EXECUTION
NINTH AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
This NINTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
(this "Amendment") is dated as of October 14, 2005 and entered into by and among
INTERMET CORPORATION, a Georgia corporation ("Company"), THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "Borrowers" and each a "Borrower"), THE
BANK OF NOVA SCOTIA, as Administrative Agent for the Lenders ("Administrative
Agent") and as a Lead Lender, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent and Co-Agent for the Lenders ("Collateral Agent") and as a Lead
Lender, and the undersigned Lenders, and is made with reference to that certain
Debtor-In-Possession Credit Agreement dated as of October 22, 2004 (as amended,
supplemented or otherwise modified to the date hereof, the "Credit Agreement"),
by and among Borrowers, the Lenders, Administrative Agent and Collateral Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers and the undersigned Lenders desire to amend
the Credit Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Subsection 1.1.
A. Subsection 1.1 of the Credit Agreement is hereby amended
by deleting the definition of "Stated Maturity Date" contained therein and
substituting therefor the following:
"Stated Maturity Date" means October 28, 2005;
provided, however, that (i) if all Lenders and Borrowers agree
in writing prior to such date (and the Revolving Commitments
shall not have already terminated) to extend the Stated
Maturity Date to November 4, 2005, then the Stated Maturity
Date shall thereafter mean November 4, 2005, and (ii) if all
Lenders and Borrowers agree in writing after October 28, 2005
but prior to November 4, 2005 (and the Revolving Commitments
shall not have already terminated) to extend the Stated
Maturity Date to November 10, 2005, then the Stated Maturity
Date shall thereafter mean November 10, 2005. Such consent of
each Lender to either of the aforementioned extensions shall
be in their respective sole discretion and may be conditioned
on amendments, supplements and other modifications of this
Agreement and the other Loan Documents.
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B. Subsection 1.1 of the Credit Agreement is hereby further
amended by inserting the following definition in appropriate alphabetical order:
"Consents to Asset Sales" means collectively, (i)
that certain Limited Waiver, Amendment and Consent dated as of
August 10, 2005, by and among Borrowers and Requisite Lenders,
and (ii) that certain Limited Consent dated as of September 9,
2005, by and among Borrowers and Requisite Lenders.
1.2 Amendment to Subsection 2.4A(iv)(b).
Subsection 2.4A(iv)(b) of the Credit Agreement is hereby
amended by adding at the end thereof the following new sentence:
"Notwithstanding anything to the contrary contained herein or
in the Consents to Asset Sales, Net Asset Sale Proceeds from
any sale of assets consented to by Requisite Lenders pursuant
to the Consents to Asset Sales shall not be required to be
applied, pursuant to subsection 2.4A(iii) or (iv), to
permanently reduce the Revolving Commitments, except that such
Net Asset Sale Proceeds shall be required to be applied to
permanently reduce the Revolving Commitments to the extent
such Net Asset Sale Proceeds exceed $5,000,000 in the
aggregate, and Lenders and Borrowers hereby agree that any
reduction of the Revolving Commitments that would have been
required but for this sentence as a result of the receipt of
Net Asset Sale Proceeds from such sales of assets shall be
rescinded and deemed not to have occurred.".
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Amendment
and to amend the Credit Agreement in the manner provided herein, Borrowers
represent and warrant to each Lender that the following statements are true,
correct and complete:
2.1 Corporate Power and Authority. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
2.2 Authorization of Agreements. The execution and delivery of this
Amendment has been duly authorized by all necessary action on the part of each
Borrower and the performance of the Amended Agreement has been duly authorized
by all necessary action on the part of each Borrower.
2.3 No Conflict. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Borrower or any of its Subsidiaries, or the
Organizational Documents of any Borrower or any of its Subsidiaries or any
order, judgment or decree of the Bankruptcy Court of any other Government
Authority binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
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Subsidiaries or any applicable order of the Bankruptcy Court, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of any Borrower or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Borrower or any of
its Subsidiaries.
2.4 Governmental Consents. The execution and delivery by each
Borrower of this Amendment and the performance by each Borrower of the Amended
Agreement do not and will not require any Governmental Authorization.
2.5 Binding Obligation. This Amendment has been duly executed and
delivered by each Borrower, and each of this Amendment and the Amended Agreement
is the legally valid and binding obligations of each Borrower enforceable
against each Borrower in accordance with its respective terms.
2.6 Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Ninth Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 Absence of Default. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
2.8 Final Borrowing Order. The Final Borrowing Order is in full
force and effect and has not been stayed by the Bankruptcy Court or any other
court of competent jurisdiction and has not been reversed, vacated or otherwise
modified after the entry thereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on the first date (such
date being referred to herein as the "Ninth Amendment Effective Date") on or
prior to October 21, 2005 on which all of the following shall have occurred: (i)
Borrowers shall have paid in full all outstanding statements for fees and
expenses of each of Collateral Agent and Administrative Agent and their
respective experts and counsel (including, but not limited to, O'Melveny & Myers
LLP, Wachtell, Lipton, Rosen & Katz, Pepper Hamilton LLP and Capstone Corporate
Recovery LLC) to the extent submitted to Company prior to 12:00 Noon (New York
City time) on October 20, 2005; (ii) the Bankruptcy Court shall have approved
this Amendment and the payment of the fees described in clause (iii) below
pursuant to an order in form and substance satisfactory to Agents; (iii)
Borrowers shall have paid, in immediately available funds, a nonrefundable
amendment fee in the aggregate amount of $250,000 to Administrative Agent, for
distribution to each Lender according to the relative Revolving Commitments of
all Lenders; and (iv) Borrowers and each Lender shall have each executed a
counterpart hereof, and Company and Agents shall have received written or
telephonic notification of such execution and authorization of delivery of such
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counterparts; provided, however, that the amendments contained in Sections 1.1B
and 1.2 of this Amendment shall become effective immediately upon satisfaction
of the conditions set forth in clause (iv) of this sentence; provided, further,
however, that the amendments contained in Sections 1.1B and 1.2 of this
Amendment shall cease to be effective, and no other amendment contained in this
Amendment shall become effective, if the Ninth Amendment Effective Date shall
not have occurred on or prior to October 21, 2005. Each Lender hereby
acknowledges by delivery of its signature page to this Amendment that it is
deemed to consent to and approve the modifications to the Final Borrowing Order
effected by the order meeting the requirements of clause (ii) of the preceding
sentence.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower hereby acknowledges that such Borrower has read
this Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Borrower under each of the Loan Documents to which such
Borrower is a party shall not be impaired and each of the Loan Documents to
which such Borrower is a party are, and shall continue to be, in full force and
effect and are hereby confirmed and ratified in all respects.
SECTION 5. MISCELLANEOUS
5.1 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
A. On and after the Ninth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this
Amendment shall not constitute a waiver of any provision of, or operate as a
waiver of (or otherwise prejudice) any right, power or remedy of any Agent or
any Lender under, the Credit Agreement or any of the other Loan Documents.
5.2 Fees and Expenses. Each Borrower acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and Collateral Agent and their respective
counsel (including, without limitation, O'Melveny & Myers LLP, Wachtell, Lipton,
Rosen & Katz, Pepper Hamilton LLP and Capstone Corporate Recovery LLC) with
respect to this Amendment and the documents and transactions contemplated hereby
shall be for the account of Borrowers.
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5.3 Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
5.4 Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
INTERMET CORPORATION
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
CAST-MATIC CORPORATION
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
COLUMBUS FOUNDRY, L.P.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
DIVERSIFIED DIEMAKERS, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
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GANTON TECHNOLOGIES INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
INTERMET HOLDING COMPANY
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
INTERMET ILLINOIS, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
INTERMET INTERNATIONAL, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
INTERMET U.S. HOLDING, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
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IRONTON IRON, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
LYNCHBURG FOUNDRY COMPANY
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
NORTHERN CASTINGS CORPORATION
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
SUDBURY, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
SUDM, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
TOOL PRODUCTS, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
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WAGNER CASTINGS COMPANY
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
WAGNER HAVANA, INC.
By: /s/ Alan J. Miller
Name: Alan J. Miller
Title: Vice President
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AGENTS AND LENDERS:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lead
Lender and a Lender
By: /s/ Ron Dooley
Name: Ron Dooley
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and as a Lead Lender
and a Lender
By: /s/ Frank Fazio
Name: Frank Fazio
Title: Director
DK ACQUISITION PARTNERS, LP,
as a Lender
By: /s/ Anthony A. Yoseloff
Name: Anthony A. Yoseloff
Title: General Partner
M.H. Davidson & Co., its General
Partner
TRS CALLISTO LLC,
as a Lender
By: /s/ Deirdre Whorton
Name: Deirdre Whorton
Title: Assistant Vice President
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