Exhibit 4.25 - Guaranty of Payment od Debt Dated July 24, 2001
GUARANTY OF PAYMENT OF DEBT
1. RECITALS.
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation (together with its
successors and assigns, "Borrower"), the financial institutions listed on
Schedule 1 to the Credit Agreement, as hereinafter defined (together with their
respective successors and assigns, collectively "Banks" and, individually,
"Bank"), and KEYBANK NATIONAL ASSOCIATION, as agent for the Banks under the
Credit Agreement ("Agent"), are parties to the Credit Agreement. CASTING
TECHNOLOGY COMPANY, an Indiana general partnership ("Guarantor"), desires that
the Banks continue to grant the financial accommodations to Borrower as
described in the Credit Agreement.
Guarantor, a subsidiary of Borrower whose financing is provided by the
Loans and Letters of Credit, as hereinafter defined, deems it to be in the
direct pecuniary and business interests of Guarantor that Borrower continue to
obtain from the Banks the Commitment, as defined in the Credit Agreement, and
the Loans and Letters of Credit provided for in the Credit Agreement.
Guarantor understands that the Banks are willing to continue to grant
the financial accommodations provided for in the Credit Agreement to Borrower
only upon certain terms and conditions, one of which is that Guarantor guarantee
the payment of the Debt (as hereinafter defined), and this Guaranty of Payment
of Debt (as the same may from time to time be amended, restated or otherwise
modified, this "Agreement") is being executed and delivered in consideration of
each financial accommodation granted to Borrower and for other valuable
considerations.
2. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
2.1. "Collateral" shall mean, collectively, all property, if any, securing
the Debt or any part thereof at the time in question.
2.2. "Credit Agreement" shall mean the Credit Agreement executed by and
among Borrower, Agent and the Banks and dated as of August 14, 1997, as amended
and as the same may from time to time be further amended, restated or otherwise
modified.
2.3. "Debt" shall mean, collectively, (a) all Loans and Letters of
Credit; (b) all other indebtedness now owing or hereafter incurred by Borrower
to Agent and the Banks pursuant to the Credit Agreement and the Notes executed
in connection therewith; (c) each renewal, extension, consolidation or
refinancing of any of the foregoing, in whole or in part; (d) all interest from
time to time accruing on any of the foregoing, and all commitment and other fees
payable pursuant to the Credit Agreement; (e) all other amounts payable by
Borrower to Agent or any of the Banks pursuant to the Credit Agreement or any
other Loan Document; and (f) all costs and expenses, including attorneys' fees,
incurred by Agent in connection with the Credit Agreement or by Agent or the
Banks in connection with the collection of any portion of the indebtedness or
other obligations described in (a), (b), (c), (d) or (e) hereof.
2.4. "Letter of Credit" shall mean any Letter of Credit, as defined in the
Credit Agreement, issued pursuant to the Credit Agreement.
2.5. "Loan" shall mean any Loan, as defined in the Credit Agreement,
granted pursuant to the Credit Agreement.
2.6. "Obligor" shall mean any Person that, or any of whose property, is
or shall be obligated on the Debt or any part thereof in any manner and
includes, without limiting the generality of the foregoing, Borrower or
Guarantor, and any other co-maker, endorser, guarantor of payment, subordinating
creditor, assignor, grantor of a security interest, pledgor, mortgagor or any
hypothecator of property, if any.
2.7. "Person" shall mean any individual, sole proprietorship,
partnership, joint venture, unincorporated organization, corporation, limited
liability company, institution, trust, estate, government or other agency or
political subdivision thereof or any other entity.
Except as specifically defined herein, capitalized terms used herein that are
defined in the Credit Agreement shall have their respective meanings ascribed to
them in the Credit Agreement.
3. GUARANTY OF DEBT. Guarantor hereby absolutely and unconditionally
guarantees the prompt payment in full of all of the Debt as and when the
respective parts thereof become due and payable. If the Debt or any part thereof
shall not be paid in full when due and payable, Agent and the Majority Banks (as
defined in the Credit Agreement), in each case, shall have the right to proceed
directly against Guarantor under this Agreement to collect the payment in full
of the Debt, regardless of whether or not Agent and the Majority Banks shall
have theretofore proceeded or shall then be proceeding against Borrower or any
other Obligor or Collateral, if any, or any of the foregoing, it being
understood that Agent and the Majority Banks, in their sole discretion, may
proceed against any Obligor and any Collateral, and may exercise each right,
power or privilege that Agent or the Banks may then have, either simultaneously
or separately, and, in any event, at such time or times and as often and in such
order as Agent and the Majority Banks, in their sole discretion, may from time
to time deem expedient to collect the payment in full of the Debt.
4. PAYMENTS CONDITIONAL. Whenever Agent or any Bank shall credit any
payment to the Debt or any part thereof, whatever the source or form of payment,
the credit shall be conditional as to Guarantor unless and until the payment
shall be final and valid as to all the world. Without limiting the generality of
the foregoing, Guarantor agrees that if any check or other instrument so applied
shall be dishonored by the drawer or any party thereto, or if any proceeds of
Collateral or payment so applied shall thereafter be recovered by any trustee in
bankruptcy or any other Person, each Bank, in each case, may reverse any entry
relating thereto on its books and Guarantor shall remain liable therefor, even
if such Bank may no longer have in its possession any evidence of the Debt to
which the payment in question was applied.
5. GUARANTOR'S OBLIGATIONS ABSOLUTE AND UNCONDITIONAL. Regardless of
the duration of time, regardless of whether Borrower may from time to time cease
to be indebted to the Banks and irrespective of any act, omission or course of
dealing whatever on the part of Agent or any Bank, Guarantor's liabilities and
other obligations under this Agreement shall remain in full effect until the
payment in full of the Debt. Without limiting the generality of the foregoing:
5.1. Banks Have No Duty To Make Advances. No Bank shall at any time be
under any duty to Guarantor to grant any financial accommodation to Borrower,
irrespective of any duty or commitment of any of the Banks to Borrower, or to
follow or direct the application of the proceeds of any such financial
accommodation;
5.2. Guarantor's Waiver of Notice, Presentment, etc. Guarantor waives
(a) notice of the granting of any Loan to Borrower, the issuance of any Letter
of Credit or the incurring of any other indebtedness by Borrower or the terms
and conditions thereof, (b) presentment, demand for payment and notice of
dishonor of the Debt or any part thereof, or any other indebtedness incurred by
Borrower to any of the Banks, (c) notice of any indulgence granted to any
Obligor, and (d) any other notice to which Guarantor might, but for this waiver,
be entitled;
5.3. Banks' Rights Not Prejudiced by Action or Omission. Agent and the
Banks, in their sole discretion, may, without any prejudice to their rights
under this Agreement, at any time or times, without notice to or the consent of
Guarantor, (a) grant Borrower whatever financial accommodations that Agent and
the Banks may from time to time deem advisable, even if Borrower might be in
default in any respect and even if those financial accommodations might not
constitute indebtedness the payment of which is guaranteed hereunder, (b) assent
to any renewal, extension, consolidation or refinancing of the Debt, or any part
thereof, (c) forbear from demanding security, if Agent and the Banks shall have
the right to do so, (d) release any Obligor or Collateral or assent to any
exchange of Collateral, if any, irrespective of the consideration, if any,
received therefor, (e) grant any waiver or consent or forbear from exercising
any right, power or privilege that Agent and the Banks may have or acquire, (f)
assent to any amendment, deletion, addition, supplement or other modification
in, to or of any writing evidencing or securing any Debt or pursuant to which
any Debt is created, (g) grant any other indulgence to any Obligor, (h) accept
any Collateral for, or any other Obligor upon, the Debt or any part thereof, and
(i) fail, neglect or omit in any way to realize upon any Collateral or to
protect the Debt or any part thereof or any Collateral therefor;
5.4. Liabilities Survive Guarantor's Dissolution. Guarantor's liabilities
and other obligations under this Agreement shall survive any dissolution of
Guarantor; and
5.5. Liabilities Absolute and Unconditional. Guarantor's liabilities
and other obligations under this Agreement shall be absolute and unconditional
irrespective of any lack of validity or enforceability of the Credit Agreement,
the Notes, any Loan Document or any other agreement, instrument or document
evidencing the Loans or Letters of Credit or related thereto, or any other
defense available to Guarantor in respect of this Agreement.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Agent and each of the Banks that (a) Guarantor is a duly formed and validly
existing general partnership, in good standing under the laws of the state of
its formation (as referenced in the first paragraph of this Agreement), and is
qualified to do business in each state where a failure to so qualify would have
a material adverse effect on Guarantor; (b) Guarantor has legal power and right
to execute and deliver this Agreement and to perform and observe the provisions
hereof; (c) the general partner executing and delivering this Agreement on
behalf of Guarantor has been duly authorized to do so, and this Agreement, when
executed, is legal and binding upon Guarantor in every respect; (d) except for
matters described or referenced in the Credit Agreement or any Schedule thereto,
no litigation or proceeding is pending or threatened against Guarantor before
any court or any administrative agency that, in Guarantor's opinion, after
consultation with Guarantor's counsel, is reasonably expected to have a material
adverse effect on Guarantor; (e) Guarantor has received consideration that is
the reasonable equivalent value of the obligations and liabilities that
Guarantor has incurred to Agent, for the benefit of the Banks; (f) Guarantor is
not insolvent, as defined in any applicable state or federal statute, nor will
Guarantor be rendered insolvent by the execution and delivery of this Agreement
to Agent and the Banks; (g) Guarantor is not engaged or about to engage in any
business or transaction for which the assets retained by Guarantor are or will
be an unreasonably small amount of capital, taking into consideration the
obligations to the Banks incurred hereunder; and (h) Guarantor does not intend
to, nor does Guarantor believe that Guarantor will, incur debts beyond
Guarantor's ability to pay such debts as they mature.
7. DISABILITY OF OBLIGOR. Without limiting the generality of any of the
other provisions hereof, Guarantor specifically agrees that upon the dissolution
of any Obligor and/or the filing or other commencement of any bankruptcy or
insolvency proceedings by, for or against any Obligor, including without
limitation, any assignment for the benefit of creditors or other proceedings
intended to liquidate or rehabilitate any Obligor, Agent and the Majority Banks,
in their sole discretion, may declare the unpaid principal balance of and
accrued interest on the Debt to be forthwith due and payable in full without
notice. Upon the occurrence of any of the events enumerated in the immediately
preceding sentence, Guarantor shall, upon the demand of Agent or the Majority
Banks, whenever made, pay to Agent, for the benefit of the Banks, an amount
equal to the then unpaid principal balance of and accrued interest on the Debt.
8. WAIVER OF GUARANTOR'S RIGHTS AGAINST ▇▇▇▇▇▇▇▇ AND COLLATERAL. To the
extent permitted by law, Guarantor waives any claim or other right that
Guarantor might now have or hereafter acquire against Borrower or any other
Obligor that arises from the existence or performance of Guarantor's liabilities
or other obligations under this Agreement, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of Agent or any Bank against
Borrower or any Collateral that Agent or any Bank now has or hereafter acquires,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law.
9. MAXIMUM LIABILITY OF GUARANTOR. Anything in this Agreement to the
contrary notwithstanding, in no event shall the amount of the Obligations
secured by this Agreement exceed the maximum amount that (after giving effect to
the incurring of the obligations hereunder and to any rights to contribution of
Guarantor from other affiliates of Borrower) would not render the rights to
payment of Agent and the Banks hereunder void, voidable or avoidable under any
applicable fraudulent transfer law.
10. NOTICE. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to Guarantor, mailed or
delivered to it, addressed to it at the address specified on the signature page
of this Agreement, and, if to a Bank, mailed or delivered to it, addressed to
the address of such Bank specified on the signature pages of the Credit
Agreement. All notices, statements, requests, demands and other communications
provided for hereunder shall be deemed to be given or made when delivered or
forty-eight (48) hours after being deposited in the mails with postage prepaid
by registered or certified mail, addressed as aforesaid, or sent by facsimile
with telephonic confirmation of receipt, except that notices from Guarantor to
Agent or the Banks pursuant to any of the provisions hereof shall not be
effective until received by Agent or the Banks.
11. MISCELLANEOUS. This Agreement shall bind Guarantor and Guarantor's
successors and assigns and shall inure to the benefit of Agent and each Bank and
their respective successors and assigns, including (without limitation) each
holder of any Note evidencing any Debt. If, at any time, one or more provisions
of this Agreement is or becomes invalid, illegal or unenforceable in whole or in
part, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. This Agreement constitutes
a final written expression of all of the terms of this Agreement, is a complete
and exclusive statement of those terms and supersedes all oral representations,
negotiations and prior writings, if any, with respect to the subject matter
hereof. The relationship between (a) Guarantor and (b) Agent and the Banks with
respect to this Agreement is and shall be solely that of debtor and creditors,
respectively, and Agent and the Banks shall have no fiduciary obligation toward
Guarantor with respect to this Agreement or the transactions contemplated
hereby. The captions herein are for convenience of reference only and shall be
ignored in interpreting the provisions of this Agreement.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION. The provisions of this
Agreement and the respective rights and duties of Guarantor, Agent and the Banks
hereunder shall be governed by and construed in accordance with Ohio law,
without regard to principles of conflict of laws. Guarantor hereby irrevocably
submits to the non-exclusive jurisdiction of any Ohio state or federal court
sitting in Cleveland, Ohio, over any action or proceeding arising out of or
relating to this Agreement, any Loan Document or any Related Writing, and
Guarantor hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Ohio state or federal court.
Guarantor, on behalf of itself and its Subsidiaries, hereby irrevocably waives,
to the fullest extent permitted by law, any objection it may now or hereafter
have to the laying of venue in any action or proceeding in any such court as
well as any right it may now or hereafter have to remove such action or
proceeding, once commenced, to another court on the grounds of FORUM NON
CONVENIENS or otherwise. ▇▇▇▇▇▇▇▇▇ agrees that a final, nonappealable judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
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13. JURY TRIAL WAIVER. GUARANTOR, AGENT AND THE BANKS, TO THE EXTENT
PERMITTED BY LAW, EACH WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, ANY
OF THE BANKS, BORROWER AND/OR GUARANTOR ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN EACH OF THEM
AND GUARANTOR IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER AGREEMENT,
INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE
TRANSACTIONS RELATED THERETO.
Signed as of the 24th day of July, 2001, at Dayton, Ohio.
CASTING TECHNOLOGY COMPANY
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Amcast Casting Technologies, Inc.,
Dayton, Ohio 45459 General Partner
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer