FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (the
"Amendment") dated as of August 10, 1994, by and among INTERMET
CORPORATION, a Georgia corporation (referred to herein either as
"Intermet" or as the "Borrower"), TRUST COMPANY BANK, a Georgia
banking corporation, LANDESBANK SAAR GIROZENTRALE, a German
banking corporation, NBD BANK, N.A., a national banking
association, WACHOVIA BANK OF GEORGIA, N.A., a national banking
association, THE FIRST NATIONAL BANK OF BOSTON, a national
banking association, FIRST UNION NATIONAL BANK OF GEORGIA, a
national banking association, NATIONSBANK OF GEORGIA, N.A., a
national banking association, and NATIONAL CITY BANK, KENTUCKY,
formerly known as THE FIRST NATIONAL BANK OF LOUISVILLE, a
national banking association (collectively, the "Lenders") and
TRUST COMPANY BANK, in its capacity as agent (in such capacity,
the "Agent");
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent are
parties to a certain Credit Agreement dated as of August 31,
1992, as amended by that certain First Amendment to Credit
Agreement dated as of December 11, 1992, as further amended by
that certain Waiver and Second Amendment to Credit Agreement
dated as of March 19, 1993, and as further amended by that
certain Waiver and Third Amendment to Credit Agreement dated as
of November 13, 1993 (as amended, the "Credit Agreement"; all
terms used herein without definition shall have the meanings
ascribed to such terms in the Credit Agreement);
WHEREAS, the Subsidiaries of the Borrower have certain
hazardous and nonhazardous waste sites for their facilities in
the Commonwealth of Virginia;
WHEREAS, pursuant to the regulations of the
Commonwealth of Virginia, the Borrower and certain Subsidiaries
have financial responsibility for the closure of such waste
sites, monitoring the effects on the environment of such closure
and for certain types of potential liability to third parties
resulting from the closure of the waste sites;
WHEREAS, in order to meet the financial responsibility
assurance regulations of the Commonwealth of Virginia, the
Borrower has requested that the Agent provide certain standby
letters of credit in the amounts necessary to close the sites, to
monitor the effects of such closure and to provide for certain
potential third party liability claims relating to the closure of
such waste sites;
WHEREAS, the Agent has agreed to issue such standby
letters of credit upon the condition that each of the Domestic
Lenders purchase a pro rata participation therein and subject to
the terms and conditions set forth below;
WHEREAS, each of the Domestic Lenders has agreed to
purchase such a participation;
WHEREAS, the parties wish to enter into this amendment
to set forth the terms and conditions upon which such letters of
credit will be issued;
NOW, THEREFORE, for and in consideration of the mutual
premises contained herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Section 1.01 of the Credit Agreement is hereby
amended as follows:
(a) By adding the definitions of "Letter of Credit",
"Letter of Credit Exposure", "Letter of Credit Obligations", and
"Letter of Credit Subfacility", set forth below in the
appropriate alphabetical order:
"LETTER OF CREDIT" shall mean each letter of credit
issued by the Agent on or after the Closing Date in accordance
with Article II hereof for the purpose of securing certain
environmental closure, post-closure and third party liability
obligations of Intermet and its Subsidiaries, PROVIDED that the
stated amount of such Letters of Credit shall not exceed, at any
time outstanding, the amount of the Letter of Credit Subfacility.
"LETTER OF CREDIT EXPOSURE" shall mean, with respect to
each Domestic Lender, its Pro Rata Share of the aggregate Letter
of Credit Obligations.
"LETTER OF CREDIT OBLIGATIONS" shall mean, with respect
to Letters of Credit, as at any date of determination, the sum of
(a) the maximum aggregate amount which at such date of
determination is available to be drawn (assuming the conditions
for drawing thereunder have been met) under all Letters of Credit
then outstanding, PLUS (b) the aggregate amount of all drawings
under Letters of Credit honored by the Agent not theretofore
reimbursed by Intermet (it being understood that for purposes of
any request for a Revolving Loan pursuant to Section 2.07, there
shall be excluded from the amount determined in accordance with
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the preceding clause (b) an amount equal to the proceeds of such
Revolving Loan).
"LETTER OF CREDIT SUBFACILITY" shall mean, the portion
of the Revolving Loan Commitment which may be utilized either for
Revolving Loans or Letter of Credit Obligations which amount
shall equal the lesser of (i) the face amount of the outstanding
Letters of Credit issued to the Department of Environmental
Quality - Waste Division and the Department of Waste Management
of the Commonwealth of Virginia on August 11, 1994, and (ii)
$6,000,000.00, at any time outstanding.
(b) By deleting the definitions of "Credit Documents",
"Domestic Lenders", "Facility", "Obligations", "Pro Rata Share"
and "Revolving Loan Commitment" set forth therein and
substituting in lieu thereof the following definitions:
"CREDIT DOCUMENTS" shall mean, collectively, this
Agreement, the Notes, the Letters of Credit, the Guaranty
Agreements, the Pledge Agreements, and all other Security
Documents, if any.
"DOMESTIC LENDERS" shall mean all Lenders participating
in the Revolving Loans, the Letters of Credit and the Domestic
Term Loans.
"FACILITY" or "FACILITIES" shall mean the Revolving
Loan Commitments, the Letter of Credit Subfacility, the Domestic
Term Loans, the Currency Loan Commitment, or the Currency Term
Loan, as the context may indicate.
"OBLIGATIONS" shall mean all amounts owing to the Agent
or any Lender pursuant to the terms of this Agreement or any
other Credit Document, including without limitation, all Loans
(including all principal and interest payments due thereunder),
all Letter of Credit Obligations, fees, expenses, indemnification
and reimbursement payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute
or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof.
"PRO RATA SHARE" shall mean, with respect to each of
the Commitments of each Lender and each Loan to be made by, or
each Letter of Credit and each payment (including, without
limitation, any payment of principal, interest or fees) to be
made to each Lender, the percentage designated as such Lender's
Pro Rata Share of such Commitments, such Loans, such Letters of
Credit or such payments, as applicable, set forth under the name
of such Lender on the respective signature page for such Lender,
in each case as
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such Pro Rata Share may change from time to time as a result of
assignments or amendments made pursuant to this Agreement.
"REVOLVING LOAN COMMITMENT" shall mean, at any time for
any Domestic Lender, the amount of such commitment set forth
opposite such Domestic Lender's name on the signature pages
hereof, which shall include such Lender's obligation to
participate in the Letter of Credit Subfacility, as the same may
be increased or decreased from time to time as a result of any
reduction thereof pursuant to Sections 2.03 or 2.04, any
assignment thereof pursuant to Section 12.06, or any amendment
thereof pursuant to Section 12.02.
2. Article II of the Credit Agreement is hereby
amended as follows:
(a) By amending the heading thereof to add the words
"AND LETTERS OF CREDIT".
(b) By amending subsection (a) of Section 2.01 thereof
by deleting such subsection in its entirety and substituting the
following in lieu thereof:
"(a) Subject to and upon the terms and conditions herein
set forth, each Domestic Lender severally agrees to make to
Intermet from time to time on and after the Closing Date,
but prior to the Conversion Date, Revolving Loans in an
aggregate amount outstanding at any time not to exceed such
Lender's Revolving Loan Commitment MINUS such Lender's
Letter of Credit Exposure. Intermet shall be entitled to
repay and reborrow Revolving Loans in accordance with the
provisions hereof."
(c) By amending Section 2.04 thereof by the addition
of the following sentence at the end thereof:
"If no Revolving Loans are outstanding upon a reduction
of the Revolving Loan Commitments as provided hereunder but
the outstanding amount of the Letter of Credit Obligations
exceeds the amount of the Revolving Loan Commitments as so
reduced, Intermet shall immediately cash-collateralize all
such excess Letter of Credit Obligations on terms and
conditions satisfactory to the Agent."
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(d) By adding the following new Sections to Article II:
SECTION 2.05. LETTER OF CREDIT SUBFACILITY.
Subject to, and upon the terms and conditions, and
in reliance upon the representations and warranties of
Intermet set forth in this Agreement, in addition to
requesting that the Domestic Lenders make Revolving Loans
pursuant to Section 2.01, Intermet may request, in
accordance with the provisions of this Section 2.05 and
Section 2.06 and the other terms of this Agreement, that on
and after the Closing Date but prior to August 31, 1994, the
Agent to issue a Letter or Letters of Credit for the account
of Intermet in support of certain financial assurance
requirements of the Commonwealth of Virginia for certain
costs of closure and post-closure of hazardous and
nonhazardous waste sites owned by Intermet or its
Subsidiaries and certain potential third party liability
claims relating to closure of the waste sites; PROVIDED that
such Letters of Credit issued by the Agent shall be in the
form substantially identical to Schedules 1-3 attached
hereto, PROVIDED FURTHER that (i) no Letter of Credit shall
have an expiration date that is later than one year after
the date of issuance thereof (provided that a Letter of
Credit may provide that it is extendible for consecutive one
year periods); (ii) in no event shall any Letter of Credit
issued by the Agent have an expiration date (or be extended
so that it will expire) later than the Conversion Date
except for provisions that such Letter of Credit must stay
in place during any ongoing compliance procedures of the
Commonwealth of Virginia; (iii) each Letter of Credit issued
by the Agent shall be in a stated amount of at least
$500,000; (iv) Intermet shall not request that the Agent
issue any Letter of Credit, if, after giving effect to such
issuance, the Letter of Credit Obligations plus the then
outstanding aggregate principal amount of Revolving Loans
would exceed the Revolving Loan Commitments; and (v)
Intermet shall not request the issuance of any Letter of
Credit if, after giving effect to such issuance, the
aggregate Letter of Credit Obligations would exceed the
Letter of Credit Subfacility.
SECTION 2.06. NOTICE OF ISSUANCE OF LETTER OF CREDIT;
AGREEMENT TO ISSUE.
(a) Whenever Intermet desires the issuance of a Letter
of Credit, it shall, in addition to any application and
documentation procedures required by the Agent for the
issuance of such Letter of Credit, deliver to the Agent and
each Domestic Lender a written notice no later than 11:00
A.M. (Atlanta, Georgia time) at least ten (10) days in
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advance of the proposed date of issuance. Each such notice
shall specify (i) the proposed date of issuance (which shall
be a Business Day); (ii) the face amount of the Letter of
Credit; (iii) the expiration date of the Letter of Credit;
and (iv) the name and address of the beneficiary with
respect to such Letter of Credit and shall attach a precise
description of the documentation and a verbatim text of any
certificate to be presented by the beneficiary of such
Letter of Credit which would require the Agent to make
payment under the Letter of Credit, PROVIDED that the Agent
may require changes in any such documents and certificates
in accordance with its customary letter of credit practices,
and PROVIDED FURTHER, that no Letter of Credit shall require
payment against a conforming draft to be made thereunder on
the same Business Day that such draft is presented if such
presentation is made after 11:00 A.M. (Atlanta, Georgia
time). In determining whether to pay under any Letter of
Credit, the Agent shall be responsible only to determine
that the documents and certificate required to be delivered
under its Letter of Credit have been delivered, and that
they comply on their face with the requirements of the
Letter of Credit. Promptly after receiving the notice of
issuance of a Letter of Credit, the Agent shall notify each
Domestic Lender of such Domestic Lender's respective
participation therein, determined in accordance with its
respective Pro Rata Share of the Revolving Commitments.
(b) The Agent agrees, subject to the terms and
conditions set forth in this Agreement, to issue for the
account of Intermet a Letter of Credit in a face amount
equal to the face amount requested under paragraph (a)
above, following its receipt of a notice required by Section
2.06(a). Immediately upon the issuance of each Letter of
Credit, each Domestic Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased from the Agent a
participation in such Letter of Credit and any drawing
thereunder in an amount equal to such Domestic Lender's Pro
Rata Share of the Revolving Loan Commitments multiplied by
the face amount of such Letter of Credit. Upon issuance and
amendment or extension of any Letter of Credit, the Agent
shall provide a copy of each such Letter of Credit issued,
amended or extended hereunder to each of the Domestic
Lenders.
SECTION 2.07. PAYMENT OF AMOUNTS DRAWN UNDER LETTER OF
CREDIT.
(a) In the event of any request for a drawing under
any Letter of Credit by the beneficiary thereof, the Agent
shall notify Intermet and the Domestic Lenders on or before
the date on which the Agent intends to honor such drawing,
and Intermet shall reimburse the Agent on the day on which
such drawing is honored in an amount, in same day funds,
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equal to the amount of such drawing, PROVIDED that anything
contained in this Agreement to the contrary notwithstanding,
unless Intermet shall have notified the Agent prior to 11:00
A.M. (Atlanta, Georgia time) on the Business Day immediately
prior to the date on which such drawing is honored, that
Intermet intends to reimburse the Agent for the amount of
such drawing in funds other than the proceeds of Revolving
Loans, Intermet shall be deemed to have timely given a
Notice of Borrowing to the Agent requesting Revolving Loans
which are Base Rate Advances on the date on which such
drawing is honored in an amount equal to the amount of such
drawing, and the Domestic Lenders shall by 1:00 P.M.
(Atlanta, Georgia time) on the date of such drawing, make
Revolving Loans which are Base Rate Advances in the amount
of such drawing, the proceeds of which shall be applied
directly by the Agent to reimburse itself for the amount of
such drawing, PROVIDED that for the purposes solely of such
borrowing, the conditions and precedents set forth in
Sections 6.01 and 6.02 shall not be applicable, and PROVIDED
FURTHER that if for any reason proceeds of the Revolving
Loans are not received by the Agent on such date in the
amount equal to the amount of such drawing, Intermet shall
reimburse the Agent on the Business Day immediately
following the date of such drawing in an amount, in Dollars
and immediately available funds, equal to the excess of the
amount of such drawing over the amount of such Revolving
Loans, if any, which are so received, plus accrued interest
on the amount at the applicable rate of interest for Base
Rate Advances which are Revolving Loans.
(b) Notwithstanding any provision of this Agreement to
the contrary, to the extent that any Letter of Credit or
portion thereof remains outstanding on the Conversion Date,
for any reason whatsoever, the parties hereto hereby agree
that the beneficiary or beneficiaries thereof shall be
deemed to have made a drawing of all available amounts
pursuant to such Letters of Credit on the Conversion Date
which amount shall be held by the Agent as cash collateral
for its remaining obligations pursuant to such Letters of
Credit. In the event that Intermet is unable to provide the
evidence of the termination of any Letter of Credit required
by subsection (d) below by the Conversion Date, such Letter
of Credit will be deemed to be outstanding hereunder.
(c) To the extent permitted by the applicable
regulations of the Commonwealth of Virginia, Intermet
agrees, upon the request of the Agent, to seek a decrease in
the face amount of the outstanding Letters of Credit.
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(d) Intermet agrees, upon the request of the Agent, to use
its best efforts to deliver to the Agent (i) a certificate or
other document from the applicable department or agency of the
Commonwealth of Virginia stating that there is no environmental
compliance proceeding against Intermet or its Subsidiaries which
would prevent the expiration or termination of any Letter of
Credit, or (ii) other evidence satisfactory to the Agent that
each of the Letters of Credit have been terminated.
SECTION 2.08. PAYMENT BY DOMESTIC LENDERS. In the
event that Intermet shall fail to reimburse the Agent as
provided in Section 2.07 by borrowing Revolving Loans, or
otherwise providing an amount equal to the amount of any
drawing honored by the Agent pursuant to any Letter of
Credit issued by it, the Agent shall promptly notify each
Domestic Lender of the unreimbursed amount of such drawing
and of such Domestic Lender's respective participation
therein. Each Domestic Lender shall make available to the
Agent an amount equal to its respective participation, in
Dollars and in immediately available funds, at the office of
the Agent specified in such notice not later than 1:00 P.M.
(Atlanta, Georgia time) on the Business Day after the date
notified by the Agent. In the event that any such Domestic
Lender fails to make available to the Agent the amount of
such Domestic Lender's participation in such Letter of
Credit, the Agent shall be entitled to recover such amount
on demand from such Domestic Lender together with interest
as provided for in Section 5.02. The Agent shall distribute
to each other Domestic Lender which has paid all amounts
payable under this Section with respect to any Letter of
Credit, such Domestic Lender's Pro Rata Share of all
payments received by the Agent from Intermet in
reimbursement of drawings honored by the Agent under such
Letter of Credit when such payments are received.
SECTION 2.09. COMPENSATION.
(a) Intermet agrees to pay to the Agent for
distribution to each Domestic Lender in respect of all
Letters of Credit outstanding such Domestic Lender's Pro
Rata Share of a letter of credit fee equal to the Applicable
Margin applicable to Revolving Loans multiplied by the daily
average amount of Letter of Credit Obligations (the "Letter
of Credit Fee"). The Letter of Credit Fee shall be payable
by Intermet quarterly, in arrears, on the last calendar day
of each fiscal quarter of Intermet, commencing on October 2,
1994, and on the sooner of (i) the Conversion Date, and (ii)
the Final Maturity Date. Promptly upon receipt by the Agent
of any Letter of Credit Fee described in this subsection (a),
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the Agent shall distribute to each Domestic Lender its
Pro Rata Share of such Letter of Credit Fee.
(b) Intermet agrees to pay to the Agent in respect of
each Letter of Credit issued by it, such fees in such
amounts at such times as the Agent and Intermet shall from
time to time agree in writing.
SECTION 2.10 OBLIGATIONS ABSOLUTE. The obligation
of Intermet to reimburse the Agent for drawings made under
Letters of Credit issued for the account of Intermet and the
Domestic Lenders' obligation to honor their participations
purchased therein shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including without
limitation, the following circumstances:
(a) Any lack of validity or enforceability of any
Letter of Credit;
(b) The existence of any claim, set-off, defense or
other right which Intermet or any Subsidiary or Affiliate of
Intermet may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be
acting), any Domestic Lender or any other Person, whether in
connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including
without limitation any underlying transaction between
Intermet or any of its Subsidiaries and Affiliates and the
beneficiary for which such Letter of Credit was procured);
PROVIDED that nothing in this Section shall affect the right
of Intermet to seek relief against any beneficiary,
transferee, Domestic Lender or any other Person in any
action or proceeding or to bring a counterclaim in any suit
involving such Persons;
(c) Any draft, demand, certificate or any other
document presented under any Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(d) Payment by the Agent under any Letter of Credit
against presentation of a demand, draft or certificate or
other document which does not comply with the terms of such
Letter of Credit;
(e) Any other circumstance or happening whatsoever
which is similar to any of the foregoing; or
(f) the fact that a Default or an Event of Default
shall have occurred and be continuing.
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Nothing in this Section 2.10 shall prevent an action against
the Agent for its gross negligence or willful misconduct in
honoring drafts under the Letters of Credit.
SECTION 2.11. INDEMNIFICATION; NATURE OF AGENT'S
DUTIES.
(a) In addition to amounts payable elsewhere provided
in this Agreement, without duplication, Intermet hereby
agrees to protect, indemnify, pay and save the Agent
harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and reasonable
expenses (including reasonable attorney's fees and
disbursements) which the Agent may incur or be subject to as
a consequence, direct or indirect, of (i) the issuance of
any Letter of Credit for the account of Intermet, other than
as a result of the gross negligence or willful misconduct of
the Agent; (ii) the failure of the Agent to honor a drawing
under any Letter of Credit due to any act or omission
(whether rightful or wrongful) of any present or future DE
JURE or DE FACTO government or governmental authority; or
(iii) any confirmation of any Letter of Credit obtained by
the Agent with the consent of Intermet.
(b) As between Intermet and the Agent, Intermet
assumes all risk of the acts and omissions of, or misuse of,
the Letters of Credit issued by the Agent, by the respective
beneficiaries of such Letters of Credit, other than losses
resulting from the gross negligence and willful misconduct
of the Agent. In furtherance and not in limitation of the
foregoing but subject to the exception for the Agent's gross
negligence or willful misconduct set forth above, the Agent
shall not be responsible (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even
if it should in fact prove to be in any or all respects
insufficient, inaccurate, fraudulent or forged or otherwise
invalid; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights
or benefits thereunder or proceeds thereof in whole or in
part which may prove to be invalid or ineffective for any
reason; (iii) for failure of the beneficiary of any such
Letter of Credit to comply fully with the conditions
required in order to draw upon such Letter of Credit; (iv)
for errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex,
telecopy or otherwise; (v) for good faith errors in interpretation
of technical terms; (vi) for any loss or delay
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in the transmission or otherwise of any document required in order
to make a drawing under any such Letter of Credit or the proceeds
thereof; (vii) for the misapplication by the beneficiary of any such
Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Agent.
SECTION 2.12 ADDITIONAL PAYMENTS; ILLEGALITY.
(a) If by reason of (x) any change in applicable
law, regulation, rule, regulatory requirement, guideline,
request or directive, whether or not having the force of
law, or any change in the interpretation or application
thereof by any judicial or other applicable governmental or
regulatory authority, (y) compliance by any Domestic Lender
in good faith with any direction, request or monetary
authority including, without limitation, Regulation D:
(i) such Domestic Lender shall be subject
to any tax, levy, charge or withholding of any
nature or to any variation thereof or to any
penalty with respect to the maintenance or
fulfillment of its obligations under this Article
II, whether directly or by such being imposed on
or suffered by such Domestic Lender;
(ii) any reserve, deposit or similar
requirement is or shall be applicable, imposed or
modified in respect of any Letter of Credit issued
by Agent or any participations purchased by such
Domestic Lender in any Letter of Credit (or in
respect of such Domestic Lender's commitment to
purchase such a participation); or
(iii) there shall be imposed on the Agent or
any such Domestic Lender any other condition
regarding this Article II, any Letter of Credit or
any participation therein;
and the result of the foregoing is to directly or indirectly
increase the cost to Agent or such Domestic Lender of
committing to issue, purchase, purchasing or maintaining any
participation in any Letter of Credit, or to reduce the
amount receivable in respect thereof by Agent or such
Domestic Lender, then and in any such case such Domestic
Lender may, without duplication of any payments required to
be made pursuant to this Agreement, at any time after the
additional cost is incurred or the amount received is
reduced, notify Intermet and Intermet shall pay to the Agent
or such Domestic Lender within five (5) Business Days of
written demand therefor, such additional amounts as shall be
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required to compensate Agent or such Domestic Lender for
such increased costs or reduction in amounts receivable
hereunder (a written notice as to additional amounts owing
Agent or such Domestic Lender showing the basis for the
calculation thereof, submitted to Intermet by Agent or such
Domestic Lender shall, absent manifest error, be final and
conclusive and binding upon all parties hereto).
(b) Notwithstanding any other provision contained
in this Agreement, the Agent shall not be obligated to issue
any Letter of Credit, nor shall any Domestic Lender be
obligated to purchase its participation in any Letter of
Credit to be issued hereunder, if the issuance of such
Letter of Credit or purchase of such participation shall
have become unlawful or prohibited by compliance by Agent or
such Domestic Lender in good faith with any law,
governmental rule, guideline, request, order, injunction,
judgment or decree (whether or not having the force of law);
PROVIDED that in the case of the obligation of a Domestic
Lender to purchase such participation, such Domestic Lender
shall have notified the Agent to such effect at least three
(3) Business Days' prior to the issuance thereof by the
Agent, which notice shall relieve the Agent of its
obligation to issue such Letter of Credit pursuant to
Section 2.05 and Section 2.06 hereof."
3. Section 6.02 of the Credit Agreement is hereby
amended by deleting the preamble thereof in its entirety and
substituting the following in lieu thereof:
"At the time of the making of all Loans (including the
Term Loans) and the issuance of each Letter of Credit
(before as well as after giving effect to such Loans and the
issuance of such Letters of Credit and to the proposed use
of the proceeds thereof), the following conditions shall
have been satisfied or shall exist:"
4. Articles VIII and IX of the Credit Agreement are
hereby amended by deleting the preambles thereto through the
words "Notes shall remain unpaid" on the second line thereof and
substituting the following in lieu thereof:
"So long as any Commitment remains in effect hereunder
or any Note shall remain unpaid or any Letter of Credit
Obligation or any other Obligation shall remain outstanding,"
5. Article X of the Credit Agreement is hereby amended
by deleting the last portion thereof commencing with the
words "then, and in any such event, and at any time thereafter"
and continuing through the remainder of said article and
substituting the following in lieu thereof:
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"then, and in any such event, and at any time thereafter if
any Event of Default shall then be continuing, the Agent
may, and upon the written or telex request of the Required
Lenders, shall, by written notice to Intermet, take any or
all of the following actions, without prejudice to the
rights of the Agent, any Lender or the holder of any Note to
enforce its claims against Intermet or any other Credit
Party: (i) declare all Commitments terminated, whereupon
the pro rata Commitments of each Lender shall terminate
immediately and any commitment fee shall forthwith become
due and payable without any other notice of any kind; and
(ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder,
including without limitation, an amount equal to the maximum
amount which would be available at any time to be drawn
under all Letters of Credit then outstanding (whether or not
any beneficiary under any Letter of Credit shall have
presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letter
of Credit), to be, whereupon the same shall become,
forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
waived by Intermet; provided, that, if an Event of Default
specified in Section 10.07 shall occur, the result which
would occur upon the giving of written notice by the Agent
to any Credit Party, as specified in clauses (i) and (ii)
above, shall occur automatically without the giving of any
such notice; and (iii) exercise any rights or remedies under
the Security Documents. As long as any Letter of Credit
shall remain outstanding, any amounts described in clause
(ii) above with respect to Letters of Credit, when received
by the Agent, shall be deposited in a cash collateral
account as cash collateral for the obligation of Intermet
under Article II of this Agreement in the event of any
drawing under a Letter of Credit, and upon drawing under any
outstanding Letter of Credit in respect of which the Agent
has deposited in the cash collateral account any amounts
described in clause (ii) above, the Agent shall pay such
amounts to itself to reimburse itself for the amount of such
drawing."
6. Section 12.06(c) of the Credit Agreement is hereby
amended by deleting such subsection in its entirety and
substituting the following in lieu thereof:
"(c) Each Lender may assign all or a portion of its
interests, rights and obligations under this Agreement
(including all or a portion of any of its Commitments and
the Loans and Letter of Credit Obligations at the time owing
to it and the Notes held by it) to any Eligible Assignee;
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PROVIDED, HOWEVER, that (i) the Agent and Intermet must give
their prior written consent to such assignment (which
consent shall not be unreasonably withheld) unless such
assignment is an Affiliate of the assigning Lender, (ii) the
amount of the Commitments, in the case of the Revolving Loan
Commitments and the Currency Loan Commitments, or Loans, in
the case of assignment of Term Loans, of the assigning
Lender subject to each assignment (determined as of the date
the assignment and acceptance with respect to such
assignment is delivered to the Agent) shall not be less than
$5,000,000, and (iii) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and
Acceptance, together with a Note or Notes subject to such
assignment and, unless such assignment is to an Affiliate of
such Lender, a processing and recordation fee of $2,500.
Intermet shall not be responsible for such processing and
recordation fee or any costs or expenses incurred by any
Lender or the Agent in connection with such assignment.
From and after the effective date specified in each As-
signment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof,
the assignee thereunder shall be a party hereto and to the
extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender
under this Agreement. Notwithstanding the foregoing, the
assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of
Commitments, Letter of Credit Exposure or Term Loans, as
the case may be, of $5,000,000; PROVIDED, HOWEVER, no such
minimum amount shall be required with respect to any such
assignment made at any time there exists an Event of Default
hereunder. Within five (5) Business Days after receipt of
the notice and the Assignment and Acceptance, Intermet, at
its own expense, shall execute and deliver to the Agent, in
exchange for the surrendered Note or Notes, a new Note or
Notes to the order of such assignee in a principal amount
equal to the applicable Commitments or Term Loans assumed by
it pursuant to such Assignment and Acceptance and a new Note
or Notes to the assigning Lender in the amount of its
retained Commitment or Commitments or amount of its retained
Term Loans. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the date of
the surrendered Note or Notes which they replace, and shall
otherwise be in substantially the form attached hereto."
-14-
7. The Borrower hereby agrees that nothing herein
shall constitute a waiver by the Lenders of any Default or Event
of Default, whether known or unknown, which may exist under the
Credit Agreement. The Borrower represents and warrants to the
Lenders that as of the date hereof, no Default or Event of
Default exists pursuant to the Credit Agreement which is not
expressly waived herein. In addition, the Borrower acknowledges
and agrees that it has no knowledge of any defenses,
counterclaims, offsets or objections in its favor against the
Lenders with regard to any of the obligations due under the terms
of the Credit Agreement as of the date of this Amendment.
8. Intermet, without limiting the representations and
warranties provided in the Credit Agreement, represents and
warrants to the Lenders and the Agent as follows:
(a) The execution, delivery and performance by
Intermet of this Amendment are within Intermet's corporate
powers, have been duly authorized by all necessary corporate
action (including any necessary shareholder action) and do not
and will not (a) violate any provision of any law, rule or
regulation, any judgment, order or ruling of any court or
governmental agency, the articles of incorporation or by-laws of
Intermet or any indenture, agreement or other instrument to which
Intermet is a party or by which Intermet or any of its properties
is bound or (b) be in conflict with, result in a breach of, or
constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
(b) This Amendment constitutes the legal, valid and
binding obligations of Intermet, enforceable against Intermet in
accordance with its terms.
(c) No Default or Event of Default has occurred and is
continuing as of the date hereof.
(d) All representations and warranties by Intermet
contained in the Credit Agreement, as amended by this Amendment,
are true and correct in all material respects with the same
effect as though such representations and warranties had been
made on and as of the date hereof.
9. Except as expressly amended and modified herein,
all terms and covenants and provisions of the Credit Agreement
shall remain unaltered and in full force and effect, and the
parties hereto do expressly ratify and confirm the Credit
Agreement as modified herein. All future references to the
Credit Agreement shall be deemed to refer to the Credit Agreement
as amended hereby.
-15-
10. Intermet agrees to pay on demand all reasonable
costs and expenses of the Agent in connection with the
preparation, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-
pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder.
11. This Amendment shall be effective upon receipt by
the Agent of fully executed counterparts of this Amendment in its
offices in Atlanta, Georgia.
12. This Amendment shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs,
successors, successors-in-titles, and assigns.
13. This Amendment shall be governed by and construed
in accordance with the laws of the State of Georgia,
notwithstanding any principles regarding conflicts of laws
thereof.
14. This Agreement sets forth the entire understanding
of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether
written or oral, with respect thereto.
15. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate
counterparts and may be delivered by telecopier. Each
counterpart so executed and delivered shall be deemed an original
and all of which taken together shall constitute but one and the
same instrument.
-16-
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment through their authorized officers as of the date
first above written.
INTERMET CORPORATION
By: /s/ John D. Ernst
--------------------------
Title: V/P Finance
Attest: Peter C. Bouxsein
----------------------
Title: Asst. Secy.
[CORPORATE SEAL]
TRUST COMPANY BANK
By: /s/ John K. Shoffner
--------------------------
Title: General Vice President
By: /s/ David Penter
--------------------------
Title: Vice President
LANDESBANK SAAR GIROZENTRALE
By: /s/ Dr. Georg Grasel
--------------------------
Title: Votstandsmitglied
By: /s/ Dr. Ingrid Walter
--------------------------
Title: Lieterin Dezernat
Ausland
NBD BANK, N.A.
By: /s/ John C. Otteson
--------------------------
Title: Second Vice President
-17-
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Michael Mountcastle
--------------------------
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ William C. Purinton
--------------------------
Title: Vice President
FIRST UNION NATIONAL BANK OF
GEORGIA
By: /s/ Michael D. Murphy
--------------------------
Title:
NATIONSBANK OF GEORGIA, N.A.
By: /s/ Shawn B. Welch
--------------------------
Title: Assistant Vice President
NATIONAL CITY BANK, KENTUCKY,
formerly known as THE FIRST
NATIONAL BANK OF LOUISVILLE
By: /s/ Carrie C. Tate
--------------------------
Title: Vice President
TRUST COMPANY BANK, as Agent
By: /s/ John K. Schoffner
--------------------------
Title: General Vice President
By: /s/ David Penter
--------------------------
Title: Vice President
-18-
CONSENT AND RATIFICATION OF GUARANTORS
Each of the undersigned Guarantors acknowledges its
receipt of and consent to the Fourth Amendment to Credit Agreement
attached hereto and incorporated herein by this reference and
further acknowledges and agrees that nothing contained therein shall
release, discharge, modify, change or affect the original liability
of the Guarantors under the Guaranty Agreement and each Guarantor
ratifies and affirms the terms and conditions of the Guaranty
Agreement which remains in full force and effect. Without limiting
the generality of the foregoing, each of the Guarantors expressly
consents and agrees that all references to the Obligations set forth
in the Guaranty Agreement shall include, without limitation, the
Letter of Credit Obligations and all fees relating thereto.
IN WITNESS WHEREOF, each Guarantor has executed this
Consent and Ratification under seal as of this 10th day of
August, 1994.
INTERMET FOUNDRIES, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
COLUMBUS FOUNDRIES, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
-19-
LYNCHBURG FOUNDRY COMPANY
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
IRONTON IRON, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
NORTHERN CASTINGS CORPORATION
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
PENNSYLVANIA CASTINGS
CORPORATION
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
INTERMET INTERNATIONAL, INC.
(a "Guarantor")
By: /s/
--------------------------
Title: Treasurer
-20-
INTERMET MACHINING, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
COMMERCIAL AND PRECISION
MACHINING, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
PBM INDUSTRIES, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
INTERMOTIVE TECHNOLOGIES, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
NEW RIVER CASTINGS COMPANY
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
INTERMET ALUMINUM, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
-21-
I.C. VENTURE, INC.
(a "Guarantor")
By: /s/ John D. Ernst
--------------------------
Title: Treasurer
-22-
SCHEDULE 1
IRREVOCABLE STANDBY LETTER OF CREDIT
Executive Director
Department of Environmental
Quality-Waste Resource Management
629 East Main Street
Richmond, VA 23219
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter
of Credit No. ____ in your favor, at the request and for the
account of Intermet Corporation ("Intermet"), 2859 Paces Ferry
Road, Suite 1600, Atlanta, Georgia 30339, up to the aggregate
amount of Nine Hundred Seventy Thousand Nine Hundred and
No/100 U.S. Dollars ($970,900), available upon presentation of
(1) your sight draft, bearing reference to this
letter of credit No. ________, and
(2) your signed statement reading as follows: "I
certify that the amount of the draft is payable pursuant to
regulations issued under authority of the Code of Virginia
(1950) as amended."
This letter of credit is effective as of April 29,
1994 and shall expire on August 15, 1995, but such expiration
date shall be automatically extended for a period of at least
one (1) year on August 15, 1995 and on each successive
expiration date, unless, at least 120 days before the current
expiration date, we notify both you and Intermet by certified
mail that we have decided not to extend this letter of credit
beyond the current expiration date. In the event you are so
notified, any unused portion of the credit shall be available
upon presentation of your sight draft for 120 days after the
date of receipt by both you and Intermet, as shown on the
signed return receipts.
Whenever this letter of credit is drawn on under and
in compliance with the terms of this credit, we shall duly
honor such draft upon presentation to us, and we shall deposit
the amount of the draft directly into the standby trust fund
of Intermet in accordance with your instructions.
We certify that the wording of this letter of credit
is identical to the wording specified in Section 9.7.K.3. of the
Virginia Hazardous Waste Management Regulations as such
regulations were constituted on the date shown immediately
below.
This letter of credit is subject to the Uniform
Customs and Practice of Documentary Credits, 1993 Revision,
International Chamber of Commerce Publication No. 500, which
is incorporated into the text of this letter of credit by this
reference.
Dated: _______________, 1994.
______________________________
[BANK SEAL] By:__________________________
Title:
By:__________________________
Title:
SCHEDULE 2
IRREVOCABLE STANDBY LETTER OF CREDIT
Director
Department of Environmental
Quality-Waste Resource Management
629 East Main Street
Richmond, VA 23219
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of
Credit No. _________________ in the favor of any and all third-
party liability claimants, at the request and for the account of
Intermet Corporation ("Intermet"), 2859 Paces Ferry Road, Suite
1600, Atlanta, Georgia 30339 for third-party liability awards or
settlements up to One Million U.S. Dollars ($1,000,000) per
occurrence and the annual aggregate amount of Two Million U.S.
Dollars ($2,000,000), for sudden accidental occurrences available
upon presentation of a signed draft, bearing reference to this
letter of credit No. __________, and
1. a signed certificate reading as follows:
CERTIFICATION OF VALID CLAIM
The undersigned, as parties, Intermet and [insert name
and address of third-party claimants], hereby certify that the
claim of bodily injury [and/or] property damage caused by a
sudden accidental occurrence arising from operations of
Intermet's hazardous waste treatment, storage, or disposal
facility should be paid in the amount of $_________. We hereby
certify that the claim does not apply to any of the following:
(a) Bodily injury or property damage for which
Intermet is obligated to pay damages by reason of the assumption
of liability in a contract or agreement. This exclusion does not
apply to liability for damages that Intermet would be obligated
to pay in the absence of the contract or agreement.
(b) Any obligation of Intermet under a workers'
compensation, disability benefits, or unemployment compensation
law or any similar law.
(c) Bodily injury to:
(1) An employee of Intermet arising from, and in
the course of, employment by Intermet; or
(2) The spouse, child, parent, brother or sister
of that employee as a consequence of, or arising from,
and in the course of employment by Intermet. This
exclusion applies:
(A) Whether Intermet may be liable as an
employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who shall pay damages
because of the injury to persons identified in
paragraphs (1) and (2).
(d) Bodily injury or property damage arising out of
the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied by
Intermet;
(2) Premises that are sold, given away or
abandoned by Intermet if the property damage arises out
of any part of those premises;
(3) Property loaned to Intermet;
(4) Personal property in the care, custody or
control of Intermet;
(5) That particular real property on which
Intermet or any contractors or subcontractors working
directly or indirectly on behalf of Intermet are
performing operations, if the property damage arises
out of these operations.
[Signatures]
Principal
[Signatures]
Claimant(s)
or,
2. a valid final court order establishing a judgment
against the principal for bodily injury or property damage caused
by a sudden accidental occurrence arising from operation of the
principal's facility or group of facilities.
This letter of credit is effective as of March 31, 1994
and shall expire on August 15, 1995, but such expiration date
shall be automatically extended for a period of at least one (1)
year on August 15, 1995 and on each successive expiration date,
unless, at least 120 days before the current expiration date, we
notify you, the Executive Director and Intermet by certified mail
-2-
that we have decided not to extend this letter of credit beyond
the current expiration date.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor
such draft upon presentation to us.
In the event that this letter of credit is used in
combination with another mechanism for liability coverage, this
letter of credit shall be considered "primary" coverage.
We certify that the wording of this letter of credit is
identical to the wording specified in APPENDIX 8.12, Virginia
Hazardous Waste Management Regulations (VR 672-10-1) as such
regulations were constituted on the date shown immediately below.
This letter of credit is subject to the Uniform Customs
and Practice of Documentary Credits, 1993 Revision, International
Chamber of Commerce Publication No. 500, which is incorporated
into the text of this letter of credit by this reference.
Dated _______________, 1994.
[BANK SEAL] TRUST COMPANY BANK
By:___________________________
Title:
By:___________________________
Title:
-3-
SCHEDULE 3
IRREVOCABLE STANDBY LETTER OF CREDIT
Director
Department of Environmental
Quality-Waste Resource Management
Commonwealth of Virginia
629 East Main Street
Richmond, Virginia 23219
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter
of Credit No. ______ in favor of the Executive Director,
Department of Waste Management [now known as the Department of
Environmental Quality-Waste Resource Management], Commonwealth
of Virginia, at the request and for the account of Intermet
Corporation ("Intermet"), 2859 Paces Ferry Road, Suite 1600,
Atlanta, Georgia 30339, up to the aggregate amount of Two
Million Three Hundred Twenty Thousand and No/100 U.S. Dollars
($2,320,000), available upon presentation of
(1) your sight draft, bearing reference to this
letter of credit No. __________ together with
(2) your signed statement declaring that the
amount of the draft is payable pursuant to regulations issued
under the authority of the Department of Waste Management,
Commonwealth of Virginia.
The following amounts are included in the amount
of this letter of credit: The facilities and cost estimates
identified on Schedule A attached hereto.
The letter of credit is effective as of March 31,
1994 and will expire on August 15, 1995, but such expiration
date will be automatically extended for a period of at least
one (1) year on August 15, 1995 and on each successive
expiration date, unless, at least 120 days before the current
expiration date, we notify you and Intermet by certified mail
that we decide not to extend the Letter of Credit beyond the
current expiration date. In the event you are so notified,
the unused portion of the credit will be available upon
presentation of your sight draft for 120 days after the date
of receipt by you as shown on the signed return receipt or
while a compliance procedure is pending, whichever is later.
Whenever this letter of credit is drawn on under
and in compliance with the terms of this credit, we will duly
honor such draft upon presentation to us, and we will pay to
you the amount of the draft promptly and directly.
I hereby certify that I am authorized to execute
this letter of credit on behalf of Trust Company Bank and that
the wording of this letter of credit is identical to the
wording specified in the relevant regulations of the
Department of Waste Management, Commonwealth of Virginia.
This letter of credit is subject to the Uniform
Customs and Practice of Documentary Credits, 1993 Revision,
International Chamber of Commerce Publication No. 500, which
is incorporated into the text of this letter of credit by this
reference.
Dated: _______________, 1994.
TRUST COMPANY BANK
[BANK SEAL] By:___________________________
Title:
By:___________________________
Title:
-2-
SCHEDULE A
Facilities and Cost Estimates
I. Closure and Post-Closure Costs
1. Falwell Aviation Landfill (Permit #517)
Richmond Highway (Route 460 East)
Lynchburg, Virginia 24504
CLOSURE COSTS
CELL FINAL COVER FINAL SEEDING TOTAL
IA Complete $4,700 $ 4,700
IB $235,000 5,300 240,300
-------
Total $ 245,000
POST-CLOSURE care estimates (yearly) for 10 years
(after final closure.
Erosion repair $ 2,500
Reseeding 1,200
Clean sediment basin 4,400
Monitoring well sampling 6,000
-----
Total per year $ 14,100
x 10
------
Total for 10 years $ 141,000
Total Closure and Post-Closure $ 386,000
2. Archer Creek Plant Landfill (Permit #456)
State Route 726
Lynchburg, Virginia 24501
CLOSURE COSTS.
Figures below are costs for closure at the point in
fill life when closure costs are maximum (costs for
largest individual cell - two cells remaining).
Final cap (2 cells) $ 370,000
Final seeding (2 cells) 10,000
-------
Total $ 380,000
-1-
POST-CLOSURE care estimates (yearly) for 10 years
(after final closure).
Erosion repaid, reseeding $ 6,000
Monitoring well sampling 8,000
------
Total per year 14,000
x 10
Total for 10 years $ 140,000
Total Closure and Post-Closure $ 520,000
3. Radford Shell Plant Landfill (Permit #355)
First Street
Radford, Virginia 24141
CLOSURE COSTS
Figures below are costs for closure at the point in
fill life when closure costs are maximum. These costs
include Phases I, II, and III.
Phase I
Final Cap $ 97,000
Final Seeding 5,000
-------
Total $ 102,000
Phases II and III
Final Cap $ 417,000
Final Seeding 10,000
-------
Total $ 427,000
POST-CLOSURE care estimates (yearly) for 10 years
(after final closure).
Phase I
Erosion repair, reseeding,
ditch clean out $ 5,500
Monitoring well sampling 5,000
Phases II and III
Erosion repair, reseeding,
ditch clean out $ 7,500
Monitoring well sampling 10,500
------
Total per year $ 28,500
x 10
------
Total for 10 years $ 285,000
Total Closure and Post-Closure
Cost $ 814,000
-2-
II. Liability Coverage
Third Party Sudden Accidental
Liability Coverage $ 100,000
Third Party Non-Sudden
Accidental Liability Coverage $ 500,000
-3-