment of the purchase price for the Targets, payment in full and termination
of the Target Existing Indebtedness and payment of all related fees and expenses
in connection with either of the foregoing) without amendment, waiver or other
modification thereof unless the Administrative Agent and the Required Lenders
shall have expressly consented thereto in writing;
(s) evidence that each of the Five-Year Credit Agreement and the 364-Day
Credit Agreement shall have been amended to provide that the "Applicable Margin"
(as defined therein) shall be no less than 2.00%, the "Base Rate Margin" (as
defined therein) shall be no less than 1.00%, and the "Applicable Commitment Fee
Percentage" (as defined therein) shall be no less than 0.375% under the
Five-Year Credit Agreement or 0.350% under the 364-Day Credit Agreement, in each
case for the first six months following the Closing Date;
(t) evidence that each Target and Intermet Holding Company, a Delaware
corporation, shall have executed and delivered counterparts to the "Guaranty
Agreement" under each of the Five-Year Credit Agreement and the 364-Day Credit
Agreement, together with the other documents required by Section 6.10 thereof;
and
(u) evidence that Intermet shall have complied in all respects with Section
7.03 of the Five-Year Credit Agreement and the 364-Day Credit Agreement,
including, without limitation, in the case of subsection (c)(ii) thereof, all
back-up information and assumptions made in connection therewith.
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SECTION 4.02. ADDITIONAL CONDITIONS TO LOANS. At the time of the making of
the Loans (before as well as after giving effect to such Loans and to the
proposed use of the proceeds thereof to finance the Target Acquisition), the
following conditions shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Intermet contained herein shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 5.14, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect (whether or not any notice with respect to such change has been
furnished to the Lenders pursuant to Section 6.07);
(d) there shall be no action or proceeding instituted or pending before any
court or other governmental authority or, to the knowledge of Intermet,
threatened (i) which reasonably could be expected to have a Materially Adverse
Effect, (ii) seeking to prohibit or restrict the Target Acquisition, or (iii)
seeking to prohibit or restrict one or more Credit Party's ownership or
operation of any portion of its business or assets, or to compel one or more
Credit Party to dispose of or hold separate all or any portion of its businesses
or assets, where such portion or portions of such business(es) or assets, as the
case may be, constitute a material portion of the total businesses or assets of
the Consolidated Companies; and
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Administrative Agent or any
Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority applicable to
Intermet.
Each request for a Borrowing and the acceptance by Intermet of the proceeds
thereof shall constitute a representation and warranty by Intermet, as of the
date of the Loans comprising such Borrowing, that the applicable conditions
specified in Sections 4.01 and 4.02 have been satisfied or waived in writing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Intermet (as to itself and all other Consolidated Companies (including,
without limitation, the Targets)) represents and warrants as follows:
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SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Except as set forth
on Schedule 5.01(a), each of the Consolidated Companies (other than the German
Subsidiaries set forth in the next sentence) is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. Each of Columbus Neunkirchen Foundry GmbH, Intermet Machining
GmbH and Intermet Holding Deutschland GmbH is a German company with limited
liability duly organized, validly existing and in good standing under the laws
of Germany. Each of the Consolidated Companies (i) has the corporate power and
authority and the legal right to own and operate its property and to conduct its
business, (ii) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership of property or the
conduct of its business requires such qualification, and (iii) is in compliance
with all Requirements of Law, except where the failure to duly qualify or to
comply with applicable Requirements of Law would not have a Materially Adverse
Effect. The jurisdiction of incorporation or organization, and the ownership of
all issued and outstanding capital stock and other equity interests, for each
Subsidiary as of the date of this Agreement is accurately described on Schedule
5.01.
SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the Credit Parties
has the corporate power and authority to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance of such Credit Documents.
Except for the amendment required by Section 6.11, no consent or authorization
of, or filing with, any Person (including, without limitation, any governmental
authority), is required in connection with the execution, delivery or
performance by any Credit Party, or the validity or enforceability against any
Credit Party, of the Credit Documents, other than such consents, authorizations
or filings which have been made or obtained (other than routine filings with the
Securities and Exchange Commission).
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement has been duly
executed and delivered, and each other Credit Document will be duly executed and
delivered, by the respective Credit Parties, and this Agreement constitutes, and
each other Credit Document when executed and delivered will constitute, legal,
valid and binding obligations of the Credit Parties, respectively, enforceable
against the Credit Parties in accordance with their respective terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
SECTION 5.04. NO LEGAL BAR. Except for the amendment required by Section
6.11, the execution, delivery and performance by the Credit Parties of the
Credit Documents will not violate any Requirement of Law or cause a breach or
default under any of their respective Contractual Obligations.
SECTION 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS. Except as set forth
on Schedule 5.05 or in any notice furnished to the Lenders pursuant to Section
6.07(g) at or prior to the respective times the representations and warranties
set forth in this Section 5.05 are made or
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deemed to be made hereunder, no litigation, investigations or proceedings of or
before any courts, tribunals, arbitrators or governmental authorities are
pending or, to the knowledge of Intermet, threatened by or against any of the
Consolidated Companies, or against any of their respective properties or
revenues, existing or future (a) with respect to any Credit Document, or any of
the transactions contemplated hereby or thereby, or (b) which, if adversely
determined, would reasonably be expected to have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the Consolidated
Companies is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Consolidated Companies is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting its
ability to incur indebtedness for money borrowed, guarantee such indebtedness,
or pledge its assets to secure such indebtedness, as contemplated hereby or by
any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of any of the
Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) Except as set forth on Schedule 5.08 attached hereto, the Consolidated
Companies have received no notices of claims or potential liability under, and
are in compliance with, all applicable Environmental Laws, where such claims and
liabilities under, and failures to comply with, such statutes, regulations,
rules, ordinances, laws or licenses, would reasonably be expected to have a
Materially Adverse Effect.
(b) Except as set forth on Schedule 5.08 attached hereto, none of the
Consolidated Companies has received any notice of violation, or notice of any
action, either judicial or administrative, from any governmental authority
(whether United States or foreign) relating to the actual or alleged violation
of any Environmental Law, including, without limitation, any notice of any
actual or alleged spill, leak, or other release of any Hazardous Substance,
waste or hazardous waste by any Consolidated Company or its employees or agents,
or as to the existence of any contamination on any properties owned by any
Consolidated Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to have a Materially Adverse Effect.
(c) Except as set forth on Schedule 5.08 attached hereto, the Consolidated
Companies have obtained all necessary governmental permits, licenses and
approvals which are material to the operations conducted on their respective
properties, including without limitation, all required material permits,
licenses and approvals for (i) the emission of air pollutants or contaminants,
(ii) the treatment or pretreatment and discharge of waste water or storm water,
(iii)
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the treatment, storage, disposal or generation of hazardous wastes, (iv) the
withdrawal and usage of ground water or surface water, and (v) the disposal of
solid wastes.
SECTION 5.09. INSURANCE. The Consolidated Companies currently maintain
insurance with respect to their respective properties and businesses, with
financially sound and reputable insurers, having coverages against losses or
damages of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance being in amounts no less than those
amounts which are customary for such companies under similar circumstances. The
Consolidated Companies have paid all material amounts of insurance premiums now
due and owing with respect to such insurance policies and coverages, and such
policies and coverages are in full force and effect.
SECTION 5.10. NO DEFAULT. Except for the amendment required by Section
6.11, none of the Consolidated Companies is in default under or with respect to
any Contractual Obligation in any respect which is having or is reasonably
expected to have a Materially Adverse Effect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. Except as set forth on Schedule
5.11 or for the amendment required by Section 6.11 or in any notice furnished to
the Lenders pursuant to Section 6.07 at or prior to the respective times the
representations and warranties set forth in this Section 5.11 are made or deemed
to be made hereunder, none of the Consolidated Companies is a party to or bound
by any Contractual Obligation or Requirement of Law which has had or would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.12. TAXES. Except as set forth on Schedule 5.12, each of the
Consolidated Companies has filed or caused to be filed all declarations, reports
and tax returns which are required to have been filed, and has paid all taxes,
custom duties, levies, charges and similar contributions ("taxes" in this
Section 5.12) shown to be due and payable on said returns or on any assessments
made against it or its properties, and all other taxes, fees or other charges
imposed on it or any of its properties by any governmental authority (other than
those the amount or validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided in its books); and no tax liens have been filed and, to
the knowledge of Intermet, no claims are being asserted with respect to any such
taxes, fees or other charges.
SECTION 5.13. SUBSIDIARIES. Except as disclosed on Schedule 5.01 or in any
notice given to the Lenders pursuant to Section 6.07 at or prior to the
respective times this representation and warranty is made or deemed to be made
hereunder, Intermet has no Subsidiaries and neither Intermet nor any Subsidiary
is a joint venture partner, partner in any partnership or member of a limited
liability company.
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SECTION 5.14. FINANCIAL STATEMENTS.
(a) Intermet has furnished to the Administrative Agent and the Lenders (i)
the audited consolidated balance sheet as of December 31, 1998 of Intermet and
the related consolidated statements of income, shareholders' equity and cash
flows for the fiscal year then ended, including in each case the related
schedules and notes, (ii) the unaudited balance sheet of Intermet presented on a
consolidated basis as at the end of the third fiscal quarter of 1999, and the
related unaudited consolidated statements of income, shareholders' equity and
cash flows presented on a consolidated basis for the year-to-date period then
ended, setting forth in each case in comparative form the figures for the
corresponding quarter of Intermet's previous fiscal year. The foregoing
financial statements fairly present in all material respects the consolidated
financial condition of Intermet as at the dates thereof and results of
operations for such periods in conformity with GAAP consistently applied
(subject, in the case of the quarterly financial statements, to normal year-end
audit adjustments and the absence of certain footnotes).
(b) Intermet has furnished to the Administrative Agent and the Lenders (i)
the audited consolidated balance sheets as of December 31, 1998 of the Targets
and the related consolidated statements of income, shareholders' equity and cash
flows for the fiscal year then ended, including in each case the related
schedules and notes, (ii) the unaudited balance sheets of the Targets presented
on a consolidated basis as at October 31, 1999, and the related unaudited
consolidated statements of income, shareholders' equity and cash flows presented
on a consolidated basis for the year-to-date period then ended, setting forth in
each case in comparative form the figures for the corresponding period of the
Targets' previous fiscal year. The foregoing financial statements fairly present
in all respects, except where the failure to so present would not be reasonably
expected to have a Materially Adverse Effect, the consolidated financial
condition of the Targets as at the dates thereof and results of operations for
such periods in conformity with GAAP consistently applied (subject, in the case
of the interim financial statements, to normal year-end audit adjustments and
the absence of certain footnotes).
(c) Intermet has furnished to the Administrative Agent and the Lenders the
pro-forma balance sheet of Intermet presented on a consolidated basis as at the
end of the third fiscal quarter of 1999. The foregoing balance sheet fairly
presents in all respects, except where the failure to so present would not be
reasonably expected to have a Materially Adverse Effect, the consolidated
financial condition of Intermet as at the date thereof, after giving effect to
the Target Acquisition.
(d) The 5-year projections for the Consolidated Companies included in the
Confidential Information Memorandum dated December 1999, which was provided to
the Administrative Agent and the Lenders prior to the date hereof, were prepared
by Intermet in good faith and based upon historical financial information and
assumptions that Intermet deems reasonable and appropriate.
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(e) The Consolidated Companies taken as a whole do not have any material
contingent obligations, contingent liabilities, or material liabilities for
known taxes, long-term leases or unusual forward or long-term commitments not
reflected in the financial statements mentioned in this Section 5.14 or the
notes thereto. Since December 31, 1998, there have been no changes with respect
to the Consolidated Companies which has had or would reasonably be expected to
have a Materially Adverse Effect.
SECTION 5.15. ERISA. Except as disclosed on Schedule 5.15 or in any notice
furnished to the Lenders pursuant to Section 6.07 at or prior to the respective
times the representations and warranties set forth in this Section 5.15 are made
or deemed to be made hereunder:
(a) (1) Identification of Plans. (A) None of the Consolidated Companies nor
any of their respective ERISA Affiliates maintains or contributes to, or has
during the past two years maintained or contributed to, any Plan that is subject
to Title IV of ERISA, and (B) none of the Consolidated Companies maintains or
contributes to any Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan maintained by the
Consolidated Companies have at all times been maintained, by their terms and in
operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including without
limitation, any tax or penalty under Title I or Title IV of ERISA or under
Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404, or 419 of the Tax Code, where the failure to
comply with such laws, and such taxes and penalties, together with all other
liabilities referred to in this Section 5.15 (taken as a whole), would in the
aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to no liabilities
(including withdrawal liabilities) with respect to any Plans or Foreign Plans of
such Consolidated Companies or any of their ERISA Affiliates, including without
limitation, any liabilities arising from Titles I or IV of ERISA, other than
obligations to fund benefits under an ongoing Plan and to pay current
contributions, expenses and premiums with respect to such Plans or Foreign
Plans, where such liabilities, together with all other liabilities referred to
in this Section 5.15 (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect to any Plan which
is subject to Title IV of ERISA, each of their respective ERISA Affiliates, have
made full and timely payment of all amounts (A) required to be contributed under
the terms of each Plan and applicable law, and (b) required to be paid as
expenses (including PBGC or other premiums) of each Plan, where the failure to
pay such amounts (when taken as a whole, including any penalties attributable to
such amounts) would have a Materially Adverse Effect. No Plan subject to Title
IV of ERISA has an "amount of unfunded benefit liabilities" (as defined in
Section 4001(a)(18) of ERISA, determined as if such Plan terminated on any date
on which this
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representation and warranty is deemed made, in any amount which, together with
all other liabilities referred to in this Section 5.15 (taken as a whole), would
have a Materially Adverse Effect if such amount were then due and payable. The
Consolidated Companies are subject to no liabilities with respect to
post-retirement medical benefits in any amounts which, together with all other
liabilities referred to in this Section 5.15 (taken as a whole), would have a
Materially Adverse Effect if such amounts were then due and payable.
(b) With respect to any Foreign Plan, reasonable reserves have been
established in accordance with prudent business practice or where required by
generally accepted accounting practices in the jurisdiction where the Foreign
Subsidiary maintains its principal place of business or in which the Foreign
Plan is maintained. The aggregate unfunded liabilities, after giving effect to
any reserves for such liabilities, with respect to such Foreign Plans, together
with all other liabilities referred to in this Section 5.15 (taken as a whole),
would not have a Materially Adverse Effect.
SECTION 5.16. PATENTS, TRADEMARKS, LICENSES, ETC. Except as set forth on
Schedule 5.16 or in any notice furnished to the Lenders pursuant to Section 6.07
at or prior to the respective times the representations and warranties set forth
in this Section 5.16 are made or deemed to be made hereunder, (i) the
Consolidated Companies have obtained and hold in full force and effect all
material patents, trademarks, service marks, trade names, copyrights, licenses
and other such rights, free from burdensome restrictions, which are necessary
for the operation of their respective businesses as presently conducted, and
(ii) to the best of Intermet's knowledge, no product, process, method, service
or other item presently sold by or employed by any Consolidated Company in
connection with such business infringes any patents, trademark, service ▇▇▇▇,
trade name, copyright, license or other right owned by any other person and
there is not presently pending, or to the knowledge of Intermet, threatened, any
claim or litigation against or affecting any Consolidated Company contesting
such Person's right to sell or use any such product, process, method, substance
or other item where the result of such failure to obtain and hold such benefits
or such infringement would have a Materially Adverse Effect.
SECTION 5.17. OWNERSHIP OF PROPERTY. Except as set forth on Schedule 5.17,
(i) each Consolidated Company that is not a Foreign Subsidiary has good and
marketable fee simple title to or a valid leasehold interest in all of its real
property and good title to, or a valid leasehold interest in, all of its other
property and (ii) each Foreign Subsidiary owns or has a valid leasehold interest
in all of its real property and owns or has a valid leasehold interest in, all
of its other properties, in the case of clauses (i) and (ii) as such properties
are reflected in the consolidated balance sheet of the Consolidated Companies as
of December 31, 1998 referred to in Section 5.14, other than properties disposed
of in the ordinary course of business since such date or as otherwise permitted
by the terms of this Agreement, subject to no Lien or title defect of any kind,
except Liens permitted hereby and title defects not constituting material
impairments in the intended use for such properties. The Consolidated Companies
enjoy peaceful and undisturbed possession under all of their respective leases.
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SECTION 5.18. FINANCIAL CONDITION. On the Closing Date and after giving
effect to the transactions contemplated by this Agreement and the other Credit
Documents, including without limitation, the use of the proceeds of the Loans to
finance the Target Acquisition as provided in Section 2.01, each of the Credit
Parties is Solvent.
SECTION 5.19. LABOR MATTERS. Since December 31, 1998, the Consolidated
Companies have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of
Intermet, there are no such strikes, disputes, slow downs or work stoppages
threatened against any Consolidated Company which if they occurred, would
reasonably be expected to have a Materially Adverse Effect. Since December 31,
1998, the hours worked and payment made to employees of the Consolidated
Companies have not been in violation in any material respect of the Fair Labor
Standards Act (in the case of Consolidated Companies that are not Foreign
Subsidiaries) or any other applicable law dealing with such matters. All
payments due from the Consolidated Companies, or for which any claim may be made
against the Consolidated Companies, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as liabilities on
the books of the Consolidated Companies in all jurisdictions where the failure
to pay or accrue such liabilities would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.20. PAYMENT OR DIVIDEND RESTRICTIONS. Except as set forth in
Section 7.05 or described on Schedule 5.20 or as expressly permitted by the
terms of this Agreement, none of the Consolidated Companies is party to or
subject to any agreement or understanding restricting or limiting the payment of
any dividends or other distributions by any such Consolidated Company.
SECTION 5.21. DISCLOSURE. None of the factual information heretofore or
contemporaneously furnished in writing to any Lender or Agent by or on behalf of
any Credit Party in connection with any Credit Document or any transaction
contemplated hereby (including, without limitation, the Target Acquisition)
contains any untrue statement of a material fact, or omits to state any material
fact necessary to make any information not misleading, and no other factual
information hereafter furnished in connection with any Credit Document by or on
behalf of any Credit Party to any Lender or Agent will contain any untrue
statement of a material fact or will omit to state any material fact necessary
to make any information not misleading on the date as of which such information
is dated or certified. Except as may be set forth herein (including the
Schedules attached hereto) or in any notice furnished to the Lenders pursuant to
Section 6.07 at or prior to the respective times the representations and
warranties set forth in this Section 5.21 are made or deemed to be made
hereunder, there is no fact known to Intermet which is having, or is reasonably
expected to have, a Materially Adverse Effect.
SECTION 5.22. YEAR 2000 COMPLIANCE. The Consolidated Companies have
developed and budgeted for a comprehensive program to address the "Year 2000
problem" (that
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is, the inability of computers, as well as embedded microchips in non-computing
devices, to perform properly date-sensitive functions with respect to certain
dates prior to and after December 31, 1999). The Consolidated Companies have
implemented that program substantially in accordance with its timetable and
budget and will substantially avoid the Year 2000 problem as to all computers,
as well as embedded microchips in non-computing devices, that are material to
the Consolidated Companies' business, properties or operations. The Consolidated
Companies have developed feasible contingency plans adequately to ensure
uninterrupted and unimpaired business operation in the event of failure of their
own or a third party's systems or equipment due to the Year 2000 problem,
including those of vendors, customers, and suppliers, as well as a general
failure of or interruption in its communications and delivery infrastructure.
SECTION 5.23. TARGET ACQUISITION DOCUMENTS. The representations and
warranties contained in the Target Acquisition Documents (true and correct
copies of which, together with all schedules and exhibits thereto, have been
delivered to the Lenders), are true and correct in all respects, except where
the failure to be so true and correct would not be reasonably expected to have a
Materially Adverse Effect. As of the date of the Target Acquisition, (i)
Intermet shall have taken all necessary actions to authorize the Target
Acquisition; and (ii) no representation made by Intermet in any notices or
filings with the shareholders of Intermet, with the Securities and Exchange
Commission or any applicable state securities commissions or with any
governmental authority, including, without limitation, any representations
concerning any agreement with, or financing provided by, the Lenders, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not misleading
as of the time when made or delivered.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note or other
Obligation shall remain unpaid, Intermet will (unless waived in writing by the
Required Lenders):
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence
(except for mergers, divestitures and consolidations permitted pursuant to
Section 7.03), its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, service marks and other intellectual property rights, necessary or
desirable in the normal conduct of its business, and its qualification to do
business as a foreign corporation in all jurisdictions where it conducts
business or other activities making such qualification necessary, where the
failure to be so qualified would reasonably be expected to have a Materially
Adverse Effect.
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SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws) and Contractual Obligations applicable to or
binding on any of them where the failure to comply with such Requirements of Law
and Contractual Obligations would reasonably be expected to have a Materially
Adverse Effect.
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of its
Subsidiaries to pay, (i) all taxes, duties, levies, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained in its books with respect
thereto in accordance with GAAP.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account in accordance with GAAP, containing
complete and accurate entries of all their respective financial and business
transactions.
SECTION 6.05. VISITATION, INSPECTION, ETC. Permit, and cause each of its
Subsidiaries to permit, any representative of the Administrative Agent or any
Lender to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
and as often as the Administrative Agent or such Lender may reasonably request
after reasonable prior notice to Intermet; provided, however, that at any time
following the occurrence and during the continuance of a Default or an Event of
Default, no prior notice to Intermet shall be required.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound and reputable
insurers, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the kinds
customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts as are
customary for such companies under similar circumstances; provided, however,
that in any event Intermet shall use its best efforts to maintain, or cause to
be maintained, insurance in amounts and with coverages not materially less
favorable to any Consolidated Company as in effect on the date of this
Agreement, except where the costs of maintaining such insurance would, in the
judgment of both Intermet and the Administrative Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, settlements and improvements thereof, all
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as in the judgment of Intermet may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 6.06 shall prevent
Intermet from discontinuing the operation or maintenance of any such properties
if such discontinuance is, in the judgment of Intermet, desirable in the conduct
of its business or the business of any Consolidated Company.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in any event
within 90 days after the end of each fiscal year of Intermet, balance sheets of
the Consolidated Companies as at the end of such year, presented on a
consolidated basis, and the related statements of income, and cash flows of the
Consolidated Companies for such fiscal year, presented on a consolidated basis,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and accompanied by a report thereon of
Ernst & Young, LLP or other independent public accountants of comparable
recognized national standing, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at the end of
such fiscal year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal year in
accordance with GAAP and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and in any event
within 60 days after the end of each fiscal quarter of Intermet (other than the
fourth fiscal quarter), balance sheets of the Consolidated Companies as at the
end of such quarter presented on a consolidated basis and the related statements
of income, shareholders' equity, and cash flows of the Consolidated Companies
for such fiscal quarter and for the portion of Intermet's fiscal year ended at
the end of such quarter, presented on a consolidated basis setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of Intermet's previous fiscal year, all in reasonable
detail and certified by the chief financial officer or principal accounting
officer of Intermet that such financial statements fairly present in all
material respects the financial condition of the Consolidated Companies as at
the end of such fiscal quarter on a consolidated basis, and the results of
operations and statements of cash flows of the Consolidated Companies for such
fiscal quarter and such portion of Intermet's fiscal year, in accordance with
GAAP consistently applied (subject to normal year-end audit adjustments and the
absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the financial
statements required pursuant to subsection (b) above, and also within 60 days
after the end of each fiscal year of Intermet, a certificate substantially in
the form of Exhibit I attached hereto of the president, chief executive officer,
chief financial officer or principal accounting officer of Intermet (i) to the
effect that, based upon a review of the activities of the Consolidated Companies
and such financial statements during the period covered thereby, there exists no
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Event of Default and no Default under this Agreement, or if there exists an
Event of Default or a Default hereunder, specifying the nature thereof and the
proposed response thereto, and (ii) demonstrating in reasonable detail
compliance as at the end of such fiscal year or such fiscal quarter with Section
6.08 and Sections 7.01 through 7.06;
(d) Auditor's No Default Certificate. Together with the financial
statements required pursuant to subsection (a) above, a certificate of the
accountants who prepared the report referred to therein, to the effect that,
based upon their audit, there exists no Default or Event of Default under this
Agreement, or if there exists a Default or Event of Default hereunder,
specifying the nature thereof;
(e) [reserved];
(f) Notice of Default. Promptly after any Executive Officer of Intermet has
notice or knowledge of the occurrence of an Event of Default or a Default, a
certificate of the chief financial officer or principal accounting officer of
Intermet specifying the nature thereof and the proposed response thereto;
(g) Litigation and Investigations. Promptly after (i) the occurrence
thereof, notice of the institution of or any material adverse development in any
material action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company, or
any material property of any thereof, or (ii) actual knowledge thereof, notice
of the threat of any such action, suit, proceeding, investigation or
arbitration;
(h) Environmental Notices. Promptly after receipt thereof, notice of any
actual or alleged violation, or notice of any action, claim or request for
information, either judicial or administrative, from any governmental authority
relating to any actual or alleged claim, notice of potential responsibility
under or violation of any Environmental Law, or any actual or alleged spill,
leak, disposal or other release of any waste, petroleum product, or hazardous
waste or Hazardous Substance by any Consolidated Company which could result in
penalties, fines, claims or other liabilities to any Consolidated Company in
amounts in excess of $5,000,000;
(i) ERISA. (A)(i) Promptly after the occurrence thereof with respect to any
Plan of any Consolidated Company or any ERISA Affiliate thereof, or any trust
established thereunder, notice of (A) a "reportable event" described in Section
4043 of ERISA and the regulations issued from time to time thereunder (other
than a "reportable event" not subject to the provisions for 30-day notice to the
PBGC under such regulations), or (B) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or Title IV
of ERISA or Chapter 43 of the Tax Code, or any tax or penalty resulting from a
loss of deduction under Sections 404 or 419 of the Tax Code, or any tax, penalty
or liability under any
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Requirement of Law applicable to any Foreign Plan, where any such taxes,
penalties or liabilities exceed or could exceed $5,000,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC, or to a Plan
participant, beneficiary or alternative payee, any notice required under Section
101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under
Section 401(a)(29) or 412 of the Tax Code with respect to any Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any Consolidated
Company or any ERISA Affiliate thereof concerning the intent of the PBGC or any
other governmental authority to terminate a Plan of such Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA, to impose any liability
on such Company or ERISA Affiliate under Title IV of ERISA or Chapter 43 of the
Tax Code;
(iv) Upon the request of the Administrative Agent, promptly upon the filing
thereof with the Internal Revenue Service ("IRS") or the Department of Labor
("DOL"), a copy of IRS Form 5500 or annual report for each Plan of any
Consolidated Company or ERISA Affiliate thereof which is subject to Title IV of
ERISA;
(v) Upon the request of the Administrative Agent, (A) true and complete
copies of any and all documents, government reports and IRS determination or
opinion letters or rulings for any Plan of any Consolidated Company from the
IRS, PBGC or DOL, (B) any reports filed with the IRS, PBGC or DOL with respect
to a Plan of the Consolidated Companies or any ERISA Affiliate thereof, or (C) a
current statement of withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(B) Promptly upon any Consolidated Company becoming aware thereof, notice
that (i) any material contributions to any Foreign Plan have not been made by
the required due date for such contribution and such default cannot immediately
be remedied, (ii) any Foreign Plan is not funded to the extent required by the
law of the jurisdiction whose law governs such Foreign Plan based on the
actuarial assumptions reasonably used at any time, or (iii) a material change is
anticipated to any Foreign Plan that may have a Materially Adverse Effect.
(j) Liens. Promptly upon any Consolidated Company becoming aware thereof,
notice of the filing of any federal statutory Lien, tax or other state or local
government Lien or any other Lien affecting their respective properties, other
than those Liens expressly permitted by Section 7.02;
(k) Public Filings, Etc. Promptly upon the filing thereof or otherwise
becoming available, copies of all financial statements, annual, quarterly and
special reports, proxy statements and notices sent or made available generally
by Intermet to its public security holders, of all regular and periodic reports
and all registration statements and prospectuses, if any, filed by any of them
with any securities exchange, and of all press releases and other
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statements made available generally to the public containing material
developments in the business or financial condition of Intermet and the other
Consolidated Companies;
(l) Burdensome Restrictions, Etc. Promptly upon the existence or occurrence
thereof, notice of the existence or occurrence of (i) any Contractual Obligation
or Requirement of Law described in Section 5.11, (ii) failure of any
Consolidated Company to hold in full force and effect those material trademarks,
service marks, patents, trade names, copyrights, licenses and similar rights
necessary in the normal conduct of its business, and (iii) any strike, labor
dispute, slow down or work stoppage as described in Section 5.19;
(m) New Subsidiaries. Within 30 days after the formation or acquisition of
any Subsidiary, or any other event resulting in the creation of a new
Subsidiary, or the domestication of any Foreign Subsidiary, notice of the
formation or acquisition of such Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it will be
engaged, and such other information as the Administrative Agent may request; and
(n) Other Information. With reasonable promptness, any other information
provided under the Note Purchase Agreement and such other information about the
Consolidated Companies as the Administrative Agent or any Lender may reasonably
request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. Maintain as of the last day of each fiscal
quarter, a Fixed Charge Coverage Ratio equal to or greater than 1.50:1.0.
(b) Consolidated EBITDA to Consolidated Interest Expense. Maintain as of
the last day of each fiscal quarter, a minimum ratio of Consolidated EBITDA to
Consolidated Interest Expense, calculated for the immediately preceding four
fiscal quarters, of equal to or greater than 3.50:1.0.
(c) Funded Debt to Consolidated EBITDA. Maintain as of the last day of each
fiscal quarter, a maximum ratio of Funded Debt to Consolidated EBITDA,
calculated for the immediately preceding four fiscal quarters, of less than or
equal to 3.50:1.0.
(d) Third Fiscal Quarter 1999 Calculations. Schedule 6.08 sets forth the
calculation of the financial covenant amounts, ratios, and percentages required
by paragraphs (a) through (c) of this Section 6.08 calculated as of September
30, 1999.
SECTION 6.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. Immediately upon
its receipt thereof, Intermet shall furnish the Administrative Agent a copy of
any notice received by it or any other Consolidated Company from the holder(s)
of Indebtedness of the Consolidated Companies (or from any trustee, agent,
attorney, or other party acting on behalf of such holder(s))
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in an amount which, in the aggregate, exceeds $5,000,000, where such notice
states or claims (i) the existence or occurrence of any default or event of
default with respect to such Indebtedness under the terms of any indenture, loan
or credit agreement, debenture, note, or other document evidencing or governing
such Indebtedness, or (ii) the existence or occurrence of any event or condition
which requires or permits holder(s) of any Indebtedness to exercise rights under
any Change in Control Provision.
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL.
(a) Unless the Required Lenders otherwise agree, promptly after (i) the
formation or acquisition (provided that nothing in this Section shall be deemed
to authorize the acquisition of any entity not otherwise permitted hereunder) of
any Subsidiary not listed on Schedule 5.01 (unless such Subsidiary holds no
assets and conducts no business), (ii) the domestication of any Foreign
Subsidiary, (iii) the occurrence of any other event creating a new Subsidiary,
or (iv) Intermet desires that an existing Subsidiary which is designated as
"inactive" on Schedule 5.01 be designated as "active", Intermet shall cause to
be executed and delivered a counterpart to the Guaranty Agreement from each such
Subsidiary that is not a Foreign 956 Subsidiary, together with related documents
with respect to such Subsidiary of the kind described in Section 4.01(e), (f),
(g), (h) and (o), all in form and substance satisfactory to the Administrative
Agent and the Required Lenders.
(b) In the event that any Foreign Subsidiary ceases to be a Foreign 956
Subsidiary, Intermet shall cause to be executed and delivered a counterpart to
the Guaranty Agreement from such Foreign Subsidiary.
SECTION 6.11. AMENDMENT TO NOTE PURCHASE AGREEMENT. Promptly, and in any
event no later than January 4, 2000, deliver or cause to be delivered to the
Administrative Agent in form and substance satisfactory to the Administrative
Agent and the Required Lenders an amendment to the Note Purchase Agreement
permitting the Credit Parties to enter into the Credit Documents and incur the
Obligations.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note or other
Obligation shall remain unpaid, Intermet will not and will not permit any
Subsidiary to (unless waived in writing by the Required Lenders):
SECTION 7.01. INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, other than:
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(a) Indebtedness under this Agreement or otherwise outstanding on the
Closing Date as set forth on Schedule 7.01 attached hereto;
(b) unsecured current liabilities (other than liabilities for borrowed
money or liabilities evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of business;
(c) Indebtedness of Intermet pursuant to the Note Purchase Agreement;
(d) Investments in the form of intercompany loans permitted by Section
7.06(a) hereof;
(e) Subordinated Debt which is unsecured and approved as to terms and
conditions by the Administrative Agent and the Required Lenders;
(f) Indebtedness of a Person which is acquired by or consolidated with a
Consolidated Company as long as such Indebtedness is not obtained in
contemplation of such acquisition;
(g) purchase money Indebtedness to the extent secured by a Lien permitted
pursuant to Section 7.02(g); and
(h) other Indebtedness of Intermet (including, without limitation,
Indebtedness under the Five-Year Credit Agreement and the 364-Day Credit
Agreement) which is pari passu in all material respects with the Obligations,
without limiting the foregoing, such Indebtedness will not have the benefit of
any security or guaranties not benefitting the Obligations and will have
representations and warranties, covenants, events of default and conditions to
borrowing which are not more restrictive than the provisions of this Agreement.
SECTION 7.02. LIENS. Create, incur, assume or suffer to exist any Lien on
any of its property now owned or hereafter acquired other than:
(a) Liens existing on the Closing Date and disclosed on Schedule 7.02 and
Liens in favor of the Administrative Agent and/or the Lenders to secure the
Obligations;
(b) Liens for taxes not yet due, and Liens for taxes or Liens imposed by
ERISA which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in its books in
accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate
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proceedings and with respect to which adequate reserves are being maintained in
its books in accordance with GAAP;
(d) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(e) Liens securing Indebtedness permitted by Section 7.01(g) or 7.01(h);
(f) to the extent that, on any date of determination, the value of Margin
Stock of Intermet and its Subsidiaries, whether now owned or hereafter acquired,
in the aggregate exceeds twenty-five percent (25%) of the value of the total
assets of Intermet and its Subsidiaries on such date which assets are subject to
the restrictions of this Section 7.2, Liens encumbering such excess Margin
Stock;
(g) Liens arising in connection with any Permitted Receivables Purchase
Facility; and
(h) Liens (other than those permitted by paragraphs (a) through (g) of this
Section 7.02) encumbering assets having an Asset Value not greater than twenty
percent (20%) of Consolidated Net Worth of Intermet in the aggregate at any one
time.
SECTION 7.03. MERGERS, ACQUISITIONS, DIVESTITURES.
(a) Merge or consolidate with any other Person, except that the foregoing
restrictions shall not be applicable to:
(i) mergers or consolidations of (x) any Subsidiary with and into any
other Subsidiary which is a Guarantor or (y) any Subsidiary with and into
Intermet; or
(ii) mergers or consolidations which result in Acquisitions of Persons
engaged in businesses in which Intermet is engaged on the Closing Date or
substantially related thereto and as otherwise permitted by Section 7.10 of
this Agreement where the surviving corporation is a wholly-owned Subsidiary
of Intermet (or will become a wholly-owned Subsidiary within six (6) months
of such Acquisition) and such Acquisition is in compliance with subsection
(c) hereof;
provided that before and after giving effect to any such mergers or
consolidations, (w) Intermet is in compliance with Section 6.08 hereof (as
demonstrated by delivery of pro forma financial covenants calculations prepared
in compliance with clause (c) hereof); (x) no other Default or Event of Default
exists hereunder; (y) in the event of such merger or consolidation, the
surviving
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Person is a Consolidated Company and complies with Section 6.10 hereof, if
applicable, and (z) Intermet is the surviving corporation in connection with any
merger or consolidation to which it is a party;
(b) Sell or otherwise dispose of the capital stock of a Subsidiary of
Intermet except as permitted pursuant to Section 7.04(c); or
(c) make or permit any Acquisition other than an Acquisition of Persons
engaged in businesses in which Intermet is engaged on the Closing Date or
substantially related thereto and as otherwise permitted pursuant to Section
7.10 of this Agreement; provided that:
(i) after giving effect to such Acquisition, assets comprising such
Acquisition are owned by Intermet or a wholly-owned Subsidiary of Intermet,
or, in the case of a stock purchase, such Person is a wholly-owned
Subsidiary of Intermet or is merged into Intermet or a wholly-owned
Subsidiary of Intermet;
(ii) prior to the consummation of such Acquisition, Intermet provides
to the Lenders calculations evidencing Intermet's compliance on a pro forma
basis with the financial covenants set forth in Section 6.08 hereof on the
last day of the immediately preceding fiscal quarter of Intermet,
calculated with respect to the immediately preceding four fiscal quarters
of Intermet as if the Acquisition (and any other Acquisitions previously
consummated during or after the immediately preceding four fiscal quarters
of Intermet) had been consummated on the first day of such period;
(iii) such Acquisition shall have been approved in advance by a
majority of the board of directors of the seller; and
(iv) no Default or Event of Default shall exist hereunder or shall
result therefrom and Intermet shall comply with the provisions of Section
6.10 hereof.
SECTION 7.04. ASSET SALES.
Sell, lease or otherwise dispose of its accounts, property, stock of its
Subsidiaries or other assets; provided, however, that the foregoing restrictions
on Asset Sales shall not be applicable to:
(a) sales of inventory in the ordinary course of business;
(b) sales of equipment or other personal property being replaced by other
equipment or other personal property purchased as a capital expenditure item; or
(c) Asset Sales comprised of stock of Subsidiaries or all or substantially
all of the assets of any Subsidiary where, on the date of execution of a binding
obligation to make such
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Asset Sale (provided that if the Asset Sale is not consummated within six (6)
months of such execution, then on the date of consummation of such Asset Sale
rather than on the date of execution of such binding obligation):
(x) at least 30 days (but not more than 60 days) prior to the
date of execution of such binding obligation (or, if the Asset Sale is
not consummated within six months of such execution, the date of
consummation of such Asset Sale), Intermet shall have delivered to the
Administrative Agent a notice of such Asset Sale (i) stating the nature
and terms of such Asset Sale (including, without limitation, a
description of the consideration payable by the purchaser) and the
nature and use of the proceeds of the transaction and (ii) including
calculations of the pro forma financial tests contained in clause (y)
below; and
(y) on a pro forma basis, after giving effect to such Asset
Sale and the use of proceeds thereof as if such Asset Sale and use of
proceeds had occurred on the first day of the applicable period, the
calculations of the financial covenant ratios described in paragraphs
(a), (b) and (c) of Section 6.08 as of the last day of the fiscal
quarter most recently ended are in compliance with the requirements of
such paragraphs; or
(d) Other Asset Sales (other than sales of capital stock of
Subsidiaries or all or substantially all of the assets of any Subsidiary)
including, without limitation, dispositions of Permitted Receivables pursuant to
Permitted Receivables Purchase Facilities; or
(e) to the extent that, on any date of determination, the value of
Margin Stock of Intermet and its Subsidiaries, whether now owned or hereafter
acquired, in the aggregate exceeds twenty-five percent (25%) of the total assets
of Intermet and its Subsidiaries on such date which assets are subject to the
restriction of this Section 7.04, sales of such excess Margin Stock for fair
value where the proceeds of such sale are held by a Consolidated Company as cash
or invested in cash equivalents such as certificates of deposit, U.S. government
securities, commercial paper with a term of 90 days or less which is rated
A-1/P-1 or other money market instruments;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
(c) or (d) above shall be permitted if (i) any Default or Event of Default
exists at the time of such transaction or would exist as a result of such
transaction or (ii) on the date of execution of a binding obligation to make
such Asset Sale (provided that if the Asset Sale is not consummated within six
(6) months of such execution, then on the date of consummation of such Asset
Sale rather than on the date of execution of such binding obligation), after
giving effect to the proposed Asset Sale, the aggregate Asset Value of all Asset
Sales made pursuant to clauses (c) or (d) by the Consolidated Companies since
the Closing Date would not exceed twenty-five percent (25%) of Intermet's Net
Fixed Assets as of the last day of the most recently ended fiscal quarter of
Intermet.
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SECTION 7.05. DIVIDENDS, ETC. Declare or pay any dividend or other
distribution on any class of its stock, or make any payment to purchase, redeem,
retire or acquire any Subordinated Debt or stock or any option, warrant, or
other right to acquire such Subordinated Debt or stock (each, a "Restricted
Payment"), other than:
(i) dividends payable solely in shares of any class of its stock; and
(ii) cash dividends by wholly-owned direct or indirect Subsidiaries of
Intermet; and
(iii) other cash dividends declared and paid, and all other Restricted
Payments made, after the Closing Date in an aggregate amount not to exceed
the sum of (x) $25,000,000, plus (y) fifty percent (50%) of Consolidated
Net Income earned during the period commencing on September 30, 1999 and
ending on the last day of the most recently ended fiscal quarter of
Intermet (such period to be treated as one accounting period taking into
account 100% of Consolidated Net Losses during such period);
provided, however, no such dividend or other Restricted Payment may be declared
or paid pursuant to clause (iii) above unless no Default or Event of Default
exists at the time of such declaration or Restricted Payment, or would exist as
a result of such declaration or Restricted Payment.
SECTION 7.06. INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments other than:
(a) Investments in Subsidiaries which are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 6.10 after the Closing Date;
provided, however, nothing in this Section 7.06 shall be deemed to authorize an
Investment pursuant to this subsection (a) in any Person that is not a Guarantor
prior to such Investment;
(b) Investments in the following securities:
(i) direct obligations of the United States or any agency thereof,
or obligations guaranteed by the United States or any agency thereof, in
each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(ii) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(iii) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by, any
office located in the United
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States of any bank or trust company which is organized under the laws of
the United States or any state thereof and has capital, surplus and
undivided profits aggregating at least $500,000,000, including without
limitation, any such deposits in Eurodollars issued by a foreign branch of
any such bank or trust company;
(iv) mid-term notes of corporations existing under the laws of the
United States rated in the highest grade by a nationally recognized credit
rating agency;
(v) municipal "lower floater" bonds rated A or better (or backed by a
letter of credit rated A or better) by a nationally recognized credit rating
agency;
(c) Investments made by Plans and Foreign Plans;
(d) Investments outstanding on the Closing Date and listed on Schedule
7.06 hereto;
(e) Investments (other than those permitted by paragraphs (a) through (d)
above), including loans to employees, officers and other Persons (other than
Subsidiaries), in an aggregate amount not to exceed ten percent (10%) of
Consolidated Net Worth at any one time outstanding; and
(f) Investments after the Closing Date in Domestic Subsidiaries that are
not Guarantors in an aggregate amount not to exceed Five Million Dollars
($5,000,000).
SECTION 7.07. SALE AND LEASEBACK TRANSACTIONS. Sell or transfer any
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except as set forth on Schedule 7.07.
SECTION 7.08. TRANSACTIONS WITH AFFILIATES.
(a) Enter into any material transaction or series of related transactions
which in the aggregate would be material, whether or not in the ordinary course
of business, with any Affiliate of any Consolidated Company (but excluding any
Affiliate which is also a Consolidated Company), other than on terms and
conditions substantially as favorable to such Consolidated Company as would be
obtained by such Consolidated Company at the time in a comparable arm's-length
transaction with a Person other than an Affiliate; and
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations of any Consolidated Company, or convey or
transfer to any other Consolidated Company any other assets (excluding
conveyances or transfers in the ordinary course of business)
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if at the time of such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
SECTION 7.09. PREPAYMENTS OF SUBORDINATED DEBT IN VIOLATION THEREOF.
Directly or indirectly, prepay, purchase, redeem, retire, defease or otherwise
acquire, or make any optional payment on account of any principal of, interest
on, or premium payable in connection with any of its Subordinated Debt, in each
case, which is a violation of the subordination provisions of such Subordinated
Debt or a violation of Section 7.05.
SECTION 7.10. CHANGES IN BUSINESS. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies taken as a whole (which includes iron and aluminum foundry operations
and machining); provided that, Intermet and the Consolidated Companies may make
Acquisitions of, and Investments in (to the extent permitted by this Agreement),
Persons engaged in an unrelated business as long as the total revenues of such
Persons resulting from unrelated businesses (or total revenues generated by such
assets used in unrelated businesses in the case of a purchase of assets), as
determined for the most recently ended four fiscal quarters of such Person in
accordance with GAAP, do not exceed twenty percent (20%) of Total Sales of the
Consolidated Companies for the most recently ended four fiscal quarters of
Intermet.
SECTION 7.11. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
COMPANIES. Create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction on the ability of any Consolidated Company
to (i) pay dividends or make any other distributions on such Consolidated
Company's stock, or (ii) pay any indebtedness owed to Intermet or any other
Consolidated Company, or (iii) transfer any of its property or assets to
Intermet or any other Consolidated Company or (iv) ▇▇▇▇▇ ▇ ▇▇▇▇ in favor of the
Lenders securing the obligations, except any consensual encumbrance or
restriction existing under the Credit Documents or as set forth on Schedule
5.20.
SECTION 7.12. ACTIONS UNDER CERTAIN DOCUMENTS.
(a) Without the prior written consent of the Administrative Agent and the
Required Lenders, modify, amend or supplement the Note Purchase Agreement to (i)
increase the principal amount of the indebtedness thereunder, (ii) increase the
interest rate thereunder, (iii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or average life of
the indebtedness outstanding thereunder or make the requirement of prepayment
more onerous, or (iv) make any more onerous any other provision thereof.
(b) Without the prior written consent of the Administrative Agent and the
Required Lenders, modify, amend or supplement any agreement governing
Subordinated Debt to (i) increase the principal amount of the indebtedness
thereunder, (ii) increase the interest rate thereunder, (iii) modify any
requirement of prepayment or repayment thereunder which would shorten the final
maturity or average life of the indebtedness outstanding thereunder or make the
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requirement of prepayment more onerous, (iv) make any more onerous any other
provision thereof, or (v) amend or modify the subordination provisions thereof.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Intermet shall fail to make promptly when due
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Loans, or Intermet shall fail to make within five (5) days
after the due date thereof any payment of interest, fee or other amount payable
hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Intermet shall fail to observe or
perform any covenant or agreement contained in Sections 6.07(f), 6.08, 6.11,
7.01 through 7.07, 7.09 through 7.12;
SECTION 8.03. OTHER COVENANTS. Intermet shall fail to observe or perform
any covenant or agreement contained in this Agreement, other than those referred
to in Sections 8.01 and 8.02, and, if capable of being remedied, such failure
shall remain unremedied for thirty (30) days after the earlier of (i) Intermet's
obtaining knowledge thereof, or (ii) written notice thereof shall have been
given to Intermet by the Administrative Agent or any Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or warranty made or
deemed to be made by Intermet or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Administrative Agent or the Lenders by any such Person pursuant to the terms
of this Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or submitted;
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated Company
shall fail to make when due (whether at stated maturity, by acceleration, on
demand or otherwise, and after giving effect to any applicable grace period) any
payment of principal of or interest on any Indebtedness (other than the
Obligations) exceeding $5,000,000 in the aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate, or any other
event shall occur if the effect of such failure or other event is to accelerate,
or to permit the holder of such Indebtedness or any other Person to
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accelerate, the maturity of such Indebtedness; or any such Indebtedness shall be
required to be prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity; or there occurs any
termination, liquidation, unwind or similar event or circumstance under any
Permitted Receivables Purchase Facility, which permits any purchaser of
receivables thereunder to cease purchasing such receivables or to apply all
collections on previously purchased receivables thereunder to the repayment of
such purchaser's interest in such previously purchased receivables other than
any such event or circumstance that arises solely as a result of a down-grading
of the credit rating of any bank or financial institution not affiliated with
Intermet that provides liquidity, credit or other support in connection with
such facility;
SECTION 8.07. BANKRUPTCY. Intermet or any other Consolidated Company shall
commence a voluntary case concerning itself under the Bankruptcy Code or
applicable foreign bankruptcy laws; or an involuntary case for bankruptcy is
commenced against any Consolidated Company and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) or similar official
under applicable foreign bankruptcy laws is appointed for, or takes charge of,
all or any substantial part of the property of any Consolidated Company; or any
Consolidated Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether now or
hereafter in effect, relating to any Consolidated Company or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a period of 60 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable to pay,
or shall be unable to pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
SECTION 8.08. ERISA. A Plan or Foreign Plan of a Consolidated Company or a
Plan subject to Title IV of ERISA of any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan or Foreign
Plan, Section 412 of the Tax Code or Section 302 of ERISA for any plan year
or a waiver of such standard is sought or granted with respect to such Plan
or Foreign Plan under applicable law, the terms of such Plan or Foreign
Plan or Section 412 of the Tax Code or Section 303 of ERISA; or
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(ii) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan or Foreign Plan;
or
(iii) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan or Foreign Plan, Section 401 or 412
of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results for any reason, in a liability (including without
limitation, withdrawal liability) to a Consolidated Company under
applicable law, the terms of such Plan or Foreign Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC (or any similar Person with respect to any Foreign
Plan), a Plan or any other Person that would have a Materially Adverse Effect;
SECTION 8.09. MONEY JUDGMENT. A judgment or order for the payment of money
in excess of $5,000,000 or otherwise having a Materially Adverse Effect shall be
rendered against Intermet or any other Consolidated Company and such judgment or
order shall continue unsatisfied (in the case of a money judgment) and in effect
for a period of 30 days during which execution shall not be effectively stayed
or deferred (whether by action of a court, by agreement or otherwise);
SECTION 8.10. OWNERSHIP OF CREDIT PARTIES. If Intermet shall at any time
fail to own and control one hundred percent (100%) of the voting stock of any
Credit Party, either directly or indirectly through a wholly-owned Subsidiary of
Intermet, except for (x) as a result of any Asset Sale permitted pursuant to
Section 7.04(c) hereof, and (y) with respect to any Credit Party or Foreign
Subsidiary whose stock is acquired by one of the Consolidated Companies after
the Closing Date where Intermet shall, directly or indirectly, maintain
ownership and control of the percentage of voting stock owned and controlled as
of the date such Person became a Credit Party hereunder or a Foreign Subsidiary
or such greater percentage as shall thereafter be obtained, directly or
indirectly by Intermet;
SECTION 8.11. CHANGE IN CONTROL OF INTERMET. (i) Any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) shall
become the "beneficial owner(s)" (as defined in said Rule 13d-3) of more than
fifty percent (50%) of the shares of the outstanding capital stock of Intermet
entitled to vote for members of Intermet's board of directors on a fully diluted
basis, (ii) the individuals who are members of the board of directors of the
Company on the Closing Date (together with any new or replacement directors
whose initial nomination for election was approved by a majority of the
directors who were either directors on the Closing Date or previously so
approved) shall cease to constitute a majority of the board of directors of the
Company, or (iii) any event or condition shall occur or exist which, pursuant to
the terms of any Change in Control Provision, requires or permits the
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holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in whole or
in part, or the maturity of such Indebtedness to be accelerated in any respect;
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist or
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Intermet or
any other Credit Party, or at any time it is or becomes unlawful for Intermet or
any other Credit Party to perform or comply with its obligations under any
Credit Document, or the obligations of Intermet or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on Intermet
or any such Credit Party;
SECTION 8.13. ATTACHMENTS. An attachment or similar action shall be made on
or taken against any of the assets of any Consolidated Company with an Asset
Value exceeding $5,000,000 in aggregate and is not removed, suspended or
enjoined within 30 days of the same being made or any suspension or injunction
being lifted; or
SECTION 8.14. DEFAULT UNDER OTHER CREDIT AGREEMENTS. There shall exist or
occur any "Event of Default" as defined in either the Five-Year Credit Agreement
or the 364- Day Credit Agreement;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, with the consent of the
Required Lenders, and upon the written (including telecopied) or telex request
of the Required Lenders, shall, by written notice to Intermet take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against
Intermet or any other Credit Party: (i) declare all Commitments terminated,
whereupon the pro rata Commitments of each Lender shall terminate immediately;
and (ii) declare the principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder, to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by Intermet; provided, that, if an
Event of Default specified in Section 8.07 shall occur, the result which would
occur upon the giving of written notice by the Administrative Agent to any
Credit Party, as specified in clauses (i) and (ii) above, shall occur
automatically without the giving of any such notice; and (iii) exercise any
rights or remedies under the Security Documents.
ARTICLE IX.
THE ADMINISTRATIVE AGENT
SECTION 9.01. APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby
designates BNS as Administrative Agent to administer all matters concerning the
Loans and to
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act as herein specified. Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of a Note shall be deemed irrevocably to
authorize the Administrative Agent to take such actions on its behalf under the
provisions of this Agreement, the other Credit Documents, and all other
instruments and agreements referred to herein or therein, and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through their
agents or employees.
SECTION 9.02. AUTHORIZATION OF ADMINISTRATIVE AGENT WITH RESPECT TO THE
SECURITY DOCUMENTS.
(a) Each Lender hereby authorizes the Administrative Agent to enter into
each of the Security Documents substantially in the form attached hereto, and to
take all action contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Administrative Agent for the benefit of the
Administrative Agent and the Lenders and the other beneficiaries thereof upon
the terms thereof. The Lenders further agree that the Administrative Agent may
assign its rights and obligations under any of the Security Documents to any
affiliate of the Administrative Agent or to any trustee, if necessary or
appropriate under applicable law, which assignee in each such case shall
(subject to compliance with any requirements of applicable law governing the
assignment of such Security Documents) be entitled to all the rights of the
Administrative Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any Security
Document, the Administrative Agent shall have the right to grant or withhold any
consent, exercise any remedy, make any determination or direct any action by the
Administrative Agent under such Security Document, the Administrative Agent
shall act in respect of such consent, exercise of remedies, determination or
action, as the case may be, with the consent of and at the direction of the
Required Lenders; provided, however, that no such consent of the Required
Lenders shall be required with respect to any consent, determination or other
matter that is, in the Administrative Agent's judgment, ministerial or
administrative in nature. In each circumstance where any consent of or direction
from the Required Lenders is required, the Administrative Agent shall send to
the Lenders a notice setting forth a description in reasonable detail of the
matter as to which consent or direction is requested and the Administrative
Agent's proposed course of action with respect thereto. The Lenders shall
endeavor to respond promptly to such request but in the event the Administrative
Agent shall not have received a response from any Lender within five (5)
Business Days after such Lender's receipt of such notice, such Lender shall be
deemed not to have agreed to the course of action proposed by the Administrative
Agent.
SECTION 9.03. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The Administrative
Agent shall have no duties or except those expressly set forth in this Agreement
and the other Credit Documents. None of the Administrative Agent nor any of its
respective officers,
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directors, employees or agents shall be liable for any action taken or omitted
by it as such hereunder or in connection herewith, unless caused by its or their
gross negligence or willful misconduct. The duties of the Administrative Agent
shall be ministerial and administrative in nature; the Administrative Agent
shall not have by reason of this Agreement a fiduciary relationship in respect
of any Lender; and nothing in this Agreement, express or implied, is intended to
or shall be so construed as to impose upon the Administrative Agent any
obligations in respect of this Agreement or the other Credit Documents except as
expressly set forth herein.
SECTION 9.04. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
(a) Independently and without reliance upon the Administrative Agent, each
Lender, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
the Credit Parties in connection with the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the creditworthiness of the
Credit Parties, and, except as expressly provided in this Agreement, the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter.
(b) The Administrative Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreement or any other documents contemplated hereby or thereby, or the
financial condition of the Credit Parties, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement, the Notes, the Guaranty Agreement, or the other
documents contemplated hereby or thereby, or the financial condition of the
Credit Parties, or the existence or possible existence of any Default or Event
of Default; provided, however, to the extent that the Administrative Agent has
been advised that a Lender has not received any information formally delivered
to the Administrative Agent pursuant to Section 6.07, the Administrative Agent
shall deliver or cause to be delivered such information to such Lender.
SECTION 9.05. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative
Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
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SECTION 9.06. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Administrative
Agent may consult with legal counsel (including counsel for any Credit Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 9.07. INDEMNIFICATION OF ADMINISTRATIVE AGENT. To the extent the
Administrative Agent is not reimbursed and indemnified by the Credit Parties,
each Lender will reimburse and indemnify the Administrative Agent, ratably
according to the respective amounts of the Loans outstanding under all
Facilities (or if no amounts are outstanding, ratably in accordance with the
aggregate Commitments), in either case, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
the Administrative Agent in performing its duties hereunder, in any way relating
to or arising out of this Agreement or the other Credit Documents; provided that
no Lender shall be liable to the Administrative Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
SECTION 9.08. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to lend under this Agreement, the Loans made by it and
the Notes issued to it, the Administrative Agent shall have the same rights and
powers hereunder as any other Lender or holder of a Note and may exercise the
same as though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust, financial
advisory or other business with the Consolidated Companies or any affiliate of
the Consolidated Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Consolidated
Companies for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
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subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
SECTION 9.10. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and Intermet and may be removed with or without
cause by the Required Lenders; provided, however, the Administrative Agent may
not resign or be removed until a successor Administrative Agent has been
appointed and shall have accepted such appointment. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor
Administrative Agent subject to Intermet's prior written approval. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent subject to Intermet's prior written approval, which shall
be a bank which maintains an office in the United States, or a commercial bank
organized under the laws of the United States of America or any State thereof,
or any Affiliate of such bank, having a combined capital and surplus of at least
$100,000,000.
(b) Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article IX shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
an Administrative Agent under this Agreement.
SECTION 9.11. ARRANGERS AND OTHER AGENTS. Each Lender hereby designates
Bank One, Michigan as Syndication Agent and SunTrust Bank, Atlanta as
Documentation Agent. The Syndication Agent, the Documentation Agent and the
Arrangers, in such capacities, shall have no duties or obligations whatsoever
under this Agreement or any other Credit Document.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on Schedule 10.01, or
such other address or applicable
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teletransmission number as such party may hereafter specify by notice to the
Administrative Agent and Intermet. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, (iii) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section and the appropriate confirmation is
received, or (iv) if given by any other means (including, without limitation, by
air courier), when delivered or received at the address specified in this
Section; provided that notices to the Administrative Agent shall not be
effective until received.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Intermet and the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that no amendment, waiver or
consent shall, unless in writing and signed by Intermet and all the Lenders do
any of the following: (i) waive any of the conditions specified in Section 4.01
or 4.02, (ii) increase the Commitments or other contractual obligations to
Intermet under this Agreement, (iii) reduce the principal of, or interest on,
the Notes or any fees hereunder, (iv) postpone any date fixed for the payment in
respect of principal of, or interest on, the Notes or any fees hereunder, (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number or identity of Lenders which shall be
required for the Lenders or any of them to take any action hereunder, (vi) agree
to release any Guarantor from its obligations under the Guaranty Agreement or
release any collateral with respect to a Guarantor, except in connection with an
Asset Sale permitted pursuant to Section 7.04(c) above where no consent of the
Lenders shall be required for such release, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 10.02.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Administrative Agent, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit Document, and
no course of dealing between any Credit Party and the Administrative Agent, any
Lender or the holder of any Note shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right or remedy hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Administrative Agent, any Lender or the holder of
any Note would otherwise have. No notice to or demand on any Credit Party not
required hereunder or under any other Credit Document in any case shall entitle
any Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent,
the Lenders or the holder of any Note to any other or further action in any
circumstances without notice or demand.
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SECTION 10.04. PAYMENT OF EXPENSES, ETC. Intermet shall:
(i) pay all reasonable, out-of-pocket costs and expenses of the
Administrative Agent in the administration (both before and after the
execution hereof and including reasonable expenses actually incurred
relating to advice of counsel as to the rights and duties of the
Administrative Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the
other Credit Documents and the documents and instruments referred to
therein, and any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees actually incurred and disbursements
of counsel for the Administrative Agent), and in the case of enforcement of
this Agreement or any Credit Document after an Event of Default, all such
reasonable, out-of-pocket costs and expenses (including, without
limitation, the reasonable fees actually incurred and disbursements of
counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.07(b), pay and hold each Agent and the Lenders
harmless from and against any and all present and future stamp,
documentary, and other similar Taxes with respect to this Agreement, the
Notes and any other Credit Documents, any collateral described therein, or
any payments due thereunder, and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay
or omission to pay such Taxes;
(iii) indemnify each Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement, the Notes, or the
other Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Intermet shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct; and
(iv) without limiting the indemnities set forth above, indemnify
each Indemnitee for any and all expenses and costs (including without
limitation, remedial, removal, response, abatement, cleanup, investigative,
closure and monitoring costs), losses, claims (including claims for
contribution or indemnity and including the cost of investigating or
defending any claim and whether or not such claim is ultimately defeated,
and whether such claim arose before, during or after any Credit Party's
ownership,
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operation, possession or control of its business, property or facilities or
before, on or after the date hereof, and including also any amounts paid
incidental to any compromise or settlement by the Indemnitee or Indemnitees
to the holders of any such claim), lawsuits, liabilities, obligations,
actions, judgments, suits, disbursements, encumbrances, liens, damages
(including without limitation damages for contamination or destruction of
natural resources), penalties and fines of any kind or nature whatsoever
(including without limitation in all cases the reasonable fees actually
incurred, other charges and disbursements of counsel in connection
therewith) incurred, suffered or sustained by that Indemnitee based upon,
arising under or relating to Environmental Laws based on, arising out of or
relating to in whole or in part, the existence or exercise of any rights or
remedies by any Indemnitee under this Agreement, any other Credit Document
or any related documents.
If and to the extent that the obligations of Intermet under this Section 10.04
are unenforceable for any reason, Intermet hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in limitation of all
rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's obligations hereunder
and under the other Credit Documents, and Intermet, on behalf of each Credit
Party, hereby grants to each Lender and other Holder of a Note a continuing
security interest in, all deposits of any Credit Party (general or special, time
or demand, provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by such Lender or other holder
to any Credit Party, whether or not related to this Agreement or any transaction
hereunder. Each Lender shall promptly notify Intermet of any offset hereunder.
SECTION 10.06. BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
provided that Intermet may not assign or transfer any of its interest hereunder
without the prior written consent of each Lender.
(b) Any Lender may make, carry or transfer Loans at, to or for the account
of, any of its branch offices or the office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of any of its
Commitments and the Loans at the time owing to it and the Notes held by it) to
any Eligible Assignee; provided, however, that (i) the Administrative Agent and
Intermet must give their prior written consent to
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such assignment (which consent shall not be unreasonably withheld or delayed)
unless such assignment is to another Lender or an Affiliate of a Lender or, in
the case of Intermet, unless an Event of Default has occurred and is continuing,
(ii) the amount of the Commitments or Loans, of the assigning Lender subject to
each assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 (or, if less, the assigning Lender's entire Commitment
and Loans), and (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a Note or Notes subject to such assignment and, unless such assignment is to an
Affiliate of such Lender, a processing and recordation fee of $3,000. Intermet
shall not be responsible for such processing and recordation fee or any costs or
expenses incurred by any Lender or the Administrative Agent in connection with
such assignment. From and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, the assignee thereunder shall be a party hereto and
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement. Notwithstanding the
foregoing, the assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of Commitments and the
Loans, as the case may be, of $5,000,000 (unless the Lender is assigning its
entire Commitment); provided, however, no such minimum amount shall be required
with respect to any such assignment made at any time there exists an Event of
Default hereunder. Within five (5) Business Days after receipt of the notice and
the Assignment and Acceptance, Intermet, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for the surrendered Note or
Notes, a new Note or Notes to the order of such assignee in a principal amount
equal to the applicable Commitments assumed by it pursuant to such Assignment
and Acceptance and new Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the date of the surrendered Note or
Notes which they replace, and shall otherwise be in substantially the form
attached hereto.
(d) Each Lender may, without the consent of Intermet or the Administrative
Agent, sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it and the Notes held by it);
provided however, that (i) no Lender may sell a participation in its aggregate
Commitments (after giving effect to any permitted assignment hereof) in an
amount in excess of fifty percent (50%) of such aggregate Commitments; provided,
however, sales of participations to an Affiliate of such Lender shall not be
included in such calculation; provided, however, no such maximum amount shall be
applicable to any such participation sold at any time there exists an Event of
Default hereunder, (ii) such Lender's obligations under this Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and (iv) the
participating bank or other entity shall be entitled to all of the benefits of
Article III and Sections 6.07 and 10.05 of this Agreement as if it were a
Lender, (v) Intermet and the Administrative Agent and other Lenders shall
continue to deal solely and directly with each
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Lender in connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents, and (vi) such Lender shall retain the
sole right to enforce the obligations of Intermet relating to the Loans and to
approve any amendment, modification or waiver of any provisions of this
Agreement except that such Lender may agree with any participating bank or other
entity that it will not, without such participating bank's or other entity's
consent, take any actions of the types described in clauses (ii), (iii), (iv),
(v) or (viii) of Section 10.02. Any Lender selling a participation hereunder
shall provide prompt written notice to Intermet of the name of such participant.
(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to Intermet or the other Consolidated Companies furnished
to such Lender by or on behalf of Intermet or any other Consolidated Company.
With respect to any disclosure of confidential, non-public, proprietary
information, such proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit judgments with
respect to this credit facility and not to use the information in any manner
prohibited by any law, including without limitation, the securities laws of the
United States. The proposed participant or assignee shall agree not to disclose
any of such information except (i) to directors, employees, auditors or counsel
to whom it is necessary to show such information, each of whom shall be informed
of the confidential nature of the information, (ii) in any statement or
testimony pursuant to a subpoena or order by any court, governmental body or
other agency asserting jurisdiction over such entity, or as otherwise required
by law (provided prior notice is given to Intermet and the Administrative Agent
unless otherwise prohibited by the subpoena, order or law), and (iii) upon the
request or demand of any regulatory agency or authority with proper
jurisdiction. The proposed participant or assignee shall further agree to return
all documents or other written material and copies thereof received from any
Lender, the Administrative Agent or Intermet relating to such confidential
information unless otherwise properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its rights in
this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release the Lender from any of its obligations
hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b) have been levied or
imposed so as to require withholdings or deductions by Intermet and payment by
Intermet of additional amounts to any Lender as a result thereof, (ii) any
Lender shall make demand for payment of increased costs or reduced rate of
return pursuant to Section 3.10 or any Lender determines that LIBOR is
unascertainable or illegal pursuant to Section 3.08 or Section 3.09, or any
Lender makes a claim for increased costs pursuant to Section 3.09, or (iii) any
Lender shall decline to consent to a modification or waiver of the terms of this
Agreement or the other Credit Documents requested by Intermet, then and in such
event, upon request from Intermet delivered to such Lender and the
Administrative Agent, such Lender shall assign, in accordance with the
provisions of Section 10.06(c), all of its rights and obligations under this
Agreement and the
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other Credit Documents to another Lender or an Eligible Assignee selected by
Intermet, in consideration for the payment by such assignee to the Lender of the
principal of, and interest on, the outstanding Loans accrued to the date of such
assignment, and the assumption of such Lender's Commitment hereunder, together
with any and all other amounts owing to such Lender under any provisions of this
Agreement or the other Credit Documents accrued to the date of such assignment;
provided, however, that if Intermet shall exercise its rights under this Section
10.06 with respect to any Lender, it shall exercise in a substantially identical
manner such rights as to all similarly affected Lenders.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) EACH CREDIT DOCUMENT (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A
CREDIT DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, INTERMET HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE TRIAL BY JURY, AND INTERMET HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. TO
THE EXTENT THAT INTERMET HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, INTERMET HEREBY IRREVOCABLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THE CREDIT DOCUMENTS. INTERMET ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
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ADMINISTRATIVE AGENT AND EACH LENDER ENTERING INTO THE CREDIT DOCUMENTS.
(c) INTERMET HEREBY IRREVOCABLY DESIGNATES THE ▇▇▇▇▇▇▇▇-▇▇▇▇ CORPORATION
SYSTEM, INC., AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON
BEHALF OF INTERMET, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR ANY
DOCUMENT RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON
SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE
SERVER OF SUCH PROCESS BY MAIL TO INTERMET AT ITS ADDRESS SET FORTH IN SCHEDULE
10.01, BUT THE FAILURE OF INTERMET TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY
WAY THE SERVICE OF SUCH PROCESS. INTERMET FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO INTERMET AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Administrative Agent, any
Lender, any holder of a Note or any Credit Party to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Intermet in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled to protect and enforce its rights pursuant to
this Agreement and its Notes, and it shall not be necessary for any other Lender
to be joined as an additional party in any proceeding for such purpose.
SECTION 10.09. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Administrative Agent pursuant to Section 10.01 or, in the case of the Lenders,
shall have given to the Administrative Agent written or telex notice (actually
received) that the same has been signed and mailed to them.
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(b) The obligations of Intermet under Sections 3.07(b), 3.10, 3.12, 3.13,
10.04 and 10.05 hereof shall survive the payment in full of the Notes and all
other Obligations after the Maturity Date. All representations and warranties
made herein, in the certificates, reports, notices, and other documents
delivered pursuant to this Agreement shall survive the execution and delivery of
this Agreement, the other Credit Documents, and such other agreements and
documents, the making of the Loans hereunder, and the execution and delivery of
the Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or obligation under
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS. If
(i) any preparation of the financial statements referred to in Section 6.07
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) (other than changes mandated by FASB 106)
result in a material change in the method of calculation of financial covenants,
standards or terms found in this Agreement, (ii) there is any change in
Intermet's fiscal quarter or fiscal year, or (iii) there is a material change in
federal tax laws which materially affects any of the Consolidated Companies'
ability to comply with the financial covenants, standards or terms found in this
Agreement or any such event referred to in clause (i) through (iii) above no
longer makes such financial covenants, standards or terms comparable to those
existing on the Effective Date, Intermet and the Required Lenders agree to enter
into negotiations in order to amend such provisions so as to equitably reflect
such changes with the desired result that the criteria for evaluating any of the
Consolidated Companies' financial condition shall be the same after such changes
as if such changes had not been made. Unless and until such provisions have been
so amended, the provisions of this Agreement shall govern.
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of the
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement. This Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the terms of this
Agreement constitute the entire agreement among the
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parties hereto and thereto regarding the subject matters hereof and thereof and
supersede all prior agreements, representations and understandings related to
such subject matters.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and to be delivered in New York, New York, by their duly
authorized officers as of the day and year first above written.
INTERMET CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: V.P. Finance
THE BANK OF NOVA SCOTIA,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
By: /s/ F.C.H. ▇▇▇▇▇
--------------------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
BANK ONE, MICHIGAN,
INDIVIDUALLY AND AS SYNDICATION AGENT
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SUNTRUST BANK, ATLANTA,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇. Pick
-------------------
Name: ▇▇▇▇▇▇▇ ▇. Pick
Title: Vice President
COMERICA BANK,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇.▇. ▇▇▇▇▇▇
-----------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
By: /s/ ▇▇▇▇▇ ▇. Law
-----------------
Name: ▇▇▇▇▇ ▇. Law
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO - MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President & Group Head
MICHIGAN NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE MITSUBISHI TRUST & BANKING
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Manager
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
81
Schedule 1
Commitments
Lender Commitment Pro Rata Share
------ ---------- --------------
The Bank of Nova Scotia $16,200,000 8.1%
Bank One, Michigan $16,200,000 8.1%
SunTrust Bank, Atlanta $16,200,000 8.1%
Comerica Bank $16,200,000 8.1%
KeyBank National Association $16,200,000 8.1%
LaSalle Bank National Association $25,000,000 12.5%
Bankers Trust Company $20,000,000 10.0%
The Mitsubishi Trust & Banking Corporation $15,000,000 7.5%
PNC Bank, National Association $15,000,000 7.5%
Fleet National Bank $10,000,000 5.0%
The Fuji Bank, Limited $10,000,000 5.0%
The Bank of New York $7,000,000 3.5%
▇▇▇▇▇▇ Trust and Savings Bank $7,000,000 3.5%
Michigan National Bank $5,000,000 2.5%
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $5,000,000 2.5%
TOTAL 200,000,000 100%
Term Loan Agreement