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AMENDED AND RESTATED
LIFO RESTRUCTURING AGREEMENT
dated as of August 28, 2003,
among
AMCAST INDUSTRIAL CORPORATION,
as Borrower,
THE LENDERS NAMED HEREIN,
as the LIFO Banks,
and
KEYBANK NATIONAL ASSOCIATION,
as the LIFO Agent
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SECTION 1. Definitions............................................1
1.1 Definitions................................................1
1.2 Terms......................................................7
SECTION 2. CREDIT PARTY acknowledgments...........................7
2.1 Outstanding Indebtedness...................................7
2.2 Subject Noncompliance Events...............................8
2.3 Continuing Noncompliance Events............................8
SECTION 3. RESTRUCTURING PERIOD AND EXTENSIONS OF CREDIT..........8
3.1 Restructuring Period.......................................8
3.2 Loans......................................................8
3.3 Interest Rate Under the LIFO Credit Agreement..............8
SECTION 4. restructuring covenants................................8
4.1 Fees.......................................................8
4.2 Mandatory Prepayments......................................9
4.3 Cash Availability; Special Reserve Funds...................9
4.4 Strategic Plan............................................10
4.5 Financial Reporting.......................................11
4.6 Financial Covenants.......................................11
4.7 Retention of Senior Management............................13
SECTION 5. ACCESS AGREEMENT AND ACCOMMODATION AGREEMENT..........14
5.1 Accommodation Agreement...................................14
5.2 Access Agreement..........................................14
5.3 Authorization of Agent....................................14
5.4 Modification to Agreements................................14
5.5 Further Assurances........................................14
SECTION 6. Termination events....................................15
6.1 Termination of Restructuring Period.......................15
6.2 Effect at End of Restructuring Period.....................16
6.3 ACKNOWLEDGMENT............................................16
6.4 No Waiver.................................................16
6.5 No Contest................................................16
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SECTION 7. LIFO LENDERS' ACKNOWLEDGMENT..........................16
SECTION 8. REPRESENTATIONS AND WARRANTIES........................16
8.1 Due Authorization; No Conflict; No Lien; Enforceable
Obligation................................................17
8.2 Representations and Warranties; Default...................17
SECTION 9. CONDITIONS PRECEDENT..................................17
SECTION 10. MISCELLANEOUS.........................................18
10.1 Captions..................................................18
10.2 Release...................................................18
10.3 LIFO Lender Documents Unaffected..........................18
10.4 Amendments or Modifications...............................19
10.5 No Other Promises or Inducements..........................19
10.6 No Waiver of Rights.......................................19
10.7 Successors and Assigns....................................19
10.8 Continued Effectiveness...................................19
10.9 Tolling...................................................19
10.10 Revival of Obligations....................................20
10.11 Fees and Expenses.........................................20
10.12 Governing Law.............................................20
10.13 Entire Agreement..........................................20
10.14 Counterparts..............................................20
10.15 Notice....................................................20
10.16 Jurisdiction and Venue....................................20
10.17 Severability of Provisions; Captions; Attachments.........20
10.18 Legal Representation of Parties...........................21
10.19 JURY TRIAL WAIVER.........................................21
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This AMENDED AND RESTATED LIFO RESTRUCTURING AGREEMENT, dated as of
August 28, 2003 (this "Agreement"), is entered into by and among:
(i) AMCAST INDUSTRIAL CORPORATION, an Ohio corporation
("Borrower");
(ii) the Guarantors, as hereinafter defined, that are parties
hereto (together with Borrower, collectively, the "Credit
Parties" and, individually each a Credit Party);
(iii) the lending institutions parties hereto (the "LIFO Banks");
and
(iv) KEYBANK NATIONAL ASSOCIATION, as agent for the LIFO Banks
("LIFO Agent" and together with the LIFO Banks, collectively,
the "LIFO Lenders").
PRELIMINARY STATEMENTS:
A. The Credit Parties, LIFO Agent and the LIFO Banks are parties to the
Last-In-First-Out Credit Agreement, dated as of June 5, 2001 (as amended and as
the same may from time to time be further amended, restated or otherwise
modified, the "LIFO Credit Agreement") pursuant to which the LIFO Banks have
made certain loans and other extensions of credit all on the terms and
conditions set forth in the LIFO Lender Documents.
B. In connection with the LIFO Credit Agreement, the Credit Parties,
the LIFO Agent and the LIFO Banks entered into a LIFO Restructuring Agreement
dated as of July 15, 2002 (as amended, the "Original LIFO Restructuring
Agreement").
C. The Credit Parties have requested that the LIFO Banks and the LIFO
Agent amend and restate the Original LIFO Restructuring Agreement.
D. In connection with the foregoing, this Agreement is being entered
into by the Credit Parties, the LIFO Banks and the LIFO Agent and, upon the
occurrence of the Effective Date (as hereinafter defined), will amend, restate
and replace the Original LIFO Restructuring Agreement.
AGREEMENT:
In consideration of the premises and the mutual covenants contained in
this Agreement, and other good and valuable consideration the receipt and
sufficiency of which are acknowledged, the parties hereto agree as follows:
SECTION 1. definitions.
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1.1 Definitions. Except as otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the LIFO Credit
Agreement. As used in this Agreement, the following terms have the following
meanings:
"Access and Security Agreement" means the Access and Security
Agreement, dated as of August 28, 2003, between GM and Borrower, as the
same may, in accordance with the terms of Section 5.4 hereof, from time
to time be amended, restated or otherwise modified.
"Accommodation Agreement" means the Accommodation Agreement,
dated as of August 28, 2003, among (i) GM, (ii) Borrower, (iii) KeyBank
National Association in its capacity as the Existing Credit Agreement
Agent, on behalf of and for the benefit of the Existing Credit
Agreement Banks and the Line of Credit Lenders, (iv) the Noteholders,
and (v) KeyBank National Association in its capacity as the LIFO Agent,
on behalf of and for the benefit of the LIFO Banks, as the same may, in
accordance with the terms of Section 5.4 hereof, from time to time be
amended, restated or otherwise modified.
"Additional Prepayment" has the meaning set forth in Section
4.2(a) hereof.
"Budget" means, for any fiscal year of Borrower, a budget,
including monthly and quarterly balance sheets, income statements and
cash flow statements on a Consolidated basis and by plant basis and
otherwise in form and detail satisfactory to the Required Banks, that
details Borrower's projected costs, expenses, other expenditures,
capital requirements and financial performance forecast for such fiscal
year.
"Cash Collateral Account" means a deposit account in the name
of and under the exclusive control of KeyBank National Association, as
Collateral Agent and LIFO Credit Agreement Agent, for the benefit of
the Creditors, and designated as the "Amcast Industrial Corporation
Cash Collateral Account" or other similar designation.
"Collateral Agent" means KeyBank National Association, in its
capacity as Collateral Agent under the Subordinated Lender Collateral
Documents, together with its successors and assigns in such capacity.
"Companies" means, collectively, Borrower and each Subsidiary.
"Creditor Documents" means, collectively, the LIFO Lender
Documents and the Subordinated Lender Documents.
"Creditors" means, collectively, the Subordinated Lenders and
the LIFO Lenders.
"CTC Forbearance Agreement" means the Forbearance and Waiver
Agreement among Borrower, the LIFO Agent, on behalf of and for the
benefit of the LIFO Banks, and Bank One, Indiana, National Association
on behalf of itself and as CTC Agent (as defined therein) for the
benefit of and on behalf of the CTC Banks (as defined therein), dated
as of June 5, 2001, as the same may from time to time be amended,
restated or otherwise modified.
"Domestic Adjusted EBITDA" means Domestic EBITDA other than
Domestic EBITDA attributable to CTC Company or Domestic EBITDA
attributable to any discontinued operations.
"Domestic EBITDA" means Consolidated EBITDA less the amounts
used in calculating Consolidated EBITDA that are attributed to Foreign
Subsidiaries.
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"Domestic Fixed Charges" means, for any period, on a
Consolidated basis (but excluding Foreign Subsidiaries and CTC Company,
as defined in the Existing Credit Agreement) and in accordance with
GAAP, the aggregate of (a) cash interest expense (including, without
limitation, the "imputed interest" portion of capital leases,
synthetics leases and asset securitizations, if any), (b) principal
payments on Funded Indebtedness (as defined in the Existing Credit
Agreement as in effect on the date hereof), and (c) Consolidated
Capital Expenditures.
"Effective Date" has the meaning set forth in Section 9
hereof.
"Existing Credit Agreement" means the Credit Agreement, dated
as of August 14, 1997, among Borrower, the Existing Credit Agreement
Banks and the Existing Credit Agreement Agent, as amended and as the
same may from time to time be further amended, restated or otherwise
modified.
"Existing Credit Agreement Agent" means KeyBank National
Association, as Agent for the Existing Credit Agreement Banks, together
with its successors and assigns in such capacity.
"Existing Credit Agreement Banks" means the lenders party to
the Existing Credit Agreement, together with their respective
successors and assigns in such capacity.
"Existing Credit Agreement Loan Documents" means the Loan
Documents, as defined in the Existing Credit Agreement.
"Existing Credit Agreement Obligations" means all indebtedness
and other obligations incurred by Borrower or any other Company to the
Existing Credit Agreement Agent or the Existing Credit Agreement Banks
pursuant to the Existing Credit Agreement, whether for principal,
premium, interest, fees, costs or indemnities, and whether now existing
or hereafter arising.
"Fixed Charge Coverage Ratio" means, for any time period, the
ratio of (a) Domestic Adjusted EBITDA for such period, to (b) Domestic
Fixed Charges for such period.
"Foreign Subsidiary" means a Subsidiary (other than Amcast
International Limited) that is organized outside of the United States.
"GM" means General Motors Corporation, together with its
successors and assigns.
"Guarantor" means any Person that pledges its credit or
property in any manner for the payment or other performance of any of
the LIFO Lender Obligations or Subordinated Lender Obligations.
"Incorporated Agreement" has the meaning given to such term in
Section 1.2(b) hereof.
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"Intercreditor Agreement" means the Collateral Agency and
Intercreditor Agreement, dated as of June 5, 2001, by and among the
Existing Credit Agreement Agent, the Existing Credit Agreement Banks,
the Noteholders, the Line of Credit Lenders and the Collateral Agent,
as the same may from time to time be amended, restated or otherwise
modified.
"Investment Advisor" has the meaning given to such term in
Section 4.4(c) hereof.
"Lien" means any mortgage, security interest, lien (statutory
or other), charge, encumbrance on, pledge or deposit of, or conditional
sale, leasing, sale with a right of redemption or other title retention
agreement and any capitalized lease with respect to any property (real
or personal) or asset.
"LIFO Credit Agreement" has the meaning set forth in the
Preliminary Statements of this Agreement.
"LIFO Lender Collateral" means any property, whether tangible
or intangible, at any time securing the LIFO Lender Obligations, or any
part thereof.
"LIFO Lender Collateral Documents" means the Security
Documents, together with all other documents, instruments or agreements
executed in connection with any security interest or Lien granted, or
otherwise obtained, on or in connection with the LIFO Lender
Collateral, or any part thereof.
"LIFO Lender Documents" means, collectively, the LIFO Credit
Agreement, the LIFO Lender Collateral Documents, the Loan Documents,
the Access Agreement, the Accommodation Agreement and the Subordination
Agreement, together with all other documents, instruments or agreements
executed in connection with any of the foregoing, as the same may from
time to time be amended, restated or otherwise modified.
"LIFO Lender Liens" means the Liens granted to the LIFO Agent,
for the benefit of the LIFO Banks, in the LIFO Lender Collateral
pursuant to the LIFO Lender Collateral Documents.
"LIFO Lender Obligations" means all indebtedness or other
obligations incurred by Borrower or any other Company to LIFO Agent
and/or the LIFO Banks pursuant to the LIFO Credit Agreement, whether
for principal, premium, interest, fees, costs or indemnities, and
whether now existing or hereafter arising.
"Line of Credit Documents" means the promissory notes and
other agreements evidencing the Line of Credit Obligations.
"Line of Credit Lenders" means the Line of Credit Lenders, as
defined in the Existing Credit Agreement.
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"Line of Credit Obligations" means all indebtedness or other
obligations incurred by Borrower or any other Company to the Line of
Credit Lenders pursuant to the Line of Credit Documents, whether for
principal, interest, fees, costs or indemnities, and whether now
existing or hereafter arising.
"Missed Event" has the meaning given to such term in Section
4.4(b) hereof.
"Northwestern" means The Northwestern Mutual Life Insurance
Company, together with its successors and assigns.
"Northwestern Note Agreement" means the Note Agreement, dated
as of November 1, 1995, pursuant to which Borrower has issued to
Northwestern certain $25,000,000 10.09% Senior Notes Due November 7,
2003, as amended and as the same may from time to time be further
amended, restated or otherwise modified.
"Note Agreements" means, collectively, the Principal Note
Agreement and the Northwestern Note Agreement.
"Noteholders" means, collectively, Principal and Northwestern.
"Noteholder Obligations" means all indebtedness or other
obligations incurred by Borrower or any other Company to the
Noteholders pursuant to the Note Agreements and the Notes issued
thereunder, whether for principal, premium, interest, fees, costs or
indemnities, and whether now existing or hereafter arising.
"Original LIFO Restructuring Agreement" has the meaning set
forth in the Preliminary Statements of this Agreement.
"Person" means any individual, sole proprietorship,
partnership, joint venture, unincorporated organization, corporation,
limited liability company, institution, trust, estate, government or
other agency or political subdivision thereof or any other entity.
"Principal" means Principal Life Insurance Company, together
with its successors and assigns.
"Principal Note Agreement" means the Note Agreement, dated as
of November 1, 1995, pursuant to which Borrower has issued to Principal
certain $25,000,000 10.09% Senior Notes Due November 7, 2003, as
amended and as the same may from time to time be further amended,
restated or otherwise modified.
"Required Banks" means the Required Banks, as defined in the
LIFO Credit Agreement.
"Restructuring Fees" means the fees and expenses payable by
Borrower on the Effective Date to the Creditors and any of the fees
payable by Borrower to the Creditors after the Effective Date pursuant
to Section 4.1 hereof.
"Restructuring Leverage Ratio" means, at any time, the ratio
of (a) Committed Debt, to (b) Consolidated EBITDA for the most recently
completed four fiscal quarters.
"Restructuring Period" has the meaning set forth in Section
3.1 hereof.
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"Retention Agreement" means the letter agreement dated as of
August 28, 2003 among the Borrower, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
"Special Reserve Funds" has the meaning specified in Section
4.3(b) hereof.
"Subject Noncompliance Events" has the meaning set forth in
Section 2.2 hereof.
"Subordinated Lender Collateral" means any property, whether
tangible or intangible, at any time securing the LIFO Lender
Obligations, or any part thereof.
"Subordinated Lender Collateral Documents" means the
Collateral Documents, as defined in the Existing Credit Agreement,
together with all other documents, instruments or agreements executed
in connection with any security interest or Lien granted, or otherwise
obtained, on or in connection with the Subordinated Lender Collateral,
or any part thereof.
"Subordinated Lender Documents" means, collectively, the
Existing Credit Agreement, the Existing Credit Agreement Loan
Documents, the Note Agreements, the Line of Credit Documents, the
Subordinated Lender Collateral Documents, the Intercreditor Agreement
and the Subordination Agreement, together with all other documents,
instruments or agreements executed in connection with any of the
foregoing, as the same may from time to time be amended, restated or
otherwise modified.
"Subordinated Lender Liens" means the Liens granted to the
Collateral Agent, for the benefit of the Subordinated Lenders, in the
Subordinated Lender Collateral pursuant to the Subordinated Lender
Collateral Documents, or any other Lien granted to or acquired by any
Person that by its terms secures the Subordinated Lender Obligations,
or any part thereof.
"Subordinated Lender Obligations" means, collectively, (a) the
Existing Credit Agreement Obligations, (b) the Noteholder Obligations,
(c) the Line of Credit Obligations, and (d) all indebtedness or other
obligations owing by the Companies to the Collateral Agent or any
Subordinated Lender pursuant to the Subordinated Lender Collateral
Documents.
"Subordinated Lender Restructuring Agreement" means the
Amended and Restated Restructuring Agreement, dated as of the date
hereof, among the Subordinated Lenders and Borrower, as the same may
from time to time be amended, restated or otherwise modified.
"Subordinated Lenders" means, collectively, the Existing
Credit Agreement Agent, the Existing Credit Agreement Banks, the Line
of Credit Lenders, and the Noteholders.
"Subordination Agreement" means the Subordination, Waiver and
Consent Agreement, dated as of June 5, 2001, among Borrower, the LIFO
Lenders, the Subordinated Lenders, and the Collateral Agent, as the
same may from time to time be amended, restated or otherwise modified.
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"Subsidiary" of Borrower or any of its Subsidiaries means (a)
a corporation more than 50% of the Voting Power of which is owned,
directly or indirectly, by Borrower or by one or more other
subsidiaries of Borrower or by Borrower and one or more subsidiaries of
Borrower, (b) a partnership or limited liability company of which
Borrower, one or more other subsidiaries of Borrower or Borrower and
one or more subsidiaries of Borrower, directly or indirectly, is a
general partner or managing member, as the case may be, or otherwise
has the power to direct the policies, management and affairs thereof,
or (c) any other Person (other than a corporation) in which Borrower,
one or more other subsidiaries of Borrower or Borrower and one or more
subsidiaries of Borrower, directly or indirectly, has at least a
majority interest in the Voting Power or the power to direct the
policies, management and affairs thereof.
"Termination Date" shall have the meaning set forth in Section
3.1 hereof.
"Termination Event" has the meaning set forth in Section 3.11
hereof.
"Voting Power" means, with respect to any Person, the
exclusive ability to control, through the ownership of shares of
capital stock, partnership interests, membership interests or
otherwise, the election of members of the board of directors or other
similar governing body of such Person, and the holding of a designated
percentage of Voting Power of a Person means the ownership of shares of
capital stock, partnership interests, membership interests or other
interests of such Person sufficient to control exclusively the election
of that percentage of the members of the board of directors or similar
governing body of such Person.
1.2 Terms.
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(a) The foregoing definitions shall be applicable to the singular and
plurals of the foregoing defined terms.
(b) The incorporation of any terms into this Agreement by reference to
another document (an "Incorporated Agreement") shall survive the expiration,
termination or failure of any such Incorporated Agreement to otherwise be in
full force and effect. In the event that any such Incorporated Agreement
expires, terminates or otherwise ceases to be in full force and effect, any
terms incorporated into this Agreement by reference to such Incorporated
Agreement shall continue to have the same meanings as if such Incorporated
Agreement had not expired, been terminated or otherwise failed to be in full
force and effect.
SECTION 2. CREDIT PARTY acknowledgments.
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2.1 Outstanding Indebtedness. Each Credit Party acknowledges and confirms that
(a) the aggregate principal amount of all outstanding indebtedness of the Credit
Parties (or any thereof) owing to the LIFO Lenders on the Effective Date is
$__________, and that such amount, together with all interest thereon and fees
related thereto, is not subject to any defense, counterclaim, recoupment or
offset of any kind and (b) each Credit Party's obligations in respect of such
indebtedness are absolute and unconditional.
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2.2 Subject Noncompliance Events. Each Credit Party acknowledges that Borrower
has failed to comply with, or will fail to comply with, the provisions of the
LIFO Credit Agreement set forth on Exhibit A hereto (the "Subject Noncompliance
Events").
2.3 Continuing Noncompliance Events. Each Credit Party acknowledges that (a) the
Subject Noncompliance Events are and will be continuing and have not been waived
by virtue of any previous actions (or failure to act) by LIFO Agent or the LIFO
Banks, or through any course of conduct or course of dealing or otherwise, (b)
as a result of the Subject Noncompliance Events, the LIFO Lenders, pursuant to
their respective LIFO Lender Documents, have the right to, among other things,
(i) terminate their respective obligations (if any) to make any further loan or
other extension of credit, and (ii) accelerate the maturity of the LIFO Lender
Obligations, as the case may be, and (c) no LIFO Lender has any obligation to
enter into this Agreement.
SECTION 3. RESTRUCTURING PERIOD AND EXTENSIONS OF CREDIT.
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3.1 Restructuring Period. During the Restructuring Period, except as
specifically set forth in this Agreement, no LIFO Lender will exercise any of
their respective rights or remedies under the LIFO Lender Documents or
applicable law with respect to the Subject Noncompliance Events. For purposes of
this Agreement, "Restructuring Period" means the period commencing on the
Effective Date and ending on the earlier of (a) September 14, 2006 and (b) the
date the Restructuring Period is terminated upon the occurrence of any of the
events described in Section 6.1 hereof (the "Termination Date").
3.2 Loans. Notwithstanding anything to the contrary herein or in any LIFO Lender
Document, during the Restructuring Period, Borrower shall not request any loan
or other extension of credit from any LIFO Lender pursuant to any of the LIFO
Lender Documents, and no LIFO Lender shall make any such loan or grant any other
extension of credit to Borrower.
3.3 Interest Rate Under the LIFO Credit Agreement. Notwithstanding the terms of
the LIFO Credit Agreement, on and after the date hereof, (a) Borrower shall pay
interest on the unpaid principal amount of each Loan at a rate per annum equal
to the sum of the Base Rate from time to time in effect plus 2%; and (b) after
the occurrence of a Termination Event, interest on all outstanding Loans shall
be payable at a rate per annum equal to 3.0% in excess of the interest rate
otherwise applicable to such Loan.
SECTION 4. restructuring covenants.
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Borrower agrees that until all of the LIFO Lender Obligations have been
paid and satisfied in full, Borrower shall perform and observe, and shall cause
each other Company to perform and observe, all of the following provisions:
4.1 Fees. In addition to the fees set forth in any of the LIFO Lender Documents,
Borrower shall pay to the Collateral Agent, to be distributed on a pro rata
basis to the Creditors, the following restructuring fees:
(a) on September 1, 2003 Borrower shall pay an amount equal to
(i) 75 basis points times (ii) the aggregate amount of the Subordinated
Lender Obligations and LIFO Lender Obligations outstanding on such
date;
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(b) on December 31, 2004 Borrower shall pay an amount equal to
(i) 50 basis points times (ii) the aggregate amount of the Subordinated
Lender Obligations and LIFO Lender Obligations outstanding on such
date; and
(c) on December 31, 2005 Borrower shall pay an amount equal to
(i) 50 basis points times (ii) the aggregate amount of the Subordinated
Lender Obligations and LIFO Lender Obligations outstanding on such
date.
For the avoidance of doubt, the foregoing fees are the same fees as the
fees set forth in Section 4.1 of the Subordinated Lender Restructuring
Agreement.
4.2 Mandatory Prepayments.
(a) In addition to any mandatory prepayment provisions in any of the
Creditor Documents, Borrower shall pay to the applicable Creditors, as a
mandatory prepayment on their respective LIFO Lender Obligations and, if
applicable, the Subordinated Lender Obligations, the following amounts (each
such payment, an "Additional Prepayment") that shall be applied to such
obligations as set forth below:
(i) on August 31, 2003, an amount equal to $2,340,477;
(ii) on February 28, 2004, an amount equal to $1,000,000; and
(iii) on May 31, 2004, an amount equal to $300,000;
Provided, however, that the amount of any Additional Prepayment may be adjusted,
and Additional Prepayments may added, after, and based upon a review of, the
Budget for any fiscal year, which adjustment or addition shall be effective upon
delivery by the Required Banks of written notice of such adjustment to Borrower
and, in the case of any addition that is not permitted pursuant to the
Accommodation Agreement, the approval of GM.
(b) Each Additional Prepayment shall be applied, first, to the LIFO
Lender Obligations, if any, and, second, to the Subordinated Lender Obligations,
in each case on a pro rata basis.
(c) Borrower shall prepay the LIFO Lender Obligations in an amount
equal to $1,000,000 on the date that the indebtedness referenced in the CTC
Forbearance Agreement is repaid or refinanced.
For the avoidance of doubt, the prepayment set forth in subpart (a)
above is the same prepayment as set forth in Section 4.2(a) of the Subordinated
Lender Restructuring Agreement.
4.3 Cash Availability; Special Reserve Funds.
(a) Prior to LIFO Repayment Date. Borrower shall maintain at all times
in the Cash Collateral Account an amount greater than or equal to the lesser of
(i) $21,000,000 and (ii) the difference between $21,000,000 and the Borrowing
Base. Borrower may request withdrawals from the Cash Collateral Account,
provided Borrower shall at all times prior to and immediately after such
withdrawal be in compliance with this Agreement. In connection with the
foregoing, Borrower shall deliver to the LIFO Agent a Borrowing Base Certificate
on the second Business Day of each week.
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(b) Special Reserve Funds. In addition to the amounts Borrower is
required to maintain in the Cash Collateral Account pursuant to subpart (a)
above, Borrower shall, subject to the terms and conditions of this section, at
all times maintain at least $6,000,000 of immediately available funds in the
Cash Collateral Account, which funds shall be designated as the "Special Reserve
Funds" (such funds being referred to herein as the "Special Reserve Funds").
Borrower shall be permitted to request the use of the Special Reserve Funds at
any time prior to the Termination Date on the following conditions:
(i) no Termination Event shall exist prior to or immediately
after the receipt of any such Special Reserve Funds;
(ii) the Special Reserve Funds may only be used for (A)
repayment of the principal and interest relating to the Subordinated
Lender Obligations and the LIFO Lender Obligations, (B) the
Restructuring Fees, and (C) if Borrower does not have sufficient
available cash, payment of a fee associated with a Missed Event
pursuant to Section 4.4(b) hereof;
(iii) on the Termination Date, Borrower shall deposit, if
necessary, immediately available funds into the Cash Collateral Account
so that the Special Reserve Funds on deposit therein equal or exceed
$6,000,000; and
(iv) on the Termination Date, the Special Reserve Funds shall
be applied to repay the LIFO Lender Obligations.
4.4 Strategic Plan.
(a) Borrower shall use its good faith best efforts to (i) refinance all
of the Subordinated Lender Obligations and LIFO Lender Obligations on or before
September 1, 2004 or (ii) sell substantially all of its assets on or before
September 1, 2004, in each case in accordance with the following timeline:
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Event Date
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Retention of one or more Investment Advisor acceptable August 31, 2003
to Borrower and the Required Banks
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Preparation of Books/Information Memorandum November 30, 2003
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Signing of Confidentiality Agreements and mailing of December 31, 2003
Books/Information Memorandum
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Visitation by potential purchasers/Lenders February 29, 2004
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Delivery of Letter or Letters of Intent April 30, 2004
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Completion of Due Diligence June 1, 2004
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Delivery of Definitive Purchase Agreement/Commitment June 1, 2004
Letter
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Closing/Refinancing September 1, 2004
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(b) In the event that Borrower fails to meet any of the foregoing
deadlines (each such deadline, a "Missed Event"), the Borrower will pay to the
Collateral Agent, for the pro rata benefit of the Creditors, a missed event fee
in the amount of $200,000 for each such Missed Event; provided, however, that
Borrower shall not have to pay a Missed Event fee in connection with the final
event set forth above if such event does not occur solely as a result of the
failure of the Creditors to approve the transaction relating to such final
event. Such fees shall be immediately due and payable 15 days after each Missed
Event. The above events and dates may be adjusted as recommended by Borrower's
investment banker as confirmed by FTI/▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and approved by the
Required Banks. For the avoidance of doubt, the occurrence of a Missed Event
shall not constitute a Termination Event hereunder, but the failure to pay any
missed event fee associated therewith when the same is due and payable shall
constitute a Termination Event.
(c) Retention of an Investment Advisor. In connection with the
strategic plan set forth in subpart (a) above, Borrower shall retain an
investment banker (the "Investment Advisor") acceptable to the LIFO Agent and
the Required Banks on terms and conditions acceptable to the LIFO Agent and the
Required Banks on or before the date set forth above. Each of the LIFO Lenders
hereby authorizes the LIFO Agent to take such actions as the LIFO Agent deems
appropriate to ensure that Borrower is able to pay the fees (including any
success fees) and expenses of the Investment Advisor, including, but not limited
to, providing that such fees and expenses may be paid out of the proceeds of any
of the LIFO Lender Collateral.
4.5 Financial Reporting.
(a) On or before September 19, 2003, and on or before August 15 of each
year thereafter, Borrower shall deliver a Budget for the forthcoming fiscal year
to each of the LIFO Lenders.
(b) Within 30 days after the end of each month, Borrower shall deliver
to the LIFO Lenders a monthly financial reporting package that includes the
items set forth on Exhibit B hereto, and is otherwise in form and detail
satisfactory to the LIFO Lenders
4.6 Financial Covenants. The LIFO Lenders and Borrower agree that the financial
covenants set forth below shall replace the financial covenants set forth in
Section 4.7(b), (c) and (d) of the LIFO Credit Agreement and during the
Restructuring Period. Borrower shall comply at all times with each of the
following:
(a) Fixed Charge Coverage Ratio. Borrower shall not suffer or
permit at any time the Fixed Charge Coverage Ratio to be less than the
amount set forth below for each of the fiscal quarters of Borrower
ending on or about the dates set forth below:
11
------------------------------------ ------------------
Fiscal Quarter Minimum
------------------------------------ ------------------
------------------------------------ ------------------
For the four fiscal quarters .96 to 1.00
ending August 31, 2003
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
For the fiscal quarter ending .96 to 1.00
November 30, 2003
------------------------------------ ------------------
------------------------------------ ------------------
For the two fiscal quarters ending .93 to 1.00
February 29, 2004
------------------------------------ ------------------
------------------------------------ ------------------
For the three fiscal quarters .98 to 1.00
ending May 31, 2004
------------------------------------ ------------------
------------------------------------ ------------------
For the four fiscal quarters .95 to 1.00
ending August 31, 2004
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
For the fiscal quarter ending .93 to 1.00
November 30, 2004
------------------------------------ ------------------
------------------------------------ ------------------
For the two fiscal quarters ending .93 to 1.00
February 28, 2005
------------------------------------ ------------------
------------------------------------ ------------------
For the three fiscal quarters .94 to 1.00
ending May 31, 2005
------------------------------------ ------------------
------------------------------------ ------------------
For the four fiscal quarters .99 to 1.00
ending August 31, 2005
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
For the fiscal quarter ending 1.68 to 1.00
November 30, 2005
------------------------------------ ------------------
------------------------------------ ------------------
For the two fiscal quarters ending 1.68 to 1.00
February 29, 2006
------------------------------------ ------------------
------------------------------------ ------------------
for the three fiscal quarters 1.64 to 1.00
ending May 31, 2006
------------------------------------ ------------------
------------------------------------ ------------------
For the four fiscal quarters 1.60 to 1.00
ending August 31, 2006 and each
thereafter
------------------------------------ ------------------
(b) [Intentionally left blank.]
(c) Domestic Adjusted EBITDA. Borrower shall not suffer or
permit at any time Domestic Adjusted EBITDA for the most recently
completed four fiscal quarters of Borrower to be less than the amount
set forth below for each of the four fiscal quarter periods ending on
or about the dates set forth below:
12
------------------------------------ ------------------
Fiscal Quarter Minimum
------------------------------------ ------------------
------------------------------------ ------------------
August 31, 2003 $29,366,000
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
November 30, 2003 $30,316,000
------------------------------------ ------------------
------------------------------------ ------------------
February 29, 2004 $31,396,000
------------------------------------ ------------------
------------------------------------ ------------------
May 31, 2004 $31,714,000
------------------------------------ ------------------
------------------------------------ ------------------
August 31, 2004 $32,025,000
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
November 30, 2004 $34,016,000
------------------------------------ ------------------
------------------------------------ ------------------
February 28, 2005 $34,822,000
------------------------------------ ------------------
------------------------------------ ------------------
May 31, 2005 $34,972,000
------------------------------------ ------------------
------------------------------------ ------------------
August 31, 2005 $34,893,000
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
------------------------------------ ------------------
November 30, 2005 $36,842,000
------------------------------------ ------------------
------------------------------------ ------------------
February 29, 2006 $39,468,000
------------------------------------ ------------------
------------------------------------ ------------------
May 31, 2006 $42,210,000
------------------------------------ ------------------
------------------------------------ ------------------
August 31, 2006 and each fiscal $44,673,000
quarter thereafter
------------------------------------ ------------------
(d) Consolidated Capital Expenditures. Borrower shall not
suffer or permit at any time Consolidated Capital Expenditures, for the
most recently completed fiscal year of Borrower, to be greater than the
amount set forth below for each fiscal year set forth below:
------------------------------------ ------------------
Fiscal Year Maximum
------------------------------------ ------------------
------------------------------------ ------------------
2003 $13,600,000
------------------------------------ ------------------
------------------------------------ ------------------
2004 $19,047,000
------------------------------------ ------------------
------------------------------------ ------------------
2005 $24,040,000
------------------------------------ ------------------
------------------------------------ ------------------
2006 $15,140,000
------------------------------------ ------------------
provided, however, that any of the financial covenants set forth above (i) will
be adjusted to reflect the impact on such covenants for any fiscal quarter (and
any testing period including such fiscal quarter) following the sale by the
Companies of any business unit sold prior to such fiscal quarter of the
Companies, and (ii) may be adjusted to an amount reasonably acceptable to the
Required Banks after, and based upon a review of, the Budget for each year,
which adjustment shall be effective upon delivery by the Required Banks of
written notice of such adjustment to Borrower.
4.7 Retention of Senior Management. Borrower shall at all times cause the
Retention Agreements to be in full force and effect with respect to ▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (or any replacement to any of the
foregoing individuals so long as such replacements are reasonably acceptable to
the Requisite Restructuring Lenders and are subject to a retention agreement
acceptable to the Requisite Restructuring Lenders). Each of the LIFO Banks
acknowledges that it has reviewed the Retention Agreement and agrees to the
terms and conditions thereof. Each LIFO Bank authorizes the Collateral Agent to
acknowledge and agree to the terms of the Retention Agreement on its behalf and
in so doing each LIFO Bank agrees that the signature of the Collateral Agent on
its behalf shall be as if such LIFO Bank were an original signatory thereto.
13
SECTION 5. ACCESS AGREEMENT AND ACCOMMODATION AGREEMENT.
--------------------------------------------
5.1 Accommodation Agreement. As a condition precedent to the effectiveness of
this Agreement, the Accommodation Agreement shall have been executed by all of
the parties thereto and become fully effective. Each of the LIFO Lenders (i)
acknowledges the terms of, consents to and agrees to be bound in all respects by
the Accommodation Agreement, and (ii) agrees that in the event there is any
conflict between the terms and conditions of any of the LIFO Lender Documents
and the Accommodation Agreement, the terms and conditions of the Accommodation
Agreement shall prevail. Each LIFO Lender agrees that the Accommodation
Agreement shall be binding on it and its successors and assigns. In the event
that any LIFO Lender desires to assign all or any portion of its LIFO Lender
Obligations to any Person, as a condition precedent to the effectiveness of such
assignment, such LIFO Lender shall cause such Person to agree in writing to be
bound by and to become a party to the Accommodation Agreement.
5.2 Access Agreement. Each of the LIFO Lenders acknowledges the terms of and
consents to the execution and delivery by Borrower of the Access Agreement.
Notwithstanding any provision in any of the LIFO Lender Documents to the
contrary, the Access Agreement, and the Liens granted thereunder, shall be
permitted under the LIFO Lender Documents.
5.3 Authorization of Agent. Each of the LIFO Banks authorizes the LIFO Agent to
enter into the Accommodation Agreement on its behalf and in so doing each LIFO
Bank agrees that the signature of the LIFO Agent on its behalf shall be as if
such LIFO Bank were an original signatory thereto.
5.4 Modification to Agreements. Notwithstanding anything in any LIFO Lender
Document to the contrary, Borrower and the LIFO Lenders agree that, (i) the
Accommodation Agreement shall not be amended, restated or otherwise modified in
any respect (and no waiver or consent shall be granted with respect to any of
the provisions thereto), unless, in each case, such amendment, restatement,
other modification, consent or waiver is in writing and signed by all of the
LIFO Lenders, and (ii) the Access Agreement shall not be amended, restated or
otherwise modified in any respect (and no waiver or consent shall be granted
with respect to any of the provisions thereto), unless, in each case, such
amendment, restatement, other modification, consent or waiver is in writing and
consented to by the LIFO Agent acting at the written direction of the Required
Banks.
5.5 Further Assurances.
(a) Each of the LIFO Lenders agrees that it will at all times take such
actions and enter into such agreements as are reasonably necessary to give
effect to and implement the terms of the Accommodation Agreement, including, but
not limited to, executing and delivering an amendment or an amendment and
restatement of the LIFO Lender Documents as and when required. In the event that
any LIFO Bank fails or refuses to execute any such amendment or amendment and
restatement, the LIFO Agent shall be permitted and is hereby expressly
authorized to execute the same on behalf of such LIFO Bank so long as the terms
and conditions of such amendment or amendment and restatement are consistent in
all material respects with the terms and conditions set forth in the LIFO Lender
Documents and the Accommodation Agreement.
14
(b) Each of the LIFO Banks hereby authorizes the LIFO Agent to take
such actions as are reasonably necessary in its opinion to give effect to and
carry out the terms of the Access Agreement, including, but not limited to,
executing and delivering such UCC amendments or releases as may be required and
entering into a subordination or other intercreditor agreement with GM.
SECTION 6. Termination events.
6.1 Termination of Restructuring Period. Upon the occurrence of any
Termination Event and at all times thereafter the Restructuring Period shall
automatically terminate without demand or notice of any kind. For purposes of
this Agreement, "Termination Event" means:
(a) the occurrence of any default or event of default under
any of the Creditor Documents (other than the Subject Noncompliance
Events);
(b) the occurrence of a default under, or the breach by any
Credit Party of any of the provisions of, this Agreement;
(c) the occurrence of a default, event of default, or
Termination Event (as defined in the Subordinated Lender Restructuring
Agreement) under the Subordinated Lender Restructuring Agreement;
(d) if GM resources any business currently produced by or
committed to the Companies in violation of the Accommodation Agreement;
(e) the occurrence of a material default under, or the breach
by any Person a party to the Access Agreement or the Accommodation
Agreement of any of the provisions of, the Access Agreement or the
Accommodation Agreement;
(f) if a final judgment or order for the payment of money
damages shall be rendered against any Company by a court of competent
jurisdiction, provided that the aggregate of all such judgments for all
such Companies shall exceed $1,000,000 in excess of applicable
insurance coverage;
(g) the failure of the Budget delivered pursuant to Section
4.5(a) hereof to be acceptable to the Required Banks; or
(h) any representation or warranty made by any Company under
this Agreement or any agreement, instrument or other document executed
or delivered by any Company in connection with this Agreement is untrue
or incorrect in any material respect when made or any schedule,
certificate, statement, report, financial data, notice or writing
furnished at any time by any Company to any LIFO Lender is untrue or
incorrect in any material respect on the date as of which the facts set
forth therein are stated or certified.
15
6.2 Effect at End of Restructuring Period. On the Termination Date, the Subject
Noncompliance Events will be deemed to have continued to exist and, without
regard to any matters transpiring during the Restructuring Period or the
financial condition or prospects of the Companies as of such date, the LIFO
Lenders (or any thereof) shall be fully entitled to exercise any rights and
remedies they may have under the LIFO Lender Documents or applicable law.
6.3 ACKNOWLEDGMENT. EACH CREDIT PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE
RESTRUCTURING PROVISIONS SET FORTH IN THIS AGREEMENT ARE EFFECTIVE ONLY DURING
THE RESTRUCTURING PERIOD AND THAT, AFTER THE TERMINATION DATE, EACH OF THE LIFO
LENDER DOCUMENTS WILL BE IN MATERIAL DEFAULT AND THE LIFO LENDERS WILL BE FULLY
ENTITLED IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE LIFO LENDER
DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY MATTERS TRANSPIRING DURING THE
RESTRUCTURING PERIOD OR THE FINANCIAL CONDITION OR PROSPECTS OF THE COMPANIES.
EACH CREDIT PARTY UNDERSTANDS THAT THE LIFO LENDERS ARE EXPRESSLY RELYING ON THE
TERMS OF THIS SECTION AND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE
ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION.
6.4 No Waiver. Nothing in this Agreement shall in any way be deemed to be (a) a
waiver of any default or event of default including the Subject Noncompliance
Events or (b) an agreement to forbear from exercising any remedies with respect
to any default or event of default except as specifically set forth in this
Agreement.
6.5 No Contest. Each Credit Party agrees that it shall not dispute the validity
or enforceability of any of the LIFO Lender Documents, or any of its obligations
thereunder, or the validity, priority, enforceability or extent of any LIFO
Lender Lien, in any judicial, administrative or other proceeding, either during
or following the expiration or termination of the Restructuring Period.
SECTION 7. LIFO LENDERS' ACKNOWLEDGMENT.
----------------------------
Each LIFO Lender consents to and acknowledges the terms of the
Subordinated Lender Restructuring Agreement. Such consent is expressly
conditioned on the Subordinated Lenders agreeing that, notwithstanding the
restructuring of any of the LIFO Lender Obligations and the Subordinated Lender
Obligations pursuant to Section 6 of the Accommodation Agreement, the LIFO
Lender Obligations shall at all times remain senior in right of payment and
priority in accordance with the terms of the Subordination Agreement. In the
event that the LIFO Lender Obligations and the Subordinated Lender Obligations
are restructured pursuant to such Section 6 of the Accommodation Agreement, such
obligations will be restructured in such a manner as to preserve the priorities
set forth in the Subordination Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES.
------------------------------
To induce the LIFO Lenders to enter into this Agreement, the Credit
Parties represent and warrant to the LIFO Lenders that:
16
8.1 Due Authorization; No Conflict; No Lien; Enforceable Obligation. The
execution, delivery and performance by the Credit Parties of this Agreement are
within their respective corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental, regulatory
or other approvals (if any is required), do not and will not contravene or
conflict with any provision of (a) any law, (b) any judgment, decree or order or
(c) their respective articles or certificate of incorporation or bylaws and do
not and will not contravene or conflict with, or cause any lien to arise under,
any provision of any agreement or instrument binding upon the Credit Parties (or
any thereof) or upon any of their respective properties. This Agreement and each
of the LIFO Lender Documents to which any Credit Party is a party are its legal,
valid and binding obligations, enforceable against it in accordance with its
terms.
8.2 Representations and Warranties; Default. As of the Effective Date, except
for those representations or warranties specifically made as of another date,
the representations and warranties of any of the Credit Parties contained in the
LIFO Lender Documents are true and correct. As of the Effective Date, except for
the Subject Noncompliance Events, no Termination Event exists and no default or
event of default has occurred and is continuing.
SECTION 9. CONDITIONS PRECEDENT.
--------------------
Notwithstanding any other provision contained in this Agreement, the
effectiveness of this Agreement and the obligation of the LIFO Lenders to
institute the provisions of this Agreement and the commencement of the
Restructuring Period shall be effective on the date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) this Agreement shall have been executed by Borrower, the
LIFO Agent each of the LIFO Banks;
(b) Borrower shall have paid to the LIFO Agent the agent fees
agreed to between Borrower and the LIFO Agent;
(c) Borrower shall have delivered to the LIFO Lenders a fully
executed amendment or other agreement relating to the CTC Forbearance
Agreement which shall include an extension of the agreements therein
and shall otherwise be in form and substance satisfactory to the
Required Banks;
(d) the Subordinated Lender Restructuring Agreement shall have
been executed by the parties thereto and all conditions precedent to
the effectiveness thereof shall have been satisfied;
(e) the Access Agreement shall have been executed by the
parties thereto and Borrower shall have delivered a copy of the same to
the LIFO Lenders;
(f) the Accommodation Agreement shall have been executed by
the parties thereto;
(g) Borrower shall have delivered to the LIFO Lenders a fully
executed copy of the Retention Agreement;
17
(h) Borrower shall have delivered to the LIFO Lenders a legal
opinion together with such other corporate governance or authorization
documents as the LIFO Agent shall require, each of which shall be in
form and substance acceptable to the Required Banks;
(i) Borrower shall have paid all out-of-pocket costs and
expenses of each LIFO Lender, including the fees and out-of-pocket
charges of counsel for each such LIFO Lender; and
(j) the Credit Parties shall have delivered such other
documents and shall have satisfied such other conditions as the
Required Banks may reasonably request.
SECTION 10. MISCELLANEOUS.
-------------
10.1 Captions. The Preliminary Statements to this Agreement (except for any
definitions set forth therein) and the section captions used in this Agreement
are for convenience only and do not affect the construction of this Agreement.
10.2 Release. AS A CONDITION PRECEDENT TO THE EFFECTIVENESS OF THIS AGREEMENT,
AND IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND FOR OTHER GOOD
AND VALUABLE CONSIDERATION, EACH CREDIT PARTY HEREBY HOLDS HARMLESS, RELEASES,
ACQUITS AND FOREVER DISCHARGES THE LIFO LENDERS, THE RESPECTIVE PARTICIPANTS,
SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SERVANTS,
ATTORNEYS AND REPRESENTATIVES, AS WELL AS THE RESPECTIVE HEIRS, PERSONAL
REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF ANY AND ALL OF THEM (COLLECTIVELY,
THE "RELEASED PARTIES") FROM ANY AND ALL CLAIMS, DEMANDS, DEBTS, ACTIONS, CAUSES
OF ACTION, SUITS, CONTRACTS, AGREEMENTS, OBLIGATIONS, ACCOUNTS, DEFENSES,
OFFSETS AND LIABILITIES OF ANY KIND OR CHARACTER WHATSOEVER, KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED, IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY, THAT ANY
SUCH CREDIT PARTY EVER HAD, NOW HAVE, OR MIGHT HEREAFTER HAVE AGAINST ANY
RELEASED PARTY, JOINTLY OR SEVERALLY, FOR OR BY REASON OF ANY MATTER, CAUSE OR
THING WHATSOEVER OCCURRING BEFORE THE DATE OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION, ANY OF THE FOREGOING THAT RELATE TO, IN WHOLE OR IN PART, DIRECTLY
OR INDIRECTLY, THIS AGREEMENT OR LIFO LENDER DOCUMENT. IN ADDITION, EACH CREDIT
PARTY AGREES NOT TO COMMENCE, JOIN IN OR PROSECUTE ANY SUIT OR OTHER PROCEEDING
THAT IS ADVERSE TO ANY OF THE RELEASED PARTY ARISING DIRECTLY OR INDIRECTLY FROM
ANY OF THE FOREGOING MATTERS. THE CREDIT PARTIES AGREE TO INDEMNIFY AND HOLD
HARMLESS THE RELEASED PARTIES FROM ANY LOSS OR DAMAGES, CLAMS, COSTS AND
ATTORNEY FEES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY LIFO LENDER DOCUMENT.
18
10.3 LIFO Lender Documents Unaffected. Except as herein otherwise specifically
provided, all provisions of the LIFO Lender Documents shall remain in full force
and effect and be unaffected hereby.
10.4 Amendments or Modifications. No amendment, modification, termination, or
waiver of any provision of this Agreement, nor consent to any variance hereto,
shall be effective unless the same shall be in writing and signed by the LIFO
Agent and the Required Banks and then such consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that if any amendment, modification, waiver or consent relating to this
Agreement would require the consent of all of the LIFO Banks under the LIFO
Credit Agreement, then, in each such case, such amendment, modification, waiver
or consent relating to this Agreement shall be in writing and signed by all of
the LIFO Lenders.
10.5 No Other Promises or Inducements. There are no promises or inducements that
have been made to any party hereto to cause such party to enter into this
Agreement other than those that are set forth in this Agreement. This Agreement
has been entered into by each Credit Party freely, voluntarily, with full
knowledge, and without duress, and, in executing this Agreement, no Credit Party
is relying on any other representations, either written or oral, express or
implied, made to such Credit Party by any LIFO Lender. Each Credit Party agrees
that the consideration received by such Credit Party under this Agreement has
been actual and adequate.
10.6 No Waiver of Rights. No waiver shall be deemed to be made by any party
hereunder of any of its rights hereunder unless the same shall be in writing
signed on behalf of such party.
10.7 Successors and Assigns. This Agreement is binding upon the Credit Parties,
the LIFO Lenders and their respective successors and assigns, and inures to the
sole benefit of the Credit Parties, the LIFO Lenders and their successors and
assigns. No Credit Party has any right to assign its rights or delegate their
duties under this Agreement.
10.8 Continued Effectiveness. Notwithstanding anything contained in this
Agreement, the terms of this Agreement are not intended to and do not serve to
effect a novation as to any LIFO Lender Document. The parties to this Agreement
expressly do not intend to extinguish any LIFO Lender Document. Instead, the
parties to this Agreement expressly intend to reaffirm the indebtedness created
under the LIFO Lender Documents. The LIFO Lender Documents remain in full force
and effect and the terms and provisions of the LIFO Lender Documents are
ratified and confirmed. Notwithstanding the foregoing, it is expressly
understood and agreed that this Agreement is an amendment and restatement of the
Original LIFO Restructuring Agreement. Upon the effectiveness of this Agreement,
the Original LIFO Restructuring Agreement shall be deemed replaced and no longer
in effect.
10.9 Tolling. Any and all statutes of limitations, repose or similar legal
constraints on the time by which a claim must be filed, a person given notice
thereof, or asserted, that expire, run or lapse during the Restructuring Period
on any claims that any LIFO Lender may have against any Credit Party or any
other persons relating to any of the Credit Parties (collectively, the
"Restructuring Period Statutes of Limitation") will be tolled during the
Restructuring Period. Each Credit Party waives any defense they may have against
any of the LIFO Lenders under the Restructuring Period Statutes of Limitation,
applicable law or otherwise solely as to the expiration, running or lapsing of
the Restructuring Period Statutes of Limitation during the Restructuring Period.
19
10.10 Revival of Obligations. If all or any part of any payment under or on
account of the LIFO Lender Documents, this Agreement or any agreement,
instrument or other document executed or delivered by any Credit Party in
connection with this Agreement is invalidated, set aside, declared or found to
be void or voidable or required to be repaid to the issuer or to any trustee,
custodian, receiver, conservator, master, liquidator or any other person
pursuant to any bankruptcy law or pursuant to any common law or equitable cause
then, to the extent of such invalidation, set aside, voidness, voidability or
required repayment, such payment would be deemed to not have been paid, and the
obligations of such Credit Party in respect thereof shall be immediately and
automatically revived without the necessity of any action by the LIFO Lenders.
10.11 Fees and Expenses. Borrower shall pay all fees and expenses of each LIFO
Lender (including, but not limited to, reasonable attorneys fees) that Borrower
is required to pay pursuant to the terms and conditions of the LIFO Lender
Documents within ten Business Days after receiving an invoice therefor.
10.12 Governing Law. This Agreement shall be construed according to the laws of
the State of Ohio, without regard to principles of conflicts of laws.
10.13 Entire Agreement. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements, and undertakings of every kind and
nature among them with respect to the subject matter hereof.
10.14 Counterparts. This Agreement may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts and
by facsimile signature, and each such counterpart, when executed and delivered,
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement.
10.15 Notice. All notices, requests, demands and other communications provided
for hereunder shall be in writing and mailed or delivered to any party,
addressed to the address of such party specified on the signature page of this
Agreement. All notices, statements, requests, demands and other communications
provided for hereunder shall be deemed to be given or made when delivered or 48
hours after being deposited in the mails with postage prepaid by registered or
certified mail, addressed as aforesaid, or sent by facsimile with telephonic
confirmation of receipt, except that notices pursuant to any of the provisions
hereof shall not be effective until received.
10.16 Jurisdiction and Venue. All judicial proceedings arising out of or
relating to this Agreement or any obligation hereunder shall be brought in the
United States District Court for the Northern District of Ohio or in the Court
of Common Pleas, Cuyahoga County, Ohio, and by their respective execution and
delivery of this Agreement, the undersigned accept for themselves and in
connection with their properties, generally and unconditionally, the
jurisdiction of the aforesaid courts and waive any defense of forum
nonconveniens, and irrevocably agree to be bound by any judgment rendered
thereby in connection with this Agreement.
20
10.17 Severability of Provisions; Captions; Attachments. Wherever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to Sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein an shall be deemed to be a part hereof.
10.18 Legal Representation of Parties. This Agreement was negotiated by the
parties with the benefit of legal representation and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to any construction or interpretation hereof
or thereof.
10.19 JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED BY
LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THEM, OR ANY OF THEM,
ARISING OUT OF, IN CONNECTION WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY
THE ABILITY OF ANY OF UNDERSIGNED TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION
OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT AMONG THE UNDERSIGNED.
[Remainder of page intentionally left blank.]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date referenced in the first paragraph of this Agreement.
BORROWER:
AMCAST INDUSTRIAL CORPORATION
By:_________________________________
Name:______________________________
Title:_______________________________
GUARANTORS:
ELKHART PRODUCTS CORPORATION
By:_________________________________
Name:______________________________
Title:_______________________________
AMCAST AUTOMOTIVE OF INDIANA,
INC.
By:_________________________________
Name:______________________________
Title:_______________________________
AS INTERNATIONAL, INC.
By:_________________________________
Name:______________________________
Title:_______________________________
IZUMI, INC.
By:_________________________________
Name:______________________________
Title:_______________________________
AMCAST CASTING TECHNOLOGIES,
INC.
By:_________________________________
Name:______________________________
Title:_______________________________
22
AMCAST INDUSTRIAL FINANCIAL
SERVICES, INC.
By:_________________________________
Name:______________________________
Title:_______________________________
AMCAST INVESTMENT SERVICES
CORPORATION
By:_________________________________
Name:______________________________
Title:_______________________________
CASTING TECHNOLOGY COMPANY
By: Amcast Casting Technologies, Inc., a General
Partner
By: __________________________
Name:________________________
Title:_________________________
23
LIFO LENDERS:
KEYBANK NATIONAL ASSOCIATION,
as LIFO Agent and a LIFO Bank
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
BANK ONE INDIANA, N.A.
By:
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
Name:
Title:
and
Name:
Title:
COMERICA BANK
By:
Name:
Title:
24
NATIONAL CITY BANK
By:
Name:
Title:
U.S. BANK
NATIONAL
ASSOCIATION
(successor to
Firstar Bank,
N.A.)
By:
Name:
Title:
25
Exhibit A
Subject Non-Compliance Events
1. The failure to comply with Section 6.1 of the Existing Credit Agreement
(as such section relates to the payment of principal) on September 14,
2002.
2. The noncompliance with Section 6.5 of the LIFO Credit Agreement as a
result of the Subject Noncompliance Events (as defined in the
Subordinated Lender Restructuring Agreement.
26
Exhibit B
Description of Monthly Reporting Package
1. Consolidated operating statements (Month & YTD) vs. Plan vs. prior year
by facility
2. 13 week running cash flow forecast
3. Income statements by facility-trend report
4. Balance sheets by facility-trend report
5. Accounts Receivables - borrowing base - consolidated and by facility
6. Cash call weekly trend reports by facility. Tracks inventory , past
dues, labor cost, capital expenditures and headcount
7. Cash call end of month report - tracks by facility: receivables,
payables, capital expenditures and performance cash flow
8. Capital Expenditures - formal Amcast report
9. Cost Reductions - formal Amcast report
10. ▇▇▇▇▇▇▇ status - formal Amcast report
11. Past due receivable trend report - consolidated, by facility
12. Profit drivers - formal Amcast report
13. Report of major new projects, concerns, etc - "State of Amcast"
14. Last twelve months Consolidated EBITDA and revenues on a consolidated
bases