EXHIBIT 4.1
THIRD AMENDMENT AGREEMENT
This Third Amendment Agreement is made as of the 5th day of November, 1999,
by and among AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Borrower"),
the banking institutions named in Schedule 1 to the Credit Agreement, as
hereinafter defined ("Banks"), and KEYBANK NATIONAL ASSOCIATION, as agent for
the Banks ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a
certain Credit Agreement dated as of August 14, 1997, as amended and as it may
from time to time be further amended, restated or otherwise modified, which
provides, among other things, for loans and letters of credit aggregating Two
Hundred Million Dollars ($200,000,000), all upon certain terms and conditions
("Credit Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit Agreement
to modify certain provisions thereof;
WHEREAS, each term used herein shall be defined in accordance with the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and the
Banks agree as follows:
1. Article I of the Credit Agreement is hereby amended to delete the
definition of "Proviso" therefrom in its entirety and to insert in place
thereof the following:
"Proviso" shall mean that:
(a) for Borrower's fiscal quarters ending prior to the fiscal year
ending on or about August 31, 1998, Consolidated EBITDA, as referred to in
the Leverage Ratio, shall be calculated as follows: (i) for the fiscal year
ending on or about August 31, 1997, Consolidated EBITDA shall be calculated
as disclosed in the pro forma statement provided by Borrower to Agent on or
about July 30, 1997, (ii) for the fiscal quarter ending on or about
November 30, 1997, Consolidated EBITDA shall be annualized by multiplying
the Consolidated EBITDA for that fiscal quarter by four (4), (iii) for the
fiscal quarter ending on or about February 28, 1998, Consolidated EBITDA
shall be annualized by multiplying the Consolidated EBITDA for that fiscal
quarter and the previous fiscal quarter by two (2), and (iv) for the fiscal
quarter ending on or about May 31, 1998, Consolidated EBITDA shall be
annualized by multiplying the Consolidated EBITDA for that fiscal quarter
and the two (2) previous fiscal quarters by one and one-third (1.333); and
(b) for Borrower's fiscal quarter ending November 28, 1999, and for
each fiscal quarter of Borrower thereafter, any payment received by
Borrower from General Motors Corporation with respect to outstanding
accounts receivable (each a "GM Payment") on any Last Weekend, as
hereinafter defined, shall be deemed to have been received and applied as a
reduction to Funded Indebtedness (for purposes of calculation of the
Leverage Ratio) on the last day of the fiscal quarter that ends during such
Last Weekend, so long as Borrower actually applies the amount of such GM
Payment as a payment of Funded Indebtedness on the next Business Day of the
Last Weekend after the Business Day on which the payment is received by
Borrower. As used herein, "Last Weekend" shall mean the Friday, Saturday
Sunday, Monday and Tuesday (and Wednesday, if Monday is a national holiday
in the United States) that contains the last day of a fiscal quarter of
Borrower.
2. After the date of this Third Amendment Agreement, Borrower shall
include in each Compliance Certificate a description (with respect to amount
and timing) of any recalculation of Funded Indebtedness that occurs pursuant to
subpart (b) of the Proviso definition.
3. Concurrently with the execution of this Third Amendment Agreement,
Borrower shall:
(a) cause each Guarantor of Payment to consent and agree to and
acknowledge the terms of this Third Amendment Agreement; and
(b) pay all legal fees and expenses of Agent in connection with this Third
Amendment Agreement.
4. Borrower hereby represents and warrants to Agent and the Banks that(a)
Borrower has the legal power and authority to execute and deliver this
Third Amendment Agreement; (b) the officials executing this Third Amendment
Agreement have been duly authorized to execute and deliver the same and bind
Borrower with respect to the provisions hereof; (c) the execution and delivery
hereof by Borrower and the performance and observance by Borrower of the
provisions hereof do not violate or conflict with the organizational agreements
of Borrower or any law applicable to Borrower or result in a breach of any
provision of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against Borrower; (d) no Unmatured Event of
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Third Amendment
Agreement or by the performance or observance of any provision hereof; (e)
neither Borrower nor any Subsidiary has any claim or offset against, or defense
or counterclaim to, any of Borrower's or any Subsidiary's obligations or
liabilities under the Credit Agreement or any Related Writing; and (f) this
Third Amendment Agreement constitutes a valid and binding obligation of Borrower
in every respect, enforceable in accordance with its terms.
5. Each reference that is made in the Credit Agreement or any other
writing to the Credit Agreement shall hereafter be construed as a reference
to the Credit Agreement as amended hereby. Except as herein otherwise
specifically provided, all provisions of the Credit Agreement shall remain in
full force and effect and be unaffected hereby.
6. Borrower and each Subsidiary, by signin g below, hereby waives and
releases Agent and each of the Banks and their respective directors, officers,
employees, attorneys, affiliates and subsidiaries from any and all claims,
offsets, defenses and counterclaims of which Borrower and any Subsidiary is
aware, such waiver and release being with full knowledge and understanding
of the circumstances and effect thereof and after having consulted legal counsel
with respect thereto.
7. This Third Amendment Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
8. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts
of laws.
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9. JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANK S HEREBY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE
BANKS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
AMCAST INDUSTRIAL CORPORATION
By: /s/ JOHN H. SHUEY
-------------------------------------
John H. Shuey, President and
Chief Executive Officer
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ FRANCIS W. LUTZ
-------------------------------------
Francis W. Lutz, Portfolio Manager
BANCA COMMERCIALE ITALIANA
By: /s/ CHARLES DOUGHERTY
-------------------------------------
Title: Vice President
-------------------------------------
and /s/ TIZIANO GALLONETTO
-------------------------------------
Title: Assistant Vice President
-------------------------------------
THE BANK OF NEW YORK
By: /s/ EDWARD J. DOUGHERTY III
-------------------------------------
Title: Vice President, U.S. Commercial
Banking
-------------------------------------
BANK ONE, NA
By: /s/ RANDALL WITH
-------------------------------------
Title: Senior Vice President
-------------------------------------
CREDIT AGRICOLE INDOSUEZ
(successor in interest to Caisse Nationale
de Credit Agricole)
By:
-------------------------------------
Title:
-------------------------------------
and
-------------------------------------
Title:
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COMERICA BANK
By: /s/ NICHOLAS G. MESTER
-------------------------------------
Title: Account Officer
-------------------------------------
CREDITO ITALIANO SPA
By: /s/ CHRISTOPHER J. ELDIN
-------------------------------------
Title: First Vice President & Deputy
Manager
-------------------------------------
and /s/ SAIYED A. ABBAS
-------------------------------------
Title: Vice President
-------------------------------------
SANPAOLO IMI, SPA
By: /s/ LUCA SACCHI
-------------------------------------
Title: Vice President
-------------------------------------
and /s/ CARLO PERSICO
-------------------------------------
Title: Designated Group Manager
-------------------------------------
NATIONAL CITY BANK OF DAYTON
By: /s/ NEAL J. HINKEL
-------------------------------------
Title: Vice President
-------------------------------------
BANK ONE, MICHIGAN (successor by merger
to NBD Bank)
By: /s/ RANDALL WITH
-------------------------------------
Title: Senior Vice President
-------------------------------------
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By:
-------------------------------------
Title:
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FIRSTAR BANK, NATIONAL
ASSOCIATION (fka STAR BANK, N.A.)
By: /s/ THOMAS D. GIBBONS
-------------------------------------
Title: Vice President
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GUARANTOR ACKNOWLEDGMENT
Each of the undersigned consents and agrees to and acknowledges the terms
of the foregoing Third Amendment Agreement. Each of the undersigned further
agrees that the obligations of each of the undersigned pursuant to the Guaranty
of Payment executed by each of the undersigned shall remain in full force and
effect and be unaffected hereby.
ELKHART PRODUCTS CORPORATION
WHEELTEK, INC.
AS INTERNATIONAL, INC.
By: /s/ DOUGLAS D. WATTS
-------------------------------------
Douglas D. Watts, Vice President
of each of the Companies listed
above
AMCAST INVESTMENT SERVICES
CORPORATION
By: /s/ JOHN H. SHUEY
-------------------------------------
John H. Shuey, President