1
Exhibit 4.14 (a)
================================================================================
$300,000,000
FIVE-YEAR
CREDIT AGREEMENT
dated as of November 5, 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
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS; CONSTRUCTION.........................................................................1
Section 1.01. Definitions.............................................................1
Section 1.02. Accounting Terms and Determination.....................................19
Section 1.03. Other Definitional Terms...............................................20
Section 1.04. Exhibits and Schedules.................................................20
ARTICLE II.
SYNDICATED LOANS, SWINGLINE LOANS AND LETTERS OF CREDIT..........................................20
Section 2.01. Commitments; Use of Proceeds...........................................20
Section 2.02. Notes; Repayment of Principal..........................................21
Section 2.03. Voluntary Reduction of Commitments.....................................21
Section 2.04. Letter of Credit Facility..............................................21
Section 2.05. Notice of Issuance of Letter of Credit;
Agreement to Issue.....................................................22
Section 2.06. Payment of Amounts drawn under Letters of Credit.......................23
Section 2.07. Payment by Lenders.....................................................24
Section 2.08. Swingline Loans........................................................24
ARTICLE III.
GENERAL LOAN AND LETTER OF CREDIT TERMS..........................................................26
Section 3.01. Funding Notices........................................................26
Section 3.02. Disbursement of Funds..................................................27
Section 3.03. Interest...............................................................28
Section 3.04. Interest Periods.......................................................29
Section 3.05. Fees...................................................................30
Section 3.06. Voluntary Prepayments of Borrowings....................................31
Section 3.07. Payments, etc..........................................................31
Section 3.08. Interest Rate Not Ascertainable, etc...................................33
Section 3.09. Illegality.............................................................34
Section 3.10. Increased Costs........................................................34
Section 3.11. Lending Offices........................................................36
Section 3.12. Funding Losses.........................................................37
Section 3.13. Assumptions Concerning Funding of Eurodollar
Advances...............................................................37
Section 3.14. Apportionment of Payments..............................................37
Section 3.15. Sharing of Payments, Etc...............................................38
i
3
Section 3.16. Benefits to Guarantors.................................................38
Section 3.17. Limitation on Certain Payment Obligations..............................38
Section 3.18. Letter of Credit Obligations Absolute..................................39
Section 3.19. Failure to Maintain Minimum Required Rating............................40
ARTICLE IV.
CONDITIONS TO BORROWINGS.........................................................................40
Section 4.01. Conditions Precedent to Initial Loans and Letters of
Credit.................................................................40
Section 4.02. Conditions to All Loans and Letters of Credit..........................42
ARTICLE V.
REPRESENTATIONS AND WARRANTIES...................................................................43
Section 5.01. Corporate Existence; Compliance with Law...............................43
Section 5.02. Corporate Power; Authorization.........................................44
Section 5.03. Enforceable Obligations................................................44
Section 5.04. No Legal Bar...........................................................44
Section 5.05. No Material Litigation or Investigations...............................44
Section 5.06. Investment Company Act, Etc............................................44
Section 5.07. Margin Regulations.....................................................45
Section 5.08. Compliance With Environmental Laws.....................................45
Section 5.09. Insurance..............................................................45
Section 5.10. No Default.............................................................46
Section 5.11. No Burdensome Restrictions.............................................46
Section 5.12. Taxes..................................................................46
Section 5.13. Subsidiaries...........................................................46
Section 5.14. Financial Statements...................................................46
Section 5.15. ERISA..................................................................47
Section 5.16. Patents, Trademarks, Licenses, Etc.....................................48
Section 5.17. Ownership of Property..................................................48
Section 5.18. Financial Condition....................................................49
Section 5.19. Labor Matters..........................................................49
Section 5.20. Payment or Dividend Restrictions.......................................49
Section 5.21. Disclosure.............................................................49
Section 5.22. Year 2000 Compliance...................................................50
ARTICLE VI.
AFFIRMATIVE COVENANTS............................................................................50
Section 6.01. Corporate Existence, Etc...............................................50
Section 6.02. Compliance with Laws, Etc..............................................50
Section 6.03. Payment of Taxes and Claims, Etc.......................................51
ii
4
Section 6.04. Keeping of Books.......................................................51
Section 6.05. Visitation, Inspection, Etc............................................51
Section 6.06. Insurance; Maintenance of Properties...................................51
Section 6.07. Reporting Covenants....................................................52
Section 6.08. Financial Covenants....................................................55
Section 6.09. Notices Under Certain Other Indebtedness...............................55
Section 6.10. Additional Credit Parties and Collateral...............................56
Section 6.11. Amendment to Note Purchase Agreement...................................56
ARTICLE VII.
NEGATIVE COVENANT................................................................................56
Section 7.01. Indebtedness...........................................................57
Section 7.02. Liens..................................................................57
Section 7.03. Mergers, Acquisitions, Divestitures....................................58
Section 7.04. Asset Sales............................................................59
Section 7.05. Dividends, Etc.........................................................61
Section 7.06. Investments, Loans, Etc................................................61
Section 7.07. Sale and Leaseback Transactions........................................62
Section 7.08. Transactions with Affiliates...........................................62
Section 7.09. Prepayments of Subordinated Debt in Violation
Thereof................................................................63
Section 7.10. Changes in Business....................................................63
Section 7.11. Limitation on Payment Restrictions Affecting
Consolidated Companies.................................................63
Section 7.12. Actions Under Certain Documents........................................64
ARTICLE VIII.
EVENTS OF DEFAULT...............................................................................64
Section 8.01. Payments...............................................................64
Section 8.02. Covenants Without Notice...............................................64
Section 8.03. Other Covenants........................................................64
Section 8.04. Representations........................................................64
Section 8.05. Non-Payments of Other Indebtedness.....................................65
Section 8.06. Defaults Under Other Agreements........................................65
Section 8.07. Bankruptcy.............................................................65
Section 8.08. ERISA..................................................................66
Section 8.09. Money Judgment.........................................................66
Section 8.10. Ownership of Credit Parties............................................66
Section 8.11. Change in Control of Intermet..........................................67
Section 8.12. Default Under Other Credit Documents...................................67
Section 8.13. Attachments............................................................67
iii
5
Section 8.14. Default under 364-Day Credit Agreement.................................67
ARTICLE IX.
THE ADMINISTRATIVE AGENT..........................................................................68
Section 9.01. Appointment of Administrative Agent....................................68
Section 9.02. Authorization of Administrative Agent with
Respect to the Security Documents......................................69
Section 9.03. Nature of Duties of Administrative Agent...............................69
Section 9.04. Lack of Reliance on the Administrative Agent...........................70
Section 9.05. Certain Rights of the Administrative Agent.............................70
Section 9.06. Reliance by Administrative Agent.......................................70
Section 9.07. Indemnification of Administrative Agent................................71
Section 9.08. The Administrative Agent in its Individual
Capacity...............................................................71
Section 9.09. Holders of Notes.......................................................71
Section 9.10. Successor Administrative Agent.........................................72
Section 9.11. Other Agents...........................................................72
ARTICLE X.
MISCELLANEOUS.....................................................................................72
Section 10.01. Notices...............................................................72
Section 10.02. Amendments, Etc.......................................................73
Section 10.03. No Waiver; Remedies Cumulative........................................73
Section 10.04. Payment of Expenses, Etc..............................................74
Section 10.05. Right of Setoff.......................................................75
Section 10.06. Benefit of Agreement..................................................76
Section 10.07. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial..................................................79
Section 10.08. Independent Nature of Lenders' Rights.................................80
Section 10.09. Counterparts..........................................................80
Section 10.10. Effectiveness; Survival...............................................80
Section 10.11. Severability..........................................................81
Section 10.12. Independence of Covenants.............................................81
Section 10.13. Change in Accounting Principles, Fiscal Year or Tax Laws..............81
Section 10.14. Headings Descriptive; Entire Agreement................................81
iv
6
SCHEDULES
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
EXHIBIT A - Form of Revolving Credit Note
EXHIBIT B - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Application
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
v
7
FIVE-YEAR
CREDIT AGREEMENT
THIS FIVE-YEAR CREDIT AGREEMENT made and entered into as of November 5,
1999, by and among INTERMET CORPORATION, a Georgia corporation ("Intermet"), THE
BANK OF NOVA SCOTIA, a Canadian chartered bank ("Scotiabank"), acting through
its Atlanta Agency, the other banks and lending institutions listed on the
signature pages hereof, and any assignees of Scotiabank, or such other banks and
lending institutions which become "Lenders" as provided herein (Scotiabank, and
such other banks, lending institutions, and assignees referred to collectively
herein as the "Lenders"), Scotiabank, 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") and
BANK ONE, MICHIGAN, as Syndication Agent, SUNTRUST BANK, ATLANTA ("SunTrust"),
as Documentation Agent, COMERICA BANK, as Managing Agent, and THE BANK OF NEW
YORK, ▇▇▇▇▇▇ TRUST AND SAVINGS BANK and PNC BANK, NATIONAL ASSOCIATION, as
Co-Agents (the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Managing Agent and the Co-Agents 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 and the
other Agents and the Lenders have agreed, subject to the terms and conditions of
this Agreement, to make available to Intermet a revolving credit facility with a
letter of credit subfacility and a swingline loan subfacility;
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
8
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.
"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 and remaining
outstanding at any time under (i) the Syndicated Loans, which Advances shall be
made or outstanding as Base Rate Advances or Eurodollar Advances, as the case
may be, and (ii) the Swingline Loans, which Advances shall be made or
outstanding as Base Rate Advances.
"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 Five-Year Credit Agreement, as amended,
modified, restated, or supplemented from time to time.
"Applicable Commitment Fee Percentage" shall mean 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 Commitment Fee Percentage to
be immediately effective on the 60th day of the next fiscal quarter thereafter:
2
9
FUNDED DEBT TO APPLICABLE
CONSOLIDATED COMMITMENT FEE
EBITDA RATIO PERCENTAGE
------------ --------------
Greater than or Equal to
2.50:1.0 0.375%
Less than 2.50:1.0 and
Greater than or Equal to 0.250%
2.00:1.0
Less than 2.00:1.0 and
Greater than or Equal to
1.50:1.0 0.200%
Less than 1.50:1.0 0.175%
provided, however, that the Applicable Commitment Fee Percentage shall be no
less than 0.200% until May 31, 2000; and provided, further, that 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 Commitment Fee Percentage shall be 0.375% until such
financial statements are delivered.
"Applicable Margin" shall mean with respect to all outstanding
Eurodollar Advances and Letter of Credit Obligations, 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:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO MARGIN
------------ ----------
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%
3
10
Less than 2.00:10 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 1.00% until
May 31, 2000; and provided, further, that 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 and Letter of Credit Obligations shall be
1.75% until such financial statements are delivered.
"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.
"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.
4
11
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
Syndicated Loan or Swingline 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:
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 0.250% until
May 31, 2000; and provided, further, that 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.
"Borrowing" shall mean the incurrence by Intermet under any 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.
5
12
"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 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 November 30, 1999 on
which the initial Loans are made or deemed to have been 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 reduction thereof
pursuant to Section 2.03, 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.
"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
6
13
"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 "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
7
14
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 (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.
"Credit Documents" shall mean, collectively, this Agreement, the Notes,
the Letters of Credit, the Fee Letter, 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.
8
15
--------------------------------------------------------------------------------
"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.
"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
9
16
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
Syndicated 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.
"Facility" or "Facilities" shall mean the Commitments, or the Swingline
Loan subfacility or the Letter of Credit subfacility, as the context may
indicate.
"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 Letter" shall mean the confidential fee letter, dated as of
September 15, 1999, between Intermet and Scotiabank.
"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.
10
17
"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 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 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
11
18
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 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
12
19
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 Debt shall be valued at
the outstanding principal balance thereof as of the date of determination.
"Issuer" shall mean Scotiabank, in its individual capacity hereunder
(and not in its capacity as the Administrative Agent) and for Letters of Credit
outstanding under the Prior Credit Agreement on the Closing Date (but not with
respect to any extensions or renewals thereof) shall mean SunTrust, in its
individual capacity hereunder. At the request of Scotiabank, another Lender
consented to by Intermet (such consent not to be unreasonably withheld) may
become a successor Issuer.
"Lender" or "Lenders" shall mean Scotiabank, 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.
"Letter of Credit Commitment" shall mean the lesser of $100,000,000 and
the sum of the Commitments.
"Letter of Credit Fee" shall have the meaning set forth in Section
3.05(b).
"Letter of Credit Obligations" shall mean, with respect to Letters of
Credit, as at any date of determination, the sum of (a) the maximum aggregate
amount which at such date of determination is available to be drawn by the
beneficiaries thereof (assuming the conditions for drawing thereunder have been
met) under all Letters of Credit then outstanding, plus (b) the aggregate amount
of all drawings under Letters of Credit honored by the Issuer not theretofore
reimbursed by Intermet.
"Letters of Credit" shall mean the financial and commercial/trade
letters of credit issued pursuant to Article II hereof by the Issuer for the
account of Intermet pursuant to the Commitments.
"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 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 ▇▇ (▇▇▇▇▇▇,
▇▇
▇▇
▇▇▇▇▇▇▇ 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, collectively, the Syndicated Loans and the
Swingline 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) November 5, 2004, 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.
14
21
"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 Revolving Credit Notes and the
Swingline Note.
"Notice of Borrowing" shall mean a notification of Borrowing by
Intermet pursuant to Section 2.08 or 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), all Letter of Credit Obligations, 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
15
22
such 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.
"Prior Credit Agreement" shall mean the Third Amended and Restated
Credit Agreement dated as of November 14, 1996, as amended, modified and
supplemented, among Intermet, the financial institutions party thereto, SunTrust
Bank, Atlanta, as agent, and NBD Bank and First Union National Bank, as
co-agents and in effect on the Closing Date.
"Pro Rata Share" shall mean, with respect to Commitments, each
Syndicated Loan, each Swingline Loan and all Letters of Credit 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.
16
23
"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, or, following the termination of the Commitments hereunder,
Lenders holding at least 51% of the sum of the aggregate outstanding Loans and
Letter of Credit Obligations.
"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).
"Revolving Credit Notes" shall mean, collectively, the promissory notes
evidencing the Syndicated Loans in the form attached hereto as Exhibit A, either
as originally executed or as hereafter amended, modified or substituted.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Scotiabank" shall have the meaning set forth in the preamble.
"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
17
24
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, 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.
"SunTrust" shall have the meaning set forth in the preamble.
"Swingline Commitment" shall mean the lesser of $10,000,000 and the sum
of the Commitments.
"Swingline Lender" means Scotiabank, in its individual capacity
hereunder (and not in its capacity as the Administrative Agent). At the request
of Scotiabank another Lender consented to by Intermet (such consent not to be
unreasonably withheld) may become a successor Swingline Lender.
"Swingline Loan" shall mean an Advance made by the Swingline Lender to
Intermet pursuant to Section 2.08.
"Swingline Note" shall mean a promissory note of Intermet payable to
the order of the Swingline Lender, in substantially the form of Exhibit B
hereto, evidencing the maximum aggregate principal indebtedness of Intermet to
the Swingline Lender with respect to outstanding Swingline Loans made by the
Swingline Lender pursuant to this Agreement, either as originally executed or as
it may be from time to time supplemented, modified, amended, renewed or
extended.
"Syndicated Loans" shall mean, collectively, all outstanding Loans made
to Intermet by the Lenders pursuant to Section 2.01 hereof.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended and
in effect from time to time.
18
25
"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.
"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).
"364-Day Credit Agreement" shall mean the 364-Day Credit Agreement,
dated as of the date hereof (as amended, modified, restated, or supplemented
from time to time), among Intermet, the various financial institutions that are
or may become parties thereto and Scotiabank, 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
19
26
Agreement as a whole and not to any particular provision of this Agreement, and
Article, 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.
SYNDICATED LOANS, SWINGLINE LOANS AND LETTERS OF CREDIT
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 from time to time on and after
the Closing Date, but prior to the Maturity Date, Syndicated Loans in an
aggregate amount outstanding at any time not to exceed such Lender's Commitment
minus such Lender's Pro Rata Share of the Swingline Loans minus such Lender's
Pro Rata Share of the Letter of Credit Obligations, subject, however, to the
conditions that (i) at no time shall the sum of the (x) the outstanding
principal amount of all Syndicated Loans, plus (y) the outstanding principal
amount of all Swingline Loans, plus (z) the outstanding Letter of Credit
Obligations, exceed the sum of the Commitments, and (ii) at all times shall the
outstanding principal amount of the Syndicated 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 Syndicated Loans. Intermet shall be entitled
to repay and reborrow Syndicated Loans in accordance with the provisions hereof.
(b) Each Syndicated Loan shall, at the option of Intermet, be made or
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 Syndicated Loans shall be not less than
$5,000,000 or a greater integral multiple of $1,000,000, provided that each
Borrowing of Syndicated Loans comprised of Base Rate Advances shall be not less
than $1,000,000 or a greater integral multiple of $100,000. At no time shall the
number of outstanding Borrowings comprised of Eurodollar Advances exceed twelve.
(c) The proceeds of Loans shall be used solely as working capital and
for other general corporate purposes, including Acquisitions, Investments, the
repayment of Indebtedness (including Indebtedness under the Prior Credit
Agreement) and the funding of capital expenditures of the Consolidated
Companies.
SECTION 2.02. NOTES; REPAYMENT OF PRINCIPAL.
20
27
(a) Intermet's obligations to pay the principal of, and interest on,
the Syndicated Loans to each Lender shall be evidenced by the records of the
Administrative Agent and such Lender and by the Revolving Credit Note payable to
such Lender (or the assignor of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Commitments shall be
due and payable in full on the Maturity Date.
SECTION 2.03. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
(3) Business Days' prior telephonic notice (promptly confirmed in writing) to
the Administrative Agent, Intermet shall have the right, without premium or
penalty, to terminate the unutilized Commitments, in part or in whole, provided,
that (i) any such termination shall apply to proportionately and permanently
reduce the Commitments of each of the Lenders, and (ii) any partial termination
pursuant to this Section 2.03 shall be in an amount of at least $5,000,000 and
integral multiples of $1,000,000.
SECTION 2.04. LETTER OF CREDIT FACILITY. Subject to, and upon the terms
and conditions set forth herein, Intermet may request, in accordance with the
provisions of this Section 2.04 and Section 2.05 and the other terms of this
Agreement, that on and after the Closing Date but prior to the Maturity Date,
the Issuer issue a Letter or Letters of Credit for the account of Intermet;
provided that the application for such Letters of Credit issued by the Issuer
shall be in the form substantially identical to Exhibit C attached hereto,
provided further that (i) no Letter of Credit shall have an expiration date that
is later than one year after the date of issuance thereof (provided that a
Letter of Credit may provide that it is extendible for consecutive one year
periods); (ii) in no event shall any Letter of Credit issued by the Issuer have
an expiration date (or be extended so that it will expire) later than the
Maturity Date; and (iii) Intermet shall not request that the Issuer issue any
Letter of Credit, if, after giving effect to such issuance, (a) the sum of the
aggregate Letter of Credit Obligations plus the aggregate outstanding principal
amount of the Syndicated Loans plus the aggregate outstanding principal amount
of the Swingline Loans would exceed the Commitments, or (b) the sum of the
aggregate Letter of Credit Obligations would exceed the Letter of Credit
Commitment.
SECTION 2.05. NOTICE OF ISSUANCE OF LETTER OF CREDIT; AGREEMENT TO
ISSUE.
(a) Whenever Intermet desires the issuance of a Letter of Credit, it
shall, in addition to any application and documentation procedures required by
the Issuer for the issuance of such Letter of Credit, deliver to the
Administrative Agent and the Issuer a written notice no later than 11:00 AM
(local time for the Administrative Agent) at least five (5) days in advance of
the proposed date of issuance and the Administrative Agent shall promptly
forward a copy of such notice to each of the Lenders. Each such notice shall
specify (i) the proposed date of issuance (which shall be a Business Day); (ii)
the face amount of the Letter of Credit (which shall be denominated in Dollars);
(iii) the expiration date of the Letter of Credit; and (iv) the name and address
of the beneficiary with respect to such Letter of Credit
21
28
and shall attach a precise description of the documentation and a verbatim text
of any certificate to be presented by the beneficiary of such Letter of Credit
which would require the Issuer to make payment under the Letter of Credit,
provided that the Issuer may require changes in any such documents and
certificates in accordance with its customary letter of credit practices, and
provided further, that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day that such draft
is presented if such presentation is made after 11:00 AM (Atlanta, Georgia
time). In determining whether to pay any draft under any Letter of Credit, the
Issuer shall be responsible only to determine that the documents and certificate
required to be delivered under its Letter of Credit have been delivered, and
that they comply on their face with the requirements of the Letter of Credit.
The Issuer shall promptly notify the Administrative Agent upon the issuance of a
Letter of Credit. Promptly after receiving the notice of issuance of a Letter of
Credit, the Administrative Agent shall notify each Lender of such Lender's
respective participation therein, determined in accordance with its respective
Pro Rata Share of the Commitments.
(b) The Issuer agrees, subject to the terms and conditions set forth
in this Agreement, to issue for the account of Intermet a Letter of Credit in a
face amount equal to the face amount requested under paragraph (a) above,
following its receipt of a notice required by Section 2.05(a). Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuer a participation in
such Letter of Credit and any drawing thereunder in an amount equal to such
Lender's Pro Rata Share of the Commitments multiplied by the face amount of such
Letter of Credit. Upon issuance and amendment or extension of any Letter of
Credit the Issuer shall provide to the Administrative Agent, and the
Administrative Agent shall, if requested by any Lender, then provide to each
such Lender, a copy of each such Letter of Credit issued, amended or extended
hereunder.
(c) As of the Closing Date, each of the Letters of Credit set forth
on Schedule 7.01 shall be deemed to have been issued by SunTrust as Issuer in
accordance with the terms hereof, each of the Lenders shall be deemed to have
purchased a participation in such Letters of Credit in an amount equal to such
Lender's Pro Rata Share of the Commitments multiplied by the face amount
thereof, and such Letters of Credit shall be governed by the terms hereof;
provided that SunTrust shall not be permitted to extend or renew any such Letter
of Credit.
SECTION 2.06. PAYMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(a) In the event of any request for a drawing under any Letter of
Credit by the beneficiary thereof, the Issuer shall notify Intermet, the
Administrative Agent and the Lenders on or before the date on which the Issuer
intends to honor such drawing, and Intermet shall reimburse the Issuer on the
day on which such drawing is honored in an amount, in same day funds, equal to
the amount of such drawing.
22
29
(b) Notwithstanding any provision of this Agreement to the contrary,
to the extent that any Letter of Credit or portion thereof remains outstanding
on the Maturity Date, for any reason whatsoever, the parties hereto hereby agree
that the beneficiary or beneficiaries thereof shall be deemed to have made a
drawing of all available amounts pursuant to such Letters of Credit on the
Maturity Date which amount shall be paid by Intermet to and held by the Issuer
as cash collateral for its remaining obligations pursuant to such Letters of
Credit.
(c) As between Intermet and the Issuer, Intermet assumes all risk of
the acts and omissions of, or misuse of, the Letters of Credit issued by the
Issuer, by the respective beneficiaries of such Letters of Credit, other than
losses resulting from the gross negligence and willful misconduct of the Issuer.
In furtherance and not in limitation of the foregoing but subject to the
exception for the Issuer's gross negligence or willful misconduct set forth
above, the Issuer shall not be responsible (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Letters of
Credit, even if it should in fact prove to be in any or all respects
insufficient, inaccurate, fraudulent or forged or otherwise invalid; (ii) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof in whole or in part which may prove to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of any such Letter of Credit to comply fully with the conditions required in
order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, telecopy or otherwise; (v) for good faith errors in
interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of the Issuer.
SECTION 2.07. PAYMENT BY LENDERS. In the event that Intermet shall fail
to reimburse the Issuer as provided in Section 2.06, the Issuer shall promptly
notify each Lender of the unreimbursed amount of such drawing and of such
Lender's respective participation therein. Each Lender shall make available to
the Issuer an amount equal to its respective participation, in Dollars and in
immediately available funds, at the office of the Issuer specified in such
notice not later than 1:00 PM (Atlanta, Georgia time) on the Business Day after
the date notified by the Issuer and such amount shall be deemed to be
outstanding hereunder as a Base Rate Loan. Each Lender shall be obligated to
make such Base Rate Loan hereunder regardless of whether the conditions
precedent in Article IV are satisfied and regardless of whether such Base Rate
Loan complies with the minimum borrowing requirements hereunder. In the event
that any such Lender fails to make available to the Issuer the amount of such
Lender's participation in such Letter of Credit, the Issuer shall be entitled to
recover such amount on demand from such Lender together with interest as
provided for in Section 3.02. The Issuer shall distribute to each Lender which
has paid all amounts payable under this Section with respect to any Letter of
Credit, such Lender's Pro
23
30
Rata Share of all payments received by the Issuer from Intermet in reimbursement
of drawings honored by the Issuer under such Letter of Credit when such payments
are received.
SECTION 2.08. SWINGLINE LOANS.
(a) Subject to the terms and conditions hereof, Intermet may request,
and the Swingline Lender agrees to make to Intermet from time to time on and
after the Closing Date, but prior to the Maturity Date, Swingline Loans in
accordance with the following procedure; provided, that (i) at no time shall the
sum of the aggregate principal amount of the Swingline Loans exceed the
Swingline Commitment, (ii) at no time shall the sum of the outstanding principal
amount of the Loans plus the Letter of Credit Obligations exceed the sum of the
Commitments, and (iii) each Swingline Loan shall consist entirely of Base Rate
Loans. Intermet shall be entitled to repay and reborrow Swingline Loans in
accordance with the provisions hereof.
(b) In order to request a Swingline Loan, Intermet shall telecopy to
the Administrative Agent a duly completed Notice of Borrowing in the form of
Exhibit D-1 attached hereto, to be received by the Administrative Agent not
later than 11:00 AM (local time for the Administrative Agent) time, on the
Business Day of the proposed Swingline Loan; provided that, such Notice of
Borrowing shall not be deemed to have been received by the Administrative Agent
in a timely manner unless Intermet shall also have notified the Administrative
Agent by telephone (excluding voice mail notification) of such Notice of
Borrowing by the time specified above. A Notice of Borrowing that does not
conform substantially to the format of Exhibit D-1 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 Notice of Borrowing shall
be irrevocable and shall specify (i) the date of such Borrowing or Borrowings
(which shall be a Business Day) and (ii) the aggregate principal amount thereof,
which shall be in a minimum principal amount of $1,000,000 and in an integral
multiple of $100,000.
(c) The Swingline Lender shall make its Swingline Loan available to
the Administrative Agent on the date specified in the Notice of Borrowing at the
time and in the manner and subject to the provisions specified in Section 3.02.
(d) If the outstanding principal amount of any Swingline Loan is not
repaid when due pursuant to the terms of this Agreement, each Lender (other than
the Swingline Lender) irrevocably agrees that it will, upon receipt of a notice
from the Swingline Lender, promptly (and in any event not later than 1:00 PM
Atlanta, Georgia time) on the Business Day after the date notified by the
Swingline Lender) transfer to the Swingline Lender, in immediately available
funds, an amount equal to such Lender's Pro Rata Share of the then aggregate
outstanding amount of all Swingline Loans, and thereafter such Lender's Pro Rata
Share of such Swingline Loans shall constitute a Syndicated Loan (which shall be
a Base Rate Advance) made by such Lender hereunder. Each Lender shall be
obligated to make such Base Rate Advance hereunder regardless of whether the
conditions precedent in Article IV are
24
31
then satisfied and regardless of whether such Base Rate Advance complies with
the minimum borrowing requirements hereunder. In the event that any such Lender
fails to make available to the Swingline Lender such Lender's Pro Rata Share of
the Swingline Loans, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender together with interest as provided for in
Section 3.02. The Swingline Lender shall distribute to each Lender which has
paid all amounts payable under this Section with respect to any Swingline Loans
such Lender's Pro Rata Share of all payments received by the Swingline Lender
with respect to Swingline Loans.
(e) The Swingline Loans of the Swingline Lender shall be evidenced by
its Swingline Note and each Swingline Loan, unless sooner accelerated pursuant
to Article VIII hereof, shall be due and payable in full on the earliest of (i)
four Business Days after such Swingline Loan is made, (ii) the next date on
which Syndicated Loans are made and (iii) the Maturity Date.
ARTICLE III.
GENERAL LOAN AND LETTER OF CREDIT TERMS
SECTION 3.01. FUNDING NOTICES.
(a) (i) Whenever Intermet desires to obtain a Syndicated Loan with
respect to the Commitments (other than one resulting from a conversion or
continuation pursuant to Section 3.01(b)), it shall give the Administrative
Agent a duly completed Notice of Borrowing in the form of Exhibit D-1 attached
hereto, such Notice of Borrowing to be given prior to 11:00 AM (local time for
the Administrative Agent) at its Payment Office (x) three Business Days prior to
the requested date of such Borrowing in the case of Eurodollar Advances, and (y)
on the date of such Borrowing (which shall be a Business Day) in the case of a
Borrowing consisting of Base Rate Advances. Notices received after 11:00 AM
(local time for the Administrative Agent) shall be deemed received on the next
Business Day. A Notice of Borrowing that does not conform substantially to the
format of Exhibit D-1 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 Notice of Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date of Borrowing (which shall
be a Business Day), and whether the Borrowing is to consist of Base Rate
Advances or Eurodollar Advances and (in the case of Eurodollar Advances) the
Interest Period to be applicable thereto.
(ii) Whenever Intermet desires to obtain a Swingline Loan, it
shall notify the Administrative Agent in accordance with the procedure set forth
in Section 2.08 hereof.
25
32
(b) Whenever Intermet desires to convert all or a portion of an
outstanding Borrowing, which Borrowing consists of Base Rate Advances or
Eurodollar Advances (in the case of Syndicated Loans), 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
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 date of each Syndicated Loan pursuant to the Commitments (other than one
resulting from a conversion or continuation pursuant to Section 3.01(b)), each
Lender will make available its
26
33
Pro Rata Share of such Syndicated Loan 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) No later than 3:00 PM (local time for the Administrative Agent)
on the date of each Swingline Loan, the Swingline Lender will make available the
amount of its Swingline Loan in immediately available funds at the Payment
Office of the Administrative Agent on the date of such Swingline Loan.
(c) Unless the Administrative Agent shall have been notified by any
Lender prior to the date of a Borrowing (or, with respect to a Borrowing
consisting of Base Rate Advances, prior to 12:00 Noon on the date of such
Borrowing) 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 date of Borrowing, 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 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 or Swingline Loans
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 Syndicated Loans under the Commitments shall be loaned by the
Lenders on the basis of their Pro Rata Share of the Commitments. All Swingline
Loans shall be loaned by the Swingline Lender. 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 or
Swingline Loans hereunder.
27
34
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. 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 (in the case of Eurodollar Advances), 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.
28
35
SECTION 3.04. INTEREST PERIODS.
(a) In connection with the making or 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.
(a) Intermet shall pay to the Administrative Agent, for the account
of and distribution of the respective Pro Rata Share to each Lender (subject to
the last sentence hereof), a commitment fee (the "Commitment Fee") for the
period commencing on the Closing Date to and including the Maturity Date,
computed at a rate equal to the Applicable Commitment Fee Percentage per annum
multiplied by the average daily unused portion of the Commitments of the
Lenders, such fee being payable quarterly in arrears on or before the date which
is five days following the last day of each fiscal quarter of Intermet and on
the Maturity Date. For purposes of calculating the Commitment Fee, Swingline
Loans shall not be considered a usage of the Commitments. Outstanding Letter of
Credit Obligations shall be considered a usage of the Commitments.
29
36
(b) Intermet agrees to pay to the Administrative Agent, for the
account of the Lenders, a letter of credit fee equal to the Applicable Margin
applicable to Eurodollar Advances multiplied by the daily average amount of
Letter of Credit Obligations (the "Letter of Credit Fee"). The Letter of Credit
Fee shall be payable by Intermet quarterly, in arrears, on or before the date
which is five days following the last day of each fiscal quarter of Intermet,
and on the Maturity Date. Intermet also shall pay to the Issuer with respect to
each Letter of Credit a fronting fee as described in the Fee Letter and other
customary administrative, issuance, amendment, payment and negotiation fees.
(c) Intermet shall pay to the Administrative Agent, for its own
account, such fees for its administrative services in the amounts and on the
dates set forth in the Fee Letter.
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 (provided that notices of
prepayments of Swingline Loans shall only be given to the Swingline Lender).
(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.
30
37
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
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, the Issuer and each
Lender and reimburse the Administrative Agent, the Issuer and each Lender upon
written request for the amount of any Taxes so levied or imposed and paid by the
Administrative Agent, the Issuer or such 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, the Issuer 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
31
38
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, the
Issuer and each Lender, upon written request, for any Taxes imposed (including,
without limitation, Taxes imposed on the overall net income of the
Administrative Agent, the Issuer or such 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, the Issuer or such
Lender is located) as the Administrative Agent, the Issuer or such Lender shall
determine are payable by the Administrative Agent, the Issuer or such Lender in
respect of amounts paid by or on behalf of Intermet to or on behalf of the
Administrative Agent, the Issuer or such Lender pursuant to paragraph (i)
hereof.
(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
32
39
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).
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).
(c) Notwithstanding any other provision contained in this Agreement,
the Issuer shall not be obligated to issue any Letter of Credit, nor shall any
Lender be obligated to purchase its participation in any Letter of Credit to be
issued hereunder, if the issuance of such Letter of Credit or purchase of such
participation shall have become unlawful or prohibited by compliance by the
Issuer or such Lender in good faith with any law, governmental rule, guideline,
request, order, injunction, judgment or decree (whether or not having the force
of law); provided that in the case of the obligation of a Lender to purchase
such participation, such Lender shall have notified the Issuer to such effect at
least three (3) Business Days' prior to the issuance thereof by the Issuer,
which notice shall relieve the Issuer of its obligation to issue such Letter of
Credit pursuant to Section 2.04 and Section 2.05 hereof.
33
40
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, Letter of Credit Obligations or its obligation to make Eurodollar
Advances or to issue or participate in Letters of Credit, 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 or to
issue or participate in Letters of Credit 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 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, Letter of Credit Obligations or its obligation to make
or participate in Eurodollar Advances or Letters of Credit 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, participating in or maintaining
Eurodollar Advances or Letters of Credit (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
34
41
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:
(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
35
42
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 such Lender) a borrowing
of, or conversion to or continuation of, Eurodollar Advances to Intermet does
not occur on the date specified therefor in a Notice of Borrowing or 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.
36
43
SECTION 3.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans and payments in respect of Letter of
Credit Fees and Commitment Fees shall be apportioned among all outstanding
Commitments, Letter of Credit Obligations and Loans to which such payments
relate, proportionately to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans and Letter of Credit Obligations. 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 (other than, prior to the termination of the Commitments, payments of
principal, interest and fees with respect to the Swingline Loans which are
payable solely to the Swingline Lender), 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.
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.
37
44
(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. LETTER OF CREDIT OBLIGATIONS ABSOLUTE. The obligation of
Intermet to reimburse the Issuer for drawings made under Letters of Credit
issued for the account of Intermet and the Lenders' obligation to honor their
participations purchased therein shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including without limitation, the following circumstances:
(a) Any lack of validity or enforceability of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which
Intermet or any Subsidiary or Affiliate of Intermet may have at any time against
a beneficiary or any transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be acting), any Lender
or any other Person, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including without limitation
any underlying transaction between Intermet or any of its Subsidiaries and
Affiliates and the beneficiary for which such Letter of Credit was procured);
provided that nothing in this Section shall affect the right of Intermet to seek
relief against any beneficiary, transferee, Lender or any other Person in any
action or proceeding or to bring a counterclaim in any suit involving such
Persons;
(c) Any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect;
(d) Payment by the Issuer under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit;
38
45
(e) Any other circumstance or happening whatsoever which is similar
to any of the foregoing; or
(f) the fact that a Default or an Event of Default shall have
occurred and be continuing.
Nothing in this Section 3.18 shall prevent an action against the Issuer for its
gross negligence or willful misconduct in honoring drafts under the Letters of
Credit.
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 Letters of
Credit or Loans outstanding thereunder, to an Eligible Assignee designated by
the Administrative Agent and acceptable to Intermet in accordance with the terms
of this Agreement.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to issue or participate in Letters of
Credit or make Advances to Intermet and the obligation of the Issuer to issue
Letters of Credit for the account of Intermet hereunder is subject to the
satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF
CREDIT. 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
and their Affiliates pursuant to the Fee Letter 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 Revolving Credit Notes evidencing the
Commitments and the duly executed Swingline Note;
39
46
(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;
(h) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of Law
or by any material Contractual Obligation of the Credit Parties, in connection
with 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;
(i) an internally prepared draft of Intermet's consolidated financial
statements for the fiscal period ending June 30, 1999, certified by the chief
financial officer of Intermet;
(j) evidence that the Prior Credit Agreement has been terminated and
all amounts repaid thereunder;
(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;
40
47
(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 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; and
(q) the duly executed counterparts of the 364-Day Credit Agreement
and the satisfaction of all conditions to effectiveness thereunder.
SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. At the
time of the making of all Loans and the issuance of any Letter of Credit (before
as well as after giving effect to such Loans or Letters of Credit and to the
proposed use of the proceeds thereof), 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 or such issuance date;
41
48
(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, or (ii) 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 or the
Letters of Credit to be issued, as the case may be, 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 and each request for the issuance or extension of a Letter of
Credit shall constitute a representation and warranty by Intermet, as of the
date of the Loans comprising such Borrowing or the date of the issuance or
extension of such Letter of Credit, 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) represents
and warrants as follows:
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
42
49
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 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
43
50
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) 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
44
51
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.
SECTION 5.14. FINANCIAL STATEMENTS. 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
second 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
45
52
financial statements, to normal year-end audit adjustments and the absence of
certain footnotes). 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 foregoing financial statements 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
46
53
on which this 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.
47
54
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 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 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 is, the inability of computers, as well as embedded microchips in
non-computing devices,
48
55
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.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note or other
Obligation shall remain unpaid or any Letter of Credit shall remain outstanding,
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.
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.
49
56
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 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
50
57
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
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];
51
58
(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 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;
52
59
(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 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
53
60
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) Second 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
June 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)) 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
54
61
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 within sixty (60) days after the Closing Date, 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 or any Letter of Credit Obligation shall
remain outstanding, 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:
(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;
55
62
(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(h); and
(h) additional Indebtedness of Intermet 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 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(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
56
63
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 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
57
64
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 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 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 clauses (y)
and (z) below; and
58
65
(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.
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;
(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
59
66
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 (ii) 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 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;
60
67
(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) 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
61
68
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
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"):
62
69
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 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;
63
70
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
(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
64
71
(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 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
65
72
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 364-DAY CREDIT AGREEMENT. There shall exist
or occur an "Event of Default" as defined in 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 any commitment fee shall forthwith become due and payable without any other
notice of any kind; and (ii) declare the principal of and any accrued interest
on the Loans, and all other Obligations owing hereunder, including without
limitation, an amount equal to the maximum amount which would be available at
any time to be drawn under all Letters of Credit then outstanding (whether or
not any beneficiary under any Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents required to draw
under such Letter of Credit), 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. As long as any Letter of Credit shall remain outstanding,
any amounts described in clause (ii) above with respect to Letters of Credit,
when received by the Issuer, shall be deposited in a cash collateral account as
cash collateral for the obligations of Intermet under Article II of this
Agreement in the event of any drawing under a Letter of Credit, and upon drawing
under any outstanding Letter of Credit in respect of which the Issuer has
deposited in the cash collateral account any amounts described in clause (ii)
above, the Issuer shall pay such amounts to itself to reimburse itself for the
amount of such drawing.
66
73
ARTICLE IX.
THE ADMINISTRATIVE AGENT
SECTION 9.01. APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby
designates Scotiabank as Administrative Agent to administer all matters
concerning the Loans and Letters of Credit and to 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
67
74
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, 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
68
75
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.
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
69
76
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
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. OTHER AGENTS. Each Lender hereby designates Bank One,
Michigan as Syndication Agent, SunTrust as Documentation Agent, Comerica Bank,
as Managing Agent, and The Bank of New York, ▇▇▇▇▇▇ Trust and Savings Bank and
PNC Bank, National Association, as Co-Agents. The Syndication Agent, the
Documentation Agent, the Managing Agent and the Co-Agents, in such capacities,
shall have no duties or obligations whatsoever under this Agreement or any other
Credit Document.
70
77
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 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. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by Intermet and the Administrative Agent, the Issuer or the Swingline Lender in
addition to the Lenders required hereinabove to take such action, affect the
rights or duties of the Administrative Agent, the Issuer or the Swingline
Lender, respectively under this Agreement or under any other Credit Document.
71
78
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.
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
72
79
"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;
(iv) In addition to amounts payable elsewhere provided in this
Agreement, without duplication, indemnify, pay and save the Issuer harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and reasonable expenses (including reasonable attorney's
fees and disbursements) which the Issuer may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of
Credit for the account of Intermet, other than as a result of the gross
negligence or willful misconduct of the Issuer; (ii) the failure of the
Issuer to honor a drawing under any Letter of Credit due to any act or
omission (whether rightful or wrongful) of any present or future de jure or
de facto government or governmental authority; or (iii) any confirmation of
any Letter of Credit obtained by the Issuer with the consent of Intermet;
and
(v) 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, 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.
73
80
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, Letter of Credit Obligations 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
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 or Letter of Credit Obligations, 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, (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, (iv) the assignee must execute and
deliver a confirmation of its acceptance of the terms and conditions of the
Intercreditor Agreement to the other parties to the Intercreditor Agreement in
accordance with Section 10(g) thereof and (v) each such assignment shall be made
simultaneously with a ratable assignment under the 364-Day Credit Agreement (if
still in effect). 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
74
81
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, the Loans
and the Letter of Credit Obligations, as the case may be, of $7,500,000 (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. Notwithstanding any other term of
this Section, the agreement of the Swingline Lender to provide the Swingline
Loans shall not impair or otherwise restrict in any manner the ability of the
Swingline Lender to make any assignment of its Loans or commitments, it being
understood and agreed that the Swingline Lender may terminate its Swingline
Commitment, either in whole or in part, in connection with the making of any
assignment.
(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, the Letter of Credit Obligations
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 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
75
82
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 or determines that its participation in
any Letter of Credit is illegal 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 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
76
83
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 (OTHER THAN THE LETTERS OF CREDIT, TO THE
EXTENT SPECIFIED BELOW AND 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). EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE
DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98--INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NUMBER 590 (THE "ISP RULES")) AND, AS TO MATTERS NOT
GOVERNED BY THE ISP RULES, THE INTERNAL LAWS 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
77
84
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE ADMINISTRATIVE AGENT, EACH LENDER, THE SWINGLINE LENDER AND
THE ISSUER 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
78
85
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.
(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.
79
86
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 parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements, representations
and understandings related to such subject matters.
80
87
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
------------------------------
S-1
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
By: /s/ F.C.H. ▇▇▇▇▇
------------------------------------
Name: F.C.H. ▇▇▇▇▇
----------------------------------
Title: Senior Manager Loan Operations
---------------------------------
S-2
89
BANK ONE, MICHIGAN,
INDIVIDUALLY AND AS SYNDICATION AGENT
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
S-3
90
SUNTRUST BANK, ATLANTA,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
--------------------------------
S-4
91
COMERICA BANK,
INDIVIDUALLY AND AS MANAGING AGENT
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
S-5
92
THE BANK OF NEW YORK,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
------------------------------
S-6
93
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ ▇▇▇▇▇ ▇. Law
---------------------------------
Name: ▇▇▇▇▇ ▇. Law
-------------------------------
Title: Vice President
------------------------------
S-7
94
PNC BANK, NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS CO-AGENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
S-8
95
THE BANK OF TOKYO - MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Deputy General Manager
-----------------------------
S-9
96
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
------------------------------
S-10
97
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
S-11
98
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President & Group Head
------------------------------------
S-12
99
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇.▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
S-13
100
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Nobuyasu Fukatsu
---------------------------------
Name: Nobuyasu Fukatsu
-------------------------------
Title: General Manager
------------------------------
▇-▇▇
▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
GENOSSENSCHAFTSBANK AG
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
S-15
102
MICHIGAN NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
S-16
103
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
▇-▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Member of the Board
------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
------------------------------
S-18