Exhibit 4.17.2
EXECUTION COPY
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AMCAST INDUSTRIAL CORPORATION
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THIRD AMENDMENT
Dated as of August 6, 2001
to
NOTE AGREEMENTS
Dated as of November 1, 1995
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Re: $50,000,000 10.09% Senior Notes
Due November 7, 2003
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THIRD AMENDMENT TO NOTE AGREEMENTS
THIS THIRD AMENDMENT dated as of August 6, 2001 (this "Third
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, and by the
Second Amendment thereto dated as of June 5, 2001, the "Note Agreements"). The
Company issued the $50,000,000 10.09% Senior Notes Due November 7, 2003 (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 Third 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 Third 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
last sentence of the first paragraph of such section and inserting the following
after such first paragraph:
On the last day of its fiscal quarter ending November 30,
2001, the Company shall make a mandatory prepayment of the Loans, as
defined in the LIFO Credit Agreement, under the LIFO Credit Agreement
in the amount of Five Million Dollars ($5,000,000). On the last day of
its fiscal quarter ending May 31, 2002, the Company shall make a
mandatory prepayment of the Loans under the LIFO Credit Agreement in
the amount of Six Million Five Hundred Thousand Dollars ($6,500,000).
On the last day of its fiscal quarter ending August 31, 2002, the
Company shall make a mandatory prepayment of the Loans under the LIFO
Credit Agreement in the amount of Five Million Dollars ($5,000,000).
If, at any time that any prepayment required to be made under this
paragraph is made, there are no Loans under the LIFO Credit Agreement
then outstanding, or if the amount of Loans under the LIFO Credit
Agreement then outstanding shall be less than the amount of the
mandatory prepayment due on such date, then such payment, or the
remainder of such payment, as the case may be, shall be paid to the
Collateral Agent, for the benefit of the Lenders (as defined in the
Intercreditor Agreement, as defined in the Subordination Agreement).
Such payment shall be distributed to the Lenders on a Pro Rata (as
defined in the Intercreditor Agreement) basis, provided that, for the
purposes of allocation of such payment, Pro Rata shall be determined on
the date that such payment was made. In addition, on the date of any
prepayment required to be made pursuant to this paragraph, if there
shall be any Loans (as defined in the LIFO Credit Agreement)
outstanding under the LIFO Credit Agreement, then (a) the maximum
amount of the Revolving Credit Commitment (as defined in the LIFO
Credit Agreement) available pursuant to Section 2.2 of the LIFO Credit
Agreement shall be permanently reduced by an amount equal to the lesser
of (i) the aggregate principal amount of the Loans (as defined in the
LIFO Credit Agreement) outstanding under the LIFO Credit Agreement on
such date, or (ii) the amount of the mandatory prepayment due under
this paragraph on such date, and (b) a reserve shall be established in
the Borrowing Base (as defined in the LIFO Credit Agreement) under the
LIFO Credit Agreement in an amount equal to the lesser of (i) the
aggregate principal amount of the Loans (as defined in the LIFO Credit
Agreement) outstanding under the LIFO Credit Agreement on such date, or
(ii) the amount of the mandatory prepayment due under this paragraph on
such date.
No premium shall be payable in connection with any required
prepayment of the Notes made pursuant to this ss.2.1.
Section 1.2. Section 5.7 of the Note Agreements shall be amended and restated to
read in its entirety as follows:
Section 5.7. Financial Covenants.
(a) Definitions. As used in this Section 5.7, the
following terms shall have the following meanings:
"Adjusted Net Worth Ratio" shall mean, as of the last day of
the most recently completed fiscal quarter of the Company and its
Subsidiaries, on a consolidated basis and in accordance with GAAP, the
ratio of (a) Consolidated Total Liabilities, to (b) Consolidated
Tangible Net Worth.
"Consolidated Adjusted EBITDA" shall mean, for any period, on
a consolidated basis and in accordance with GAAP, Consolidated Net
Earnings for such period plus the aggregate amounts deducted in
determining such Consolidated Net Earnings in respect of (a)
Consolidated Income Tax Expense, (b) Consolidated Interest Expense and
(c) Consolidated Depreciation and Amortization Charges.
"Consolidated Capital Expenditures" shall mean, for any
period, the amount of capital expenditures of the Company and its
Subsidiaries, as determined on a consolidated basis and in accordance
with GAAP.
"Consolidated Depreciation and Amortization Charges" shall
mean, for any period, the aggregate of all depreciation and
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amortization charges for fixed assets, leasehold improvements and
general intangibles (specifically including goodwill) of the Company
and its Subsidiaries for such period, as determined on a consolidated
basis and in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, on a
consolidated basis and in accordance with GAAP, Consolidated Net
Earnings for such period plus the aggregate amounts deducted in
determining such Consolidated Net Earnings in respect of (a)
Consolidated Income Tax Expense, (b) Consolidated Interest Expense, (c)
Consolidated Depreciation and Amortization Charges, (d) provisions
charged to income for future outlays, less amounts expended in cash
with respect to such provisions or similar provisions charged during
the current period or previous periods and (e) losses, net of gains, on
sales of PPE.
"Consolidated Free Cash Flow" shall mean, for any period, on a
Consolidated basis and in accordance with GAAP, an amount equal to:
(a) the sum of:
(i) Consolidated EBITDA for such period;
(ii) an amount equal to the sum of:
(A) the Accounts Receivable on the
first day of such period minus the Accounts
Receivable on the last day of such period,
(B) the Inventory on the first day of
such period minus the Inventory on the last day of
such period,
(C) the Prepaids on the first day of
such period minus the Prepaids on the last day of
such period,
(D) the Accounts Payable on the
last day of such period minus the Accounts
Payable on the first day of such period, and
(E) the Accrued Liabilities on the
last day of such period minus the Accrued
Liabilities on the first day of such period; and
(iii) an amount equal to:
(A) the sum of:
(1) the amount, if any, by which the
Deferred Items Classified as Assets on the
last day of such period are less than the
Deferred Items Classified as Assets on the
first day of such period, and
(2) the amount, if any, by which the
Deferred Items Classified as Liabilities on
the first day of such period are less than
the Deferred Items Classified as Liabilities
on the last day of such period; minus
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(B) the sum of:
(1) the amount, if any, by which the
Deferred Items Classified as Assets on the
last day of such period exceed the Deferred
Items Classified as Assets on the first day
of such period, and
(2) the amount, if any, by which the
Deferred Items Classified as Liabilities on
the first day of such period exceed the
Deferred Items Classified as Liabilities on
the last day of such period; plus
(C) the sum of:
(1) the amount, if any, by which the
Other Non-Current Items Classified as Assets
on the last day of such period are less than
the Other Non-Current Items Classified as
Assets on the first day of such period, and
(2) the amount, if any, by which the
Other Non-Current Items Classified as
Liabilities on the first day of such period
are less than the Other Non-Current Items
Classified as Liabilities on the last day of
such period; minus
(D) the sum of:
(1) the amount, if any, by which the
Other Non-Current Items Classified as Assets
on the last day of such period exceed the
Other Non-Current Items Classified as Assets
on the first day of such period, and
(2) the amount, if any, by which the
Other Non-Current Items Classified as
Liabilities on the first day of such period
exceed the Other Non-Current Classified as
Liabilities on the last day of such period;
minus
(E) Consolidated Capital Expenditures
for such period (less net cash proceeds of the
sale of PPE); minus
(b) the aggregate amount of principal payments made during
such period by or on behalf of CTC pursuant to the CTC Documents (as
defined in the CTC Forbearance Agreement); minus
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(c) for FQE August 31, 2001, the amount of Five Million
Dollars ($5,000,000) (which amount reflects Non-cash Charges, as
described in the Quarterly Financial Statements for such period).
As used in this definition, the words "Accounts Receivable",
"Inventory", "Prepaids", "Accounts Payable", "Accrued Liabilities",
"Deferred Items" "Non-cash Charges" and "Other Non-Current Items" shall
refer to those amounts, respectively, that are reported in the
Quarterly Financial Statements for such period. As used in this
definition, the words "Deferred Items Classified as Assets" shall mean
Deferred Items that are classified as assets of the Company and its
Subsidiaries, the words "Deferred Items Classified as Liabilities"
shall mean Deferred Items that are classified as liabilities of the
Company and its Subsidiaries, the words "Other Non-Current Items
Classified as Assets" shall mean Other Non-Current Items that are
classified as assets of the Company and its Subsidiaries, and the words
"Other Non-Current Items Classified as Liabilities" shall mean Other
Non-Current Items that are classified as liabilities of the Company and
its Subsidiaries.
"Consolidated Income Tax Expense" shall mean, for any period,
all provisions for taxes based on the net income of the Company and its
Subsidiaries (including, without limitation, any additions to such
taxes, and any penalties and interest with respect thereto), all as
determined for the Company and its Subsidiaries on a consolidated basis
and in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
the interest expense of the Company and its Subsidiaries for such
period, as determined on a consolidated basis and in accordance with
GAAP.
"Consolidated Net Earnings" shall mean, for any period, the
net income (loss) of the Company and its Subsidiaries for such period,
as determined on a consolidated basis and in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, at any date, (a)
the net book value (after deducting all applicable reserves and
excluding any re-appraisal or write-up of assets) of the assets (other
than the Intangible Assets) of the Company and its Subsidiaries, minus
(b) Consolidated Total Liabilities.
"Consolidated Total Liabilities" shall mean the total of items
of Indebtedness or liabilities of the Company and its Subsidiaries
that, in accordance with GAAP, would be included in determining total
liabilities on the liability side of the balance sheet of the Company
and its Subsidiaries as of the date of determination, as determined on
a consolidated basis.
"Cumulative Domestic Free Cash Flow" shall mean, for any
fiscal quarter of the Company and its Subsidiaries, Cumulative Free
Cash Flow for such fiscal quarter, excluding that portion of Cumulative
Free Cash Flow for such fiscal quarter that shall be attributable to
Subsidiaries not organized under the laws of the United States or any
state thereof (a "Foreign Subsidiary"), but including cash payments
made during such fiscal quarter to the Company or any Subsidiary that
is not a Foreign Subsidiary (a "Domestic Subsidiary") by any such
Foreign Subsidiaries of Indebtedness owing to the Company or such
Domestic Subsidiary.
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"Cumulative Free Cash Flow" shall mean (a) for FQE August 31,
2001, Consolidated Free Cash Flow for such fiscal quarter, and (b) for
any completed fiscal quarter of the Company after FQE August 31, 2001,
the aggregate amount of Consolidated Free Cash Flow for such completed
fiscal quarter and all previous completed fiscal quarters ending on or
after FQE August 31, 2001.
"FQE August 31" shall mean the Company's fiscal quarter ending
August 31.
"FQE February 28" shall mean the Company's fiscal quarter
ending on or about February 28.
"FQE May 31" shall mean the Company's fiscal quarter ending on
or about May 31.
"FQE November 30" shall mean the Company's fiscal quarter
ending on or about November 30.
"Intangible Assets" shall mean, with respect to the Company
and its Subsidiaries, collectively, all patents, trademarks, goodwill
or other intangibles as determined in accordance with GAAP including,
but not limited to, (a) the "Speedline" name and technology associated
with the Speedline entities, and (b) the intangible assets associated
with the New York Stock Exchange organization.
"PPE" shall mean property, plant and equipment as listed in
the Quarterly Financial Statements.
"Quarterly Financial Statements" shall mean for any fiscal
quarter of the Company, the financial statements delivered by the
Company with respect to such fiscal quarter pursuant to Section 5.15(a)
hereof.
(b) Adjusted Net Worth Ratio. The Company shall not suffer or
permit at any time the Adjusted Net Worth Ratio to be greater than (i)
5.90 to 1.00 on the last day of FQE August 31, 2001 through the day
prior to the last day of FQE November 30, 2001, (ii) 6.40 to 1.00 on
the last day of FQE November 30, 2001 through the day prior to the last
day of FQE February 28, 2002, (iii) 7.00 to 1.00 on the last day of FQE
February 28, 2002 through the day prior to the last day of FQE May 31,
2002, (iv) 6.80 to 1.00 on the last day of FQE May 31, 2002 through the
day prior to the last day of FQE August 31, 2002, and (v) 6.50 to 1.00
on the last day of FQE August 31, 2002 and on the last day of each
fiscal quarter ending thereafter. The Adjusted Net Worth Ratio shall be
calculated only as of the last day of a fiscal quarter and shall not be
recalculated until the last day of the next succeeding fiscal quarter.
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(c) Cumulative Free Cash Flow. The Company shall not suffer or
permit at any time Cumulative Free Cash Flow to be less than (i)
negative Seven Million One Hundred Fifty Thousand Dollars (-$7,150,000)
on the last day of FQE August 31, 2001 through the day prior to the
last day of FQE November 30, 2001, (ii) Eight Million One Hundred
Thousand Dollars ($8,100,000) on the last day of FQE November 30, 2001
through the day prior to the last day of FQE February 28, 2002, (iii)
Six Million One Hundred Thousand Dollars ($6,100,000) on the last day
of FQE February 28, 2002 through the day prior to the last day of FQE
May 31, 2002, (iv) Twenty Million Nine Hundred Thousand Dollars
($20,900,000) on the last day of FQE May 31, 2002 through the day prior
to the last day of FQE August 31, 2002, and (v) Thirty-One Million Two
Hundred Thousand Dollars ($31,200,000) on the last day of FQE August
31, 2002 and thereafter. Cumulative Free Cash Flow shall be calculated
only as of the last day of a fiscal quarter and shall not be
recalculated until the last day of the next succeeding fiscal quarter.
(d) Cumulative Domestic Free Cash Flow. The Company shall not
suffer or permit at any time Cumulative Domestic Free Cash Flow, for
the most recently completed fiscal quarter of the Company, to be less
than (i) negative Seventeen Million Nine Hundred Thousand Dollars
(-$17,900,000) on the last day of FQE August 31, 2001 through the day
prior to the last day of FQE November 30, 2001, (ii) negative Ten
Million Two Hundred Thousand Dollars (-$10,200,000) on the last day of
FQE November 30, 2001 through the day prior to the last day of FQE
February 28, 2002, (iii) negative Eight Million Eight Hundred Thousand
Dollars (-$8,800,000) on the last day of FQE February 28, 2002 through
the day prior to the last day of FQE May 31, 2002, (iv) Two Million
Five Hundred Thousand Dollars ($2,500,000) on the last day of FQE May
31, 2002 through the day prior to the last day of FQE August 31, 2002,
and (v) Eleven Million Six Hundred Thousand Dollars ($11,600,000) on
the last day of FQE August 31, 2002 and on the last day of each fiscal
quarter ending thereafter. Cumulative Domestic Free Cash Flow shall be
calculated only as of the last day of a fiscal quarter and shall not be
recalculated until the last day of the next succeeding fiscal quarter.
(e) Consolidated Adjusted EBITDA. The Company shall not permit
Consolidated Adjusted EBITDA for any of the following fiscal quarters
of the Company to be less than the amount set forth below opposite such
quarter:
Fiscal Quarter Consolidated Adjusted EBITDA
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FQE November 30, 2001 $ 3,338,000
FQE February 28, 2002 $ 6,024,000
FQE May 31, 2002 $10,757,000
FQE August 31, 2002 $13,697,000
FQE November 30, 2002 $13,186,000.
and each fiscal quarter thereafter
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(f) Financial Covenant Amendment. The Company shall enter into
good faith negotiations with the holders of Notes to amend the
financial covenants in the Agreements with respect to the period after
August 31, 2002 until such time as the Notes and all obligations
related thereto shall have been paid in full as the holders reasonably
may require.
Section 1.3. Section 5.20 of the Note Agreements shall be amended and restated
in its entirety to read as follows:
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 of any kind, (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 guaranties 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, (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, or loans by a
Foreign Subsidiary (as defined in Section 5.7) to the Company or any
Subsidiary that has executed a Subsidiary Guaranty, (iv) the
outstanding loans and guaranties listed on Schedule II, by the Company
or the Subsidiary so listed, provided that the principal amount of each
such loan or guaranty shall not hereafter be increased, (v) prepaid
expenses and advances made by a Company in the ordinary course of
business, or (vi) advances made by the Company or a Subsidiary in the
ordinary course of business to the employees of such Company in an
amount not to exceed of Two Hundred Fifty Thousand Dollars ($250,000)
in the aggregate at any one time.
Section 1.4. Section 5 of the Note Agreements shall be amended by adding the
following new Section 5.24 thereto, which shall read as follows:
Section 5.28. Strategic Alternative Review. Upon execution of
the Third Amendment to the Agreements, the Company shall deliver to the
holders of Notes a copy of the Strategic Alternative Review (as defined
in the LIFO Credit Agreement) which was prepared and delivered by the
Company to the LIFO Banks pursuant to the LIFO Credit Agreement.
Section 1.5. The Company has informed the Noteholders that Izumi, Inc., a
Delaware corporation ("Izumi"), desires to merge (the "Merger") with and into
Amcast Casting Technologies, Inc., an Indiana corporation ("ACTI"). Presently,
Casting Technology Company, an Indiana general partnership ("CTC"), has two
general partners, Izumi and ACTI. Pursuant to the Merger, CTC will be dissolved
and terminated in accordance with the general partnership laws of the State of
Indiana, all of the assets and liabilities of CTC will be transferred to ACTI
(the "Asset Transfer") and the name of ACTI will be changed to Casting
Technology Company. Pursuant to Section 5.10 of the Note Agreements, the Company
has requested that the Noteholders consent to the Merger and the Transfer,
notwithstanding the prohibition against the Merger and the Asset Transfer. The
Noteholders, by signing this Third Amendment, hereby consent to the Merger and
the Asset Transfer.
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Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this Third
Amendment, the Company represents and warrants to the Noteholders (which
representations shall survive the execution and delivery of this Third
Amendment) that:
(a) this Third Amendment has been duly authorized, executed and delivered
by the Company and this Third Amendment 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 Third 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
Third Amendment (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) as of the date hereof and after giving effect to this Third
Amendment, no Default or Event of Default has occurred that is
continuing;
(e) 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
(f) the statements and information furnished to the Noteholders in
connection with the negotiation of this Third 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.
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Section 3. CONDITIONS TO EFFECTIVENESS OF THIS THIRD AMENDMENT.
Section 3.1. This Third Amendment shall become effective on the date (the "Third
Amendment Effective Date") when the following conditions shall have been
satisfied:
(a) executed counterparts of this Third 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 Third 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;
(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) and
2.1(c) 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; and
(e) 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 in respect of the
Notes.
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 Third
Amendment.
Section 5. MISCELLANEOUS.
Section 5.1. This Third 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 Third 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 Third Amendment
may refer to the Note Agreements without making specific reference to this Third
Amendment but nevertheless all such references shall include this Third
Amendment unless the context otherwise requires.
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Section 5.3. The descriptive headings of the various Sections or parts of this
Third Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 5.4. This Third 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 Third 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)
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IN WITNESS WHEREOF, the Company and the Noteholders have caused this
instrument to be executed as of August 6, 2001.
AMCAST INDUSTRIAL CORPORATION
By: /s/ F. J. Drew
--------------------
Name: Francis J. Drew
Title: Vice President, Finance
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
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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 Third Amendment dated as of August 6, 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, 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
IZUMI, INC.
AMCAST CASTING TECHNOLOGIES, INC.
AMCAST INDUSTRIAL FINANCIAL SERVICES, INC.
AMCAST AUTOMOTIVE, INC.
LEE BRASS COMPANY
LBC GROUP CORP.
By: /s/ F. J. Drew
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Name: Francis J. Drew
Title: Vice President
CASTING TECHNOLOGY COMPANY
By: AMCAST CASTING TECHNOLOGIES, INC., a
General Partner
By: /s/ F. J. Drew
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Name: Francis J. Drew
Title: Vice President