Exhibit 4.23 - Pledge Agreement dated July 24, 2001
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is made as of July 24, 2001,
by CASTING TECHNOLOGY COMPANY, an Indiana general partnership ("Borrower"), in
favor of KEYBANK NATIONAL ASSOCIATION, as collateral agent (together with its
successors and assigns, "Collateral Agent"), for the benefit of the Lenders, as
hereinafter defined.
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 (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 pursuant to which the Banks will, among other things, grant to
Borrower, for the benefit of Borrower, Pledgor and each subsidiary of Borrower,
the Loans and Letters of Credit, as defined in the Credit Agreement.
Each of the Noteholders, as hereinafter defined, has purchased certain
notes from Borrower, for the benefit of Borrower and each subsidiary of
Borrower, including Pledgor, in accordance with the Note Agreements, as
hereinafter defined.
Each of the Line of Credit Lenders, as hereinafter defined, has made
and will continue to make certain advances and other extensions of credit to
Borrower, for the benefit of Borrower and each subsidiary of Borrower, including
Pledgor, in accordance with the Line of Credit Documents, as hereinafter
defined.
Borrower has requested that the Credit Agreement be amended to revise
certain covenants and other provisions applicable to the Companies, as defined
in the Credit Agreement.
Pledgor, a subsidiary of Borrower whose financing is provided by the
financial accommodations provided by the Lenders, deems it to be in the direct
pecuniary and business interest of Pledgor that Borrower continue to obtain the
financial accommodations.
Pledgor understands that Agent, the Banks and the other Lenders are
willing to continue to grant or otherwise continue to make available financial
accommodations to Borrower, only upon certain terms and conditions, one of which
is that Pledgor grant to Collateral Agent, for the benefit of the Lenders, a
security interest in and an assignment of the Collateral, as hereinafter
defined, and this Agreement is being executed and delivered in consideration of
each financial accommodation granted to Borrower by any Lender and for other
valuable considerations.
2. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"Administrative Expenses" shall mean (a) any and all reasonable costs,
liabilities, and expenses (including, without limitation, losses, damages,
penalties, claims, actions, reasonable attorneys' fees, legal expenses,
judgments, suits, and disbursements) incurred by, imposed upon, or asserted
against, Collateral Agent in any attempt by Collateral Agent to (i) obtain,
preserve, perfect or enforce any security interest evidenced by this Agreement,
any other Collateral Document or any other Lending Party Document; (ii) obtain
payment, performance or observance of any and all of the Obligations; or (iii)
maintain, insure, audit, collect, preserve, repossess or dispose of any of the
Collateral or any other collateral securing the Obligations, including, without
limitation, costs and expenses for appraisals, assessments, and audits of
Borrower or any such Collateral; (b) to the extent not included in subpart (a)
hereof, any amounts payable to Collateral Agent pursuant to Section 9A.9 of the
Credit Agreement; and (c) all costs liabilities and expenses incidental or
related to (a) or (b) hereof, including, without limitation, interest thereupon
(i) prior to the occurrence of a Default Event, after ten (10) days after demand
therefor until paid, at the Default Rate, as defined in the Credit Agreement,
and (ii) after the occurrence of a Default Event, from the date incurred,
imposed or asserted until paid, at the Default Rate.
"Bank Obligations" shall mean, collectively, (a) the Debt (as defined
in the Credit Agreement) and (b) all other Indebtedness or other obligations
incurred by any Company to Agent and the Banks pursuant to the Credit Agreement
or any other Loan Document, whether for principal, interest, fees, costs or
indemnities, and whether now existing or hereafter arising.
"Collateral" shall mean, collectively, the Pledged Securities and each
addition, if any, thereto and each substitution, if any, therefor, in whole or
in part, the certificates representing the Pledged Securities, and the
dividends, cash, instruments and other property distributed in respect of and
other proceeds of any of the foregoing.
"Credit Agreement" shall mean the Credit Agreement executed by and
among Borrower, Agent and the Banks and dated as of the 14th day of August,
1997, as amended and as the same may from time to time be further amended,
restated or otherwise modified.
"Default Event " shall mean a Default Event, as defined in the Credit
Agreement.
"Foreign Subsidiary" shall mean a Subsidiary that is organized outside
of the United States.
"Hedge Agreement" shall mean any currency swap or hedge agreement,
interest rate swap, cap, collar or floor agreement, or other interest rate
management device entered into by Borrower with Agent or any of the Banks, or
any of their respective affiliates, in connection with the Debt.
"Lender" shall mean any Bank, Noteholder or Line of Credit Lender.
"Lending Party Documents" shall mean, collectively, the Loan Documents,
as defined in the Credit Agreement, the Note Agreements and the Line of Credit
Documents.
"Line of Credit Documents" shall mean the promissory notes and other
agreements evidencing or relating to the Line of Credit Obligations.
"Line of Credit Lender" shall mean (a) each of the financial
institutions set forth on Schedule 4 to the Credit Agreement so long as such
financial institution (i) is a Bank under this Agreement and (ii) has
established an unsecured, discretionary line of credit for Borrower and its
Subsidiaries, or (b) is a financial institution that has entered into a Hedge
Agreement with Borrower so long as such financial institution is a Bank under
this Agreement; provided that, if any such financial institution ceases to be a
Bank under the Credit Agreement, then the Line of Credit Obligations owing to
such financial institution shall no longer be secured by the Collateral.
"Line of Credit Obligations" shall mean all Indebtedness or other
obligations incurred by Borrower to the Line of Credit Lenders, whether for
principal, interest, fees, costs or indemnities, and whether now existing or
hereafter arising; provided, however, that the principal amount owing to any
Line of Credit Lender shall not exceed the amount set forth opposite such Line
of Credit Lender's name on Schedule 4 to the Credit Agreement.
"Note Agreement" shall mean any of (a) the Note Agreement dated as of
November 1, 1995, as amended, executed by Borrower in favor of Principal Mutual
Life Insurance Company, as Purchaser, with respect to $25,000,000 7.09% Senior
Notes Due November 7, 2005, and (b) the Note Agreement dated as of November 1,
1995, as amended, executed by Borrower in favor of Northwestern Mutual Life
Insurance Company, as Purchaser, with respect to $25,000,000 7.09% Senior Notes
Due November 7, 2005.
"Noteholder" shall mean Northwestern Mutual Life Insurance Company, and
its successors and assigns, or Principal Mutual Life Insurance Company, and its
successors and assigns.
"Noteholders" shall mean, collectively, Northwestern Mutual Life
Insurance Company and Principal Mutual Life Insurance Company, and their
respective successors and assigns.
"Noteholder Obligations" shall mean all Indebtedness or other
obligations incurred by Borrower to the Noteholders pursuant to the Note
Agreements, whether for principal, interest, fees, costs or indemnities, and
whether now existing or hereafter arising.
"Obligations" shall mean, collectively, (a) the Bank Obligations, (b)
the Noteholder Obligations, (c) the Line of Credit Obligations, and (d) all
Administrative Expenses and all other indebtedness or other obligations now
owing or hereafter incurred by Borrower or any other Company to Collateral Agent
pursuant to this Agreement or any of the Collateral Documents.
"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.
"Pledged Securities" shall mean, subject to Section 7 hereof, all of
the shares of stock or other equity interest of each Subsidiary of Pledgor owned
by Pledgor, as listed on Exhibit A hereto, and all additional shares of stock or
other equity interest of each Subsidiary of Pledgor owned by Pledgor from time
to time or acquired by Pledgor in any manner; provided that Pledgor shall not be
required to pledge more than sixty-five percent (65%) of the shares of stock or
other equity interest of any Foreign Subsidiary.
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. Unless otherwise defined in this Section 1, terms
that are defined in Chapter 1308 or 1309 of the Ohio Revised Code, as in effect
from time to time, are used herein as so defined.
3. SECURITY INTEREST. Pledgor hereby grants to Collateral Agent, for
the benefit of the Lenders, a security interest in the Collateral as security
for the Obligations. For the better protection of Collateral Agent and the
Lenders hereunder, Pledgor has executed appropriate transfer powers, in the form
of Exhibit B hereto, with respect to the Pledged Securities and, concurrently
herewith, is depositing the Pledged Securities and the aforesaid transfer powers
with Collateral Agent for the benefit of the Lenders. Pledgor authorizes
Collateral Agent, at any time after the occurrence of a Default Event, to
transfer the Pledged Securities into the name of Collateral Agent or Collateral
Agent's nominee, but Collateral Agent shall be under no duty to do so.
4. PLEDGOR'S REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants to Collateral Agent and the Lenders as follows:
4.1. Pledgor is the legal record and beneficial owner of, and has good
and marketable title to, the Pledged Securities, and the Pledged Securities are
not subject to any pledge, lien, mortgage, hypothecation, security interest,
charge, option, warrant, or other encumbrance whatsoever, nor to any agreement
purporting to grant to any third party a security interest in the property or
assets of Pledgor that would include such Pledged Securities, except the
security interest created by this Agreement or otherwise securing only
Collateral Agent and the Lenders.
4.2. All of the Pledged Securities have been duly authorized and validly
issued, and are fully paid and non-assessable.
4.3. Pledgor has full power, authority and legal right to grant a security
interest in all of the Pledged Securities pursuant to the terms of this
Agreement.
4.4. No consent, license, permit, approval or authorization, filing or
declaration with any governmental authority, domestic or foreign, and no consent
of any other party is required to be obtained by Pledgor in connection with the
pledge of the Pledged Securities hereunder as of the effective date as described
in Section 2.9(b) of the Credit Agreement (the "Pledge Effective Date"), that
has not been obtained or made, and is not in full force and effect.
4.5. The pledge, assignment and delivery of the Pledged Securities
hereunder creates, when the Pledged Securities have been delivered to Collateral
Agent, or, with respect to the Pledged Securities of a Foreign Subsidiary,
registration of such interest, if appropriate, a valid first lien on, and a
first perfected security interest in, the Pledged Securities and the proceeds
thereof, effective as of the Pledge Effective Date.
4.6. The Pledged Securities constitute (a) one hundred percent (100%)
of the shares of stock or other equity interest of each Subsidiary other than a
Foreign Subsidiary and (b) sixty-five percent (65%) of the shares of stock or
other equity interest of each Foreign Subsidiary (one hundred percent (100%) if
there would be no adverse tax consequence).
4.7. Pledgor fully anticipates that the Obligations will be repaid without
the necessity of selling the Pledged Securities.
4.8. Pledgor has received consideration that is the reasonable
equivalent value of the obligations and liabilities that Pledgor has incurred to
Collateral Agent and the Lenders. Pledgor is not insolvent, as defined in any
applicable state or federal statute, nor will Pledgor be rendered insolvent by
the execution and delivery of this Agreement to Collateral Agent for the benefit
of the Lenders. Pledgor is not engaged or about to engage in any business or
transaction for which the assets retained by Pledgor are or will be an
unreasonably small amount of capital, taking into consideration the obligations
to Collateral Agent and the Lenders incurred hereunder. Pledgor does not intend
to incur debts beyond Pledgor's ability to pay them as they mature.
4.9. If the Pledged Securities are "restricted" within the meaning of
Rule 144, or any amendment thereof, promulgated under the Securities Act of
1933, as amended (the "Securities Act"), as determined by counsel for Collateral
Agent, Pledgor further represents and warrants that (a) Pledgor has been the
beneficial owner of the Pledged Securities for a period of at least two (2)
years prior to the date hereof, (b) the full purchase price or other
consideration for the Pledged Securities has been paid or given at least two (2)
years prior to the date hereof, and (c) Pledgor does not have a short position
in or any put or other option to dispose of any securities of the same class as
the Pledged Securities or any other securities convertible into securities of
such class.
5. SALE OF COLLATERAL. If a Default Event shall occur hereunder,
Collateral Agent, acting at the direction of the Required Lenders, may, in
Collateral Agent's discretion and upon such terms and in such manner as
Collateral Agent shall deem advisable, sell, assign, transfer and deliver the
Collateral, or any part thereof, and, in each case, Collateral Agent shall apply
the net proceeds of the sale thereof to the Obligations, in accordance with the
terms and conditions of the Credit Agreement, whether or not due. No prior
notice need be given to Pledgor or any other Person in the case of any sale of
Collateral that Collateral Agent, in good faith, determines to be declining
speedily in value or that is customarily sold at any securities exchange or in
the over-the-counter market or in any other recognized market; but, in any other
case, Collateral Agent shall give Pledgor not fewer than five (5) Business Days'
prior notice of either the date after which any intended private sale may be
made or the time and place of any intended public sale. Pledgor waives
advertisement of sale and, except to the extent required by the preceding
sentence, waives notice of any kind in respect of any sale. At any public sale,
Collateral Agent or any of the Lenders may purchase the Collateral, or any part
thereof, free from any right of redemption, which rights are hereby waived and
released.
6. TERM OF AGREEMENT. Irrespective of any action, omission or course of
dealing whatever by Collateral Agent or the Lenders, this Agreement shall remain
in full force and effect until terminated in accordance with Section 16 hereof.
Without limiting the generality of the foregoing, Pledgor agrees that neither
Collateral Agent nor any Lender shall have any duty to make any presentment or
collection, or to preserve any right of any kind, with reference to the
Collateral.
7. FOREIGN SUBSIDIARIES. Notwithstanding anything in this Agreement or
elsewhere to the contrary, (a) Pledgor shall not be required to pledge more than
sixty-five percent (65%) of the shares of stock or other equity interest of any
Foreign Subsidiary, and (b) no Foreign Subsidiary shall be required to pledge
the stock or other equity interest of any other Foreign Subsidiary if there
would be any adverse tax consequences resulting therefrom.
8. ADDITIONAL COVENANTS OF PLEDGOR.
8.1. Pledgor covenants and agrees to defend the right, title and
security interest of Collateral Agent and the Lenders in and to the Pledged
Securities and the proceeds thereof, and to maintain and preserve the lien and
security interest provided for by this Agreement against the claim and demands
of all Persons, so long as this Agreement shall remain in effect.
8.2. Pledgor covenants and agrees not to sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, or
create, incur or permit to exist any pledge, lien, mortgage, hypothecation,
security interest, charge, option or any other encumbrance with respect to any
of the Pledged Securities, or any interest therein, or any proceeds thereof,
except for the lien and security interest provided for by this Agreement and any
security agreement securing only Collateral Agent and the Lenders.
8.3. Pledgor covenants and agrees (a) to cooperate, in good faith, with
Collateral Agent and the Lenders and to do or cause to be done all such other
acts as may be necessary to enforce the rights of Collateral Agent and the
Lenders under this Agreement, (b) not to take any action, or to fail to take any
action that would be adverse to the interest of Collateral Agent and the Lenders
in the Collateral and hereunder, and (c) to make any sale or sales of any
portion or all of the Pledged Securities valid and binding and in compliance
with any and all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such sale
or sales at Pledgor's expense.
9. PLEDGOR'S RIGHT. As long as no Default Event shall have occurred,
Pledgor shall be entitled from time to time to vote and give consents with
respect to the Pledged Securities or any part thereof.
10. ATTORNEY-IN-FACT. Pledgor hereby authorizes and empowers Collateral
Agent, on behalf of the Lenders, to make, constitute and appoint any officer or
agent of Collateral Agent as Collateral Agent may select, in its exclusive
discretion, as Pledgor's true and lawful attorney-in-fact, with the power to
endorse Pledgor's name on all applications, documents, papers and instruments
necessary for Collateral Agent to take actions with respect to the Collateral
after the occurrence of a Default Event, including, without limitation, actions
necessary for Collateral Agent to assign, pledge, convey or otherwise transfer
title in or dispose of the Collateral to any Person. Pledgor ratifies all that
such attorney shall lawfully do or cause to be done by virtue hereof. This power
of attorney shall be irrevocable for the life of this Agreement.
11. COSTS AND EXPENSES. If Pledgor fails to comply with any of its
obligations hereunder, Collateral Agent may do so in Pledgor's name or in
Collateral Agent's name, but at Pledgor's expense, and Pledgor hereby agrees to
reimburse Collateral Agent and the Lenders in full for all expenses, including
reasonable attorneys' fees, incurred by Collateral Agent and the Lenders in
protecting, defending and maintaining the Collateral. Without limiting the
foregoing, any and all reasonable fees, costs and expenses, of whatever kind or
nature, including the reasonable attorneys' fees and expenses incurred in
connection with the filing or recording of any documents (including all taxes in
connection therewith) in public offices, the payment or discharge of any taxes,
maintenance fees, encumbrances or otherwise protecting, maintaining or
preserving the Collateral, or in defending or prosecuting any actions or
proceedings arising out of or related to the Collateral, shall be borne and paid
by Pledgor on demand by Collateral Agent.
12. NOTICE. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to Pledgor, mailed or
delivered to it, addressed to it at the address specified on the signature page
of this Agreement, if to Collateral Agent, mailed or delivered to it, addressed
to it at the address specified below, or if to any Lender, mailed or delivered
to it, addressed to the address of such Lender specified in the appropriate
Lending Party Documents. 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
Pledgor to Collateral Agent or any Lender pursuant to any of the provisions
hereof shall not be effective until received by Collateral Agent or such Lender.
All notices to Collateral Agent shall be sent to: KeyBank National Association,
as collateral agent, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Large
Corporate Banking (or such other address as Collateral Agent shall specify in
writing).
13. INTERPRETATION. Each right, power or privilege specified or
referred to in this Agreement is in addition to any other rights, powers and
privileges that Collateral Agent or the Lenders may have or acquire by operation
of law, by other contract or otherwise. No course of dealing in respect of, nor
any omission or delay in the exercise of, any right, power or privilege by
Collateral Agent and the Lenders shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any further or other exercise
thereof or of any other, as each right, power or privilege may be exercised by
Collateral Agent and the Lenders either independently or concurrently with other
rights, powers and privileges and as often and in such order as Collateral Agent
and the Lenders may deem expedient. No waiver or consent granted by Collateral
Agent and the Lenders in respect of this Agreement shall be binding upon
Collateral Agent or the Lenders unless specifically granted in writing, which
writing shall be strictly construed.
14. ASSIGNMENT AND SUCCESSORS. This Agreement shall not be assigned by
Pledgor without the prior written consent of Collateral Agent and the Lenders.
This Agreement shall bind the successors and permitted assigns of Pledgor and
shall benefit the respective successors and assigns of Collateral Agent and the
Lenders.
15. SEVERABILITY. 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.
16. TERMINATION. At such time as the Obligations have been irrevocably
paid in full, the Commitment, as defined in the Credit Agreement, terminated,
and the Credit Agreement terminated and not replaced by any other credit
facility with Collateral Agent and the Lenders, this Agreement shall terminate
and, upon request of Pledgor, Collateral Agent shall promptly execute and
deliver to Pledgor all deeds, assignments, and other instruments as may be
necessary or proper to release Collateral Agent's security interest in and
assignment of the Collateral and to re-vest in Pledgor full title to the
Collateral, subject to any disposition thereof that may have been made by
Collateral Agent pursuant hereto.
17. GOVERNING LAW; SUBMISSION TO JURISDICTION. The provisions of this
Agreement and the respective rights and duties of Pledgor, Collateral Agent and
the Lenders hereunder shall be governed by and construed in accordance with Ohio
law, without regard to principles of conflict of laws. Pledgor 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 Pledgor 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.
Pledgor, 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.
Pledgor 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.
18. MAXIMUM LIABILITY OF PLEDGOR. 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
Pledgor 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.
[Remainder of page intentionally left blank.]
19. JURY TRIAL WAIVER. PLEDGOR, COLLATERAL AGENT, AGENT AND THE LENDERS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG PLEDGOR, COLLATERAL AGENT, AGENT
AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
Executed and delivered at Dayton , Ohio.
CASTING TECHNOLOGY COMPANY
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Amcast Casting Technologies, Inc.,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ General Partner
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
10
EXHIBIT A
PLEDGED SECURITIES
Name of Subsidiary Number of Shares Certificate Number
EXHIBIT B
FORM OF
STOCK TRANSFER POWER
FOR VALUE RECEIVED, hereby sells,
assigns and transfers unto ( ) Shares of the
Capital Stock of
standing in name on the
books of said general partnership and represented by Certificate No.
herewith and does hereby irrevocably constitute and appoint
attorney to transfer the said stock on the books
of the within named general partnership with full power of substitution in the
premises.
CASTING TECHNOLOGY COMPANY
By: Amcast Casting Technologies, Inc.,
General Partner
Dated: By:
Name:
Title: