Exhibit 4.17.1
EXECUTION COPY
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AMCAST INDUSTRIAL CORPORATION
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SECOND AMENDMENT
Dated as of June 5, 2001
to
NOTE AGREEMENTS
Dated as of November 1, 1995
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Re: $50,000,000 7.09% Senior Notes
Due November 7, 2005
(from and after the effectiveness hereof, such Notes
shall be referred to as 10.09% Senior Notes
Due November 7, 2003)
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SECOND AMENDMENT TO NOTE AGREEMENTS
THIS SECOND AMENDMENT dated as of June 5, 2001 (this "Second
Amendment") to the Note Agreements each dated as of November 1, 1995 is among
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation (the "Company"), PRINCIPAL
LIFE INSURANCE COMPANY and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
(collectively, the "Noteholders").
R E C I T A L S:
A. The Company and each of the Noteholders have entered into separate
and several Note Agreements each dated as of November 1, 1995 (collectively, as
amended by the First Amendment thereto dated as of December 31, 1997, the "Note
Agreements"). The Company issued the $50,000,000 7.09% Senior Notes Due November
7, 2005 (the "Notes") pursuant to the Note Agreements.
B. The Company and each of the Noteholders now desires to amend the
Note Agreements and the Notes in the respects, but only in the respects,
hereinafter set forth.
C. Capitalized terms used herein shall have the respective, meanings
assigned thereto in the Note Agreements unless herein defined or the context
shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this Second Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Second Amendment set forth in
Section 3.1 hereof, and in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
Section 1. AMENDMENTS.
Section 1.1. Section 2.1 of the Note Agreements shall be amended by deleting the
first paragraph of such Section and inserting the following in lieu thereof:
"In addition to paying the entire outstanding principal amount
and the interest due on the Notes on the maturity date thereof, the
Company agrees that on November 7, 2002, it will prepay and apply and
there shall become due and payable on the principal indebtedness
evidenced by the Notes an amount equal to the lesser of (a) $12,500,000
or (b) the principal amount of the Notes then outstanding; provided,
however, that no such prepayment shall be due if, prior to August 14,
2002, the maturity date for the loans and other obligations under the
Credit Agreement has been extended to a date on or after August 14,
2003. The entire remaining principal amount of the Notes shall become
due and payable on November 7, 2003. No premium shall be payable in
connection with any required prepayment made pursuant to this ss.2.1."
Section 1.2. Sections 5.6 and 5.7 of the Note Agreements shall be amended and
restated to read in their entireties as follows:
Section 5.6. [Intentionally left blank]
Section 5.7. [Intentionally left blank]
Section 1.3. Section 5.8 of the Note Agreements shall be amended by deleting the
word "Priority" from the title caption and by adding the following clause (c):
"(c) In addition to, and not in limitation of, the foregoing
clauses (a) and (b), the Company shall not, and not permit any
Subsidiary to, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) obligations under the Agreements and the Notes;
(ii) [intentionally left blank];
(iii) Debt of Subsidiaries to the Company;
(iv) unsecured Debt of the Company to Subsidiaries;
(v) Indebtedness described on Schedule II and any
extension, renewal or refinancing thereof so long as the principal
amount thereof is not increased;
(vi) the Senior Lender Obligations (as defined in the
Subordination Agreement);
(vii) the Line of Credit Obligations (as defined in
the Subordination Agreement) in an aggregate principal amount not to
exceed $22,032,783;
(viii) the Existing Credit Agreement Obligations (as
defined in the Subordination Agreement)in an aggregate principal
amount not to exceed $111,377,061.68; and
(ix) Indebtedness of Speedline S.r.l in an aggregate principal
amount not to exceed $29,000,000 (or the equivalent amount thereof in
Italian Lira)."
Section 1.4. Section 5.9 of the Note Agreements shall be amended and restated in
its entirety to read as follows:
"Section 5.9. Limitation on Liens. The Company shall not, and shall not
permit any Subsidiary to, create, assume or suffer to exist any Lien
upon any of its or their property or assets, whether now owned or
hereafter acquired, or upon any income or profits therefrom, or
transfer any property for the purpose of subjecting the same to the
payment of obligations other than the Notes or acquire or agree to
acquire, or permit any Subsidiary to acquire, any property or assets
upon conditional sales agreements or other title retention devices,
except:
(1) Liens for taxes not yet due or that are being actively
contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP;
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(2) other statutory Liens incidental to the conduct of its
business or the ownership of its property and assets that (i) were not
incurred in connection with the borrowing of money or the obtaining of
advances or credit, and (ii) do not in the aggregate materially detract
from the value of its property or assets or materially impair the use
thereof in the operation of its business;
(3) Liens on property or assets of a Subsidiary to secure
obligations of such Subsidiary to the Company or a Subsidiary that has
executed a counterpart of the Subsidiary Guaranty (other than a CTC
Company);
(4) Liens described on Schedule II hereto and any extensions,
renewals or replacements, in whole or in part, of any such Lien,
provided that (i) such extension, renewal or replacement of
Indebtedness shall be without increase in the principal amount
remaining unpaid as of such extension, renewal or replacement, (ii)
such Lien shall attach solely to the same property theretofore subject
to such Lien and (iii) after giving effect to any such extension,
renewal or refunding and to the application of the proceeds thereof, no
Default or Event of Default would exist;
(5) Liens granted to the Collateral Agent pursuant to
the Collateral Agency and Intercreditor Agreement;
(6) Liens granted to the LIFO Agent pursuant to the LIFO
Credit Agreement;
(7) Liens on the property or assets of CTC granted to Bank
One, Indiana, National Association pursuant to the CTC Documents, as
defined in the CTC Forbearance Agreement; and
(8) Liens on the assets of Speedline, S.r.l. in
connection with the Indebtedness permitted by Section 5.8(c)(ix).
Neither the Company nor any Subsidiary shall enter into any contract or
agreement that would prohibit the Collateral Agent or any holder of
Notes from acquiring a security interest, mortgage or other Lien on, or
a collateral assignment of, any of the property or assets of the
Company or any Subsidiary."
Section 1.5. Section 5.10 of the Note Agreements shall be amended and restated
in its entirety to read as follows:
"Section 5.10. Mergers, Consolidations and Sales of Assets. The Company
shall not, and shall not permit any Subsidiary to, merge or consolidate
with any other Person or sell, lease or transfer or otherwise dispose
of all or any part of its assets (except assets sold in the ordinary
course of business) to any Person."
Section 1.6. Section 5.15 of the Note Agreements shall be amended by (i)
removing the word "and" after the semicolon at the end of clause (g) thereof,
(ii) changing the designation of clause (h) thereof from "(h)" to "(j)" and
(iii) inserting the following clauses (h) and (i):
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"(h) Default. With reasonable promptness, and in any event within five
days after an officer of the Company becoming aware of the existence of
any Default or Event of Default, a written notice specifying the nature
and existence thereof and what action the Company is taking or proposes
to take with respect thereto;
(i) Notices with Respect to Other Indebtedness. Promptly upon
receiving the same, a copy of any notice received from the LIFO Agent
or the agent under the Credit Agreement; and"
Section 1.7. Section 5 of the Note Agreements shall be amended by adding the
following new Sections 5.17, 5.18, 5.19, 5.20, 5.21, 5.22 and 5.23, which shall
read as follows:
"Section 5.17. Acquisitions. On and after June 4, 2001, the Company
shall not, and shall not permit any Subsidiary to, acquire the assets
or stock or other equity interest of any other Person; provided,
however, that, notwithstanding the foregoing, effective as of May 31,
2001, the Company shall be permitted to enter into the CTC Transaction.
"Section 5.18. Payments of Other Indebtedness. The Company shall not
make any payment of any principal amount of any Existing Credit
Agreement Obligations or any Line of Credit Obligations (each as
defined in the Subordination Agreement), whether upon stated maturity,
required mandatory prepayment, upon acceleration or otherwise, unless
the Company shall concurrently make a prepayment on the Notes (in
accordance with Section 2.2 or 2.3 hereof, as the case may be) in such
aggregate principal amount as shall be necessary to cause the holders
of Notes to have received an aggregate payment on the Notes at such
time equal to (x) the aggregate amount of the all payments of principal
on the Existing Credit Agreement Obligations, the Line of Credit
Obligations and the Notes made at such time times (y) a fraction, the
numerator of which is the aggregate principal amount of Noteholder
Obligations (as defined in the Subordination Agreement) and the
denominator of which is the aggregate principal amount of the
Noteholder Obligations, the Existing Credit Agreement Obligations and
the Line of Credit Obligations, in each case calculated without giving
effect to any such prepayment.
"Section 5.19. Addition of Financial Covenants. The Company shall
deliver to the holders of Notes, as soon as practicable (but not later
than July 10, 2001) after the Second Amendment Effective Date, such
projections and budgets as the holders of Notes may reasonably request.
Promptly following such delivery, the Company shall enter into good
faith negotiations with the holders of Notes to amend the Agreements to
add such financial covenants thereto as the holders may reasonably
require. Without limiting the generality of the foregoing, when the
Company proposes to enter into the Financial Covenant Amendment (under
and as defined in the LIFO Credit Agreement), the Company shall
negotiate to add as financial covenants under the Agreements financial
covenants no less favorable to the holders of Notes than the covenants
contained in the Financial Covenant Amendment are to the LIFO Banks.
"Section 5.20. Investments and Loans. The Company shall not, and shall
not permit any Subsidiary to, without the prior written consent of the
Requisite Holders, (a) create, acquire or hold any Subsidiary, (b) make
or hold any investment in any stocks, bonds or securities or any kind,
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(c) be or become a party to any joint venture or other partnership, (d)
make or keep outstanding any advance or loan to any Person, or (e)
enter into or suffer to exist any Guaranty, except guarantees only for
Indebtedness of the Company and its Subsidiaries incurred or permitted
pursuant to this Agreement; provided, that this Section shall not apply
to (i) any endorsement of a check or other medium of payment for
deposit or collection through normal banking channels or similar
transaction in the normal course of business, (ii) the holding of
Subsidiaries listed on Schedule II or (iii) loans among the Company and
its Subsidiaries so long as each borrower and lender of such loans is
the Company or a Subsidiary that has executed a Subsidiary Guaranty and
is not a CTC Company.
"Section 5.21. Restricted Payments. The Company shall not, nor permit any
Subsidiary to, make or commit itself to make any Restricted Payment, except
that:
(a) any Subsidiary may make Capital Distributions to
the Company or a Subsidiary that has executed a Subsidiary Guaranty;
and
(b) employees of the Company may exercise employee options
through a "cashless exercise".
"Section 5.22. Material Agreements.
Without the prior written consent of the Requisite Holders, the Company
shall not, and shall not permit any Subsidiary to, amend, restate or
otherwise modify in any respect (a) the Credit Agreement or any
document, instrument or agreement executed in connection therewith,
except as permitted by the Subordination Agreement, (b) the LIFO Credit
Agreement, or any document, instrument or agreement executed in
connection therewith, except as permitted by the Subordination
Agreement, or (c) any other agreement that evidences Indebtedness of
any Company in the aggregate principal amount greater than Five Million
Dollars ($5,000,000).
"Section 5.23. Change of Fiscal Year. The Company shall not, and shall
not permit any Subsidiary to, change its fiscal year end or any other
accounting period without the prior written consent of the Requisite
Holders."
Section 1.8. Section 6.1(g) of the Note Agreements shall be amended and restated
in its entirety to read as follows:
"(g) Any default shall occur under the terms applicable to any
Indebtedness of the Company or any Subsidiary in an aggregate amount
(for all such Indebtedness so affected) exceeding $5,000,000 and such
default shall (i) consist of the failure to pay such Indebtedness when
due, whether by acceleration or otherwise, or (ii) accelerate the
maturity of such Indebtedness or permit the holder or holders thereof,
or any trustee or agent for such holder or holders, to cause such
Indebtedness to become due and payable (or require the Company or any
Subsidiary to purchase or redeem such Indebtedness) prior to its
expressed maturity; or"
Section 1.9. Section 6.1 of the Note Agreements shall be amended by adding
thereto the following clause (n):
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"(n) Any Security Document shall cease to be in full force and
effect; or the Company or any Subsidiary party to any Security Document
(or any Person by, through or on behalf of the Company or any
Subsidiary) shall contest in any manner the validity, binding nature or
enforceability of any Security Document."
Section 1.10. Section 8.1 of the Note Agreements shall be amended by adding
thereto the following definitions in their respective alphabetical order:
"Capital Distribution" shall mean a payment made, liability
incurred or other consideration given for the purchase, acquisition,
redemption or retirement of any capital stock or other equity interest
of the Company or any Subsidiary or as a dividend, return of capital or
other distribution (other than any stock dividend, stock split or other
equity distribution payable only in capital stock or other equity of
the Person in question) in respect of the capital stock or other equity
interest of the Company or any Subsidiary.
"Collateral Agency and Intercreditor Agreement" shall mean the
Collateral Agency and Intercreditor Agreement dated as on June 5, 2001
among the Collateral Agent, the LIFO Agent, the LIFO Banks, the holders
of the Notes and certain other parties, as the same may from time to
time be amended, restated or otherwise modified.
"Collateral Agent" shall mean Key Bank, N.A., in its
capacity as Collateral Agent under the Collateral Agency and
Intercreditor Agreement, and its successors and assigns in such
capacity.
"Collateral Assignment and Security Agreement" shall mean a
Collateral Assignment and Security Agreement, in form and substance
satisfactory to the Requisite Holders, executed and delivered by the
Company or a Subsidiary, as the case may be, wherein the Company or
such Subsidiary shall have granted to the Collateral Agent, for the
benefit of the holders of the Notes and the holders of the other
Subordinated Lender Obligations (as defined in the Subordination
Agreement), a security interest in and an assignment of all
intellectual property owned by the Company or such Subsidiary, as the
same may from time to time be amended, restated or otherwise modified.
"CTC Company" shall mean CTC, Amcast Casting Technologies,
Inc., an Indiana corporation, or Izumi, Inc., a Delaware corporation.
"CTC Forbearance Agreement" shall mean the Forbearance and
Waiver Agreement, dated as of June 5, 2001, among the Company, Key
Bank, N.A., on behalf of itself and on behalf of and for the benefit of
the Bank Lenders and Bank One, Indiana, National Association, on behalf
of itself, in its capacity as agent and on behalf of the banks party to
a Creditor and Intercreditor Agreement dated August 26, 1999 among
Casting Technology Company, an Indiana general partnership, and certain
lenders, as the same may from time to time be amended, restated or
otherwise modified.
"CTC Transaction" shall mean the acquisition by the Company of
all of the outstanding common stock of Izumi, Inc., a Delaware
corporation, and the related transactions in connection therewith, as
set forth in the Stock Purchase Agreement, dated as of May 31, 2001,
between the Company and Izumi Industries, Ltd., a Japanese corporation.
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"LIFO Agent" shall mean KeyBank National Association, as agent
for the LIFO Banks under the LIFO Credit Agreement, together with its
successors and assigns.
"LIFO Banks" shall mean the banking institutions listed on
Schedule 1 to the LIFO Credit Agreement, together with their respective
successors and assigns.
"LIFO Credit Agreement" shall mean the Last-In-First-Out
Credit Agreement dated as of June 5, 2001 among the Company, the LIFO
Banks and the LIFO Agent, as the same may from time to time be amended,
restated or otherwise modified in accordance with the Intercreditor
Agreement.
"Mortgage" shall mean a mortgage, deed of trust or other
instrument, in form and substance satisfactory to the Requisite
Holders, executed by the Company or a Subsidiary, as the case may be,
with respect to any Mortgaged Real Property, as the same may from time
to time be amended, restated or otherwise modified.
"Mortgaged Real Property" shall mean each of the parcels of
real property, or interests therein, owned or leased by the Company or
a Subsidiary, as appropriate, together with each other parcel of real
property that shall become subject to a Mortgage, in each case together
with all of the right, title and interest of Company or such
Subsidiary, as the case may be, in the improvements and buildings
thereon and all appurtenances, easements or other rights belonging
thereto.
"Pledge Agreement" shall mean a Pledge Agreement, in form and
substance satisfactory to the Requisite Holders, executed and delivered
to the Collateral Agent, for the benefit of the holders of the Notes
and the other holders of Subordinated Lender Obligations (as defined in
the Subordination Agreement), by the Company or a Subsidiary, as
appropriate, as the same may from time to time be amended, restated or
otherwise modified.
"Restricted Payment" shall mean, with respect to the Company
or any Subsidiary, (a) any Capital Distribution, (b) any Stock
Repurchase, as defined in the Credit Agreement (as in effect on the
Second Amendment Effective Date), or (c) any amount paid by the Company
or such Subsidiary in repayment, redemption, retirement, repurchase,
direct or indirect, of any Subordinated Indebtedness, including, but
not limited to, the Indebtedness incurred pursuant to the Credit
Agreement, the Note Agreements or in respect of the Line of Credit
Obligations, as defined in the Credit Agreement.
"Second Amendment" shall mean the Second Amendment dated as of
June 5, 2001 to Note Agreements dated as of November 1, 1995, which
Second Amendment is among the Company, Principal Life Insurance Company
and The Northwestern Mutual Life Insurance Company.
"Second Amendment Effective Date" shall mean June 5, 2001.
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"Security Agreement" shall mean a Security Agreement, in form
and substance satisfactory to the Requisite Holders, executed and
delivered by the Company or a Subsidiary to the Collateral Agent, for
the benefit of the holders of Notes and the holders of the other
holders of Subordinated Lender Obligations (as defined in the
Subordination Agreement), as the same may from time to time be amended,
restated or otherwise modified.
"Security Documents" shall mean each Security Agreement, each
Mortgage, each Pledge Agreement, each Collateral Assignment and
Security Agreement, each U.C.C. financing statement executed in
connection therewith or securing any interest created in any of the
foregoing documents, and any other documents relating to any of the
foregoing, as any of the foregoing may from time to time be amended,
restated or otherwise modified or replaced.
"Subordinated", as applied to Indebtedness, shall mean that
the Indebtedness has been subordinated (by written terms or written
agreement being, in either case, in form and substance satisfactory to
the Requisite Holders) in favor of the prior payment in full of the
Notes.
"Subordination Agreement" shall mean the Subordination,
Waiver and Consent Agreement, dated as of June 5, 2001, among the
Company, the LIFO Agent, the Collateral Agent, the holders of the Notes
and certain other parties, as the same may from time to time be
amended, restated or otherwise modified.
Section 1.11. The definition of "Overdue Rate" contained in Section 8.1 of the
Note Agreements shall be amended and restated in its entirety to read as
follows:
"Overdue Rate" shall mean the lesser of (i) the maximum
interest rate permitted by law and (ii) 12.09% per annum.
Section 1.12. Schedule II to the Note Agreements shall be replaced with Schedule
II hereto.
Section 1.13. From and after the Second Amendment Effective Date, interest on
the Notes shall accrue at the rate of 10.09% per annum instead of 7.09% per
annum. Any overdue payment of principal (including any overdue required or
optional prepayment of principal) and premium, if any, and (to the extent
legally enforceable) any overdue installment of interest and any overdue payment
of any Make-Whole Amount shall bear interest at the Overdue Rate.
Notwithstanding anything herein or in the Notes to the contrary, no amount of
interest on such overdue payments may be added to the outstanding principal of
the Notes as a Capitalized Interest Amount (as defined in Exhibit A attached
hereto).
Section 1.14. The Note Agreements shall be amended by deleting therefrom the
current form of Exhibit A thereto and replacing it with Exhibit A attached
hereto.
Section 1.15. The Notes outstanding on the Second Amendment Effective Date are
hereby, without any further action required on the part of any other Person,
deemed to be automatically amended to conform to and have the terms provided in
Exhibit A attached hereto (except that the principal amount and the payee of
each such Note shall remain unchanged). Any Note issued on or after the Second
Amendment Effective Date shall be in the form of Exhibit A attached hereto.
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Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this Second
Amendment, the Company represents and warrants to the Noteholders (which
representations shall survive the execution and delivery of this Second
Amendment) that:
(a) each of this Second Amendment, the Warrant Certificates (defined
below), the Warrant Agreement (defined below) and the Registration
Rights Agreement (defined below) has been duly authorized, executed and
delivered by the Company and each of this Second Amendment, the Warrant
Certificates, the Warrant Agreement and the Registration Rights
Agreement constitutes the legal, valid and binding obligation, contract
and agreement of the Company enforceable against it in accordance with
its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(b) the Note Agreements, as amended by this Second Amendment, constitute
the legal, valid and binding obligations, contracts and agreements of
the Company enforceable against it in accordance with their respective
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Company of
this Second Amendment, the Warrant Certificates, the Warrant
Agreement and the Registration Rights Agreement (i) have been duly
authorized by all requisite corporate action and, if required,
shareholder action, (ii) do not require the consent or approval of
any governmental or regulatory body or agency and (iii) will not
(A) violate (1) any provision of law, statute, rule or regulation
or its certificate of incorporation or bylaws, (2) any order of
any court or any rule, regulation or order of any other agency or
government binding upon it, or (3) any provision of any indenture,
agreement or other instrument to which the Company or any
Subsidiary is a party or by which its properties or assets are or
may be bound, or (B) result in a breach or constitute (alone or
with due notice or lapse of time or both) a default under any
indenture, agreement or other instrument referred to in clause (iii)
(A)(3) of this Section 2.1(c);
(d) the Subsidiary Guaranty constitutes the legal, valid and binding
obligation, contract and agreement of each Subsidiary (and each CTC
Company) party thereto enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
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(e) the execution, delivery and performance by each Subsidiary (and each
CTC Company) a party thereto of the Subsidiary Guaranty (i) have been
duly authorized by all requisite corporate action and, if required,
shareholder action, (ii) do not require the consent or approval of
any governmental or regulatory body or agency and (iii) will not (A)
violate (1) any provision of law, statute, rule or regulation or
its certificate of incorporation or bylaws, (2) any order of any
court or any rule, regulation or order of any other agency or
government binding upon it, or (3) any provision of any indenture,
agreement or other instrument to which the Company or any
Subsidiary or any CTC Company is a party or by which its properties
or assets are or may be bound, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument referred
to in clause (iii)(A)(3) of this Section 2.1(e);
(f) as of the date hereof and after giving effect to this Second
Amendment, no Default or Event of Default has occurred that is
continuing;
(g) all the representations and warranties contained in Section 3.1 of the
Note Agreements are true and correct in all material respects with the
same force and effect as if made by the Company on and as of the date
hereof (other than any representation and warranty that expressly
relates to a specified earlier date, which was true and correct in all
material respects as of such date); and
(h) the statements and information furnished to the Noteholders in
connection with the negotiation of this Second Amendment do not, taken
as a whole, and other than financial projections or forecasts, contain
any untrue statements of a material fact or omit a material fact
necessary to make the material statements contained herein or therein
not misleading, the Noteholders acknowledging that as to any
projections furnished to the Noteholders, the Company only represents
that the same were prepared in good faith and on the basis of
information and estimates the Company believed to be reasonable.
Section 3. CONDITIONS TO EFFECTIVENESS OF THIS SECOND AMENDMENT.
Section 3.1. This Second Amendment shall become effective on the date (the
"Second Amendment Effective Date") when the following conditions shall have been
satisfied:
(a) executed counterparts of this Second Amendment, duly executed by
the Company and the holders of all of the Notes, shall have been
delivered to the Noteholders;
(b) the Noteholders shall have received a copy of the resolutions of the
Board of Directors of the Company authorizing the execution, delivery
and performance by the Company of this Second Amendment, certified by
the Company's Secretary or an Assistant Secretary;
(c) the representations and warranties of the Company set forth in
Section 2 hereof are true and correct on and with respect to the date
hereof;
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(d) the Noteholders shall have received the favorable opinion of counsel to
the Company as to the matters set forth in Sections 2.1(a), 2.1(b),
2.1(c), 2.1(d) and 2.1(e) hereof, which opinion shall be in form and
substance satisfactory to the Noteholders and as to such other matters
as may be requested by the Noteholders;
(e) the Noteholders shall have received each of the following documents (i)
a Warrant Certificate, substantially in the form of Exhibit A to the
Warrant Agreement (each, a "Warrant Certificate"), for each Noteholder
representing the right to purchase 100,000 shares of common stock, no
par value per share, of the Company ("Common Stock"), (ii) a Warrant
Agreement, substantially in the form of Exhibit B attached hereto (the
"Warrant Agreement"), duly executed by the Company and (iii) a
Registration Rights Agreement, substantially in the form of Exhibit C
attached hereto (the "Registration Rights Agreement"), duly executed by
the Company and the other parties thereto;
(f) the Noteholders shall have received a Subsidiary Guaranty,
substantially in the form of Exhibit D hereto, executed and delivered
by each Subsidiary of the Company that is organized under the laws of
the United States (or any State thereof or the District of Columbia)
which is not a party to a Subsidiary Guaranty prior to the Second
Amendment Effective Date;
(g) the Noteholders shall have received a Guarantor Consent and
Acknowledgment, as set forth at the foot hereof, executed and delivered
by all parties to the Guaranties of Payment of Debt, each dated as of
August 15, 1997, in respect of the Notes; and
(h) each Noteholder shall have received the payment in cash of an
amendment fee in the amount of 0.60% of the principal amount of such
Noteholder's Note.
Section 3.2. This Second Amendment shall become retroactively ineffective as of
the date hereof if, within 14 days of the date hereof, the Noteholders shall not
have received a Guaranty, in form and substance acceptable to the Noteholders,
executed and delivered by each of CTC, Amcast Casting Technologies, Inc. and
Izumi, Inc., together with such corporate governance documents and opinions of
counsel as the Noteholders may request.
Section 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company agrees to pay upon demand, the reasonable fees and
expenses of Mayer, Brown & Platt, counsel to the Noteholders, in connection with
the negotiation, preparation, approval, execution and delivery of this Second
Amendment.
Section 5. MISCELLANEOUS.
Section 5.1. This Second Amendment shall be construed in connection with and as
part of each of the Note Agreements, and except as modified and expressly
amended by this Second Amendment, all terms, conditions and covenants contained
in the Note Agreements and the Notes are hereby ratified and shall be and remain
in full force and effect.
Section 5.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Second Amendment
may refer to the Note Agreements without making specific reference to this
Second Amendment but nevertheless all such references shall include this Second
Amendment unless the context otherwise requires.
-11-
Section 5.3. The descriptive headings of the various Sections or parts of this
Second Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 5.4. This Second Amendment shall be governed by and construed in
accordance with the internal laws of the State of Ohio.
Section 5.5. The execution hereof by you shall constitute a contract between us
for the uses and purposes hereinabove set forth, and this Second Amendment may
be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
(Signature Pages Begin on Next Page)
IN WITNESS WHEREOF, the Company and the Noteholders have caused this
instrument to be executed as of June 5, 2001.
AMCAST INDUSTRIAL CORPORATION
By: /s/ F. J. Drew
--------------------
Name: Francis J. Drew
Title: Vice President
PRINCIPAL LIFE INSURANCE COMPANY
/s/ Christopher J. Henderson
By: /s/ Debra Svoboda EPP
---------------------------
Name: Christopher J. Henderson /
Debra Svoboda EPP
Title: Counsel
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/ David A. Barras
---------------------------
Name: David A. Barras
Title: Its Authorized Representative
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Second Amendment dated as of June 5, 2001. Each of the
undersigned specifically acknowledges the terms of and consents to the
amendments 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 thereby.
Each of the undersigned further agrees with Noteholders that Section 9
of each Subsidiary Guaranty executed by each of the undersigned is hereby
amended to delete the text of each of such sections therefrom in their entirety
and to insert in place thereof the following:
Anything in this Agreement to the contrary notwithstanding, in
no event shall the amount of the undersigned's liability hereunder (or,
if applicable, the amount secured by this Agreement) exceed the maximum
amount that (after giving effect to the incurring of the obligations
hereunder and to any rights to contribution of the undersigned from
other affiliates of Borrower) would not render the rights to payment of
the Noteholders hereunder void, voidable or avoidable under any
applicable fraudulent transfer law.
Each of the undersigned, by signing below, hereby waives and releases
each of the Noteholders 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.
EACH OF THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG THE COMPANY, THE NOTEHOLDERS, THE UNDERSIGNED, 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 ANY NOTEHOLDER'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 THE
COMPANY, THE NOTEHOLDERS AND THE UNDERSIGNED, OR ANY THEREOF.
ELKHART PRODUCTS CORPORATION
AMCAST AUTOMOTIVE OF INDIANA, INC. (fka Wheeltek, Inc.)
AS INTERNATIONAL, INC.
AMCAST INVESTMENT SERVICES CORPORATION
By: /s/ F. J. Drew
--------------------
Name: Francis J. Drew
Title: Vice President
Schedule II
Description of Indebtedness, Leases and
Unfunded Pension Liability
[to be provided by the Company]
Existing Liens
[to be provided by the Company]
Subsidiaries of the Company
[to be provided by the Company]
Exhibit A
THIS NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS
AMENDED. THIS NOTE MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER SAID ACT OR
IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
AMCAST INDUSTRIAL CORPORATION
10.09% Senior Note
Due November 7, 2003
No. ____________, _____
PPN 023395 A@5
$
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation (the "Company"), for value
received, hereby promises to pay to
or registered assigns
on the seventh day of November, 2003
the principal amount of
____________________ DOLLARS ($_______________), together with all Capitalized
Interest Amounts (as hereinafter defined), and to pay interest (computed on the
basis of a 360-day year of twelve 30-day months) on the principal amount from
time to time remaining unpaid hereon at the rate of (i) at all times prior to
but excluding the Second Amendment Effective Date, seven and nine one-hundredths
percent (7.09%) per annum, and (ii) at all times from and including the Second
Amendment Effective Date, ten and nine one-hundredths percent (10.09%) per annum
(payable to the extent of up to 1% per annum by adding interest not paid in cash
to the principal amount of this Note, except as provided below), payable monthly
on the first Business Day of each month (each, an "Interest Payment Date") in
each year and at maturity. The Company agrees to pay interest on overdue payment
of principal (including any overdue required or optional prepayment of
principal) and premium, if any, and (to the extent legally enforceable) on any
overdue installment of interest, at the Overdue Rate after the due date, whether
by acceleration or otherwise, until paid.
On any Interest Payment Date on or after the Second Amendment Effective
Date, in lieu of making the entire interest payment on this Note in cash, the
Company shall pay on such Interest Payment Date, in cash, that portion of the
interest accrued on the outstanding principal amount of such Note to such
Interest Payment Date as would have accrued at the rate of nine and nine
one-hundredths percent (9.09%) per annum and add, as a Capitalized Interest
Amount, to the outstanding principal amount of such Notes on such Interest
Payment Date the portion of such interest as would have accrued at the rate of
one percent (1%) per annum (each such addition with respect to this Note, a
"Capitalized Interest Amount"); provided, however, no amount of interest on any
overdue payment of principal and premium, any overdue installment of interest or
any overdue payment of any Make-Whole Amount may be added to the outstanding
principal of the Notes as a Capitalized Interest Amount.
Interest shall begin to accrue on each Capitalized Interest Amount
beginning on and including the Interest Payment Date on which such Capitalized
Interest Amount is added to the principal amount of this Note, and such interest
shall accrue and be paid, together with the interest on the remaining principal
amount of this Note, in accordance with this Note. Notwithstanding anything
herein to the contrary, all interest due and payable on the date that the entire
then outstanding principal amount of this Note becomes due and payable, whether
on the maturity date hereof, by acceleration or otherwise, shall be due and
payable in full in cash on such date. All Capitalized Interest Amounts will for
all purposes of this Note and the Note Agreements constitute outstanding
principal on this Note. All principal of this Note consisting of Capitalized
Interest Amounts is subordinated in right of payment to the Senior Lender
Obligations and the Subordinated Lender Obligations (each as defined in the
Subordination Agreement), other than those Subordinated Lender Obligations
consisting of Capitalized Interest Amounts, as set forth in the Intercreditor
Agreement.
Both the principal hereof and interest hereon are payable at the
principal office of the Company in Dayton, Ohio in coin or currency of the
United States of America that at the time of payment shall be legal tender for
the payment of public and private debts. If any amount of principal, premium, if
any, or interest on or in respect of this Note becomes due and payable on any
date that is not a Business Day, such amount shall be payable on the immediately
preceding Business Day.
This Note is one of the 10.09% Senior Notes due November 7, 2003 (the
"Notes") of the Company in the original aggregate principal amount of
$50,000,000 issued or to be issued under and pursuant to the terms and
provisions of the separate Note Agreements, each dated as of November 1, 1995
(as amended by the First Amendment thereto dated as of December 31, 1997 and by
the Second Amendment thereto dated as of June 5, 2001 and as may be further
amended, the "Note Agreements"), entered into by the Company with the original
Purchasers therein referred to and this Note and the holder hereof are entitled
equally and ratably with the holders of all other Notes outstanding under the
Note Agreements to all the benefits provided for thereby or referred to therein.
Reference is hereby made to the Note Agreements for a statement of such rights
and benefits. Capitalized terms used herein but not defined herein have the
meanings ascribed to such terms in the Note Agreements.
This Note and the other Notes outstanding under the Note Agreements may
be declared due prior to their expressed maturity dates and certain prepayments
are required to be made thereon, all in the events, on the terms and in the
manner and amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreements.
This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly endorsed
or accompanied by a written instrument of transfer duly executed by the
registered holder of this Note or its attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
holder.
This Note and said Note Agreements are governed by and construed in
accordance with the internal laws of the State of Ohio, including all matters of
construction, validity and performance.
AMCAST INDUSTRIAL CORPORATION
By
Name:
Title:
Exhibit B
[Form of Warrant Agreement]
Exhibit C
[Form of Registration Rights Agreement]
Exhibit D
GUARANTY OF PAYMENT OF DEBT
THIS GUARANTY is dated as of June 5, 2001, and made by
______________________, a __________ corporation (the "Guarantor").
SECTION 1. RECITALS.
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation (the "Company"), has
heretofore entered into the separate Note Agreements each dated as of November
1, 1995 (as amended, supplemented or otherwise modified from time to time, the
"Note Agreements"), between the Company and each of the Purchasers named on
Schedule I attached to the Note Agreements (the "Initial Purchasers"), pursuant
to which the Company issued and sold $50,000,000 aggregate original principal
amount of its 7.09% Senior Notes, due November 7, 2005 (as amended, supplemented
or otherwise modified from time to time, the "Notes"). The Initial Purchasers,
together with their respective successors and assigns including any subsequent
holder of the Notes, are hereinafter referred to as the "Noteholders".
Capitalized terms used herein and not otherwise defined shall have the same
meanings as in the Note Agreements.
The Guarantor is a Wholly-owned Subsidiary of the Company.
Pursuant to the requirements of that certain Second Amendment to the
Note Agreements dated as of June 5, 2001 (the "Second Amendment"), between the
Company and the Noteholders, the Noteholders and the Company amended the Note
Agreements and the Notes in certain respects, including to change the final
maturity date of the Notes to November 7, 2003 and to change the interest rate
on the Notes to 10.09% per annum. In connection with the Second Amendment, the
Noteholders agreed to waive certain events of default under the Note Agreements.
Furthermore, pursuant to Section 5.16 of the Note Agreements, the Company is
required to cause Guarantor to execute and deliver a guaranty of the Notes in
the form hereof inasmuch as Guarantor has issued a guaranty of obligations of
the Bank Lenders (as defined in the Note Agreements).
Guarantor is part of an affiliated group of corporations with the
Company and will receive substantial direct and indirect benefit by reason of
the Second Amendment and such waivers.
Guarantor understands that the Noteholders executed the Second
Amendment and granted such waivers only upon certain terms and conditions, one
of which is that the Guarantor guarantee the payment of the Debt (as hereinafter
defined), and this instrument is being executed and delivered in consideration
of the Second Amendment and each waiver granted to the Company by the
Noteholders and for other valuable considerations.
SECTION 2. DEFINITIONS.
Unless otherwise specified, as used herein, the following terms shall
have the following meanings:
Section 2.1. "Collateral" means, collectively, all property, if any,
securing the Debt or any part thereof at the time in question.
Section 2.2. "Debt" means, collectively, all principal, interest and
premium, if any, on or with respect to the Notes and all other indebtedness now
owing or hereafter incurred by the Company to the Noteholders pursuant to the
Note Agreements and the Notes executed in connection therewith, as modified,
amended, supplemented or restated from time to time; (c) all other amounts
payable by the Company to any of the Noteholders pursuant to the Note Agreements
or any document or instrument related to the Note Agreements; and (d) all costs
and expenses, including attorney fees, incurred by any of the Noteholders in
connection with the Note Agreements or in connection with the collection of any
portion of the indebtedness described in (a), (b) or (c) hereof.
Section 2.3. "Obligor" means any person or entity who, or any of whose
property, is or shall be obligated on the Debt or any part thereof in any manner
and includes, without limiting the generality of the foregoing, the Company, the
Guarantor and any other co-maker, endorser, guarantor of payment, subordinating
creditor, assignor, grantor of a security interest, pledgor, mortgagor or any
hypothecator of property, if any.
SECTION 3. GUARANTY OF DEBT.
Guarantor hereby absolutely and unconditionally guarantees the prompt
payment in full of all of the Debt as and when the respective parts thereof
become due and payable. If the Debt or any part thereof shall not be paid in
full when due and payable, the Noteholders shall have the right to proceed
directly against Guarantor under this instrument to collect the payment in full
of the Debt, regardless of whether or not the Noteholders shall have theretofore
proceeded or shall then be proceeding against the Company or any other Obligor
or Collateral, if any, or any of the foregoing, it being understood that the
Noteholders in their sole discretion may proceed against any Obligor and any
Collateral, and may exercise each right, power or privilege that the Noteholders
may then have, either simultaneously or separately, and, in any event, at such
time or times and as often and in such order as the Noteholders in their sole
discretion may from time to time deem expedient to collect the payment in full
of the Debt.
SECTION 4. PAYMENTS CONDITIONAL.
Whenever any Noteholder shall credit any payment to the Debt or any
part thereof, whatever the source or form of payment, the credit shall be
conditional as to Guarantor unless and until the payment shall be final and
valid as to all the world. Without limiting the generality of the foregoing,
Guarantor agrees that if any check or other instrument so applied shall be
dishonored by the drawer or any party thereto, or if any proceeds of Collateral
or payment so applied shall thereafter be recovered by any trustee in bankruptcy
or anyone else, each Noteholder, in each case, may reverse any entry relating
thereto in its books and Guarantor shall remain liable therefor even if such
Noteholder may no longer have in its possession any evidence of the Debt to
which the payment in question was applied.
-2-
SECTION 5. GUARANTOR'S OBLIGATIONS ABSOLUTE AND UNCONDITIONAL.
Regardless of the duration of time, regardless of whether the Company
may from time to time cease to be indebted to the Noteholders and irrespective
of any act, omission or course of dealing whatever on the part of any of the
Noteholders, Guarantor's liabilities and other obligations under this instrument
shall remain in full effect until the payment in full of the Debt. Without
limiting the generality of the foregoing:
Section 5.1. Noteholders Have No Duty To Make Accommodations.
No Noteholder shall at any time be under any duty to Guarantor to grant any
financial accommodation to the Company, irrespective of any duty or
commitment of any of the Noteholders to the Company, or to follow or direct
the application of the proceeds of any such financial accommodation;
Section 5.2. Guarantor's Waiver of Notice, Presentment, etc. Guarantor
waives (a) notice of the granting of any financial accommodation to the Company
or the incurring of any other indebtedness by the Company or the terms and
conditions thereof, (b) presentment, demand for payment and notice of dishonor
of the Debt or any part thereof, or any other indebtedness incurred by the
Company to any of the Noteholders, (c) notice of any indulgence granted to any
Obligor and (d) any other notice to which Guarantor might, but for this waiver,
be entitled;
Section 5.3. Noteholders' Rights Not Prejudiced by Action or Omission.
The Noteholders in their sole discretion may, without any prejudice to their
rights under this instrument, at any time or times, without notice to or the
consent of Guarantor, (a) grant the Company whatever financial accommodations
that such Noteholder may from time to time deem advisable, even if the Company
might be in default in any respect and even if those financial accommodations
might not constitute indebtedness the payment of which is guaranteed hereunder,
(b) assent to any renewal, extension, consolidation or refinancing of the Debt
or any part thereof, (c) forbear from demanding security, if such Noteholder
shall have the right to do so, (d) release any Obligor or Collateral or assent
to any exchange of Collateral, if any, irrespective of the consideration, if
any, received therefor, (e) grant any waiver or consent or forbear from
exercising any right, power or privilege that such Noteholder may have or
acquire, (f) assent to any amendment, deletion, addition, supplement or other
modification in, to or of any writing evidencing or securing any Debt or
pursuant to which any Debt is created, (g) grant any other indulgence to any
Obligor, (h) accept any Collateral for, or any other Obligor upon, the Debt or
any part thereof, and (i) fail, neglect to omit in any way to realize upon any
Collateral or to protect the Debt or any part thereof or any Collateral
therefor;
Section 5.4. Liabilities Survive Guarantor's Dissolution.
Guarantor's liabilities and other obligations under this instrument shall
survive any dissolution of Guarantor; and
Section 5.5. Liabilities Absolute and Unconditional. Guarantor's
liabilities and other obligations under this instrument shall be absolute and
unconditional irrespective of any lack of validity or enforceability of the Note
Agreements, the Notes, or any other agreement, instrument or document related
thereto, or any other defense available to Guarantor in respect of this
instrument.
-3-
SECTION 6. REPRESENTATIONS AND WARRANTIES.
Guarantor represents and warrants that (a) Guarantor is a duly
organized and validly existing corporation, in good standing under the laws of
the state of its incorporation (as referenced in the first paragraph of this
instrument), and is qualified to do business in each state where it is required
to so qualify; (b) Guarantor has legal power and right to execute and deliver
this instrument and to perform and observe the provisions hereof; (c) the
officers executing and delivering this instrument on behalf of Guarantor have
been duly authorized to do so, and this instrument, when executed, is legal and
binding upon Guarantor in every respect; (d) no litigation or proceeding is
pending or threatened against Guarantor before any court or any administrative
agency which, in the opinion of Guarantor's counsel, is reasonably expected to
have a material adverse effect on Guarantor; (e) Guarantor has received
consideration which is the reasonable equivalent value of the obligations and
liabilities that Guarantor has incurred to the Noteholders; (f) Guarantor is not
insolvent as defined in any applicable state or federal statute, nor will
Guarantor be rendered insolvent by the execution and delivery of this instrument
to the Noteholders; (g) Guarantor is not engaged or about to engage in any
business or transaction for which the assets retained by Guarantor shall be an
unreasonably small capital, taking into consideration the obligations to the
Noteholders incurred hereunder; and (h) Guarantor does not intend to, nor does
Guarantor believe that Guarantor will, incur debts beyond Guarantor's ability to
pay them as they mature.
SECTION 7. DISABILITY OF OBLIGOR.
Without limiting the generality of any of the other provisions hereof,
Guarantor specifically agrees that upon the dissolution of any Obligor and/or
the filing or other commencement of any bankruptcy or insolvency proceedings by,
for or against any Obligor, including without limitation, any assignment for the
benefit of creditors or other proceedings intended to liquidate or rehabilitate
any Obligor, the Requisite Holders, in their sole discretion, may declare the
unpaid principal balance of and accrued interest on the Debt to be forthwith due
and payable in full without notice. Upon the occurrence of any of the events
enumerated in the immediate preceding sentence, Guarantor shall, upon the
Noteholders' demand whenever made, purchase from the Noteholders (without
recourse upon any Noteholder and without warranties either express or implied)
the Notes or any other evidence of the Debt for an amount equal to the then
unpaid principal balance of and accrued interest on the Debt.
SECTION 8. WAIVER OF GUARANTOR'S RIGHTS AGAINST THE COMPANY AND COLLATERAL.
To the extent permitted by law, Guarantor waives any claim or other
right which Guarantor might now have or hereafter acquire against the Company or
any other Obligor which arises from the existence or performance of Guarantor's
liabilities or other obligations under this instrument, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, and any right to participate in any claim or remedy of any
Noteholder against the Company or any Collateral which any Noteholder now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law.
-4-
SECTION 9. MAXIMUM LIABILITY OF GUARANTOR.
Anything in this Agreement to the contrary notwithstanding, in no event
shall the amount of Guarantor's liability hereunder (or, if applicable, the
amount secured by this instrument) exceed the maximum amount that (after giving
effect to the incurring of the obligations hereunder and to any rights to
contribution of the undersigned from other affiliates of the Company) would not
render the rights to payment of the Noteholders hereunder void, voidable or
avoidable under any applicable fraudulent transfer law.
SECTION 10. NOTICE.
All notices, requests, demands and other communications provided for
hereunder shall be in writing and, if to Guarantor, mailed or delivered to it,
addressed to it at the address specified on the signature page of this
instrument, if to a Noteholder, mailed or delivered to it, addressed to the
address of such Noteholder specified on Schedule I of the Note Agreements. All
notices, statements, requests, demands and other communications provided for
hereunder shall be deemed to be given or made when delivered or forty-eight (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 from Guarantor to the Noteholders
pursuant to any of the provisions hereof shall not be effective until received
by the Noteholders.
SECTION 11. MISCELLANEOUS.
This instrument shall bind Guarantor and Guarantor's successors and
assigns and shall inure to the benefit of each Noteholder and their respective
successors and assigns, including (without limitation) each holder of any Note
evidencing any Debt. If at any time one or more provisions of this instrument is
or becomes invalid, illegal or unenforceable in whole or in part, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. This instrument constitutes a final written
expression of all of the terms of this instrument, is a complete and exclusive
statement of those terms and supersedes all oral representations, negotiations
and prior writings, if any, with respect to the subject matter hereof. The
relationship among (a) Guarantor and (b) the Noteholders with respect to this
instrument is and shall be solely that of debtor and creditors, respectively,
and the Noteholders shall have no fiduciary obligation toward Guarantor with
respect to this instrument or the transactions contemplated thereby. The
captions herein are for convenience of reference only and shall be ignored in
interpreting the provisions of this instrument.
SECTION 12. GOVERNING LAW; SUBMISSION TO JURISDICTION.
The provisions of this instrument and the respective rights and duties
of the Guarantor, and the Noteholders hereunder shall be governed by and
construed in accordance with Ohio law, without regard to principles of conflict
of laws. Guarantor hereby irrevocably submits to the non-exclusive jurisdiction
of any Ohio state or federal court sitting in Cleveland, Ohio, over any action
or proceeding arising out of or relating to this instrument, the Note
Agreements, the Notes or any document or instrument related thereto, and
Guarantor hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Ohio state or
-5-
federal court. Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, any objection it may now or hereafter have to the laying of
venue in any action or proceeding in any such court as well as any right it may
now or hereafter have to remove such action or proceeding, once commenced, to
another court on the grounds of FORUM NON CONVENIENS or otherwise. Guarantor
agrees that a final, nonappealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
SECTION 13. JURY TRIAL WAIVER.
Guarantor, to the extent permitted by law, waives any right to have a
jury participate in resolving any dispute, whether sounding in contract, tort,
or otherwise, among any of the Noteholders, the Company and/or any guarantor
arising out of, in connection with, related to, or incidental to the
relationship established between each of them and Guarantor in connection with
this instrument or any note or other agreement, instrument or document executed
or delivered in connection therewith or the transactions related thereto. This
waiver shall not in any way affect, waive, limit, amend or modify the
Noteholders' ability to pursue remedies pursuant to any confession of judgment
or cognovit provision contained in this instrument, any note or any other
guaranty of payment, agreement, instrument or document related thereto.
[Remainder of Page Intentionally Left Blank]
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Signed as of the 5th day of June, 2001.
Address: [GUARANTOR]
7887 Washington Village Drive
Dayton, Ohio 45459 By
Attention: Treasurer Title
Fax: (937) 291-7007
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