FIFTH AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
This FIFTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
(this "Amendment") is dated as of January 26, 2005 and entered into by and among
INTERMET CORPORATION, a Georgia corporation ("Company"), THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "Borrowers" and each a "Borrower"), THE
BANK OF NOVA SCOTIA, as Administrative Agent for the Lenders ("Administrative
Agent") and as a Lead Lender, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent and Co-Agent for the Lenders ("Collateral Agent") and as a Lead
Lender, and the undersigned Lenders, and is made with reference to that certain
Debtor-In-Possession Revolving Credit Agreement dated as of October 22, 2004 (as
amended, supplemented or otherwise modified to the date hereof, the "Credit
Agreement"), by and among Borrowers, the Lenders, Administrative Agent and
Collateral Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers, Lead Lenders and the undersigned Lenders
desire to amend the Credit Agreement on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
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1.1 Amendment to Subsection 1.1.
Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions in appropriate alphabetical order:
"Columbus Machinery Plant Sales" means, collectively,
(i) the sale of the real property and improvements of
Company's Columbus Machining plant, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, for cash consideration in an aggregate
amount not less than $3,200,000, and (ii) the sale of certain
equipment located at such Columbus Machining plant for cash
consideration in an aggregate amount not less than $970,000,
in each case to the extent such sale is approved by the
Bankruptcy Court pursuant to an order reasonably satisfactory
to Agents.
"DiSA Machine" means machinery purchased by Company
from DiSA on or about the Fifth Amendment Effective Date for
the Hibbing plant for an aggregate purchase price not to
exceed $2,100,000, to the extent such purchase is approved by
the Bankruptcy Court pursuant to an order reasonably
satisfactory to Agents.
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"Fifth Amendment" means that certain Fifth Amendment
to Debtor-In-Possession Credit Agreement dated as of January
26, 2005 by and among Borrowers, Agents, Lead Lenders and the
Lenders party thereto.
"Fifth Amendment Effective Date" has the meaning
assigned to that term in the Fifth Amendment.
1.2 Amendment to Subsection 5.15.
Subsection 5.15A of the Credit Agreement is hereby amended by
adding at the end of such subsection the following new sentence:
"Notwithstanding anything in this subsection 5.15A to the
contrary, Liens on the DiSA Machine permitted under subsection
7.2A(iv)(b) shall have priority over any Lien thereon in favor
of Collateral Agent for the benefit of the Lenders.".
1.3 Amendment to Subsection 6.1.
Subsection 6.1(xviii) of the Credit Agreement is hereby
amended by deleting the reference to "January 31, 2005" contained therein and
substituting therefor "March 20, 2005".
1.4 Amendment to Subsection 6.16.
Subsection 6.16 of the Credit Agreement is hereby amended by
(i) deleting each reference to "January 26, 2005" contained in clauses (a), (c)
and (f) of the last sentence of such subsection and substituting therefor
"January 31, 2005"; (ii) deleting the phrase "and Bank of America, N.A."
contained in clause (c) of the last sentence of such subsection; (iii) deleting
the "and" immediately prior to clause (f) of the last sentence of such
subsection; and (iv) adding immediately prior to the "." at the end of such
subsection the following new clause (g):
"and (g) no Control Agreement shall be required from Bank of
America, N.A. so long as prior to April 30, 2005, (x) a bank
reasonably acceptable to Collateral Agent replaces Bank of
America, N.A. in performing the cash management functions
performed by Bank of America, N.A. (as of the Fifth Amendment
Effective Date) and (y) the cash management arrangements (and
the Control Agreement) that would otherwise be required with
respect to Bank of America, N.A. (without giving effect to
clause (g) of this sentence) shall be in full force and effect
with respect to such replacement bank".
1.5 Amendment to Subsection 7.2A.
Subsection 7.2A of the Credit Agreement is hereby amended by
deleting clause (iv) therefrom in its entirety and substituting therefor the
following:
"(iv) Liens securing (a) Indebtedness permitted by
subsection 7.1(iii) or (b) the unpaid purchase price of the
DiSA Machine, so long as (x) in the case of clause (a), the
Liens securing such Indebtedness shall attach only to the
assets purchased with the proceeds of such Indebtedness, (y)
in the case of clause (b), the Liens securing such unpaid
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purchase price shall attach only to the DiSA Machine, and (z)
on any date of determination the aggregate amount of
outstanding Indebtedness incurred pursuant to subsection
7.1(iii) together with the aggregate unpaid purchase price for
the DiSA Machine shall not exceed $5,000,000.".
1.6 Amendment to Subsection 7.7.
A. Subsection 7.7(i) of the Credit Agreement is hereby
amended by adding immediately after the reference to "Bankruptcy Code" contained
therein the following:
", provided that the Columbus Machinery Plant Sales shall not
be required to be conducted as auctions under Section 363 of
the Bankruptcy Code".
B. Subsection 7.7(iv) of the Credit Agreement is hereby
amended by adding immediately after the reference to "Bankruptcy Code" in clause
(a) of the proviso thereto the following:
", provided that the Columbus Machinery Plant Sales shall not
be required to be conducted as auctions under Section 363 of
the Bankruptcy Code".
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Lenders and the Lenders to enter
into this Amendment and to amend the Credit Agreement in the manner provided
herein, Borrowers represent and warrant to each Lead Lender and Lender that the
following statements are true, correct and complete:
2.1 Corporate Power and Authority. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Amendment has been duly authorized by all necessary action on the part of each
Borrower and the performance of the Amended Agreement has been duly authorized
by all necessary action on the part of each Borrower.
2.3 No Conflict. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Borrower or any of its Subsidiaries, or the
Organizational Documents of any Borrower or any of its Subsidiaries or any
order, judgment or decree of the Bankruptcy Court of any other Government
Authority binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
Subsidiaries or any applicable order of the Bankruptcy Court, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of any Borrower or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of the
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Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Borrower or any of
its Subsidiaries.
2.4 Governmental Consents. The execution and delivery by each
Borrower of this Amendment and the performance by each Borrower of the Amended
Agreement do not and will not require any Governmental Authorization.
2.5 Binding Obligation. This Amendment has been duly executed and
delivered by each Borrower, and each of this Amendment and the Amended Agreement
is the legally valid and binding obligations of each Borrower enforceable
against each Borrower in accordance with its respective terms.
2.6 Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Fifth Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 Absence of Default. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
2.8 Final Borrowing Order. The Final Borrowing Order is in full
force and effect and has not been stayed by the Bankruptcy Court or any other
court of competent jurisdiction and has not been reversed, vacated or otherwise
modified after the entry thereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective on the
first date (such date being referred to herein as the "Fifth Amendment Effective
Date") on which each of the following conditions shall have been satisfied:
3.1 Draft Deliveries. Agents shall have received the documents
Borrowers propose to deliver in satisfaction of the requirements contained in
clauses (a) and (f) of the last sentence of subsection 6.16 of the Credit
Agreement.
3.2 Requisite Approvals. Borrowers, Requisite Lenders and each Lead
Lender shall have each executed a counterpart hereof, and Company and Agents
shall have received written or telephonic notification of such execution and
authorization of delivery of such counterparts.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower hereby acknowledges that such Borrower has read
this Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Borrower under each of the Loan Documents to which such
Borrower is a party shall not be impaired and each of the Loan Documents to
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which such Borrower is a party are, and shall continue to be, in full force and
effect and are hereby confirmed and ratified in all respects.
SECTION 5. MISCELLANEOUS
5.1 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
A. On and after the Fifth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this
Amendment shall not constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of any Agent or any Lender under, the
Credit Agreement or any of the other Loan Documents.
5.2 Fees and Expenses. Each Borrower acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and Collateral Agent and their respective
counsel (including, without limitation, O'Melveny & ▇▇▇▇▇ LLP, Wachtell, Lipton,
▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Capstone Corporate Recovery LLC) with
respect to this Amendment and the documents and transactions contemplated hereby
shall be for the account of Borrowers.
5.3 Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
5.4 Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
INTERMET CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CAST-MATIC CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
COLUMBUS FOUNDRY, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
DIVERSIFIED DIEMAKERS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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GANTON TECHNOLOGIES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
INTERMET HOLDING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
INTERMET ILLINOIS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
INTERMET INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
INTERMET U.S. HOLDING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
IRONTON IRON, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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LYNCHBURG FOUNDRY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NORTHERN CASTINGS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUDBURY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUDM, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TOOL PRODUCTS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ CASTINGS COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ HAVANA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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AGENTS AND LENDERS:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lead
Lender and a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and as a Lead Lender
and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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