EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated August 6, 2002 (this
"Amendment"), is among CASTING TECHNOLOGY COMPANY, an Indiana general
partnership (the "Company"), and BANK ONE, NA (successor by merger to Bank One,
Indiana, National Association), a national banking association ("Bank One" or
"Bank").
INTRODUCTION
The Company, Bank One and Asahi Bank Ltd. were parties to a Credit
Agreement dated August 26, 1999 (the "Prior Credit Agreement"). Amcast
Industrial Corporation, an Ohio corporation ("Amcast"), guaranteed certain
obligations of the Company to Bank One under the Prior Credit Agreement pursuant
to an Amended and Restated Guaranty Agreement -- Bank One dated August 26, 1999
(the "Prior Guaranty").
Amcast, KeyBank National Association, as Agent (the "LIFO Agent") under
the Last-In-First-Out Credit Agreement dated as of June 5, 2001 (as amended,
restated or modified from time to time, the "LIFO Credit Agreement") among
Amcast, the LIFO Agent and the financial institutions listed on Schedule 1
thereto (together with their successors and assigns, collectively, the "LIFO
Banks") and Bank One, individually and as agent for the banks who were parties
to the Prior Credit Agreement, entered into a Forbearance and Waiver Agreement
dated as of June 5, 2001 (the "Forbearance Agreement") under which Bank One: (i)
agreed to forbear from exercising any rights or remedies as a result of the
occurrence or existence of certain defaults (including, without limitation,
defaults under the Prior Credit Agreement, as the same from time to time might
be amended, restated or otherwise modified or replaced), (ii) waived certain
defaults under the Prior Guaranty, as the same from time to time might be
amended or replaced, and (iii) rescinded an acceleration notice given under the
Prior Credit Agreement. As contemplated by the Forbearance Agreement, Amcast
deposited $1,050,000 in a deposit account at Bank One for the benefit of Bank
One and pledged such account and such funds to Bank One to secure the obligation
of Amcast under the Prior Guaranty.
Amcast was and continues to be the sole shareholder of Amcast Casting
Technologies, Inc., an Ohio corporation and one of the two parties in the
Company. On June 12, 2001, Amcast acquired all of the outstanding stock in
Izumi, Inc., a Delaware corporation and the other partner in the Company.
The Company and Bank One subsequently entered into a Credit Agreement
dated as of September 18, 2001 (the "Credit Agreement") which replaced the Prior
Credit Agreement. Amcast guaranteed the obligations of the Partnership under the
Credit Agreement pursuant to the Second Amended and Restated Guaranty Agreement
- - Bank One dated September 18, 2001, which amended and restated the Prior
Guaranty (the "Amcast Guaranty").
Under the Credit Agreement, Bank One: (i) agreed to make Revolving
Credit Loans (as defined in the Credit Agreement) to the Company from time to
time up to an aggregate maximum principal amount outstanding at any time of
$6,500,000, and (ii) made a Term Loan (as defined in the Credit Agreement) to
the Company in the initial principal amount of $8,856,000, of which $5,856,000
in principal amount is outstanding as of the date hereof. Unless earlier
terminated as provided in the Credit Agreement, Bank One's commitment to make
Revolving Credit Loans expires, and all outstanding Revolving Credit Loans
become due and payable, on September 1, 2002. The Term Loan is due and payable
on August 3, 2003.
Amcast, certain of its subsidiaries, certain financial institutions
which have extended credit to Amcast (the "Restructuring Lenders") and KeyBank
National Association, as Collateral Agent, entered into a Restructuring
Agreement dated as of July 15, 2002 (the "Restructuring Agreement") which
provides, among other things, that the Restructuring Lenders will not exercise
any of their respective rights or remedies under the Restructuring Lender
Documents (as defined in the Restructuring Agreement) or applicable law with
respect to the Subject Noncompliance Events (as defined in the Restructuring
Agreement) during the Restructuring Period (as defined in the Restructuring
Agreement). Amcast, certain of its subsidiaries, the LIFO Banks and KeyBank
National Association, as agent for the LIFO Banks, also entered into a LIFO
Restructuring Agreement dated as of July 15, 2002 (the "LIFO Restructuring
Agreement" and, together with the Restructuring Agreement, the "Restructuring
Agreements") which also provides, among other things, that the LIFO Banks will
not exercise any of their respective rights or remedies under the LIFO Lender
Documents (as defined in the LIFO Restructuring Agreement) or applicable law
with respect to the Subject Noncompliance Events during the Restructuring
Period.
The Company desires to amend the Credit Agreement as provided in this
Amendment, and Bank One is willing so to amend the Credit Agreement.
In consideration of the premises and of the mutual agreements herein
contained, the Company and Bank One agree as follows:
1. Amendment. Upon the Company satisfying the conditions set forth in
Section 7, the Credit Agreement shall be amended as follows:
(a) The definition of "Borrowing Base" in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
"Borrowing Base" means at any time an amount which is the
lesser of (a) the sum of (i) 85% of Eligible Accounts, plus (ii) 60%
of Eligible Inventory, plus (iii) $2,000,000, or (b) $5,750,000.
(b) The definition of "Commitment" in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
2
"Commitment" means the commitment of Bank One to make Loans
pursuant to Section 2.1, in amounts not exceeding in aggregate
principal amount outstanding at any time $11,606,000.
(c) The definition of "Termination Date" in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
"Termination Date" (of the revolver period) means the earlier
to occur of (a) September 14, 2003, or (b) the date as which the
Commitment shall be terminated pursuant to Section 6.2.
(d) The definition of "Floating Rate Loan" in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
"Floating Rate Loan" means any Loan which bears interest at
the Floating Rate plus 0.5%.
(e) The definition of "LIBOR Rate Loan in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
"LIBOR Rate Loan" means any Loan which bears interest at the
LIBOR Rate plus 275 basis points.
(f) The definition of "Maturity Date" in Section 1.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
"Maturity Date" means the maturity date of the Term Loan
maintained under Section 2.1(b), which will be September 14, 2003.
(g) Section 5.2(d) of the Credit Agreement shall be amended in its
entirety to read as follows:
(d) Net Worth. Permit or suffer the Consolidated Net Worth
of the Company and its
subsidiaries from and after August 6, 2002 to be less than $19,000,000.
2. Refinancing Commitment. On or before July 31, 2003, the Company
shall deliver to Bank One a fully executed and effective commitment letter, in
form and substance reasonably satisfactory to Bank One, from a lender or
syndicate of lenders reasonably acceptable to Bank One, which shall provide,
among other things, for the refinancing of all amounts outstanding under the
Credit Agreement.
3. Waiver of Certain Noncompliance Events. Bank One hereby waives,
effective as of July 15, 2002: (i) any noncompliance with Section 7 of the
Amcast Guaranty which then or at any time thereafter existed or may exist based
on the occurrence or existence of any of the Subject Noncompliance Events (as
defined in the Restructuring Agreements)(collectively, the
3
"Guaranty Noncompliance Events"), and (ii) any noncompliance with Section 6.1
(i) of the Credit Agreement based on any of the Guaranty Noncompliance Events.
4. References to Credit Agreement. From and after the effective date of
this Amendment, all references to the Credit Agreement in the Credit Agreement
and in any other agreements or documents entered into pursuant to or in
connection with the Credit Agreement shall be deemed to be references to the
Credit Agreement, as amended by this Amendment.
5. Representations and Warranties. The Company hereby represents and
warrants to Bank One that, as of the date hereof:
(a) (i) The execution, delivery and performance by the Company
of this Amendment and all agreements and documents delivered pursuant
hereto have been duly authorized by all necessary partnership action
and do not and will not violate any applicable law, rule, regulation,
order, judgment or injunction presently in effect or the Company's
partnership agreement, or will result in a breach of or constitute a
default under any material agreement, lease or instrument to which the
Company is a party or by which the Company or any of its properties may
be bound or affected; (ii) no authorization, consent, approval,
license, exemption or filing of a registration with any court or
governmental department, agency or instrumentality is necessary in
connection with the valid execution, delivery or performance by the
Company of this Amendment and all agreements and documents delivered
pursuant to this Amendment; and (iii) this Amendment and all agreements
and documents delivered pursuant to this Amendment by the Company are
legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms.
(b) After giving effect to this Amendment: (i) the
representations and warranties of the Company contained in Article IV
of the Credit Agreement are true and correct on and as of the date of
this Amendment with the same force and effect as if made on and as of
such date, and (ii) no Event of Default has occurred and is continuing
or exists under the Credit Agreement as of the date of this Amendment.
6. Outstanding Indebtedness. The Company acknowledges and confirms
that: (i) the aggregate principal amount of all outstanding Revolving Loans
under the Credit Agreement as of the date of this Amendment is $2,900,000, (ii)
the outstanding principal amount of the Term Loan as of the date of this
Amendment is $5,856,000, (iii) such outstanding principal amounts, together with
all interest thereon and fees related thereto, are not subject to any defense,
counterclaim, recoupment or offset of any kind, and (iv) the Company's
obligations in respect of such Loans are absolute and unconditional.
7. Conditions to Effectiveness. This Amendment shall not become
effective until Bank One has received the following documents and the following
conditions have been satisfied, each in form and substance reasonably
satisfactory to Bank One.
4
(a) The Company shall have delivered to Bank One a duly
executed Amended and Restated Revolving Credit Note in substantially
the form attached hereto as Exhibit A-1;
(b) The Company shall have delivered to Bank One a duly
executed Amended and Restated Term Note in substantially the form
attached hereto as Exhibit A-2;
(c) Amcast shall have delivered to Bank One a duly executed
Confirmation of Guaranty in substantially the form attached hereto as
Exhibit B;
(d) The representations and warranties set forth in Section 5
of this Amendment shall be true and correct in all material respects;
and
(e) The Company shall have repaid to Bank One the amount, if
any, by which the aggregate principal amount of Revolving Loans
outstanding under the Credit Agreement exceeds $5,750,000.
8. No Contest. The Company agrees that it shall not dispute the
validity or enforceability of the Credit Agreement, the Term Note, the Revolving
Credit Note, the Security Documents or any other agreement or document entered
into pursuant to or in connection with any of the foregoing (collectively, the
"Loan Documents"); any of the Company's obligations under the Loan Documents; or
the validity, enforceability or extent of any security interest or lien granted
to Bank One pursuant to any of the Loan Documents.
9. Miscellaneous. Terms defined in the Credit Agreement and used in
this Amendment without definition shall have the respective meanings given to
them in the Credit Agreement. Except as expressly amended hereby, the Credit
Agreement and all other Loan Documents hereto are ratified and confirmed by Bank
One and the Company and shall remain in full force and effect.
10. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Amendment by signing
any such counterparts.
11. Expenses. The Company agrees to pay and save Bank One harmless from
liability for all costs and expenses of Bank One arising in respect of this
Amendment, including the reasonable fees and expenses of counsel to Bank One in
connection with preparing and reviewing this Amendment and any related
agreements and documents.
12. Governing Law. This Amendment is a contract made under, and the
rights and obligations of the parties hereunder shall be governed by and
construed in accordance with, the laws of the State of Indiana applicable to
contracts made and to be performed entirely with such state and without giving
effect to the choice law principles of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
5
CASTING TECHNOLOGY COMPANY
By: AMCAST CASTING TECHNOLOGIES, INC.,
its General Partner
By: /s/ F. J. Drew
---------------------------
Name: Francis J. Drew
Title: Vice President
And IZUMI, INC.
its General Partner
By: /s/ F. J. Drew
----------------------------
Name: Francis J. Drew
Title: Vice President
BANK ONE, NA
By: /s/ Richard Babcock
---------------------------
Name: Richard Babcock
Title: First Vice President
6
EXHIBIT A-1
-----------
AMENDED AND RESTATED REVOLVING CREDIT NOTE
------------------------------------------
$5,750,000 August 6, 2002
Indianapolis, Indiana
FOR VALUE RECEIVED, CASTING TECHNOLOGY COMPANY, an Indiana general
partnership (the "Company"), promises to pay to the order of BANK ONE, NA (as
successor by merger to Bank One, Indiana, National Association), a national
banking association (the "Bank"), at its principal banking office in lawful
money of the United States of America and in immediately available funds, the
principal sum of FIVE MILLION SEVEN HUNDRED FIFTY DOLLARS ($5,750,000), or such
lesser amount as is recorded in the books and records of the Bank, on the
Termination Date; and to pay interest on the unpaid principal balance hereof
from time to time outstanding, in like money and funds, for the period from the
date hereof until the Revolving Credit Loans evidenced hereby shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement
referred to below.
The Bank is authorized by the Company to record in its books and
records the date, amount and type of each Revolving Credit Loan, the duration of
the related Interest Period, the amount of each payment or prepayment of
principal thereon, and the other information provided for therein, which books
and records shall constitute prima facia evidence of the information so
recorded; provided, however, that any failure by the Bank to record any such
information shall not relieve the Company of its obligations to repay the
outstanding principal amount of the Revolving Credit Loans, all accrued interest
thereon, and any amount payable with respect thereto in accordance with the
terms of this Revolving Credit Note and the Credit Agreement.
The Company and each endorser or guarantor hereof waives demand,
presentment, protest, diligence, notice of dishonor, and any other formality in
connection with this Revolving Credit Note. Should the indebtedness evidenced by
this Revolving Credit Note or any part thereof be collected in any proceeding or
be placed in the hands of attorneys for collection, the Company agrees to pay,
in addition to the principal, interest and other sums due and payable hereon,
all costs of collecting this Revolving Credit Note, including attorneys' fees
and expenses.
This Revolving Credit Note evidences one or more Revolving Credit Loans
made under a Credit and Intercreditor Agreement of August 26, 1999 and the
Credit Agreement dated September 18, 2001, as amended ("Credit Agreement"), to
which reference is made for a statement of the circumstances under which this
Revolving Credit Note is subject to prepayment and under which its due date may
be accelerated for a description of the collateral securing this Revolving
Credit Note. Capitalized terms used but not defined in this Revolving Credit
Note shall have the respective meanings assigned to them in the Credit
Agreement.
7
This Revolving Credit Note is made under, and shall be governed by and
construed in accordance with, the laws of the State of Indiana applicable to
contracts made and to be performed entirely within such State an without giving
effect to choice of law principles of such state.
CASTING TECHNOLOGY COMPANY
By: AMCAST CASTING TECHNOLOGIES,
INC.
Its General Partner
By:
---------------------------------
Name:
Title:
And: IZUMI, INC.
Its General Partner
By:
---------------------------------
Name:
Title:
8
EXHIBIT A-2
-----------
AMENDED AND RESTATED TERM NOTE
-------------------------------
$5,856,000 August 6, 2002
Indianapolis, Indiana
FOR VALUE RECEIVED, CASTING TECHNOLOGY COMPANY, an Indiana general
partnership (the "Company"), hereby promises to pay to the order of BANK ONE, NA
(as successor by merger to Bank One, Indiana, National Association), a national
banking association (the "Bank"), at the principal banking office of the Bank in
lawful money of the United States of America and in immediately available funds,
the principal sum of FIVE MILLION EIGHT HUNDRED FIFTY- SIX THOUSAND DOLLARS
($5,856,000), payable in four quarterly installments in the amount of $750,000
payable on the third day of each November, February, May, and August, commencing
on November 3, 2002, to and including the Maturity Date, when the entire
outstanding principal balance of the Term Loan evidenced hereby, and all accrued
interest thereon, shall be due and payable; and to pay interest on the unpaid
principal balance hereof from time to time outstanding, in like money and funds,
for the period from the date hereof until such Term Loan shall be paid in full,
at the rate per annum and on the dates provided in the Credit Agreement referred
to below.
The Company and each endorser or guarantor hereof waives demand,
presentment, protest, diligence, notice of dishonor and any other formality in
connection with this Term Note. Should the indebtedness evidenced by this Term
Note or any part thereof be collected in any proceeding or be placed in the
hands of attorneys for collection, the Company agrees to pay, in addition to the
principal, interest and other sums due and payable hereon, all costs of
collecting this Term Note, including attorneys' fees and expenses.
This Amended and Restated Term Note amends and restates an Amended and
Restated Term Note dated September 18, 2001 (which amended and restated a Term
Note dated July 28, 1995) and evidences a Term Loan made under a Credit and
Intercreditor Agreement dated August, 1999 and the Credit Agreement dated
September 18, 2001 as amended (as amended, the "Credit Agreement"), among the
Company and Bank One and to which reference is made for a statement of the
circumstances under which this Term Note is subject to prepayment and under
which its due date may be accelerated and for a description of the collateral
and security securing this Term Note. Capitalized terms used but not defined in
this Amended and Restated Term Note shall have the respective meanings assigned
to them in the Credit Agreement.
This Amended and Restated Term Note is made under, and shall be
governed by and construed in accordance with, the laws of the State of Indiana
applicable to contracts made and to be performed entirely within such State and
without giving effect to the choice of law principles of such State.
9
CASTING TECHNOLOGY COMPANY
By: AMCAST CASTING TECHNOLOGIES, INC.
Its General Partner
By:_________________________________
Name:
Title:
And
By: IZUMI, INC.
Its General Partner
By:_________________________________
Name:
Title:
EXHIBIT B
---------
CONFIRMATION OF GUARANTY
------------------------
THIS CONFIRMATION OF GUARANTY dated as of August 6, 2002 (this
"Confirmation"), is made by Amcast Industrial Corporation, an Ohio corporation
("Guarantor"), in favor of BANK ONE, NA (as successor by merger to Bank One,
Indiana National Association) ("Bank One").
INTRODUCTION
------------
Casting Technology Company, an Indiana general partnership (the
"Company"), entered into a Credit Agreement dated September 18, 2001, as amended
(the "Credit Agreement"), with Bank One.
Guarantor entered into a Second Amended and Restated Guaranty Agreement
- - Bank One, dated as of September 18, 2001 (the "Guaranty"), in favor of Bank
One pursuant to which Guarantor guaranteed, among other things, payment of the
obligations of the Company to Bank One under the Credit Agreement. Guarantor
deposited $1,050,000 in a deposit account at Bank One for the benefit of Bank
One (the "Account") pursuant to an Assignment of Deposits (the "Assignment")
dated as of September 18, 2001 to secure the obligations of Guarantor to Bank
One under the Guaranty.
10
The Company and Bank One have entered into a First Amendment to Credit
Agreement of even date herewith (the "First Amendment"), pursuant to which,
among other things, Bank One has agreed to extend the Termination Date (as
defined in the Credit Agreement) with respect to revolving loans and the term
loan made by Bank One to the Company under the Credit Agreement.
Guarantor wishes to confirm to Bank One its obligations under the
Guaranty.
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
1. Confirmation. Guarantor hereby confirms to Bank One the continuing
effect of the Guaranty, as a guaranty of the Guaranteed Obligations
(as defined in the Guaranty).
2. Assignment of Deposits. Guarantor hereby confirms to Bank One the
continuing effect of the Assignment and acknowledges and confirms that the
security interest in the Account granted to Bank One pursuant to the Assignment
continues to secure the obligations of Guarantor to Bank One under the Guaranty.
3. References to the Credit Agreement. From and after the date of this
Confirmation, references to the Credit Agreement in the Guaranty, the Assignment
and all other documents executed pursuant to the Guaranty shall be deemed to be
references to the Credit Agreement as amended by the First Amendment.
4. Representations and Warranties. Guarantor hereby represents and
warrants to Bank One that the representations and warranties of Guarantor set
forth in Section 5 of the Guaranty are true and correct as of the date hereof
with the same effect as if made on that date. The Guaranty remains in full force
and effect.
5. Counterparts. This Confirmation may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Confirmation by
signing any such counterpart.
6. Governing Law. This Confirmation is made under, and the rights and
obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of Indiana applicable to contracts made
and to be performed entirely within such state and without giving effect to the
choice law principles of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Confirmation to
be duly executed and delivered as of the date first written above.
AMCAST INDUSTRIAL CORPORATION
By:
---------------------------------------
Name:
Title:
BANK ONE, NA
By:
---------------------------------------
Name:
Title:
11