Exhibit 10.1
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") made and entered into as of April 13, 2004, by and among INTERMET
CORPORATION, a Georgia corporation ("Intermet"), THE BANK OF NOVA SCOTIA, a
Canadian chartered bank ("Scotia Capital"), acting through its Atlanta Agency,
the other Lenders on the signature pages hereof, and any assignees of Scotia
Capital or such other Lenders which become "Lenders" as provided in the Amended
Agreement (as defined below) (Scotia Capital, and such other Lenders and
assignees referred to collectively herein as the "Lenders"), and Scotia Capital,
in its capacity as administrative and collateral agent for the Lenders and each
successor administrative or collateral agent for such Lenders as may be
appointed from time to time pursuant to Article IX of the Amended Agreement (the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, Intermet, the Lenders and the Administrative Agent are parties to
that certain First Amended and Restated Credit Agreement, dated as of January 8,
2004 (the "Existing Agreement," capitalized terms used herein but not otherwise
defined herein having the same respective meanings as in the Existing
Agreement); and
WHEREAS, the parties to the Existing Agreement wish to amend the Existing
Agreement (the Existing Agreement as amended by this Amendment being the
"Amended Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, Intermet, the Required Lenders and the Administrative Agent
agree, upon the terms and subject to the conditions set forth herein, as
follows:
SECTION 1. AMENDMENTS. Effective on the First Amendment Date (as defined
below), the Existing Agreement shall be amended as follows:
(a) Amended Definitions. Each of the following definitions in Section 1.01
of the Existing Agreement shall be amended in its entirety to read as follows
(additions are shown in italics and deletions are shown as ):
"Applicable Commitment Fee Percentage" shall mean (a) prior to the
First Amendment Date, 0.500%, (b) from and after the First Amendment Date
until the date on which the Borrower delivers to the Administrative Agent
and the Lenders its financial statements for the First Fiscal Quarter 2004
pursuant to Section 6.07, 0.750%, and (c) from and after the date on which
the Borrower delivers to the Administrative Agent and the Lenders its
financial statements for the First Fiscal Quarter 2004 pursuant to Section
6.07, the percentage determined from time to time according to the Pricing
Schedule
based on the Borrower's ratio of Funded Debt to Consolidated EBITDA 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, provided that if the average daily
unused portion of the Revolving Loan Commitments of the Revolving Loan
Lenders is more than 50% of the Revolving Commitment Amount for any
period, the Applicable Commitment Fee Percentage set forth on the Pricing
Schedule shall be increased by 0.500% for the duration of such period and
provided further that if the Borrower fails to deliver its financial
statements for any 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 1.250% until such financial statements
are delivered.
"Applicable Margin" shall mean with respect to all outstanding
Eurodollar Advances which are Revolving Loans and all Letter of Credit
Obligations ,(a) prior to the First Amendment Date, 3.500%, (b) from and
after the First Amendment Date until the date on which the Borrower
delivers to the Administrative Agent and the Lenders its financial
statements for the First Fiscal Quarter 2004 pursuant to Section 6.07,
3.750%, and (c) from and after the date on which the Borrower delivers to
the Administrative Agent and the Lenders its financial statements for the
First Fiscal Quarter 2004 pursuant to Section 6.07, the percentage
determined from time to time according to the Pricing Schedule based on
the Borrower's ratio of Funded Debt to Consolidated EBITDA 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, provided that if the Borrower fails to deliver its financial
statements for any 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 which are Revolving Loans and all
Letter of Credit Obligations shall be 4.000% until such financial
statements are delivered. With respect to all Eurodollar Advances which
are Term B Loans, "Applicable Margin" shall mean 4.250%.
"Base Rate Margin" shall mean with respect to all outstanding Base
Rate Advances which are Revolving Loans (a) prior to the First Amendment
Date, 2.500%, (b) from and after the First Amendment Date until the date
on which the Borrower delivers to the Administrative Agent and the Lenders
its financial statements for the First Fiscal Quarter 2004 pursuant to
Section 6.07, 2.750%, and (c) from and after the date on which the
Borrower delivers to the Administrative Agent and the Lenders its
financial statements for the First Fiscal Quarter 2004 pursuant to Section
6.07, the percentage determined from time to time according to the Pricing
Schedule based on the Borrower's ratio of Funded Debt to Consolidated
EBITDA 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, provided that if the Borrower fails to deliver its
financial statements for any preceding Fiscal Quarter pursuant to Section
6.07 prior to the 60th day of the then-current Fiscal Quarter, the Base
Rate Margin with respect to Base Rate Advances which are Revolving Loans
shall be 3.000% until such financial statements are
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delivered. With respect to all Base Rate Advances which are Term B Loans,
"Base Rate Margin" shall mean 3.250%.
(b) New Definition. The following new definition shall be added to Section
1.01 of the Existing Agreement in its appropriate alphabetical position:
"First Amendment Date" shall have the meaning provided in the First
Amendment to this Agreement dated as of April 13, 2004.
(c) Consolidated EBITDA to Consolidated Interest Expense Ratio. Section
6.08(a) of the Existing Agreement shall be amended in its entirety to read as
follows:
"(a) Consolidated EBITDA to Consolidated Interest Expense. Maintain
as of the last day of each Fiscal Quarter set forth below, a minimum ratio
of Consolidated EBITDA to Consolidated Interest Expense, calculated for
the immediately preceding four Fiscal Quarters, of equal to or greater
than the ratio set forth opposite such Fiscal Quarter:
Ratio of
Consolidated
EBITDA
to Consolidated
Fiscal Quarter Interest Expense
-------------- ----------------
Third Fiscal Quarter 2003 through Fourth Fiscal > or = 2.25:1.0
Quarter 2003
First Fiscal Quarter 2004 > or = 1.75:1.0
Second Fiscal Quarter 2004 through Third Fiscal > or = 1.65:1.0
Quarter 2004
Fourth Fiscal Quarter 2004 > or = 1.75:1.0
First Fiscal Quarter 2005 through Second Fiscal > or = 2.00:1.0
Quarter 2005
Third Fiscal Quarter 2005 > or = 2.50:1.0
Fourth Fiscal Quarter 2005 through First Fiscal > or = 2.75:1.0
Quarter 2006
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Second Fiscal Quarter 2006 and each Fiscal > or = 3.00:1.0".
Quarter thereafter
(d) Funded Debt to Consolidated EBITDA Ratio. Section 6.08(b) of the
Existing Agreement shall be amended in its entirety to read as follows:
"(b) Funded Debt to Consolidated EBITDA. Maintain as of the last day
of each Fiscal Quarter set forth below, a maximum ratio of Funded Debt to
Consolidated EBITDA, calculated for the immediately preceding four Fiscal
Quarters, of less than or equal to the ratio set forth opposite such
Fiscal Quarter:
Ratio of
Funded Debt
to Consolidated
Fiscal Quarter EBITDA
-------------- ---------------
Third Fiscal Quarter 2003 through Fourth Fiscal < or = 4.50:1.0
Quarter 2003
First Fiscal Quarter 2004 < or = 5.75:1.0
Second Fiscal Quarter 2004 through Third Fiscal < or = 6.25:1.0
Quarter 2004
Fourth Fiscal Quarter 2004 < or = 5.90:1.0
First Fiscal Quarter 2005 < or = 5.50:1.0
Second Fiscal Quarter 2005 > or = 5.00:1.0
Third Fiscal Quarter 2005 through Fourth Fiscal < or = 4.00:1.0
Quarter 2005
First Fiscal Quarter 2006 through Second Fiscal < or = 3.75:1.0
Quarter 2006
Third Fiscal Quarter 2006 through Fourth Fiscal < or = 3.50:1.0
Quarter 2006
First Fiscal Quarter 2007 through Second Fiscal < or = 3.25:1.0
Quarter 2007
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Third Fiscal Quarter 2007 and each Fiscal Quarter < or = 3.00:1.0".
thereafter
(e) Capital Expenditures. Section 6.08(c) of the Existing Agreement shall
be amended in its entirety to read as follows:
"(c) Capital Expenditures. The Borrower will not, and will not
permit its Subsidiaries to, make or commit to make Capital Expenditures in
any Fiscal Year which aggregate in excess of the following amounts set
forth opposite each such Fiscal Year:
Fiscal Year Maximum Amount
----------- --------------
2003 $50,000,000
2004 $30,000,000
2005 $50,000,000
2006 $50,000,000
2007 $50,000,000
2008 $50,000,000
2009 $50,000,000
; provided that 50% of the difference between any such amount for
any Fiscal Year and the lower actual amount of Capital Expenditures
in such Fiscal Year may be added to the maximum amount for the
following Fiscal Year, but not any subsequent Fiscal Year.".
(f) Senior Funded Debt to Consolidated EBITDA Ratio. Section 6.08(d) of
the Existing Agreement shall be amended in its entirety to read as follows:
"(d) Senior Funded Debt to Consolidated EBITDA. Maintain as of the
last day of each Fiscal Quarter set forth below, a maximum ratio of Senior
Funded Debt to Consolidated EBITDA, calculated for the immediately
preceding four Fiscal Quarters, of less than or equal to the ratio set
forth opposite such Fiscal Quarter:
Ratio of Senior
Funded Debt to
Consolidated
Fiscal Quarter EBITDA
-------------- ---------------
Third Fiscal Quarter 2003 through Fourth Fiscal < or = 2.50:1.0
Quarter 2003
First Fiscal Quarter 2004 < or = 3.25:1.0
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Second Fiscal Quarter 2004 through Third Fiscal < or = 3.50:1.0
Quarter 2004
Fourth Fiscal Quarter 2004 < or = 3.25:1.0
First Fiscal Quarter 2005 < or = 3.00:1.0
Second Fiscal Quarter 2005 < or = 2.75:1.0
Third Fiscal Quarter 2005 through Fourth Fiscal < or = 2.25:1.0
Quarter 2005
First Fiscal Quarter 2006 through Fourth Fiscal < or = 2.00:1.0
Quarter 2006
First Fiscal Quarter 2007 and each Fiscal < or = 1.75:1.0".
Quarter thereafter
(g) Mexican Indebtedness. Section 7.01(f) of the Existing Agreement shall
be amended in its entirety to read as follows (additions are shown in italics
and deletions are shown as ):
"(f) Subject to satisfaction of the conditions specified in
paragraphs (a) through (c) of Section 6.10 and clause (c) of Section 6.11,
Indebtedness incurred by a wholly-owned Subsidiary located in Mexico (or
any guaranty by the Borrower or any Domestic Subsidiary of any obligation
of such Subsidiary) in an aggregate amount outstanding at any time not to
exceed, together with the aggregate amount of any Investments permitted
pursuant to Section 7.06(e), $15,000,000;"
(h) Transfer of Equipment to Mexico. Section 7.06(g) of the Existing
Agreement shall be amended in its entirety to read as follows (additions are
shown in italics and deletions are shown as ):
"(g) subject to satisfaction of the conditions specified in
paragraphs (a) through (c) of Section 6.10 and clause (c) of Section 6.11,
Investments (other than those permitted by paragraphs (a) through (f)
above) of equipment listed on Schedule 7.06(g) in a wholly-owned
Subsidiary located in Mexico with an aggregate combined book value or Fair
Market Value (whichever is greater) not to exceed $14,000,000, provided
that the Borrower may not commence such Investments unless the ratio of
Funded Debt to Consolidated EBITDA, calculated for the immediately
preceding four Fiscal Quarters, shall be less than or equal to 4.5:1.0."
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(i) Pricing Schedule. Schedule 1.01 of the Existing Agreement shall be
amended in its entirety to read as follows (additions are shown in italics and
deletions are shown as ):
SCHEDULE 1.01
Pricing Schedule
FUNDED DEBT/ APPLICABLE
CONSOLIDATED APPLICABLE COMMITMENT FEE
EBITDA MARGIN BASE RATE MARGIN PERCENTAGE
------ ------ ---------------- ----------
Greater than or equal to 5.50 4.000% 3.000% 0.750%
Greater than or equal to 4.25 and less than 5.50 3.750% 2.750% 0.750%
Greater than or equal to 3.75 and less than 4.25 3.500% 2.500% 0.500%
Greater than or equal to 3.25 and less than 3.75 3.250% 2.250% 0.500%
Less than 3.25 3.000% 2.000% 0.500%
SECTION 2. EFFECTIVENESS. The amendments set forth in Section 1 above
shall become effective on the date (the "First Amendment Date") when the
Administrative Agent shall have received each of the following, all in form and
substance satisfactory to the Administrative Agent:
(a) This Amendment. Counterparts hereof executed by Intermet, the
Guarantors, the Administrative Agent and the Required Lenders.
(b) Fee Letter. A counterpart, executed by Intermet, of the fee letter
dated as of March 31, 2004 from Scotia Capital, along with all fees payable
thereunder.
(c) Amendment Fee. An amendment fee equal to 0.25% times the Commitment of
each Lender which signs this Amendment and returns a counterpart hereof executed
by such Lender to Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Administrative
Agent, no later than noon,
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New York time, on April 13, 2004, payable to the Administrative Agent for the
account of each such Lender.
(d) Fees of Counsel. Evidence that Intermet shall have paid all
outstanding fees and expenses of counsel to the Administrative Agent, to the
extent invoiced.
(e) Other Instruments or Documents. Such other instruments or documents as
the Administrative Agent or any Lender may reasonably request in connection with
this Amendment.
SECTION 3. MISCELLANEOUS.
(a) To induce the Administrative Agent and the Required Lenders to enter
into this Amendment, Intermet represents and warrants to the Administrative
Agent and the Lenders that: (i) the representations and warranties contained in
the Credit Documents, as amended by this Amendment, are true and correct in all
material respects as of the date hereof with the same effect as though made on
the date hereof; (ii) after giving effect to this Amendment, no Default or Event
of Default exists; (iii) this Amendment has been duly authorized by all
necessary corporate proceedings and duly executed and delivered by Intermet and
the Guarantors, and the Amended Agreement and each of the other Credit Documents
are the legal, valid and binding obligations of the Credit Parties party
thereto, enforceable against such Credit Parties in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity; and (iv) no
consent, approval, authorization, order, registration or qualification with any
governmental authority, regulatory body or securities exchange is required for,
and in the absence of which would adversely affect, the legal and valid
execution and delivery or performance by Intermet and the Guarantors of this
Amendment or the performance by Intermet and the Guarantors of the Amended
Agreement or by any Credit Party of any other Credit Document to which it is a
party.
(b) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall together constitute
one and the same Amendment.
(c) Except as specifically provided above, the Existing Agreement and the
other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed in all respects. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Administrative Agent or
the Lenders under the Existing Agreement or any of the other Credit Documents,
nor constitute a waiver or modification of any provision of any of the other
Credit Documents.
(d) On and after the First Amendment Date, each reference in the Existing
Agreement and related documents to "First Amended and Restated Credit
Agreement," "this Agreement" or words of like import, shall, unless the context
otherwise requires, be deemed to refer to the Amended Agreement.
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(e) Intermet agrees to pay on demand all reasonable costs and expenses
incurred at any time by the Administrative Agent (including the reasonable
attorney fees and expenses for the Administrative Agent) in connection with the
preparation, negotiation, execution and administration of this Amendment and all
other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith.
(f) This Amendment shall be binding upon and shall insure to the benefit
of the parties hereto and their respective successors and permitted assigns as
provided in the Amended Agreement.
(g) In case any provision in or obligation under this Amendment 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.
(h) THIS AMENDMENT WILL 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).
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