Exhibit 4.1 - Third Amendment Agreement made as of April 15, 2002, to the
Last-In-First-Out Credit Agreement dated June 5, 2001, between Amcast Industrial
Corporation, the banking institutions named therein, and KeyBank National
Association, as agent.
THIRD AMENDMENT AGREEMENT
This Third Amendment Agreement (this "Amendment") is made as of April
15, 2002, 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
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, which provides, among other things, for loans aggregating $35,000,000,
all upon certain terms and conditions (the "Credit Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each capitalized 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. Amendment to Definitions. The definitions of "Commitment
Period" and "Maximum Revolving Amount" in Article I of the Credit Agreement
are hereby amended and restated in their entirety as follows:
"Commitment Period" shall mean the period from the Closing
Date to September 14, 2002, or such earlier date on which the
Commitments shall have been terminated pursuant to Article VII hereof.
"Maximum Revolving Amount" shall mean (a) while the Level I
Availability is in effect, $15,000,000, (b) while the Level II
Availability in effect, $30,000,000, and (c) while the Level III
Availability is in effect, (i) for the period from the Level III
Availability Date through May 31, 2002, $35,000,000, and (ii) on June
1, 2002 and thereafter, $20,000,000.
2. Amendment to Level III Availability. Section 2.2(c) of the
Credit Agreement is hereby amended and restated in its entirety as follows:
(c) Level III Availability. On and after the Level III
Availability Date, the Revolving Credit Commitment shall be an amount
equal to (i) the lesser of (A)(1), for the period from the Level III
Availability Date through May 31, 2002, $35,000,000, and (2) on June 1,
2002 and thereafter, $20,000,000 (or, with respect to (1) and (2), such
lesser amount as shall be determined in accordance with Section 2.6
hereof) or (B) the Borrowing Base, minus (ii) the Fee Reserve in effect
from time to time (the foregoing being referred to herein as the "Level
III Availability").
3. Amendment to Add Capital Expenditure Covenant. Section 4.7
of the Credit Agreement is hereby amended to add the following new subsection
(e) thereto:
(e) Consolidated Capital Expenditures. The Companies shall not
suffer or permit at any time Consolidated Capital Expenditures, for the
most recently completed fiscal year of the Companies, to be greater
than (i) $23,216,000 for the fiscal year of the Companies ending on or
about August 31, 2002, and (ii) $24,691,000 for the fiscal year of the
Companies ending on or about August 31, 2003.
4. Addition of New Covenant. Article IV of the Credit
Agreement is hereby amended to add the following new Section 4.23 thereto:
Section 4.23. Strategic Plan. On and after May 30, 2002,
Borrower will use commercially reasonable efforts to execute and
perform in a timely manner Borrower's strategic plan which includes the
disposal of certain non-strategic assets as presented to Agent and the
Banks (the "Strategic Plan") and if Borrower shall fail at any time to
be proceeding in a timely and commercially reasonable manner, as
determined by Agent in its sole discretion, then Borrower will pay to
Agent, for the pro rata benefit of the Creditors (as defined in the
Subordination Agreement), the fees agreed to between Borrower and Agent
on the dates agreed to between Borrower and Agent.
5. Conditions Precedent. The amendments set forth above
shall become effective upon the satisfaction of the following conditions
precedent:
(a) Borrower shall cause each Guarantor of Payment to consent
and agree to and acknowledge the terms of this Amendment; and
(b) Borrower shall provide such other items and shall satisfy such
other conditions as may be reasonably required by Agent and the Banks.
6. Representations and Warranties. Borrower hereby represents and
warrants to Agent and the Banks that (a) Borrower has the legal power and
authority to execute and deliver this Amendment; (b) the officials executing
this Amendment 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
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment 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 Amendment constitutes a valid and
binding obligation of Borrower in every respect, enforceable in accordance with
its terms.
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7. Credit Agreement Unaffected. 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.
8. Waiver. Borrower and each Subsidiary, by signing 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.
9. Counterparts This Amendment 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.
10. Governing Law. 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.
[Remainder of page intentionally left blank.]
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11. JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR
HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE
BANKS, EACH GUARANTOR, 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. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR
MODIFY AGENT'S OR ANY BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Francis J. Drew
Name: Francis J. Drew
Title: Vice President, Finance
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Dale A. Clayton
Name: Dale A. Clayton
Title: Vice President
BANK ONE INDIANA, N.A.
By: /s/ Joanna W. Anderson
Name: Joanna W. Anderson
Title: Assistant Vice President
THE BANK OF NEW YORK
By: /s/ Stephen C. Brennan
Name: Stephen C. Brennan
Title: Vice President
Signature Page
1 of 2 of the
Third Amendment Agreement
to LIFO Credit Agreement
FIRSTAR BANK, N.A.
By: /s/ Greg Wilson
Name: Greg Wilson
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Frederik W. Aase
Name: Frederik W. Aase
Title: Vice President
and /s/ Leo von Reissig
Name: Leo von Reissig
Title: Vice President
COMERICA BANK
By: /s/ Arden J. Anderson
Name: Arden J. Anderson
Title: First Vice President
NATIONAL CITY BANK
By: /s/ Neal J. Hinker
Name: Neal J. Hinker
Title: Senior Vice President
Signature Page
2 of 2 of the
Third Amendment Agreement
to LIFO Credit Agreement
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Third Amendment Agreement dated as of April 15, 2002.
Each of the undersigned specifically acknowledges the terms of and consent to
the waivers set forth therein. Each of the undersigned further agrees that the
obligations of each of the undersigned pursuant to the Guaranties of Payment of
Debt executed by each of the undersigned shall remain in full force and effect
and be unaffected hereby.
Each of the undersigned, by signing 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 any of the undersigned 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.
JURY TRIAL WAIVER. BORROWER, AGENT, THE BANKS AND EACH GUARANTOR HEREBY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT, THE BANKS, EACH
GUARANTOR, 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. THIS
WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY
BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT AMONG BORROWER, AGENT, THE BANKS AND GUARANTORS, OR ANY THEREOF.
ELKHART PRODUCTS CORPORATION AMCAST INVESTMENT SERVICES
AMCAST AUTOMOTIVE OF INDIANA, CORPORATION
INC. (fka Wheeltek, Inc.)
AS INTERNATIONAL, INC. By: /s/ F. J. Drew
IZUMI, INC. Name: F. J. Drew
AMCAST CASTING TECHNOLOGIES, INC. Title: Vice President
AMCAST INDUSTRIAL FINANCIAL SERVICES, INC.
CASTING TECHNOLOGY COMPANY
By: /s/ F. J. Drew
Name: F. J. Drew By: Amcast Casting Technologies,
Title: Vice President Inc., a General Partner
By: /s/ F. J. Drew
Name: F. J. Drew
Title: Vice President