EXHIBIT 4.14
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SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of February 23, 1996
among
INTERMET CORPORATION,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK, ATLANTA
as Agent
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS; CONSTRUCTION............... 2
Section 1.01. Definitions............................. 2
Section 1.02. Accounting Terms and Determination...... 19
Section 1.03. Other Definitional Terms................ 20
Section 1.04. Exhibits and Schedules.................. 20
ARTICLE II. SYNDICATED LOANS, BID RATE LOANS AND
LETTERS OF CREDIT....................... 20
Section 2.01. Commitments; Use of Proceeds............ 20
Section 2.02. Notes; Repayment of Principal........... 21
Section 2.03. Voluntary Reduction of Commitments...... 21
Section 2.04. Letter of Credit Facility............... 22
Section 2.05. Notice of Issuance of Letter of Credit;
Agreement to Issue...................... 22
Section 2.06. Payment of Amounts Drawn Under Letters
of Credit............................... 23
Section 2.07. Payment to Lenders...................... 24
Section 2.08. Bid Rate Loans.......................... 25
ARTICLE III. GENERAL LOAN AND LETTER OF CREDIT TERMS. 27
Section 3.01. Funding Notices......................... 27
Section 3.02. Disbursement of Funds................... 29
Section 3.03. Interest................................ 30
Section 3.04. Interest Periods........................ 31
Section 3.05. Fees.................................... 32
Section 3.06. Voluntary Prepayments of Borrowings..... 33
Section 3.07. Payments, etc........................... 34
Section 3.08. Interest Rate Not Ascertainable, etc.... 36
Section 3.09. Illegality.............................. 36
Section 3.10. Increased Costs......................... 37
Section 3.11. Lending Offices......................... 40
Section 3.12. Funding Losses.......................... 40
Section 3.13. Assumptions Concerning Funding of
Eurodollar Advances..................... 41
Section 3.14. Apportionment of Payments............... 41
Section 3.15. Sharing of Payments, Etc................ 41
Section 3.16. Benefits to Guarantors.................. 42
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Section 3.17. Limitation on Certain Payment
Obligations............................. 42
Section 3.18. Letter of Credit Obligations Absolute... 43
Section 3.19. Failure to Maintain Minimum
Required Rating......................... 43
ARTICLE IV. CONDITIONS TO BORROWINGS................ 44
Section 4.01. Conditions Precedent to Initial Loans
and Letters of Credit................... 44
Section 4.02. Conditions to All Loans and Letters of
Credit.................................. 46
ARTICLE V. REPRESENTATIONS AND WARRANTIES.......... 48
Section 5.01. Corporate Existence; Compliance with
Law..................................... 48
Section 5.02. Corporate Power; Authorization.......... 48
Section 5.03. Enforceable Obligations................. 48
Section 5.04. No Legal Bar............................ 49
Section 5.05. No Material Litigation or Investigations 49
Section 5.06. Investment Company Act, Etc............. 49
Section 5.07. Margin Regulations...................... 49
Section 5.08. Compliance with Environmental Laws...... 49
Section 5.09. Insurance............................... 50
Section 5.10. No Default.............................. 50
Section 5.11. No Burdensome Restrictions.............. 51
Section 5.12. Taxes................................... 51
Section 5.13. Subsidiaries............................ 51
Section 5.14. Financial Statements.................... 51
Section 5.15. ERISA................................... 52
Section 5.16. Patents, Trademarks, Licenses, Etc...... 53
Section 5.17. Ownership of Property................... 54
Section 5.18. Financial Condition..................... 54
Section 5.19. Labor Matters........................... 54
Section 5.20. Payment or Dividend Restrictions........ 55
Section 5.21. Disclosure.............................. 55
ARTICLE VI. AFFIRMATIVE COVENANTS.................... 55
Section 6.01. Corporate Existence, Etc................ 55
Section 6.02. Compliance with Laws, Etc............... 56
Section 6.03. Payment of Taxes and Claims, Etc........ 56
Section 6.04. Keeping of Books........................ 56
Section 6.05. Visitation, Inspection, Etc............. 56
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Section 6.06. Insurance; Maintenance of Properties.... 56
Section 6.07. Reporting Covenants..................... 57
Section 6.08. Financial Covenants..................... 61
Section 6.09. Notices Under Certain Other Indebtedness 62
Section 6.10. Additional Credit Parties and Collateral 62
Section 6.11. Delivery of Release Pledge Agreement,
Modifications to Note Purchase Agreement;
Intercreditor Agreement.................... 63
ARTICLE VII. NEGATIVE COVENANTS...................... 63
Section 7.01. Indebtedness............................ 63
Section 7.02. Liens................................... 64
Section 7.03. Mergers, Acquisitions, Divestitures..... 64
Section 7.04. Asset Sales............................. 65
Section 7.05. Dividends, Etc.......................... 66
Section 7.06. Investments, Loans, Etc................. 67
Section 7.07. Sale and Leaseback Transactions......... 68
Section 7.08. Transactions with Affiliates............ 68
Section 7.09. Prepayments of Subordinated Debt
in Violation Thereof.................... 69
Section 7.10. Changes in Business..................... 69
Section 7.11. Limitation on Payment Restrictions
Affecting Consolidated Companies........ 69
Section 7.12. Actions Under Certain Documents......... 69
ARTICLE VIII. EVENTS OF DEFAULT....................... 70
Section 8.01. Payments................................ 70
Section 8.02. Covenants Without Notice................ 70
Section 8.03. Other Covenants......................... 70
Section 8.04. Representations......................... 70
Section 8.05. Non-Payments of Other Indebtedness...... 70
Section 8.06. Defaults Under Other Agreements......... 71
Section 8.07. Bankruptcy.............................. 71
Section 8.08. ERISA................................... 72
Section 8.09. Money Judgment.......................... 72
Section 8.10. Ownership of Credit Parties
and Pledged Entities.................... 72
Section 8.11. Change in Control of Intermet........... 73
Section 8.12. Default Under Other Credit Documents.... 73
Section 8.13. Attachments............................. 73
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ARTICLE IX. THE AGENT............................... 74
Section 9.01. Appointment of Agent.................... 74
Section 9.02. Authorization of Agent with Respect
to the Security Documents............... 75
Section 9.03. Nature of Duties of Agent............... 75
Section 9.04. Lack of Reliance on the Agent........... 76
Section 9.05. Certain Rights of the Agent............. 76
Section 9.06. Reliance by Agent....................... 77
Section 9.07. Indemnification of Agent................ 77
Section 9.08. The Agent in its Individual
Capacity................................ 77
Section 9.09. Holders of Notes........................ 78
Section 9.10. Successor Agent......................... 78
ARTICLE X. MISCELLANEOUS........................... 79
Section 10.01. Notices................................. 79
Section 10.02. Amendments, Etc......................... 79
Section 10.03. No Waiver; Remedies Cumulative.......... 80
Section 10.04. Payment of Expenses, Etc................ 80
Section 10.05. Right of Setoff......................... 82
Section 10.06. Benefit of Agreement.................... 83
Section 10.07. Governing Law; Submission to
Jurisdiction; Waiverof Jury Trial....... 86
Section 10.08. Independent Nature of Lenders' Rights... 86
Section 10.09. Counterparts............................ 87
Section 10.10. Effectiveness; Survival................. 87
Section 10.11. Severability............................ 87
Section 10.12. Independence of Covenants............... 87
Section 10.13. Change in Accounting Principles,
Fiscal Year or Tax Laws................. 87
Section 10.14. Headings Descriptive; Entire Agreement.. 88
Section 10.15. Pledge of Stock of Columbus
Neunkirchen............................. 88
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SCHEDULES
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Schedule 4.01(n) UCC Search Locations
SCHEDULE 5.01 Organization and Ownership of Subsidiaries
SCHEDULE 5.05 Certain Pending and Threatened Litigation
SCHEDULE 5.08 Environmental Matters
SCHEDULE 5.11 Burdensome Restrictions
SCHEDULE 5.12 Tax Filings and Payments
SCHEDULE 5.15 Employee Benefit Matters
SCHEDULE 5.16 Patent, Trademark, License, and
Other Intellectual Property Matters
SCHEDULE 5.17 Ownership of Properties
SCHEDULE 5.20 Dividend Restrictions
SCHEDULE 5.21 Labor and Employment Matters
SCHEDULE 6.08 Financial Covenant Calculations
Third Quarter 1995
SCHEDULE 8.01 Existing Indebtedness
SCHEDULE 8.02 Existing Liens
EXHIBITS
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EXHIBIT A -- Form of Revolving Note
EXHIBIT B -- Form of Bid Facility Note
EXHIBIT C -- Form of Letter of Credit Application
EXHIBIT D -- Bid Request
EXHIBIT E -- Bid Request Invite
EXHIBIT F -- Bid Rate Bid
EXHIBIT G -- Bid Rate Acceptance/Rejection
EXHIBIT H -- Form of Amended and Restated Subsidiary Guaranty
EXHIBIT I -- Form of Closing Certificate
EXHIBIT J -- Form of Opinion of Kilpatrick & Cody
EXHIBIT K -- Form of Assignment and Acceptance Agreement
EXHIBIT L -- Form of Compliance Certificate
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
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THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT made and entered
into as of February __, 1996, by and among INTERMET CORPORATION, a Georgia
corporation ("Intermet"), SUNTRUST BANK, ATLANTA (formerly known as Trust
Company Bank), a banking corporation organized under the laws of the State of
Georgia ("SunTrust"), the other banks and lending institutions listed on the
signature pages hereof, and any assignees of SunTrust, or such other banks and
lending institutions which become "Lenders" as provided herein (SunTrust, and
such other banks, lending institu tions, and assignees referred to collectively
herein as the "Lend ers"), SUNTRUST BANK, ATLANTA, in its capacity as agent for
the Lenders and each successor agent for such Lenders as may be appointed from
time to time pursuant to Article IX hereof (the "Agent");
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W I T N E S S E T H:
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WHEREAS, Intermet, the Agent, the Lenders and certain other financial
institutions entered into that certain Credit Agreement dated as of August 31,
1992, as amended and restated pursuant to that certain Amended and Restated
Credit Agreement dated as of August 21, 1995 (as amended up to the date hereof,
the "Prior Credit Agreement") providing certain credit facilities to Intermet;
WHEREAS, Intermet has requested, and the Agent and Lenders have
agreed, to extend certain of the credit facilities provided in the Prior Credit
Agreement, to amend the interest rate and certain other provisions thereof and
to make certain other amendments as set forth herein;
WHEREAS, the parties wish to amend and restate the Prior Credit
Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Intermet, the Lenders, and the Agent agree, upon the
terms and subject to the conditions set forth herein as follows:
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ARTICLE I.
DEFINITIONS; CONSTRUCTION
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SECTION 1.01. DEFINITIONS. In addition to the other terms defined
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herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"Acquisition" shall mean any transaction, or any series of related
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transactions, by which Intermet and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of the
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise, (b) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority in
ordinary voting power of the securities of a Person which have ordinary voting
power for the election of directors or (c) otherwise acquires control of a 50%
or more ownership interest in any such Person.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
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for a Eurodollar Advance, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined pursuant to the following formula:
Adjusted LIBO Rate = LIBOR
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1.00 - LIBOR Reserve Percentage
As used herein, LIBOR Reserve Percentage shall mean, for any Interest Period for
a Eurodollar Advance, the reserve percentage (expressed as a decimal) equal to
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D).
"Advance" shall mean any principal amount advanced and remaining
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outstanding at any time under (i) the Syndicated Loans, which Advances shall be
made or outstanding as Base Rate Advances,
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Overnight Rate Advances or Eurodollar Advances, as the case may be, and (ii) the
Bid Rate Loans, which Advances shall be made or outstanding as Bid Rate
Advances.
"Affiliate" of any Person means any other Person directly or
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indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"Agent" shall mean SunTrust Bank, Atlanta, formerly known as Trust
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Company Bank, a Georgia banking corporation and any successor agent appointed
pursuant to Section 9.10 hereof.
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"Agreement" shall mean this Second Amended and Restated Credit
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Agreement, as amended, modified, restated, or supplemented from time to time.
"Applicable Margin" shall mean, with respect to all outstanding
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Eurodollar Advances and Letter of Credit Obligations through March 31, 1996, one
half of one percent (0.50%) per annum, and with respect to all outstanding
Eurodollar Advances and Letter of Credit Obligations during each fiscal quarter
thereafter, the percentage determined for such fiscal quarter from the chart set
forth below based on Intermet's ratio of Funded Debt to Consolidated EBITDA and
Leverage Ratio determined as of the end of each fiscal quarter, with any change
to the Applicable Margin to be immediately effective on the first day of the
second fiscal quarter thereafter:
LEVERAGE RATIO
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FUNDED DEBT TO LESS THAN
CONSOLIDATED OR EQUAL TO GREATER
EBITDA RATIO 60% THAN 60%
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Greater than
3.0:1.0 1.00% 1.50%
Less than or
Equal to 3.0:1.0
and Greater than
2.50:1.0 0.75% 1.125%
Less than or
Equal to 2.5:1.0
and Greater than
2.0:1.0 0.625% 1.00%
Less than or
Equal to 2.0:1.0 0.50% 0.75%
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provided, however, if Intermet fails to deliver its financial statements for
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such second preceding fiscal quarter pursuant to Section 6.07 prior to the first
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day of the then-current fiscal quarter, the Applicable Margin with respect to
Eurodollar Advances and Letter of Credit Obligations during such current fiscal
quarter shall be 1.50%. By way of example, as of the first day of the fourth
fiscal quarter of Intermet, the Applicable Margin with respect to Eurodollar
Advances and Letter of Credit Obligations outstanding hereunder shall be
calculated based upon the ratio of Funded Debt to Consolidated EBITDA and
Leverage Ratio of Intermet reported for the second fiscal quarter of such fiscal
year of Intermet.
"Asset Sale" shall mean any sale or other disposition (or a series of
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related sales or other dispositions), including without limitation, loss,
damage, destruction or taking, by any Consolidated Company to any Person other
than a Consolidated Company, of any property or asset (including capital stock
but excluding the issuance and sale by Intermet of its own capital stock) having
an aggregate Asset Value in excess of $500,000, other than sales or other
dispositions made in the ordinary course of business of any Consolidated
Company.
"Asset Value" shall mean, with respect to any property or asset of any
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Consolidated Company as of any particular date, an amount equal to the greater
of (i) the then book value of such property or asset as established in
accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors (or equivalent
governing body in the case of any Foreign Subsidiary) of such Consolidated
Company.
"Assignment and Acceptance" shall mean an assignment and acceptance
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entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of Exhibit K.
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"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as amended
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and in effect from time to time (11 U.S.C. (S) 101 et seq.).
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"Base Rate" shall mean the higher of (with any change in the Base
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Rate to be effective as of the date of change of either of the following rates):
(a) the rate which the Agent publicly announces from time to time to
be its prime lending rate, as in effect from time to time, and
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(b) the Federal Funds Rate, as in effect from time to time, plus one-
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half of one percent (0.50%) per annum.
The Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate charged to customers; the Agent may make
commercial loans or other loans at rates of interest at, above or below the
Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding as (i) a
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Syndicated Loan bearing interest based on the Base Rate, or (ii) an Advance
bearing interest at the rate agreed upon between Intermet and the Lenders
pursuant to Section 3.08, Section 3.09 or Section 3.10.
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"Bid Accept/Reject Letter" shall mean a notification made by Intermet
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pursuant to Section 2.08 substantially in the form of Exhibit G.
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"Bid Facility Note" shall mean a promissory note of Intermet payable
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to the order of any Lender, in substantially the form of Exhibit B hereto,
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evidencing the maximum aggregate prin cipal indebtedness of Intermet to such
Lender with respect to outstanding Bid Rate Advances made by such Lender
pursuant to this Agreement, either as originally executed or as it may be from
time to time supplemented, modified, amended, renewed or extended.
"Bid Rate" shall mean, as to any Bid Rate Bid made by a Lender
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pursuant to Section 2.08, the fixed rate of interest per annum offered by the
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Lender making the Bid Rate Bid for the relevant Interest Period.
"Bid Rate Advance" shall mean an Advance made by a Lender to Intermet
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pursuant to the bidding procedure described in Section 2.08.
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"Bid Rate Bid" shall mean an offer by a Lender to make a Bid Rate
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Loan pursuant to Section 2.08.
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"Bid Rate Loan" shall mean a Borrowing made up of Ad vances by all of
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those Lenders whose Bid Rate Bids have been accepted by Intermet pursuant to the
same Bid Request under the bidding procedure described in Section 2.08 for the
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same Interest Period and interest rate (with the understanding that two Bid Rate
Loans may be made pursuant to a single Bid Request).
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"Bid Request" shall mean a request made by Intermet pursuant to
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Section 2.08 substantially in the form of Exhibit D.
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"Borrowing" shall mean the incurrence by Intermet under any Facility
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of Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean:
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(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are required or authorized to close in Atlanta, Georgia or New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
Eurodollar Advances, any day on which trading is carried on by and between banks
in deposits of Dollars in the London interbank market.
"Change in Control Provision" shall mean any term or provision
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contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Intermet evidencing debt or a commitment
to extend loans in excess of $5,000,000 which requires, or permits the holder(s)
of such Indebtedness of Intermet to require that such Indebtedness of Intermet
be redeemed, repurchased, defeased, prepaid or repaid, either in whole or in
part, or the maturity of such Indebtedness of Intermet to be accelerated in any
respect, as a result of a change in ownership of the capital stock of Intermet
or voting rights with respect thereto.
"Closing Date" shall mean the date on or before February 23, 1996 on
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which the initial Loans are made or deemed to have been made hereunder and the
conditions set forth in Section 4.01 are satisfied or waived in accordance with
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Section 10.02.
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"Columbus Neunkirchen" shall mean Columbus Neunkirchen Foundry, GmbH,
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a German company with limited liability and an indirect, wholly-owned Subsidiary
of Intermet.
"Commitment" shall mean, for any Lender at any time, the amount of
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such commitment set forth opposite such Lender's name on the signature pages
hereof, as the same may be increased or decreased from time to time as a result
of any reduction thereof pursuant to Section 2.03, any assignment thereof
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pursuant to Section 10.06, or any amendment thereof pursuant to Section 10.02.
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"Consolidated Companies" shall mean, collectively, Intermet and all
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of its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of Intermet, an
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amount equal to (A) the sum for such fiscal period of Consolidated Net Income
(Loss) and, to the extent deducted in determining such Consolidated Net Income
(Loss), provisions for (i) taxes based on income and (ii) Consolidated Interest
Expense, minus (B) any items of gain (or plus any items of loss) which were
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included in determining such Consolidated Net Income (Loss) and were (x) not
realized in the ordinary course of business (whether or not classified as
"ordinary" by GAAP), (y) the result of any sale of assets, or (z) resulting from
minority investments, together in the case of (x), (y) or (z), any related
provision for taxes included in Consolidated Net Income (Loss) with respect
thereto.
"Consolidated EBITDA" shall mean for any fiscal period of Intermet, an
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amount equal to the sum of Consolidated EBIT plus depreciation and amortization
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expense to the extent deducted in determining Consolidated Net Income (Loss),
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITR" shall mean, for any fiscal period of Intermet, an
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amount equal to the sum of Consolidated EBIT plus Consolidated Rental Expense
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for such period.
"Consolidated Interest Expense" shall mean, for any fiscal period of
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Intermet, total interest expense of the Consolidated Companies (including
without limitation, interest expense attributable to capitalized leases in
accordance with GAAP, all commissions, discounts and other fees and charges owed
with respect to bankers acceptance financing, and total interest expense
(whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period of
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Intermet, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period (taken as a single accounting period)
determined in conformity with GAAP, but excluding therefrom (to the extent
otherwise included therein) (i) any income or loss of any Person accrued prior
to the date such Person becomes a Subsidiary of Intermet or is merged into or
consolidated with any Consolidated Company or all or substantially all of such
Person's assets are acquired by any Consolidated Company, and (ii) the income of
any Consolidated Company to the extent that the declaration or payment of
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dividends or similar distributions by such Consolidated Company of that in come
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation.
"Consolidated Net Worth" shall mean, as of any date of determination,
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Shareholders' Equity of Intermet.
"Consolidated Rental Expense" shall mean, for any fiscal period of
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Intermet, the operating lease expense of the Consolidated Companies determined
in accordance with GAAP for leases with a term greater than one year, as
disclosed in the notes to Intermet's consolidated financial statements of the
Consolidated Companies, determined on a consolidated basis in accordance with
GAAP.
"Contractual Obligation" of any Person shall mean any provision of any
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security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Credit Documents" shall mean, collectively, this Agreement, the
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Notes, the Letters of Credit, the Guaranty Agreements, the Pledge Agreements,
and all other Security Documents, if any.
"Credit Parties" shall mean, collectively, each of Intermet, the
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Guarantors, and every other Person who from time to time executes a Security
Document with respect to all or any portion of the Obligations.
"Default" shall mean any condition or event which, with notice or
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lapse of time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money
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of the United States of America.
"Eligible Assignee" shall mean (i) a commercial bank organized under
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the laws of the United States, or any state thereof, having total assets in
excess of $1,000,000,000 or any commercial finance or asset based lending
Affiliate of any such commercial bank and (ii) any Lender, in each case, which
has the Minimum Required Rating, unless otherwise agreed by the Agent.
"Environmental Laws" shall mean all federal, state, local and foreign
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statutes and codes or regulations, rules or ordinances issued, promulgated, or
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approved thereunder, now or hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing material or exposure to
asbestos or asbestos containing material), relating to pollution or protection
of the environment and relating to public health and safety, relating to (i)
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous Substance,
petroleum including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law into the
environment (including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of any Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks and
related piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (i) the Clean
Air Act (42 U.S.C. (S) 7401 et seq.), (ii) the Clean Water Act (33 U.S.C. (S)
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1251 et seq.), (iii) the Resource Conservation and Recovery Act (42 U.S.C. (S)
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6901 et seq.), (iv) the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
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seq.), (v) the Comprehensive Environmental Response Compensation and Liability
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Act, as amended by the Superfund Amendments and Reauthorization Act (42 U.S.C.
(S) 9601 et seq.), and (vi) all applicable national and local laws or
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regulations with respect to environmental control (including applicable laws of
the Federal Republic of Germany or any applicable international agreements).
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each trade
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or business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or outstanding as a
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Syndicated Loan bearing interest based on the Ad justed LIBO Rate.
"Event of Default" shall have the meaning provided in Article VIII.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean with respect to any Person, the
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President, Chief Executive Officer, Vice Presidents, Chief Financial Officer,
Treasurer, Secretary and any Person holding comparable offices or duties.
"Facility" or "Facilities" shall mean the Commitments, or the Bid Rate
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subfacility or the Letter of Credit facility, as the context may indicate.
"Federal Funds Rate" shall mean for any period, a fluctuating interest
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rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Atlanta, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
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fiscal quarter of Intermet, the ratio of (A) Consolidated EBITR to (B) the sum
of the amounts of (i) Consolidated Interest Expense, and (ii) Consolidated
Rental Expense, in each case, calculated with respect to the immediately
preceding four fiscal quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing, deferred
------------
compensation, or other employee benefit plan, program or arrangement maintained
by any Foreign Subsidiary which, under applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not include any
benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company that is
------------------
organized under the laws of a jurisdiction other than the United States of
America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money borrowed,
-----------
Indebtedness evidenced or secured by purchase money Liens, capitalized leases,
conditional sales contracts and similar title retention debt instruments,
whether designated as long term or current date under GAAP. The calculation of
Funded Debt shall include (i) all Funded Debt of the Consolidated Companies,
-10-
plus (ii) all Funded Debt of other Persons to the extent guaranteed by a
- ----
Consolidated Company, to the extent supported by a letter of credit issued for
the account of a Consolidated Company, or as to which and to the extent which a
Consolidated Company or its assets otherwise have become liable for payment
thereof, plus (iii) the redemption amount with respect to the stock of any
----
Consolidated Company required to be redeemed during the next succeeding twelve
months.
"GAAP" shall mean generally accepted accounting principles set forth
----
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantors" shall mean, collectively, Intermet Foundries, Inc.,
----------
Columbus Foundries, Inc., Lynchburg Foundry Company, Ironton Iron, Inc.,
Northern Castings Corporation, Intermet International, Inc., Intermet
Machining, Inc., Commercial and Precision Machining, Inc., New River Castings
Company, Alexander City Castings Company, Inc. and all other domestic
Subsidiaries formed or acquired after the Closing Date.
"Guaranty" shall mean any contractual obligation, contingent or
--------
otherwise, of a Person with respect to any Indebtedness or other obligation or
liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
-11-
"Guaranty Agreements" shall mean, collectively, the Amended and
-------------------
Restated Guaranty Agreement, dated as of even date herewith, executed by each of
the Guarantors in favor of the Lenders and the Agent, substantially in the form
of Exhibit H as the same may be amended, restated or supplemented from time to
time.
"Hazardous Substances" shall have the meaning assigned to that term in
--------------------
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Acts of 1986.
"Indebtedness" of any Person shall mean, without duplication (i) all
------------
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or
combinations thereof to the extent required to be disclosed in accordance with
GAAP.
"Intercreditor Agreement" shall mean that certain Intercreditor
-----------------------
Agreement dated as of December 11, 1992 by and among the Lenders and The
Prudential Insurance Company of America, as amended by that certain First
Amendment to Intercreditor Agreement dated as of August 21, 1995, as further
amended by that certain Second Amendment to Intercreditor Agreement, dated as of
even date herewith or such later date as shall be agreed to by the parties, as
hereafter further amended, modified or supplemented.
"Interest Period" shall mean (i) as to any Eurodollar Advances, the
---------------
interest period selected by Intermet pursuant to Section 3.04(a) hereof, and
---------------
(ii) as to any Bid Rate Advances, the interest period requested by Intermet and
agreed to by the participating Lenders pursuant to Section 3.04(b) hereof.
---------------
"Intermet" shall mean Intermet Corporation, a Georgia corporation,
--------
its successors and permitted assigns.
"Investment" shall mean, when used with respect to any Person, any
----------
direct or indirect advance, loan or other extension of credit (other than the
creation of receivables in the ordinary
-12-
course of business) or capital contribution by such Person (by means of
transfers of property to others or payments for property or services for the
account or use of others, or otherwise) to any Person, or any direct or indirect
purchase or other acquisition by such Person of, or of a beneficial interest in,
capital stock, partnership interests, bonds, notes, debentures or other
securities issued by any other Person, in each case, other than an Acquisition.
Each Investment shall be valued as of the date made; provided that any
Investment or portion of an Investment consisting of Debt shall be valued at the
outstanding principal balance thereof as of the date of determination.
"Lender" or "Lenders" shall mean SunTrust, the other banks and lending
------ -------
institutions listed on the signature pages hereof, and each assignee thereof, if
any, pursuant to Section 10.06(c).
----------------
"Lending Office" shall mean for each Lender the office such Lender may
--------------
designate in writing from time to time to Intermet and the Agent with respect to
each Type of Loan.
"Letter of Credit Fee" shall have the meaning set forth in Section
-------------------- -------
3.05(b).
- -------
"Letters of Credit" shall mean the letters of credit issued pursuant
-----------------
to Article II hereof by the Agent for the account of Intermet pursuant to the
----------
Commitments.
"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 by the
beneficiaries thereof (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.
"Leverage Ratio" shall mean, as of any date of determination, the
--------------
ratio, expressed as a percentage, of Funded Debt to Total Capitalization for the
Consolidated Companies.
"LIBOR" shall mean, for any Interest Period, with respect to
-----
Eurodollar Advances under the Commitments, the offered rate for deposits in
Dollars, for a period comparable to the Interest Period and in an amount
comparable to the Agent's portion
-13-
of such Advances, appearing on the Reuters Screen LIBO Page as of 11:00 AM
(London, England time) on the day that is two Business Days prior to the first
day of the Interest Period. If two or more of such rates appear on the Reuters
Screen LIBO Page, the rate shall be the arithmetic mean of such rates. If the
foregoing rate is unavailable from the Reuters Screen for any reason, then such
rate shall be determined by the Agent from Telerate Page 3750 or, if such rate
is also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Agent to Intermet
and the other Lenders; in any such case rounded, if necessary, to the next
higher 1/16 of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, lien,
----
charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title retention
agreement.
"Loans" shall mean, collectively, the Syndicated Loans and the Bid
-----
Rate Loans.
"Margin Regulations" shall mean Regulation G, Regulation T, Regulation
------------------
U and Regulation X of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time.
"Materially Adverse Effect" shall mean any materially adverse change
-------------------------
in (i) the business, results of operations, financial condition, assets or
prospects of the Consolidated Companies, taken as a whole, (ii) the ability of
Intermet to perform its obligations under this Agreement, (iii) the ability of
the other Credit Parties (taken as a whole) to perform their respective
obligations under the Credit Documents, or (iv) the perfection or priority of
the Liens granted in favor of the Agent pursuant to the Security Documents.
"Maturity Date" shall mean the earlier of (i) February 23, 1999, and
-------------
(ii) the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the provisions
of Article VIII.
------------
"Minimum Required Rating" shall mean (i) from Moody's, a long-term
-----------------------
deposit rating of A1 or higher (or comparable rating in the event Moody's
hereafter modifies its rating system for long-term deposits of commercial
banks), and (ii) from S&P, a long-term deposit rating of A+ or higher (or
comparable rating in the event S&P hereafter modifies its rating system for
long-term deposits of commercial banks).
-14-
"Moody's" shall mean Moody's Investors Service, Inc., and its
-------
successors and assigns.
"Multiemployer Plan" shall have the meaning set forth in Section
------------------
4001(a)(3) of ERISA.
"Net Fixed Assets" shall mean, as of any date of determination, the
----------------
net property, plant and equipment of the Consolidated Companies determined in
accordance with GAAP and as reflected on the balance sheet of Intermet.
"Note Purchase Agreement" shall mean that certain Note Purchase
-----------------------
Agreement dated as of December 11, 1992 by and between Intermet and The
Prudential Insurance Company of America, as amended, modified or supplemented.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
-----
Bid Facility Notes.
"Notice of Borrowing" shall have the meaning provided in Section
------------------- -------
3.01(a)(i).
- ----------
"Notice of Continuation/Conversion" shall have the meaning provided
---------------------------------
in Section 3.01(b)(i).
------------------
"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.
"Overnight Advances" shall mean Advances hereunder bearing interest
------------------
based upon the Overnight Rate.
"Overnight Rate" shall mean the rate per annum determined by the Agent
--------------
in good faith as of 11:00 A.M. (local time for the Agent) on each Business Day
to be the rate at which overnight loans are made available to the Agent by the
Federal Reserve Bank of Atlanta, with such rate to remain in effect until
redetermined by the Agent on the next Business Day.
-15-
"Payment Office" shall mean the office specified as the "Payment
--------------
Office" for the Agent on the signature page of the Agent, or such other location
as to which the Agent shall have given written notice to Intermet and the
Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
----
successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted by
---------------
Section 7.02.
- ------------
"Person" shall mean any individual, partnership, firm, corporation,
------
association, joint venture, trust or other entity, or any government or
political subdivision or agency, department or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in Section
----
3(3) of ERISA), including, but not limited to, any defined benefit pension plan,
profit sharing plan, money purchase pension plan, savings or thrift plan, stock
bonus plan, employee stock ownership plan, Multiemployer Plan, or any plan,
fund, program, arrangement or practice providing for medical (including post-
retirement medical), hospitalization, accident, sickness, disability, or life
insurance benefits, but shall exclude any Foreign Plan.
"Pledge Agreement" shall mean, collectively, (i) that certain Pledge
----------------
and Security Agreement executed in favor of the Agent in connection with the
Prior Credit Agreement providing for the grant of first-priority Liens on 66% of
the outstanding stock of Columbus Neunkirchen, and (ii) any other pledge
agreement providing for the grant of first priority Liens on the Pledged Stock.
"Pledged Stock" shall mean, collectively, 49% of the issued and
-------------
outstanding capital stock, together with all warrants, stock options, and other
purchase and conversion rights with respect to such capital stock, of all
Subsidiaries that are Foreign Subsidiaries directly owned by Intermet and/or
owned by one or more other Subsidiaries organized in the United States (other
than Columbus Neunkirchen following the release of the Lien on the stock of
Columbus Neunkirchen pursuant to Section 6.11).
"Prior Credit Agreement" shall have the meaning set forth in the
----------------------
recitals hereof.
"Pro Rata Share" shall mean, with respect to Commitments, each
--------------
Syndicated Loan and all Letters of Credit to be made by and each payment
-16-
(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, set forth under the name of such Lender on the
respective signature page for such Lender, as such percentage may change based
upon amendments and assignments hereunder.
"Prudential" shall mean The Prudential Insurance Company of America.
----------
"Rating Agencies" shall mean, collectively, Moody's and S&P.
---------------
"Regulation D" shall mean Regulation D of the Board of Governors of
------------
the Federal Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean at any time prior to the termination of
----------------
the Commitments, Lenders holding at least 66-2/3% of the then aggregate amount
of the Commitments, or, following the termination of the Commitments hereunder,
Lenders holding at least 66-2/3% of the sum of the aggregate outstanding Loans
and Letter of Credit Obligations.
"Requirement of Law" for any person shall mean the articles or
------------------
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
-17-
"Reuters Screen" shall mean, when used in connection with any
--------------
designated page and LIBOR, the display page so designated on the Reuters Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Revolving Credit Notes" shall mean, collectively, the promissory
----------------------
notes evidencing the Syndicated Loans in the form attached hereto as Exhibit A,
---------
either as originally executed or as hereafter amended, modified or substituted.
"Security Documents" shall mean, collectively, the Guaranty
------------------
Agreements, the Pledge Agreements, and each other guaranty agreement, mortgage,
deed of trust, security agreement, pledge agreement, or other security or
collateral document guaranteeing or securing the Obligations, as the same may be
amended, restated, or supplemented from time to time.
"Shareholders' Equity" shall mean, with respect to any Person as at
--------------------
any date of determination, shareholders' equity of such Person determined on a
consolidated basis in conformity with GAAP.
"Solvent" shall mean, as to Intermet or any Guarantor at any time,
-------
that (i) each of the fair value and the present fair saleable value of such
Person's assets (including any rights of subrogation or contribution to which
such Person is entitled, under any of the Loan Documents or otherwise) is
greater than such Person's debts and other liabilities (including contingent,
unma tured and unliquidated debts and liabilities) and the maximum estimated
amount required to pay such debts and liabilities as such debts and liabilities
mature or otherwise become payable; (ii) such Person is able and expects to be
able to pay its debts and other liabilities (including, without limitation,
contingent, unmatured and unliquidated debts and liabilities) as they mature;
and (iii) such Person does not have unreasonably small capital to carry on its
business as conducted and as proposed to be conducted.
"Subordinated Debt" shall mean other Indebtedness of Intermet
-----------------
subordinated to all obligations of Intermet or any other Credit Party arising
under this Agreement, the Notes, and the Guaranty Agreements on terms and
conditions satisfactory in all respects to the Agent and the Required Lenders,
including without limitation, with respect to interest rates, payment terms,
-18-
maturities, amortization schedules, covenants, defaults, remedies, and
subordination provisions, as evidenced by the written approval of the Agent and
Required Lenders.
"Subsidiary" shall mean, with respect to any Person, any corporation
----------
or other entity (including, without limitation, partnerships, joint ventures,
and associations) regardless of its jurisdiction of organization or formation,
at least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries.
"Syndicated Loans" shall mean, collectively, all outstanding Loans
----------------
made to Intermet by the Lenders pursuant to Section 2.01 hereof.
------------
"Tangible Net Worth" shall mean, as of any date of determination,
------------------
Consolidated Net Worth minus intangible assets of the Consolidated Companies, as
-----
determined in accordance with GAAP as of the last day of the most recent fiscal
quarter of Intermet.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended
--------
and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts,
-----
duties, fees, assessments, deductions, withholdings or other charges of whatever
nature, including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any designated
--------
page and LIBOR, the display page so designated on the Dow Jones Telerate Service
(or such other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Total Assets" shall mean the total assets of the Consolidated
------------
Companies, determined in accordance with GAAP.
-19-
"Total Capitalization" shall mean, as of any date of determination,
--------------------
the sum of Funded Debt and Consolidated Net Worth of the Consolidated Companies.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate
----
Advances, Overnight Rate Advances or Eurodollar Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
----------------------------------
defined or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP, except that financial records of
Foreign Subsidiaries may be maintained in accordance with generally accepted
accounting principles in effect from time to time in the jurisdiction of
organization of such Foreign Subsidiary; provided, however, that compliance with
-------- -------
the financial covenants and calculations set forth in Section 6.08, Article VII,
------------ -----------
and elsewhere herein, and in the definitions used in such covenants and
calculations, shall be calculated, made and applied in accordance with GAAP and
such generally accepted accounting principles in such foreign jurisdictions, as
the case may be, as in effect on the date of this Agreement applied on a basis
consistent with the preparation of the financial statements referred to in
Section 5.14 unless and until Intermet and the Required Lenders enter into an
- ------------
agreement with respect thereto in accordance with Section 10.13.
-------------
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof", "herein"
------------------------
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified. Any of the terms defined in Section
-------
1.01 may, unless the context otherwise requires, be used in the singular or the
- ----
plural depending on the reference.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules
----------------------
attached hereto are by reference made a part hereof.
-20-
ARTICLE II.
SYNDICATED LOANS, BID RATE LOANS AND LETTERS OF CREDIT
------------------------------------------------------
SECTION 2.01. COMMITMENTS; USE OF PROCEEDS.
----------------------------
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees to make to Intermet from time to time on and after
the Closing Date, but prior to the Maturity Date, Syndicated Loans in an
aggregate amount outstanding at any time not to exceed such Lender's Commitment
minus such Lender's Pro Rata Share of the Letter of Credit Obligations, subject,
- -----
however, to the conditions that (i) at no time shall the sum of the (x) the
outstanding principal amount of all Syndicated Loans, plus (y) the outstanding
----
principal amount of all Bid Rate Loans, plus (z) the Letter of Credit
----
Obligations, exceed the sum of the Commitments, (ii) at no time shall the sum of
(x) the outstanding principal amount of all Bid Rate Loans plus (y) the
----
outstanding principal amount of Syndicated Loans comprised of Overnight Rate
Advances, exceed $30,000,000, and (iii) at all times shall the outstanding
principal amount of the Syndicated Loans of each Lender equal the product of
each Lender's Pro Rata Share of the Commitments multiplied by the aggregate
outstanding amount of the Syndicated Loans. Intermet shall be entitled to repay
and reborrow Syndicated Loans in accordance with the provisions hereof.
(b) Each Syndicated Loan shall, at the option of Intermet, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances, Eurodollar Advances, or subject to the
limitation set forth in subsection (a) above, Overnight Rate Advances. The
aggregate principal amount of each Borrowing of Syndicated Loans shall be not
less than $3,000,000 or a greater integral multiple of $250,000, provided that
--------
each Borrowing of Syndicated Loans comprised of Base Rate Advances or Overnight
Rate Advances shall be not less than $1,000,000 or a greater integral multiple
of $100,000. At no time shall the number of outstanding Borrowings comprised of
Eurodollar Advances exceed twelve.
(c) The proceeds of Loans shall be used solely for the following
purposes:
-21-
(i) On the Closing Date all amounts outstanding pursuant to the Prior
Credit Agreement and the letters of credit issued thereunder shall be deemed to
be outstanding hereunder and the Lenders shall make and receive such payments as
the Agent shall direct to pay out the exiting lenders under the Prior Credit
Agreement and to adjust the Pro Rata Shares of the Lenders to reflect the terms
of this Agreement; and
(ii) All other amounts shall be used as working capital and for other
general corporate purposes, including acquisitions, the repayment of
Indebtedness and capital expenditures of the Consolidated Companies.
SECTION 2.02. NOTES; REPAYMENT OF PRINCIPAL.
-----------------------------
(a) Intermet's obligations to pay the principal of, and interest on,
the Syndicated Loans to each Lender shall be evi denced by the records of the
Agent and such Lender and by the Revolving Credit Note payable to such Lender
(or the assignor of such Lender) completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Commitments shall be
due and payable in full on the Maturity Date.
SECTION 2.03. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least
----------------------------------
three (3) Business Days' prior telephonic notice (promptly confirmed in writing)
to the Agent, Intermet shall have the right, without premium or penalty, to
terminate the unutilized Commitments, in part or in whole, provided that (i) any
such termination shall apply to proportionately and permanently reduce the
Commitments of each of the Lenders, and (ii) any partial termination pursuant to
this Section 2.03 shall be in an amount of at least $1,000,000 and integral
------------
multiples of $100,000.
SECTION 2.04. LETTER OF CREDIT FACILITY. Subject to, and upon the
-------------------------
terms and conditions set forth herein, Intermet may request, in accordance with
the provisions of this Section 2.04 and Section 2.05 and the other terms of this
------------ ------------
Agreement, that on and after the Closing Date but prior to the Maturity Date,
the Agent issue a Letter or Letters of Credit for the account of Intermet;
provided that the application for such Letters of Credit issued by the Agent
- --------
shall be in the form substantially identical to Exhibit C attached hereto,
---------
provided further that (i) no Letter
- ----------------
-22-
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) except for the terms of
certain Letters of Credit described on Schedule 7.01 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 Maturity Date; and (iii) Intermet shall not
request that the Agent issue any Letter of Credit, if, after giving effect to
such issuance, the sum of the aggregate Letter of Credit Obligations plus the
----
aggregate outstanding principal amount of the Syndicated Loans plus the
----
aggregate outstanding principal amount of the Bid Rate Loans would exceed the
Commitments.
SECTION 2.05. 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 a
written notice no later than 11:00 AM (local time for the Agent) at least five
(5) days in advance of the proposed date of issuance and the Agent shall
promptly forward a copy of such notice to each of the Lenders. 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 AM (Atlanta, Georgia time). In determining whether to pay any draft 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
-23-
Letter of Credit, the Agent shall notify each Lender of such Lender's respective
participation therein, determined in accordance with its respective Pro Rata
Share of the 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 2.05(a). Immediately upon
---------------
the issuance of each Letter of Credit, each 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
Lender's Pro Rata Share of the 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 Lenders.
(c) As of the Closing Date, each of the Letters of Credit set forth
on Schedule 7.01 shall be deemed to have been issued by the Agent in accordance
-------------
with the terms hereof, each of the Lenders shall be deemed to have purchased a
participation in such Letters of Credit in an amount equal to such Lender's Pro
Rata Share of the Commitments multiplied by the face amount thereof, and such
Letters of Credit shall be governed by the terms hereof.
SECTION 2.06. PAYMENT OF AMOUNTS DRAWN UNDER LETTERS 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
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, equal to the amount of such drawing.
(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 Maturity 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
-24-
Credit on the Maturity Date which amount shall be held by the Agent as cash
collateral for its remaining obligations pursuant to such Letters of Credit.
(c) 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 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 2.07. PAYMENT BY LENDERS. In the event that Intermet shall
------------------
fail to reimburse the Agent as provided in Section 2.06, the Agent shall
------------
promptly notify each Lender of the unreimbursed amount of such drawing and of
such Lender's respective participation therein. Each 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 Lender
-25-
fails to make available to the Agent the amount of such Lender's participation
in such Letter of Credit, the Agent shall be entitled to recover such amount on
demand from such Lender together with interest as provided for in Section 3.02.
------------
The Agent shall distribute to each Lender which has paid all amounts payable
under this Section with respect to any Letter of Credit, such 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 2.08 BID RATE LOANS. Subject to the terms and conditions
--------------
hereof, Intermet may request, and each Lender, in its sole discretion, may agree
to make Bid Rate Advances in accordance with the following procedure; provided,
--------
that, (x) at no time shall the sum of the aggregate outstanding principal amount
- ----
of the Bid Rate Loans plus the aggregate outstanding amount of all Syndicated
----
Loans outstanding as Overnight Rate Advances, exceed $30,000,000, and (y) at no
time shall the sum of the outstanding principal amount of the Loans plus the
----
Letter of Credit Obligations exceed the sum of Commitments:
(a) In order to request Bid Rate Bids, Intermet shall telecopy to the
Agent a duly completed Bid Request in the form of Exhibit D attached hereto
---------
(which may request not more than two Bid Rate Bids), to be received by the Agent
not later than 11:00 a.m. (local time for the Agent) time, on the Business Day
of the proposed Bid Rate Loan or Loans; provided that, such Bid Request shall
-------- ----
not be deemed to have been received by the Agent in a timely manner unless
Intermet shall also have notified the Agent by telephone (excluding voice mail
notification) of such Bid Request by the time specified above. A Bid Request
that does not conform substantially to the format of Exhibit D may be rejected
---------
in the Agent's sole discretion, and the Agent shall notify Intermet of such
rejection by telecopy not later than 12:00 noon (Atlanta, Georgia time) on the
date of receipt. Such request shall in each case refer to this Agreement and
specify (i) the date of such Borrowing or Borrowings (which shall be a Business
Day) and (ii) the aggregate principal amount thereof which shall be in a minimum
principal amount of $1,000,000 and in an integral multiple of $100,000, and
(iii) the Interest Period with respect thereto. Promptly after its receipt of a
Bid Request that is not rejected as aforesaid, the Agent shall invite by
telecopy (substantially in the form set forth in Exhibit E attached hereto) the
---------
Lenders to bid, on the terms and conditions of this Agreement, to make Bid Rate
Advances pursuant to the Bid Request.
-26-
(b) Each Lender may, in its sole discretion, make one or more Bid Rate
Bids (but not more than two) to Intermet responsive to a Bid Request. Each Bid
Rate Bid by a Lender must be received by the Agent via telecopy, substantially
in the form of Exhibit F attached hereto, not later than 12:00 noon (local time
---------
for the Agent) on the Business Day of the proposed Bid Rate Loan. Multiple bids
(not to exceed two per Lender) will be accepted by the Agent. Bid Rate Bids
that do not conform substantially to the format of Exhibit F may be rejected by
---------
the Agent acting in consultation with Intermet, and the Agent shall notify the
Lender making such nonconforming bid of such rejection as soon as practicable.
Each Bid Rate Bid shall refer to this Agreement and specify (i) the principal
amount (which shall be in a minimum principal amount of $1,000,000 and in an
integral multiple of $100,000 and which may equal the entire principal amount
of the Bid Rate Loan requested by Intermet) of the Bid Rate Advance or Advances
that the Lender is willing to make to Intermet, (ii) the Bid Rate or Rates at
which the Lender is prepared to make the Bid Rate Advance or Advances, and (iii)
the Interest Period and the last day thereof. If any Lender shall elect not to
make a Bid Rate Bid, such Lender shall so notify the Agent via telecopy by the
time specified above for submitting a Bid Rate Bid; provided, however, that
-------- -------
failure by any Lender to give such notice shall not cause such Lender to be
obligated to make any Bid Rate Advance as part of such Bid Rate Loan. A Bid
Rate Bid submitted by a Lender pursuant to this paragraph (b) shall be
irrevocable (absent manifest error).
(c) The Agent shall promptly notify Intermet by telecopy of all the
Bid Rate Bids made, the Bid Rate and the principal amount of each Bid Rate
Advance in respect of which a Bid Rate Bid was made and the identity of the
Lender that made each bid. The Agent shall send a copy of all Bid Rate Bids to
Intermet for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.08.
------------
(d) Intermet may, in its sole and absolute discre tion, subject only
to the provisions of this paragraph (d), accept or reject any Bid Rate Bid
referred to in paragraph (c) above. Intermet shall notify the Agent by
telephone, confirmed by telecopy in the form of a Bid Accept/Reject Letter,
whether and to what extent it has decided to accept or reject any of or all the
bids referred to in paragraph (c) above not later than 12:30 p.m. (local time
for the Agent) on the Business Day of the proposed Bid Loan; provided, however,
-------- -------
that (i) the failure by Intermet to give
-27-
such notice shall be deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) Intermet shall not accept a bid made at a particular
Bid Rate if Intermet has decided to re ject a bid made at a lower Bid Rate,
(iii) the aggregate amount of the Bid Rate Bids accepted by Intermet shall not
exceed the principal amount specified in the Bid Request, (iv) if Intermet shall
accept a bid or bids made at a particular Bid Rate but the amount of such bid or
bids shall cause the total amount of bids to be accepted by Intermet to exceed
the amount specified in the Bid Request, then Intermet shall accept a portion of
such bid or bids in an amount equal to the amount specified in the Bid Request
less the amount of all other Bid Rate Bids accepted with respect to such Bid
Request, which acceptance, in the case of multiple bids at the same Bid Rate,
shall be made pro rata in accordance with the amount of each such bid at such
Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted
for a Bid Rate Loan unless such Bid Rate Loan is in a minimum principal amount
of $1,000,000 and an integral multiple of $100,000; provided further, however,
-------- ------- -------
that if a Bid Loan must be in an amount less than $1,000,000 because of the
provisions of clause (iv) above, such Bid Loan may be for a minimum of $500,000
or any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of $500,000 in a
manner which shall be in the discretion of Intermet. A notice given by Intermet
pursuant to this paragraph (d) shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender whether or not
its Bid Rate Bid has been accepted (and if so, in what amount and at what Bid
Rate) and shall notify each Lender as to the amount, Interest Period and Bid
Rate of each Bid Rate Bid accepted by Intermet by telecopy sent by the Agent,
and each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Bid Rate Loan in respect of which its
bid has been accepted.
(f) Intermet shall not submit a Bid Request more than twice in any
seven day period.
(g) If the Agent shall elect to submit a Bid Rate Bid in its capacity
as a Lender, it shall submit such bid directly to Intermet one half of an hour
earlier than the earliest time at which the other Lenders are required to submit
their bids to the Agent pursuant to paragraph (b) above.
-28-
(h) Each Lender participating in any Bid Rate Loan shall make its Bid
Rate Advance available to the Agent on the date specified in the Bid Request at
the time and in the manner and subject to the provisions specified in Section
-------
3.02.
- ----
(i) The Bid Rate Advances of each Lender shall be evidenced by its Bid
Facility Note and shall be due and payable in full on the Maturity Date unless
sooner accelerated pursuant to Article VIII hereof.
------------
ARTICLE III.
GENERAL LOAN AND LETTER OF CREDIT TERMS
---------------------------------------
SECTION 3.01. FUNDING NOTICES.
---------------
(a) (i) Whenever Intermet desires to obtain a Syndicated Loan with
respect to the Commitments (other than one resulting from a conversion or
continuation pursuant to Section 3.01(b)(i)), it shall give the Agent prior
------------------
written notice (or telephonic notice promptly confirmed in writing) of such
Borrowing (a "Notice of Borrowing"), such Notice of Borrowing to be given prior
-------------------
to 11:00 AM (local time for the Agent) at its Payment Office (x) three Business
Days prior to the requested date of such Borrowing in the case of Eurodollar
Advances, and (y) on the date of such Borrowing (which shall be a Business Day)
in the case of a Borrowing consisting of Overnight Rate Advances or Base Rate
Advances. Notices received after 11:00 AM shall be deemed received on the next
Business Day. Each Notice of Borrowing shall be irrevocable and shall specify
the aggregate principal amount of the Borrowing, the date of Borrowing (which
shall be a Business Day), and whether the Borrowing is to consist of Base Rate
Advances, Overnight Rate Advances or Eurodollar Advances and (in the case of
Eurodollar Advances) the Interest Period to be applicable thereto.
(ii) Whenever Intermet desires to obtain a Bid Rate Loan, it shall
notify the Agent in accordance with the procedure set forth in Section 2.08
------------
hereof.
(b) (i) Whenever Intermet desires to convert all or a portion of
an outstanding Borrowing under the Commitments, which Borrowing consists of Base
Rate Advances, Overnight Rate
-29-
Advances or Eurodollar Advances, into one or more Borrowings consisting of
Advances of another Type, or to continue outstanding a Borrowing consisting of
Eurodollar Advances for a new Interest Period, it shall give the Agent at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be converted into or continued
as Eurodollar Advances. Such notice (a "Notice of Conversion/Continuation")
---------------------------------
shall be given prior to 11:00 AM (local time for the Agent) on the date
specified at the Payment Office of the Agent. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify the aggregate
principal amount of the Advances to be converted or continued, the date of such
conversion or continuation, whether the Advances are being converted into or
continued Eurodollar Advances and, if so, the Interest Period applicable
thereto. If, upon the expiration of any Interest Period in respect of any
Borrowing, Intermet shall have failed to deliver the Notice of
Conversion/Continuation, Intermet shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So
long as any Executive Officer of Intermet has knowledge that any Default or
Event of Default shall have occurred and be continuing, no Borrowing may be
converted into or continued as (upon expiration of the current Interest Period)
Eurodollar Advances unless the Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any Borrowing of Eurodollar
Advances shall be permitted except on the last day of the Interest Period in
respect thereof.
(ii) Upon the expiration of the applicable Interest Period with
respect to Bid Rate Loans, Intermet shall repay such Loan in full in accordance
with the terms hereof.
(c) Without in any way limiting Intermet's obligation to confirm in
writing any telephonic notice, the Agent may act without liability upon the
basis of telephonic notice believed by the Agent in good faith to be from
Intermet prior to receipt of written confirmation. In each such case, Intermet
hereby waives the right to dispute the Agent's record of the terms of such
telephonic notice.
(d) The Agent shall promptly give each Lender notice by telephone
(confirmed in writing) or by telex, telecopy or facsimile transmission of the
matters covered by the notices given to the Agent pursuant to this Section 3.01
------------
with respect to the Commitments.
-30-
SECTION 3.02. DISBURSEMENT OF FUNDS.
---------------------
(a) No later than 12:00 Noon (local time for the Agent) on the date of
each Syndicated Loan pursuant to the Commitments (other than one resulting from
a conversion or continuation pursuant to Section 3.01(b)(i)), each Lender will
------------------
make available its Pro Rata Share of such Syndicated Loan in immediately
available funds at the Payment Office of the Agent. The Agent will make
available to Intermet the aggregate of the amounts (if any) so made available by
the Lenders to the Agent in a timely manner by crediting such amounts to
Intermet's demand deposit account maintained with the Agent or at Intermet's
option, effecting a wire transfer of such amounts to an account specified by
Intermet, by the close of business on such Business Day. In the event that the
Lenders do not make such amounts available to the Agent by the time prescribed
above, but such amount is received later that day, such amount may be credited
to Intermet in the manner described in the preceding sentence on the next
Business Day (with interest on such amount to begin accruing hereunder on such
next Business Day).
(b) No later than 3:00 P.M. (local time for the Agent) on the date of
each Bid Rate Loan, the Lenders participating in such Bid Rate Loan will make
available the amount of its Bid Rate Advance in immediately available funds at
the Payment Office of the Agent on the date of such Bid Rate Loan.
(c) Unless the Agent shall have been notified by any Lender prior to
the date of a Borrowing that such Lender does not intend to make available to
the Agent such Lender's portion of the Borrowing to be made on such date, the
Agent may assume that such Lender has made such amount available to the Agent on
such date and the Agent may make available to Intermet a corresponding amount.
If such corresponding amount is not in fact made available to the Agent by such
Lender on the date of Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify
Intermet, and Intermet shall immediately pay such corresponding amount to the
Agent together with interest at the rate specified for the Borrowing. Nothing
in this subsection shall be deemed to relieve any Lender from its obligation to
fund its Commitment or Bid Rate Loans hereunder or to prejudice any
-31-
rights which Intermet may have against any Lender as a result of any default by
such Lender hereunder.
(d) All Syndicated Loans under the Commitments shall be loaned by the
Lenders on the basis of their Pro Rata Share of the Commitments. All Bid Rate
Loans shall be loaned by the Lenders participating therein in accordance with
their respective pro rata shares thereof as determined in accordance with
Section 2.08 with respect to each Bid Loan. No Lender shall be responsible for
- ------------
any default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Commitments or Bid
Rate Loans hereunder.
SECTION 3.03. INTEREST.
--------
(a) Intermet agrees to pay interest in respect of all unpaid principal
amounts of Syndicated Loans from the respective dates such principal amounts
were advanced to maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time to
time;
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate plus
----
the Applicable Margin; or
(iii) For Overnight Rate Advances -- The relevant Overnight Rate plus
----
one and one-half of one percent (1.5%) per annum;
(b) Intermet agrees to pay interest in respect of all unpaid principal
amounts of the Bid Rate Loans made to Intermet from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at the Bid Rate established for such Loan pursuant to
Section 2.08;
- ------------
(c) Overdue principal and, to the extent not prohibited by applicable
law, overdue interest, in respect of the Loans, and all other overdue amounts
owing hereunder, shall bear interest from each date that such amounts are
overdue:
-32-
(i) in the case of overdue principal and interest with respect to all
Loans outstanding as Eurodollar Advances and Bid Rate Advances, at the rate
otherwise applicable for the then-current Interest Period plus an
additional two percent (2.0%) per annum; thereafter at the rate in effect
for Base Rate Advances plus an additional two percent (2.0%) per annum; and
----
(ii) in the case of overdue principal and interest with respect to all
other Loans outstanding as Base Rate Advances, and all other Obligations
hereunder (other than Loans), at a rate equal to the applicable Base Rate
plus an additional two percent (2.0%) per annum;
----
(d) Interest on each Loan shall accrue from and including the date of
such Loan to but excluding the date of any repayment thereof; provided that, if
-------- ----
a Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all Base Rate Advances and Overnight Rate Advances shall be
payable quarterly in arrears on the last calendar day of each calendar quarter
of Intermet in each year. Interest on all outstanding Eurodollar Advances and
Bid Rate Advances shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of Interest Periods in excess of three
months (in the case of Eurodollar Advances and Bid Rate Advances), on each day
which occurs every 3 months, as the case may be, after the initial date of such
Interest Period. Interest on all Loans shall be payable on any conversion of
any Advances comprising such Loans into Advances of another Type, prepayment (on
the amount prepaid), at maturity (whether by acceleration, notice of prepayment
or otherwise) and, after maturity, on demand; and
(e) The Agent, upon determining the Adjusted LIBO Rate for any
Interest Period, shall promptly notify by telephone (confirmed in writing) or in
writing Intermet and the other Lenders. Any such determination shall, absent
manifest error, be final, conclusive and binding for all purposes.
SECTION 3.04. INTEREST PERIODS.
----------------
(a) In connection with the making or continuation of, or conversion
into, each Borrowing of Eurodollar Advances, Intermet shall select an Interest
Period to be applicable to such Eurodollar Advances, which Interest Period shall
be either a 1, 2, 3 or 6 month period.
-33-
(b) In connection with the making of each Bid Rate Loan, Intermet
shall request an Interest Period to be applicable thereto, which Interest Period
shall be for a minimum of seven (7) days and a maximum of ninety (90) days,
which request may be accepted or rejected by the Lenders as provided in Section
-------
2.08 hereof.
- ----
(c) Notwithstanding paragraphs (a) or (b) above:
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing consisting of Advances of another Type) and each
Interest Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day, provided that if any Interest Period in respect of Eurodollar
--------
Advances would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall, subject to part (iv)
below, expire on the last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend beyond
the Maturity Date.
SECTION 3.05. FEES.
----
(a) Intermet shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender (subject to the
last sentence hereof), a commitment fee (the "Commitment Fee") for the period
commencing on the Closing Date to and including the Maturity Date, computed at a
rate equal to one quarter of one percent (0.25%) per annum on the average daily
unused portion of the Commitments of the Lenders, such fee
-34-
being payable quarterly in arrears on the date which is five days following the
last day of each fiscal quarter of Intermet and on the Maturity Date; provided
--------
that, on any date that the Applicable Margin applicable to the Borrowings
- ----
comprised of Eurodollar Advances is less than 0.625% per annum, the Commitment
Fee payable pursuant to this subsection (a) shall be computed at a rate equal
to one-fifth of one percent (0.20%) per annum. For purposes of calculating the
Commitment Fee, Bid Rate Loans shall be considered a usage of the Commitments
only with respect to the Lenders participating therein and only to the extent of
such Lenders' actual participations.
(b) Intermet agrees to pay to the Agent, for the account of the
Lenders, a letter of credit fee equal to the Applicable Margin applicable to
Eurodollar Advances 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 date which is five days
following the last day of each fiscal quarter of Intermet, and on the Maturity
Date.
(c) Intermet shall pay to the Agent such fees for its administrative
services in the respective amounts and on the dates as previously agreed in
writing by Intermet with the Agent.
SECTION 3.06. VOLUNTARY PREPAYMENTS OF BORROWINGS.
-----------------------------------
(a) Intermet may, at its option, prepay Borrowings consisting of Base
Rate Advances, Bid Rate Advances and Overnight Rate Advances at any time in
whole, or from time to time in part, in amounts aggregating $250,000 or any
greater integral multiple of $1,000, by paying the principal amount to be
prepaid together with interest accrued and unpaid thereon to the date of
prepayment, together with, in the case of Bid Rate Advances, all compensation
payments pursuant to Section 3.12 if such prepayment is made on a date other
------------
than the last day of the Interest Period applicable thereto. Those Borrowings
consisting of Eurodollar Advances may be prepaid, at Intermet's option, in
whole, or from time to time in part, in amounts aggregating $1,000,000 or any
greater integral multiple of $100,000, by paying the principal amount to be
prepaid, together with interest accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant to Section 3.12 if such
------------
prepayment is made on a date other than the last day of an Interest Period
applicable thereto.
-35-
Each such optional prepayment shall be applied in accordance with Section
-------
3.06(c) below.
- -------
(b) Intermet shall give written notice (or telephonic notice confirmed
in writing) to the Agent of any intended prepayment of the Loans (i) prior to
12:00 Noon (local time for the Agent), on the date of any prepayment of Base
Rate Advances, Overnight Rate Advances and Bid Rate Advances and (ii) not less
than three Business Days prior to any prepayment of Eurodollar Advances. Such
notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment, the Agent shall promptly notify each Lender of the contents of such
notice and of such Lender's share of such prepayment (provided that notices of
prepayments of Bid Rate Loans shall only be given to the Lenders participating
therein).
(c) Intermet, when providing notice of prepayment pursuant to Section
-------
3.06(b), may designate the Types of Advances and the specific Borrowing or
- -------
Borrowings which are to be prepaid provided that each prepayment made pursuant
to a single Borrowing shall be applied pro rata among the Advances comprising
such Borrowing. In the absence of a designation by Intermet, the Agent shall,
subject to the foregoing, make such designation in its sole discretion. All
voluntary prepayments shall be applied to the payment of interest on the
Borrowings prepaid before application to principal.
SECTION 3.07. PAYMENTS, ETC.
--------------
(a) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents, other than the payments
specified in clause (ii) below, shall be made without defense, set-off or
counterclaim to the Agent not later than 1:00 PM (local time for the Agent) on
the date when due and shall be made in Dollars in immediately available funds at
its Payment Office.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this Agreement, the
Notes or other Credit Documents, or any payments of principal, interest, fees or
other amounts payable hereunder or thereunder (but excluding, except as provided
in paragraph (iii) hereof, any Taxes imposed on the overall net income of the
Lenders pursuant to the laws of the jurisdiction in which the principal
executive office or appropriate Lending Office
-36-
of such Lender is located). If any Taxes are so levied or imposed, Intermet
agrees (A) to pay the full amount of such Taxes, and such additional amounts as
may be necessary so that every net payment of all amounts due hereunder and
under the Notes and other Credit Documents, after withholding or deduction for
or on account of any such Taxes (including additional sums payable under this
Section 3.07), will not be less than the full amount provided for herein had no
- ------------
such deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority in
accordance with applicable law. Intermet will furnish to the Agent and each
Lender, within 30 days after the date the payment of any Taxes is due pursuant
to applicable law, certified copies of tax receipts evidencing such payment by
Intermet. Intermet will indemnify and hold harmless the Agent and each Lender
and reimburse the Agent and each Lender upon written request for the amount of
any Taxes so levied or imposed and paid by the Agent or Lender and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes were correctly or illegally asserted.
A certificate as to the amount of such payment by such Lender or the Agent,
absent manifest error, shall be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) agrees to furnish to Intermet and the Agent, prior to the
time it becomes a Lender hereunder, two copies of either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any successor
forms thereto (wherein such Lender claims entitlement to complete exemption from
or reduced rate of U.S. Federal withholding tax on interest paid by Intermet
hereunder) and to provide to Intermet and the Agent a new Form 4224 or Form 1001
or any successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of any
previously delivered form; provided, however, that no Lender shall be required
-------- -------
to furnish a form under this paragraph (ii) if it is not entitled to claim an
exemption from or a reduced rate of withholding under applicable law. A Lender
that is not entitled to claim an exemption from or a reduced rate of withholding
under applicable law, promptly upon written request of Intermet, shall so inform
Intermet in writing.
(iii) Intermet shall also reimburse the Agent and each Lender,
upon written request, for any Taxes imposed
-37-
(including, without limitation, Taxes imposed on the overall net income of the
Agent or Lender or its applicable Lending Office pursuant to the laws of the
jurisdiction in which the principal executive office or the applicable Lending
Office of the Agent or Lender is located) as the Agent or Lender shall determine
are payable by the Agent or Lender in respect of amounts paid by or on behalf of
Intermet to or on behalf of the Agent or Lender pursuant to paragraph (i)
hereof.
(c) Subject to Section 3.04(ii), whenever any payment to be made
----------------
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis
of a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed), except that
interest on Base Rate Advances shall be computed on the basis of a year of
365/366 days for the actual number of days. Interest on Base Rate Advances
shall be calculated based on the Base Rate from and including the date of such
Loan to but excluding the date of the repayment or conversion thereof. Interest
on Eurodollar Advances and Bid Rate Advances shall be calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Each determination by the Agent of an interest rate or fee
hereunder shall be made in good faith and, except for manifest error, shall be
final, conclusive and binding for all purposes.
(e) Payment by Intermet to the Agent in accordance with the terms of
this Agreement shall, as to Intermet, constitute payment to the Lenders under
this Agreement.
SECTION 3.08. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event
-------------------------------------
that the Agent shall have determined (which determination shall be made in good
faith and, absent manifest error, shall be final, conclusive and binding upon
all parties) that on any date for determining the Adjusted LIBO Rate for any
Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Agent's position in such
market, adequate and fair means do not
-38-
exist for ascertaining the applicable interest rate on the basis provided for in
the definition of Adjusted LIBO Rate then, and in any such event, the Agent
shall forthwith give notice (by telephone confirmed in writing) to Intermet and
to the Lenders, of such determination and a summary of the basis for such
determination. Until the Agent notifies Intermet that the circumstances giving
rise to the suspension described herein no longer exist, the obligations of the
Lenders to make or permit portions of the Loans to remain outstanding past the
last day of the then current Interest Periods as Eurodollar Advances shall be
suspended, and such affected Advances shall bear the same interest at the Base
Rate (or at such other rate of interest per annum as Intermet and each of the
Agent and the Lenders shall have agreed to in writing).
SECTION 3.09. ILLEGALITY.
----------
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to Intermet
and to the Agent of such determination and a summary of the basis for such
determination (which notice the Agent shall promptly transmit to the other
Lenders).
(b) Upon the giving of the notice to Intermet referred to in
subsection (a) above, (i) Intermet's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of Eurodollar
Advances, bearing interest at the Base Rate (or at such other rate of interest
per annum as Intermet and each of the Agent and the Lenders shall have agreed to
in writing), which Base Rate Advance shall, for all other purposes, be
considered part of such Borrowing, and (ii) if the affected Eurodollar Advance
or Advances are then outstanding, Intermet shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at least one
Business Day's written notice to the Agent and the affected Lender, convert each
such Advance into an Advance or
-39-
Advances of a different Type with an Interest Period ending on the date on which
the Interest Period applicable to the affected Eurodollar Advances expires,
provided that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 3.09(b).
---------------
(c) Notwithstanding any other provision contained in this Agreement,
the Agent shall not be obligated to issue any Letter of Credit, nor shall any
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 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 Lender to purchase such
- --------
participation, such 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 2.04 and Section 2.05 hereof.
------------ ------------
SECTION 3.10. INCREASED COSTS.
---------------
(a) (i) If, by reason of (x) after the date hereof, the introduction
of or any change (including, without limitation, any change by way of imposition
or increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not having
the force of law):
(1) any Lender (or its applicable Lending Office) shall be subject to
any tax, duty or other charge with respect to its Eurodollar Advances, Letter of
Credit Obligations or its obligation to make Eurodollar Advances or to issue
Letters of Credit, or the basis of taxation of payments to any Lender of the
principal of or interest on its Eurodollar Advances or its obligation to make
Eurodollar Advances or to issue Letters of Credit shall have changed (except for
changes in the tax on the overall net income of such Lender or its applicable
Lending Office imposed by the
-40-
jurisdiction in which such Lender's principal executive office or applicable
Lending Office is located); or
(2) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender's applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its Eurodollar Advances, Letter of
Credit Obligations or its obligation to make Eurodollar Advances shall be
imposed on any Lender or its applicable Lending Office or the London interbank
market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances or
Letters of Credit (except to the extent already included in the determination of
the applicable Adjusted LIBO Rate), or there shall be a reduction in the amount
received or receivable by such Lender or its applicable Lending Office, then
Intermet shall from time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b)), or
---------------
(ii) in the event that any Lender shall have determined that any
law,treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any re quest or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the ef fect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be mate rial;
then, in the case of (i) or (ii) above, upon written notice from and demand by
such Lender on Intermet (with a copy of such notice
-41-
and demand to the Agent), Intermet shall pay to the Agent for the account of
such Lender within five Business Days after the date of such notice and demand,
additional amounts sufficient to indemnify such Lender against such increased
cost or reduced yield. A certificate as to the amount of such increased cost or
reduced yield submitted to Intermet and the Agent by such Lender in good faith
and accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time, because of
the circumstances described in clauses (x) or (y) in Section 3.10(a) or any
---------------
other circumstances beyond such Lender's reasonable control arising after the
date of this Agreement affecting such Lender or the London interbank market or
such Lender's position in such markets, the Adjusted LIBO Rate as determined by
the Agent, will not adequately and fairly reflect the cost to such Lender of
funding its Eurodollar Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed in
writing) to Intermet and to the other Lenders of such advice;
(ii) Intermet's right to request and such Lender's obligation to make
or permit portions of the Loans to remain outstanding past the last day of the
then current Interest Periods as Eurodollar Advances shall be immediately
suspended; and
(iii) such Lender shall make an Advance as part of the requested
Borrowing of Eurodollar Advances, as the case may be, bearing interest at the
Base Rate (or at such other rate of interest per annum as Intermet and each of
the Agent and the Lenders shall have agreed to in writing), which Base Rate
Advance shall, for all other purposes, be considered part of such Borrowing.
SECTION 3.11. LENDING OFFICES.
---------------
(a) Each Lender agrees that, if requested by Intermet, it will use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate an alternate Lending Office with respect to any of its Eurodollar
Advances
-42-
affected by the matters or circumstances described in Sections 3.07(b), 3.08,
---------------- ----
3.09 or 3.10 to reduce the liability of Intermet or avoid the results provided
- ---- ----
thereunder, so long as such designation is not disadvantageous to such Lender as
determined by such Lender, which determination if made in good faith, shall be
conclusive and binding on all parties hereto. Nothing in this Section 3.11
------------
shall affect or postpone any of the obligations of Intermet or any right of any
Lender provided hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the closing
of its lending offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be required to be
made by Intermet thereafter pursuant to Section 3.07(b), such Lender shall use
---------------
reasonable efforts to furnish Intermet notice thereof as soon as practicable
thereafter; provided, however, that no delay or failure to furnish such notice
-------- -------
shall in any event release or discharge Intermet from its obligations to such
Lender pursuant to Section 3.07(b) or otherwise result in any liability of such
---------------
Lender.
SECTION 3.12. FUNDING LOSSES. Intermet shall compensate each Lender,
--------------
upon its written request to Intermet (which request shall set forth the basis
for requesting such amounts in reasonable detail and which request shall be made
in good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Advances or Bid Rate
Advances, in either case to the extent not recovered by such Lender in
connection with the re-employment of such funds and including loss of
anticipated profits), which the Lender may sustain: (i) if for any reason
(other than a default by such Lender) a borrowing of, or conversion to or
continuation of, Eurodollar Advances or Bid Rate Advances to Intermet does not
occur on the date specified therefor in a Notice of Borrowing, Bid Request or
Notice of Conversion/Continuation, (whether or not withdrawn), (ii) if any
repayment (including mandatory prepayments and any conversions pursuant to
Section 3.09(b)) of any Eurodollar Advances or Bid Rate Advances by Intermet
- ---------------
occurs on a date which is not the last day of an Interest Period applicable
thereto, or (iii) if,
-43-
for any reason, Intermet defaults in its obligation to repay its Eurodollar
Advances when required by the terms of this Agreement.
SECTION 3.13. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
-----------------------------------------------------
Calculation of all amounts payable to a Lender under this Article III shall be
-----------
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Eurodollar Advances in an amount equal to the amount of
the Eurodollar Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that Lender in the United
States of America; provided however, that each Lender may fund each of its
----------------
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall
be used only for calculation of amounts payable under this Article III.
-----------
SECTION 3.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and
-------------------------
interest payments in respect of Loans and payments in respect of Letter of
Credit Fees and Commitment Fees shall be apportioned among all outstanding
Commitments, Letter of Credit Obligations and and Loans to which such payments
relate, proportionately to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans and Letter of Credit Obligations. The Agent
shall promptly distribute to each Lender at its Payment Office set forth beside
its name on the appropriate signature page hereof or such other address as any
Lender may re quest its share of all such payments received by the Agent.
SECTION 3.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain
-------------------------
any payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such obligations obtained by all the
Lenders (other than, prior to the termination of the Commitments, payments of
principal, interest and fees with respect to the Bid Rate Loans which are
payable solely to the Lenders participating therein), such Lender shall
forthwith (i) notify each of the other Lenders and Agent of such receipt, and
(ii) purchase from the other Lenders such participations in the affected
obligations as shall be necessary
-44-
to cause such purchasing Lender to share the excess payment or reduction, net of
costs incurred in connection therewith, ratably with each of them, provided that
if all or any portion of such excess payment or reduction is thereafter
recovered from such purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Intermet agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 3.15 may, to the fullest extent permitted by
------------
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Intermet in the amount of such participation.
SECTION 3.16. BENEFITS TO GUARANTORS. In consideration of the
----------------------
execution and delivery by the Guarantors of the Guaranty Agreement, Intermet
agrees, subject to the terms hereof, to make extensions of credit hereunder
available to the Guarantors.
SECTION 3.17. LIMITATION ON CERTAIN PAYMENT OBLIGA TIONS.
------------------------------------------
(a) Each Lender or Agent shall make written demand on Intermet for
indemnification or compensation pursuant to Section 3.07 no later than 90 days
------------
after the earlier of (i) the date on which such Lender or Agent makes payment of
such Taxes, and (ii) the date on which the relevant taxing authority or other
governmental authority makes written demand upon such Lender or Agent for
payment of such Taxes.
(b) Each Lender or Agent shall make written demand on Intermet for
indemnification or compensation pursuant to Sections 3.12 and 3.13 no later than
------------- ----
90 days after the event giving rise to the claim for indemnification or
compensation occurs.
(c) Each Lender or Agent shall make written demand on Intermet for
indemnification or compensation pursuant to Sections 3.09 no later than 90 days
-------------
after such Lender or Agent receives actual notice or obtains actual knowledge of
the promulgation of a law, rule, order or interpretation or occurrence of
another event giving rise to a claim pursuant to such sections.
-45-
(d) In the event that the Lenders or Agent fail to give Intermet
notice within the time limitations prescribed in (a) or (b) above, Intermet
shall not have any obligation to pay such claim for compensation or
indemnification. In the event that any Lender or Agent fails to give Intermet
notice within the time limitation prescribed in (c) above, Intermet shall not
have any obligation to pay any amount with respect to claims accruing prior to
the ninetieth day preceding such written demand.
SECTION 3.18. LETTER OF CREDIT 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 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 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, 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;
-46-
(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.
Nothing in this Section 3.18 shall prevent an action against the Agent for its
------------
gross negligence or willful misconduct in honoring drafts under the Letters of
Credit.
SECTION 3.19. FAILURE TO MAINTAIN MINIMUM REQUIRED RATING. If any
--------------------------------------------
Lender has either (a) had its long-term deposit rating reduced below the Minimum
Required Rating by either Rating Agency, or (b) in the case of a Lender that is
a party to this Agreement on the Closing Date and has, on such date, a long-term
deposit rating from the Rating Agencies below the applicable Minimum Required
Rating, such Lender has received from either Rating Agency a reduction in its
long-term deposit rating from the rating in effect on the Closing Date, such
Lender, will, upon the request of the Agent, assign its Commitment and all of
its right, title and interest in and to any Letters of Credit or Loans
outstanding thereunder, to an Eligible Assignee designated by the Agent and
acceptable to Intermet in accordance with the terms of this Agreement.
ARTICLE IV.
CONDITIONS TO BORROWINGS
------------------------
The obligations of each Lender to make Advances to Intermet and to
issue Letters of Credit for the account of Intermet hereunder is subject to the
satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF
----------------------------------------------------
CREDIT. On the Closing Date, all obligations of Intermet hereunder incurred
- ------
prior to such date (including, without limitation, Intermet's obligations to
reimburse the reasonable fees and expenses of counsel to the Agent and any fees
and expenses payable to the Agent and the Lenders as previously agreed with
Intermet), shall have been paid in full, and the Agent shall have received the
following, in form and substance reasonably satisfactory in all respects to the
Agent:
-47-
(a) the duly executed counterparts of this Agreement;
(b) the duly executed Revolving Credit Notes evidencing the
Commitments and the duly executed Bid Facility Notes;
(c) the duly executed Guaranty Agreement;
(d) certificate of Intermet in substantially the form of Exhibit I
---------
attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable
company officer) attaching and certifying copies of the resolutions of the
boards of directors (or, in the case of any Foreign Subsidiary, the comparable
governing body of such entity) of the Credit Parties, authorizing as applicable
(i) the execution, delivery and performance of the Credit Documents, and (ii)
the granting of the pledges and security interests granted pursuant to the
Pledge Agreements;
(f) certificates of the Secretary or an Assistant Secretary of each of
the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable
company officer) certifying (i) the name, title and true signature of each
officer of such entities executing the Credit Documents, and (ii) the bylaws or
comparable governing documents of such entities;
(g) certified copies of the certificate or articles of incorporation
of each Credit Party (or comparable organizational document of each Foreign
Subsidiary) certified by the Secretary of State or the Secretary or Assistant
Secretary of such Credit Party, together with certificates of good standing or
existence, as may be available from the Secretary of State (or comparable office
or registry for each Foreign Subsidiary) of the jurisdiction of incorporation or
organization of such Credit Party;
(h) examination reports from the Uniform Commercial Code records of
those locations set forth on Schedule 4.01(h), showing no outstanding liens or
----------------
security interests granted by Intermet other than Liens permitted by Section
-------
7.02;
- ----
(i) copies of all documents and instruments, including all
consents, authorizations and filings, required or
-48-
advisable under any Requirement of Law or by any material Contrac tual
Obligation of the Credit Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit Documents and the other
documents to be executed and delivered hereunder, and such consents,
authorizations, filings and orders shall be in full force and effect and all
applicable waiting periods shall have expired;
(j) an internally prepared draft of Intermet's consolidated financial
statements for the fiscal period, ending December 31, 1995, certified by the
chief financial officer of Intermet;
(k) acknowledgments from Rupert M. Barkoff and Kilpatrick & Cody as to
its appointment as agent for service of process for the various Credit Parties;
(l) agreement by the exiting lenders pursuant to the Prior Credit
Agreement to accept payment in full of all obliga tions outstanding under the
Prior Credit Agreement and to release all Liens securing such obligations, and
the establishment of escrow or other arrangements for such repayment and release
of Liens acceptable to the Agent and the Lenders;
(m) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy the Lenders
as to the absence of any material li abilities or obligations arising from
matters relating to employees of the Consolidated Companies, including employee
relations, collective bargaining agreements, Plans, Foreign Plans, and other
compensation and employee benefit plans;
(n) certificates, reports, environmental audits and investigations,
and other information as the Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any material
liabilities or ob ligations arising from environmental and employee health and
safety exposures to which the Consolidated Companies may be subject, and the
plans of the Consolidated Companies with respect thereto;
(o) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy the Lenders
as to the absence of any material li abilities or obligations arising from
litigation (including
-49-
without limitation, products liability and patent infringement claims) pending
or threatened against the Consolidated Companies;
(p) a summary, set forth in format and detail reasonably acceptable to
the Agent, of the types and amounts of insurance (property and liability)
maintained by the Consolidated Companies;
(q) the favorable opinion of Kilpatrick & Cody, United States counsel
to the Credit Parties, substantially in the form of Exhibit J addressed to the
---------
Agent and each of the Lenders;
(r) consent from Prudential to the execution and delivery of this
Agreement and an undertaking from such holders to comply with Section 6.11
hereof in form and substance satisfactory to the Agent and the Required Lenders;
and
(s) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of the
Credit Documents shall be reasonably satisfactory in form and substance to the
Required Lenders.
SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. At the
---------------------------------------------
time of the making of all Loans and the issuance of any Letter of Credit
(before as well as after giving effect to such Loans or Letters of Credit and to
the proposed use of the proceeds thereof), the following conditions shall have
been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Intermet contained herein
shall be 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
of such Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 5.14, there shall have been no
------------
change which has had or could reasonably be expected to have a Materially
Adverse Effect (whether or not any notice with respect to such change has been
furnished to the Lenders pursuant to Section 6.07);
------------
-50-
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Intermet, threatened (i) which reasonably could be expected to have a Materially
Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit
Party's ownership or operation of any portion of its business or assets, or to
compel one or more Credit Party to dispose of or hold separate all or any
portion of its businesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a material portion of the
total businesses or assets of the Consolidated Companies;
(e) the Loans to be made and the use of proceeds thereof or the
Letters of Credit to be issued, as the case may be, shall not contravene,
violate or conflict with, or involve the Agent or any Lender in a violation of,
any law, rule, injunction, or regulation, or determination of any court of law
or other governmental authority applicable to Intermet; and
(f) the Agent shall have received such other docu ments or legal
opinions as the Agent or any Lender may reasonably request, all in form and
substance reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by Intermet of the
proceeds thereof and each request for the issuance of a Letter of Credit shall
constitute a representation and warranty by Intermet, as of the date of the
Loans comprising such Borrowing or the date of the issuance of such Letter of
Credit, that the applicable conditions specified in Sections 4.01 and 4.02 have
------------- ----
been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
------------------------------
Intermet (as to itself and all other Consolidated Companies)
represents and warrants as follows:
SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the
----------------------------------------
Consolidated Companies (other than Columbus Neunkirchen) is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its
-51-
incorporation. Columbus Neunkirchen is a German company with limited liability
duly organized, validly existing and in good standing under the laws of Germany.
Each of the Consolidated Companies (i) has the corporate power and authority
and the legal right to own and operate its property and to conduct its business,
(ii) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership of property or the conduct of its
business requires such qualification, and (iii) is in compliance with all
Requirements of Law, except where the failure to duly qualify or to comply with
applicable Requirements of Law would not have a Materially Adverse Effect. The
jurisdiction of incorporation or organization, and the ownership of all issued
and outstanding capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 5.01.
-------------
SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the Credit
------------------------------
Parties has the corporate power and authority to make, deliver and perform the
Credit Documents to which it is a party and has taken all necessary corporate
action to authorize the execution, delivery and performance of such Credit
Documents. No consent or authorization of, or filing with, any Person (includ
ing, without limitation, any governmental authority), is required in connection
with the execution, delivery or performance by any Credit Party, or the validity
or enforceability against any Credit Party, of the Credit Documents, other than
such consents, authorizations or filings which have been made or obtained (other
than routine filings with the Securities and Exchange Commission).
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement has been duly
-----------------------
executed and delivered, and each other Credit Document will be duly executed and
delivered, by the respective Credit Parties, and this Agreement constitutes, and
each other Credit Document when executed and delivered will constitute, legal,
valid and binding obligations of the Credit Parties, respectively, enforceable
against the Credit Parties in accordance with their respective terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
SECTION 5.04. NO LEGAL BAR. The execution, delivery and performance
------------
by the Credit Parties of the Credit Documents will
-52-
not violate any Requirement of Law or cause a breach or default under any of
their respective Contractual Obligations.
SECTION 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS. Except as
----------------------------------------
set forth on Schedule 5.05 or in any notice furnished to the Lenders pursuant to
-------------
Section 6.07(g) at or prior to the respective times the representations and
- ---------------
warranties set forth in this Section 5.05 are made or deemed to be made
------------
hereunder, no litigation, investigations or proceedings of or before any courts,
tribunals, arbitrators or governmental authorities are pending or, to the
knowledge of Intermet, threatened by or against any of the Consolidated
Companies, or against any of their respective properties or revenues, existing
or future (a) with respect to any Credit Document, or any of the transactions
contemplated hereby or thereby, or (b) which, if adversely determined, would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the Consolidated
---------------------------
Companies is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Consolidated Companies is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting its
ability to incur indebtedness for money borrowed, guarantee such indebtedness,
or pledge its assets to secure such indebtedness, as contemplated hereby or by
any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of any of
------------------
the Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
----------------------------------
(a) Except as set forth on Schedule 5.08 attached hereto, the
-------------
Consolidated Companies have received no notices of claims or potential liability
under, and are in compliance with, all applicable Environmental Laws, where such
claims and liabilities under, and failures to comply with, such statutes,
regulations, rules, ordinances, laws or licenses, would reasonably be expected
to result in penalties, fines, claims or other
-53-
liabilities to the Consolidated Companies in amounts in excess of five percent
(5%) of Tangible Net Worth, either individually or in the aggregate.
(b) Except as set forth on Schedule 5.08 attached hereto, none of the
-------------
Consolidated Companies has received any notice of violation, or notice of any
action, either judicial or administrative, from any governmental authority
(whether United States or foreign) relating to the actual or alleged violation
of any Environmental Law, including, without limitation, any notice of any
actual or alleged spill, leak, or other release of any Hazardous Substance,
waste or hazardous waste by any Consolidated Company or its employees or agents,
or as to the existence of any contamination on any properties owned by any
Consolidated Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to result in penalties, fines, claims
or other liabilities to the Consolidated Companies in amounts in excess of five
percent (5%) of Tangible Net Worth, either individually or in the aggregate.
(c) Except as set forth on Schedule 5.08 attached hereto, the
-------------
Consolidated Companies have obtained all necessary governmental permits,
licenses and approvals which are material to the operations conducted on their
respective properties, including without limitation, all required material
permits, licenses and approvals for (i) the emission of air pollutants or
contaminants, (ii) the treatment or pretreatment and discharge of waste water or
storm water, (iii) the treatment, storage, disposal or generation of hazardous
wastes, (iv) the withdrawal and usage of ground water or surface water, and (v)
the disposal of solid wastes.
SECTION 5.09. INSURANCE. The Consolidated Companies currently
---------
maintain insurance with respect to their respective properties and businesses,
with financially sound and reputable insurers, having coverages against losses
or damages of the kinds customarily insured against by reputable companies in
the same or similar businesses, such insurance being in amounts no less than
those amounts which are customary for such companies under similar
circumstances. The Consolidated Companies have paid all material amounts of
insurance premiums now due and owing with respect to such insurance policies and
coverages, and such policies and coverages are in full force and effect.
-54-
SECTION 5.10. NO DEFAULT. None of the Consolidated Companies is in
----------
default under or with respect to any Contractual Obligation in any respect which
has had or is reasonably expected to have a Materially Adverse Effect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. Except as set forth on
--------------------------
Schedule 5.11 or in any notice furnished to the Lenders pursuant to Section 6.07
- ------------- ------------
at or prior to the respective times the representations and warranties set forth
in this Section 5.11 are made or deemed to be made hereunder, none of the
------------
Consolidated Companies is a party to or bound by any Contractual Obligation or
Requirement of Law which has had or would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.12. TAXES. Except as set forth on Schedule 5.12, each of
----- -------------
the Consolidated Companies has filed or caused to be filed all declarations,
reports and tax returns which are required to have been filed, and has paid all
taxes, custom duties, levies, charges and similar contributions ("taxes" in this
Section 5.12) shown to be due and payable on said returns or on any assessments
- ------------
made against it or its properties, and all other taxes, fees or other charges
imposed on it or any of its properties by any governmental authority (other than
those the amount or validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided in its books); and no tax liens have been filed and, to
the knowledge of Intermet, no claims are being asserted with respect to any such
taxes, fees or other charges.
SECTION 5.13. SUBSIDIARIES. Except as disclosed on Schedule 5.01 or
------------ -------------
in any notice given to the Lenders pursuant to Section 6.07 at or prior to the
------------
respective times this representative and warranty is made or deemed to be made
hereunder, Intermet has no Subsidiaries and neither Intermet nor any Subsidiary
is a joint venture partner or general partner in any partnership.
SECTION 5.14. FINANCIAL STATEMENTS. Intermet has furnished to the
--------------------
Agent and the Lenders (i) the audited consolidated balance sheet as of December
31, 1994 of Intermet and the related consolidated and consolidating statements
of income, shareholders' equity and cash flows for the fiscal year then ended,
including in each case the related schedules and notes,
-55-
(ii) the unaudited balance sheet of Intermet presented on a consolidated basis
as at the end of the third fiscal quarter of 1995, and the related unaudited
consolidated and consolidating statements of income, shareholders' equity and
cash flows presented on a consolidated basis for the year-to-date period then
ended, setting forth in each case in comparative form the figures for the
corresponding quarter of Intermet's previous fiscal year. The foregoing
financial statements fairly present in all material respects the consolidated
and consolidating financial condition of Intermet as at the dates thereof and
results of operations for such periods in conformity with GAAP consistently
applied (sub ject, in the case of the quarterly financial statements, to normal
year-end audit adjustments and the absence of certain footnotes). The
Consolidated Companies taken as a whole do not have any mate rial contingent
obligations, contingent liabilities, or material liabilities for known taxes,
long-term leases or unusual forward or long-term commitments not reflected in
the foregoing financial statements or the notes thereto. Since December 31,
1994, there have been no changes with respect to the Consolidated Companies
which has had or would reasonably be expected to have a Materially Adverse
Effect.
SECTION 5.15. ERISA. Except as disclosed on Schedule 5.15 or in any
----- -------------
notice furnished to the Lenders pursuant to Section 6.07 at or prior to the
------------
respective times the represen tations and warranties set forth in this Section
-------
5.15 are made or deemed to be made hereunder:
- ----
(a)(1) Identification of Plans. (A) None of the Consolidated
-----------------------
Companies nor any of their respective ERISA Affiliates maintains or contributes
to, or has during the past two years maintained or contributed to, any Plan that
is subject to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan maintained by the
----------
Consolidated Companies have at all times been maintained, by their terms and in
operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including without
limitation, any tax or penalty under Title I or Title IV of ERISA or under
Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404, or 419 of the Tax Code, where the failure to
comply with such laws, and such
-56-
taxes and penalties, together with all other liabilities referred to in this
Section 5.15 (taken as a whole), would in the aggregate have a Materially
- ------------
Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to no
-----------
liabilities (including withdrawal liabilities) with respect to any Plans or
Foreign Plans of such Consolidated Companies or any of their ERISA Affiliates,
including without limitation, any liabilities arising from Titles I or IV of
ERISA, other than obligations to fund benefits under an ongoing Plan and to pay
current contributions, expenses and premiums with respect to such Plans or
Foreign Plans, where such liabilities, together with all other liabilities
referred to in this Section 5.15 (taken as a whole), would in the aggregate have
------------
a Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect to any
-------
Plan which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to be
contributed under the terms of each Plan and applicable law, and (b) required to
be paid as expenses (including PBGC or other premiums) of each Plan, where the
failure to pay such amounts (when taken as a whole, including any penalties
attributable to such amounts) would have a Materially Adverse Effect. No Plan
subject to Title IV of ERISA has an "amount of unfunded benefit liabilities" (as
defined in Section 4001(a)(18) of ERISA, determined as if such Plan terminated
on any date on which this representation and warranty is deemed made, in any
amount which, together with all other liabilities referred to in this Section
-------
5.15 (taken as a whole), would have a Materially Adverse Effect if such amount
- ----
were then due and payable. The Consolidated Companies are subject to no
liabilities with respect to post-retirement medical benefits in any amounts
which, together with all other liabilities referred to in this Section 5.15
------------
(taken as a whole), would have a Materially Adverse Effect if such amounts were
then due and payable.
(b) With respect to any Foreign Plan, reasonable reserves have been
established in accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction where the Foreign Subsidiary
maintains its principal place of business or in which the Foreign Plan is
maintained. The aggregate unfunded liabilities, after giving effect to any
reserves for such liabilities, with respect to such Foreign Plans, together with
all other liabilities referred to in this
-57-
Section 5.15 (taken as a whole), would not have a Materially Adverse Effect.
- ------------
SECTION 5.16. PATENTS, TRADEMARKS, LICENSES, ETC. Except as set
-----------------------------------
forth on Schedule 5.16 or in any notice furnished to the Lenders pursuant to
-------------
Section 6.07 at or prior to the respective times the representations and
- ------------
warranties set forth in this Section 5.16 are made or deemed to be made
------------
hereunder, (i) the Con solidated Companies have obtained and hold in full force
and ef fect all material patents, trademarks, service marks, trade names,
copyrights, licenses and other such rights, free from burdensome restrictions,
which are necessary for the operation of their re spective businesses as
presently conducted, and (ii) to the best of Intermet's knowledge, no product,
process, method, service or other item presently sold by or employed by any
Consolidated Company in connection with such business infringes any patents,
trademark, service mark, trade name, copyright, license or other right owned by
any other person and there is not presently pend ing, or to the knowledge of
Intermet, threatened, any claim or litigation against or affecting any
Consolidated Company con testing such Person's right to sell or use any such
product, pro cess, method, substance or other item where the result of such
failure to obtain and hold such benefits or such infringement would have a
Materially Adverse Effect.
SECTION 5.17. OWNERSHIP OF PROPERTY. Except as set forth on
---------------------
Schedule 5.17, (i) each Consolidated Company that is not a Foreign Subsidiary
- -------------
has good and marketable fee simple title to or a valid leasehold interest in all
of its real property and good title to, or a valid leasehold interest in, all of
its other property, and (ii) each Foreign Subsidiary owns or has a valid
leasehold interest in all of its real property and owns or has a valid leasehold
interest in, all of its other properties, in the case of clauses (i) and (ii) as
such properties are reflected in the consolidated balance sheet of the
Consolidated Companies as of December 31, 1994 referred to in Section 5.14,
------------
other than properties disposed of in the ordinary course of business since such
date or as otherwise permitted by the terms of this Agreement, subject to no
Lien or title defect of any kind, except Liens permitted hereby and title
defects not constituting material impairments in the intended use for such
properties. The Consolidated Companies enjoy peaceful and undisturbed
possession under all of their respective leases.
-58-
SECTION 5.18. FINANCIAL CONDITION. On the Closing Date and after
-------------------
giving effect to the transactions contemplated by this Agreement and the other
Credit Documents, including without limitation, the use of the proceeds of the
Loans as provided in Sections 2.01, each of the Credit Parties is solvent.
-------------
SECTION 5.19. LABOR MATTERS. Since December 31, 1992, the
-------------
Consolidated Companies have experienced no strikes, labor disputes, slow downs
or work stoppages due to labor disagreements which have had, or would reasonably
be expected to have, a Materially Adverse Effect, and, to the best knowledge of
Intermet, there are no such strikes, disputes, slow downs or work stoppages
threatened against any Consolidated Company which if they occurred, would
reasonably be expected to have a Materially Adverse Effect. Since December 31,
1992, the hours worked and payment made to employees of the Consolidated
Companies have not been in violation in any material respect of the Fair Labor
Standards Act (in the case of Consolidated Companies that are not Foreign
Subsidiaries) or any other applicable law dealing with such matters. All
payments due from the Consolidated Companies, or for which any claim may be made
against the Consolidated Companies, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as liabilities on
the books of the Consolidated Companies in all jurisdictions where the failure
to pay or accrue such liabilities would reasonably be expected to exceed
$2,000,000 in the aggregate.
SECTION 5.20. PAYMENT OR DIVIDEND RESTRICTIONS. Except as set forth
--------------------------------
in Section 7.05 or described on Schedule 5.20 or as expressly permitted by the
------------ -------------
terms of this Agreement, none of the Consolidated Companies is party to or
subject to any agreement or understanding restricting or limiting the payment of
any dividends or other distributions by any such Consolidated Company.
SECTION 5.21. DISCLOSURE. No representation or warranty contained in
----------
this Agreement (including the Schedules attached hereto) or in any other
document furnished from time to time pursuant to the terms of this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary to make the statements herein or
therein not misleading in any material respect as of the date made or deemed to
be made. Except as may be set forth herein (including the Schedules attached
hereto) or
-59-
in any notice furnished to the Lenders pursuant to Section 6.07 at or prior to
------------
the respective times the representations and warranties set forth in this
Section 5.21 are made or deemed to be made hereunder, there is no fact known to
- ------------
Intermet which has had, or is reasonably expected to have, a Materially Adverse
Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
---------------------
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid or any Letter of Credit shall remain outstanding, Intermet
will:
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and maintain, and
-------------------------
cause each of its Subsidiaries to preserve and maintain, its corporate existence
(except for mergers, divestitures and consolidations permitted pursuant to
Section 7.03), its material rights, franchises, and licenses, and its material
- ------------
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect.
SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of
--------------------------
its Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws and Contractual Obligations applicable to or
binding on any of them where the failure to comply with such Requirements of Law
and Contractual Obligations would reasonably be expected to have a Materially
Adverse Effect (with the express understanding that with respect to
noncompliance with Requirements of Laws, liabilities from noncompliance
involving amounts equal to or in excess of five percent (5%) of Tangible Net
Worth in the aggregate shall be deemed to have a Materially Adverse Effect).
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each
---------------------------------
of its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its
-60-
property, and (ii) all claims (including, without limitation, claims for labor,
materials, supplies or services) which might, if unpaid, become a Lien upon its
property, unless, in each case, the validity or amount thereof is being
contested in good faith by appropriate proceedings and adequate reserves are
maintained with respect thereto.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its
----------------
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
SECTION 6.05. VISITATION, INSPECTION, ETC. Permit, and cause each of
----------------------------
its Subsidiaries to permit, any representative of the Agent or any Lender to
visit and inspect any of its property, to examine its books and records and to
make copies and take extracts therefrom, and to discuss its affairs, finances
and accounts with its officers, all at such reasonable times and as often as the
Agent or such Lender may reasonably request after reasonable prior notice to
Intermet; provided, however, that at any time following the occurrence and
-------- -------
during the continuance of a Default or an Event of Default, no prior notice to
Intermet shall be required.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
------------------------------------
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts as are
customary for such companies under similar circumstances; provided, however,
-------- -------
that in any event Intermet shall use its best efforts to maintain, or cause to
be maintained, insurance in amounts and with coverages not materially less
favorable to any Consolidated Company as in effect on the date of this
Agreement, except where the costs of maintaining such insurance would, in the
judgment of both Intermet and the Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment
-61-
and will cause to be made all necessary repairs, renewals, replacements,
settlements and improvements thereof, all as in the judgment of Intermet may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section 6.06 shall prevent Intermet from discontinuing the
------------
operation or maintenance of any such properties if such discontinuance is, in
the judgment of Intermet, desirable in the conduct of its business or the
business of any Consolidated Company.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
-------------------
(a) Annual Financial Statements. As soon as available and in any
event within 90 days after the end of each fiscal year of Intermet, balance
sheets of the Consolidated Companies as at the end of such year, presented on a
consolidated basis, and the related statements of income, and cash flows of the
Consolidated Companies for such fiscal year, presented on a consolidated basis,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and accompanied by a report thereon of
Ernst & Young, L.L.P. or other independent public accountants of comparable
recognized national standing, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at the end of
such fiscal year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal year in
accordance with GAAP and that the exami nation by such accountants in connection
with such consoli dated financial statements has been made in accordance with
generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and in any
event within 60 days after the end of each fiscal quarter of Intermet (other
than the fourth fiscal quarter), balance sheets of the Consolidated Companies as
at the end of such quarter presented on a consolidated basis and the related
statements of income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of Intermet's fiscal year
ended
-62-
at the end of such quarter, presented on a consolidated basis setting forth in
each case in comparative form the figures for the corresponding quarter and the
corresponding portion of Intermet's previous fiscal year, all in reasonable
detail and certified by the chief financial officer or principal accounting
officer of Intermet that such financial statements fairly present in all
material respects the financial condition of the Consolidated Companies as at
the end of such fiscal quarter on a consolidated basis, and the results of
operations and statements of cash flows of the Consolidated Companies for such
fiscal quarter and such portion of Intermet's fiscal year, in accordance with
GAAP consistently applied (subject to normal year-end audit adjustments and the
absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the financial
---------------------------------
statements required pursuant to subsections (a) and (b) above, a certificate
substantially in the form of Exhibit attached hereto of the president, chief
--------
executive officer, chief financial officer or principal accounting officer of
Intermet (i) to the effect that, based upon a review of the activities of the
Consolidated Companies and such financial statements during the period covered
thereby, there exists no Event of Default and no Default under this Agreement,
or if there exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii) demonstrating in
reasonable detail compliance as at the end of such fiscal year or such fiscal
quarter with Section 6.08 and Sections 7.01 through 7.06;
------------ ------------- ----
(d) Auditor's No Default Certificate. Together with the financial
--------------------------------
statements required pursuant to subsection (a) above, a certificate of the
accountants who prepared the report referred to therein, to the effect that,
based upon their audit, there exists no Default or Event of Default under this
Agreement, or if there exists a Default or Event of Default hereunder,
specifying the nature thereof;
(e) Annual Budget. No later than 30 days prior to the beginning of
-------------
each fiscal year, an annual financial plan and forecasted balance sheets and
statements of income and cash flows for the current fiscal year for the
Consolidated Companies presented on a consolidated basis;
-63-
(f) Notice of Default. Promptly after any Executive Officer of
-----------------
Intermet has notice or knowledge of the occurrence of an Event of Default or a
Default, a certificate of the chief financial officer or principal accounting
officer of Intermet specifying the nature thereof and the proposed response
thereto;
(g) Litigation and Investigations. Promptly after (i) the occurrence
-----------------------------
thereof, notice of the institution of or any material adverse development in any
material action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company, or
any material property of any thereof, or (ii) actual knowledge thereof, notice
of the threat of any such action, suit, proceeding, investigation or
arbitration;
(h) Environmental Notices. Promptly after receipt thereof, notice
---------------------
of any of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or any
actual or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated Company
which could result in penalties, fines, claims or other liabilities to any
Consolidated Company in amounts in excess of $1,000,000;
(i) ERISA. (A)(i) Promptly after the occurrence thereof with respect
-----
to any Plan of any Consolidated Company or any ERISA Affiliate thereof, or any
trust established thereunder, notice of (A) a "reportable event" described in
Section 4043 of ERISA and the regulations issued from time to time thereunder
(other than a "reportable event" not subject to the provisions for 30-day notice
to the PBGC under such regulations), or (B) any other event which could subject
any Consolidated Company to any tax, penalty or liability under Title I or Title
IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty resulting from
a loss of deduction under Sections 404 or 419 of the Tax Code, or any tax,
penalty or liability under any Requirement of Law applicable to any Foreign
Plan, where any such taxes, penalties or
-64-
liabilities exceed or could exceed $1,000,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC, or
to a Plan participant, beneficiary or alternative payee, any notice required
under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of
ERISA or under Section 401(a)(29) or 412 of the Tax Code with respect to any
Plan of any Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the intent of the
PBGC or any other governmental authority to terminate a Plan of such Company or
ERISA Affiliate thereof which is subject to Title IV of ERISA, to impose any
liability on such Company or ERISA Affiliate under Title IV of ERISA or Chapter
43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon the filing
thereof with the Internal Revenue Service ("IRS") or the Department of Labor
("DOL"), a copy of IRS Form 5500 or annual report for each Plan of any
Consolidated Company or ERISA Affiliate thereof which is subject to Title IV of
ERISA;
(v) Upon the request of the Agent, (A) true and complete copies of
any and all documents, government re ports and IRS determination or opinion
letters or rulings for any Plan of any Consolidated Company from the IRS, PBGC
or DOL, (B) any reports filed with the IRS, PBGC or DOL with respect to a Plan
of the Consolidated Companies or any ERISA Affiliate thereof, or (C) a current
statement of withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(B) Promptly upon any Consolidated Company becoming aware
thereof, notice that (i) any material contributions to any Foreign Plan have not
been made by the required due date for such contribution and such default cannot
immediately be remedied, (ii) any Foreign Plan is not funded to the extent
required by the law of the jurisdiction whose law governs such Foreign Plan
based on the actuarial assumptions reasonably used at any time, or (iii) a
material
-65-
change is anticipated to any Foreign Plan that may have a Materially Adverse
Effect.
(j) Liens. Promptly upon any Consolidated Company becoming aware
-----
thereof, notice of the filing of any federal statutory Lien, tax or other state
or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 7.02;
------------
(k) Public Filings, Etc. Promptly upon the filing thereof or
-------------------
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Intermet to its public security holders, of all regular
and periodic reports and all registration statements and prospectuses, if any,
filed by any of them with any securities exchange, and of all press releases and
other statements made available generally to the public containing material
developments in the business or financial condition of Intermet and the other
Consolidated Companies;
(l) Burdensome Restrictions, Etc. Promptly upon the existence or
----------------------------
occurrence thereof, notice of the existence or occurrence of (i) any Contractual
Obligation or Requirement of Law described in Section 5.11, (ii) failure of any
------------
Consolidated Company to hold in full force and effect those material trademarks,
service marks, patents, trade names, copyrights, licenses and similar rights
necessary in the normal conduct of its business, and (iii) any strike, labor
dispute, slow down or work stoppage as described in Section 5.19;
------------
(m) New Subsidiaries. Within 30 days after the formation or
----------------
acquisition of any Subsidiary, or any other event resulting in the creation of a
new Subsidiary, or the domestication of any Foreign Subsidiary, notice of the
formation or acquisition of such Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it will be
engaged, and such other information as the Agent may request; and
(n) Other Information. With reasonable promptness, any other
-----------------
information provided under the Note Purchase Agreement and such other
information about the Consolidated
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Companies as the Agent or any Lender may reasonably request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
-------------------
(a) Fixed Charge Coverage Ratio. Maintain as of the last day of each
---------------------------
fiscal quarter, a minimum Fixed Charge Coverage Ratio equal to or greater than
2.0:1.0.
(b) Leverage Ratio. Maintain as of the last day of each fiscal
--------------
quarter, a maximum Leverage Ratio of less than or equal to 65%.
(c) Funded Debt to Consolidated EBITDA. Maintain as of the last day
----------------------------------
of each fiscal quarter, a maximum ratio of Funded Debt to Consolidated EBITDA
calculated for the immediately preceding four fiscal quarters of less than or
equal to 3.5:1.0.
(d) Third Fiscal Quarter 1995 Calculations. Schedule 6.08 sets forth
-------------------------------------- -------------
the calculation of the financial covenant amounts, ratios, and percentages
required by paragraphs (a) through (c) of this Section 6.08 calculated as of
------------
September 30, 1995.
SECTION 6.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. Immediately
----------------------------------------
upon its receipt thereof, Intermet shall furnish the Agent a copy of any notice
received by it or any other Consolidated Company from the holder(s) of
Indebtedness of the Consolidated Companies (or from any trustee, agent,
attorney, or other party acting on behalf of such holder(s)) in an amount which,
in the aggregate, exceeds $5,000,000, where such notice states or claims (i) the
existence or occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness, or
(ii) the existence or occurrence of any event or condition which requires or
permits holder(s) of any Indebtedness to exercise rights under any Change in
Control Provision.
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL. Promptly
----------------------------------------
after (i) the formation or acquisition (provided that nothing in this Section
shall be deemed to authorize the acquisition of any entity) of any Subsidiary
not listed on Schedule 5.01, (ii) the domestication of any Foreign
-------------
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Subsidiary, or (iii) the occurrence of any other event creating a new
Subsidiary, Intermet shall execute and deliver, and cause to be executed and
delivered (x) in the case of Foreign Subsidiary, if, in the reasonable opinion
of Intermet's accountants, delivery of a Guaranty Agreement would cause Intermet
to be subject to tax on the undistributed earnings and profits of such
Subsidiary pursuant to Subpart F of Part III, Subchapter N of the Internal
Revenue Code, a Pledge Agreement with respect to 49% of the capital stock of
such Subsidiary if it is a Foreign Subsidiary directly owned by Intermet or a
Subsidiary that is not, and is not directly or indirectly controlled by, a
Foreign Subsidiary, and (y) a Guaranty Agreement from each such Subsidiary that
is not a Foreign Subsidiary whose stock has been pledged to the extent and in
accordance with subsection (x) hereof, together with related documents with
respect to such new Subsidiary (or the pledgor of its stock) of the kind
described in Section 4.01 (e), (f), (g), (h), (i) and (p), all in form and
------------ --- --- --- --- --- ---
substance satisfactory to the Agent and the Required Lenders.
SECTION 6.11. DELIVERY OF RELEASE PLEDGE AGREEMENT, MODIFICATIONS TO
------------------------------------------------------
NOTE PURCHASE AGREEMENT; INTERCREDITOR AGREEMENT. Promptly, and in any event
- ------------------------------------------------
within thirty (30) days after the Closing Date, deliver or cause to be delivered
to the Agent in form and substance satisfactory to the Agent and the Required
Lenders, (i) an amendment to the Note Purchase Agreement conforming the
covenants, events of default and financial definitions used therein to the terms
of this Agreement, (ii) release of the Lien of Prudential on the stock of
Columbus Neunkirchen and release of the accompanying UCC financing statement,
and (iii) a duly executed amendment to the Intercreditor Agreement evidencing
the modifications made herein. Upon receipt of the foregoing, the Agent and the
Lenders shall release the Lien on the stock of Columbus Neunkirchen.
ARTICLE VII.
NEGATIVE COVENANTS
------------------
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid or any Letter of Credit Obligation shall remain outstanding,
Intermet will not and will not permit any Subsidiary to:
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SECTION 7.01. INDEBTEDNESS. Create, incur, assume or suffer to
------------
exist any Indebtedness, other than:
(a) Indebtedness under this Agreement and otherwise outstanding on
the Closing Date as set forth on Schedule 7.01 attached hereto;
-------------
(b) unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of business;
(c) Indebtedness of Intermet pursuant to the Note Purchase Agreement
and secured by Liens which are pari passu with the Liens in favor of the Lenders
----------
securing the Obligations hereunder and governed by the terms of the
Intercreditor Agreement (provided that Liens on the stock of Columbus
Neunkirchen shall be permitted only for a period of thirty days after the
Closing Date);
(d) Investments permitted by Sections 7.06(a) hereof;
(e) Subordinated Debt which is unsecured and approved as to terms and
conditions by the Agent and the Required Lenders;
(f) Indebtedness of a Person which is acquired by or consolidated
with a Consolidated Company as long as such Indebtedness is not obtained in
contemplation of such acquisition; and
(g) additional Indebtedness not to exceed $30,000,000 at any one time
outstanding.
SECTION 7.02. LIENS. Create, incur, assume or suffer to exist any
-----
Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the Closing Date and disclosed on Schedule 7.02
-------------
and Liens in favor of the Agent and/or the Lenders to secure the Obligations;
(b) Liens for taxes not yet due, and Liens for taxes or Liens imposed
by ERISA which are being contested in good
-69-
faith by appropriate proceedings and with respect to which adequate reserves are
being maintained;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are
being maintained;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(e) Liens permitted by Section 7.01(c);
---------------
(f) Liens (other than those permitted by paragraphs (a) through (e)
of this Section 7.02) encumbering assets having an Asset Value not greater than
------------
fifteen percent (15%) of Tangible Net Worth of Intermet in the aggregate at any
one time.
SECTION 7.03. MERGERS, ACQUISITIONS, DIVESTITURES.
------------------------------------
(a) Merge or consolidate with any other Person, except that the
foregoing restrictions shall not be applicable to:
(i) mergers or consolidations of (x) any Subsidiary with any
other Subsidiary which is a Guarantor or (y) any Subsidiary with Intermet; or
(ii) mergers or consolidations which result in Acquisitions of
Persons engaged in businesses in which Intermet is engaged on the Closing Date
or substantially related thereto and as otherwise permitted by Section 7.10 of
------------
this Agreement;
provided that before and after giving effect to any such merger
- -------------
or consolidations, (w) Intermet is in compliance with Section 6.08 hereof; (x)
------------
no other Default or Event of Default exists hereunder;
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(y) in the event of such merger or consolidation, the surviving Person is a
Consolidated Company and complies with Section 6.10 hereof, if applicable, and
------------
(z) Intermet is the surviving corporation in connection with any merger or
consolidation to which it is a party;
(b) Sell or otherwise dispose of the capital stock of a Subsidiary of
Intermet except as permitted pursuant to Section 7.04(c); or
(c) make or permit any Acquisition other than an Acquisition of
Persons engaged in businesses in which Intermet is engaged on the Closing Date
or substantially related thereto and as otherwise permitted pursuant to Section
-------
7.10 of this Agreement; provided that Intermet meets the conditions of (w), (x),
- ---- -------- ----
(y) and (z) of paragraph (a) of this Section 7.03.
------------
SECTION 7.04. ASSET SALES.
-----------
Sell, lease or otherwise dispose of its accounts, property, stock of
its Subsidiaries or other assets; provided, however, that the foregoing
-------- -------
restrictions on Asset Sales shall not be applicable to:
(a) sales of inventory in the ordinary course of business;
(b) sales of equipment or other personal property being replaced by
other equipment or other personal property purchased as a capital expenditure
item; or
(c) Asset Sales comprised of stock of Subsidiaries or all or
substantially all of the assets of any Subsidiary where, on the date of
execution of a binding obligation to make such Asset Sale (provided that if the
Asset Sale is not consummated within six (6) months of such execution, then on
the date of consummation of such Asset Sale rather than on the date of execution
of such binding obligation):
(x) after giving effect to the proposed Asset Sale, the assets
which are the subject of the proposed Asset Sale, together with all other such
Asset Sales of the Consolidated Companies during the immediately preceding four
fiscal quarters of Intermet, did not
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generate twenty percent (20%) or more of Consolidated EBITDA during the then
most recently ended four fiscal quarters of Intermet; and
(y) after giving effect to the proposed Asset Sale, the aggregate
Asset Value of all such Asset Sales of the Consolidated Companies since the
Closing Date would not exceed thirty (30%) of the Net Fixed Assets of Intermet
as determined as of the last day of the most recently ended fiscal quarter of
Intermet; or
(d) Other Asset Sales (other than sales of capital stock of
Subsidiaries or all or substantially all of the assets of any Subsidiary),
where, on the date of execution of a binding obligation to make such Asset Sale
(provided that if the Asset Sale is not consummated within six (6) months of
such execution, then on the date of consummation of such Asset Sale rather than
on the date of execution of such binding obligation), after giving effect to the
proposed Asset Sale, the aggregate Asset Value of all Asset Sales made pursuant
to this subparagraph (d) by the Consolidated Companies since the Closing Date
would not exceed ten percent (10%) of Intermet's Net Fixed Assets as of the last
day of the most recently ended fiscal quarter of Intermet;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
- -------- ----
(c) or (d) above shall be permitted if any Default or Event of Default exists at
the time of such transaction or would exist as a result of such transaction.
Upon the consummation of the sale of any capital stock of a
Subsidiary pursuant to subsection (c) above, which capital stock is pledged to
the Agent for the benefit of the Lenders, the Agent and the Lenders shall
release the Lien upon such stock upon the request of Intermet, and the Lenders
hereby authorize the Agent to do so.
SECTION 7.05. DIVIDENDS, ETC. Intermet shall not (a) declare or pay
---------------
any dividend on any class of its stock, or (b) make any payment to purchase,
redeem, retire or acquire any Subordinated Debt or stock or any option, warrant,
or other right to acquire such Subordinated Debt or stock (each, a "Restricted
Payment"), other than:
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(i) dividends payable solely in shares of any class of its
stock; and
(ii) cash dividends declared and paid, and all other Restricted
Payments made, after December 31, 1994 in an aggregate amount not to exceed
fifty percent (50%) of Consolidated Net Income earned during the period
commencing on January 1, 1995 and ending on the last day of the most recently
ended fiscal quarter of Intermet (such period to be treated as one accounting
period taking into account 100% of Consolidated Net Loss during such period);
provided, however, no such dividend or other Restricted Payment may be declared
- -------- -------
or paid pursuant to clause (ii) above unless no Default or Event of Default
exists at the time of such declaration or Restricted Payment, or would exist as
a result of such declaration or Restricted Payment.
SECTION 7.06. INVESTMENTS, LOANS, ETC. Make, permit or hold any
------------------------
Investments other than:
(a) Investments in Subsidiaries which are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 6.10 after the Closing Date;
------------
provided, however, nothing in this Section 7.06 shall be deemed to authorize an
------------
Investment pursuant to this subsection (a) in any entity that is not a Guarantor
prior to such Investment;
(b) Investments in the following securities:
(i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
in each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(ii) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized credit
rating agency;
(iii) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by, any office
located in the
-73-
United States of any bank or trust company which is organized under the laws of
the United States or any state thereof and has capital, surplus and undivided
profits aggregating at least $500,000,000, including without limitation, any
such deposits in Eurodollars issued by a foreign branch of any such bank or
trust company;
(iv) mid-term notes of corporations existing under the laws of the
United States rated in the highest grade by a nationally recognized credit
rating agency;
(v) municipal "lower floater" bonds rated A or better (or backed
by a letter of credit rated A or better) by a nationally recognized credit
rating agency;
(c) Investments made by Plans and Foreign Plans; and
(d) Investments (other than those permitted by paragraphs (a) through
(c) above), including loans to employees, officers and other Persons, in an
aggregate amount not to exceed ten percent (10%) of Tangible Net Worth at any
one time outstanding; provided that, Investments in Subsidiaries which are not
-------- ----
Guarantors are expressly prohibited by this Section 7.06.
------------
SECTION 7.07. SALE AND LEASEBACK TRANSACTIONS. Sell or transfer any
-------------------------------
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 7.08. TRANSACTIONS WITH AFFILIATES.
----------------------------
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in the
ordinary course of business, with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Consolidated Company), other than on
terms and conditions substantially as favorable to such Consolidated Company as
would be obtained by such Consolidated Company at the time in a comparable
arm's-length transaction with a Person other than an Affiliate.
-74-
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations of any Consolidated Company, or convey or
transfer to any other Consolidated Company any other assets (excluding
conveyances or transfers in the ordinary course of business) if at the time of
such conveyance or transfer any Default or Event of Default exists or would
exist as a result of such conveyance or transfer.
SECTION 7.09. PREPAYMENTS OF SUBORDINATED DEBT IN VIOLATION THEREOF.
-----------------------------------------------------
Directly or indirectly, prepay, purchase, redeem, retire, defease or otherwise
acquire, or make any optional payment on account of any principal of, interest
on, or premium payable in connection with any of its Subordinated Debt, in each
case, which is a violation of the subordination provisions of such Subordinated
Debt.
SECTION 7.10. CHANGES IN BUSINESS. Enter into any business which is
-------------------
substantially different from that presently conducted by the Consolidated
Companies taken as a whole (which includes iron and aluminum foundry operations
and machining); provided that, Intermet and the Consolidated Companies may make
-------- ----
Acquisitions of, and Investments in, (to the extent permitted by this Agreement)
Persons engaged in an unrelated business as long as the sum of (x) the amount
expended in connection with such Acquisitions since the Closing Date, and (y)
the aggregate outstanding Investments in such Persons (including any amount
committed by Intermet or a Consolidated Company to be loaned to or otherwise
invested in such Person) does not exceed five percent (5%) of Tangible Net Worth
on any date of determination.
SECTION 7.11. LIMITATION ON PAYMENT RESTRICTIONS AF FECTING
---------------------------------------------
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
- ----------------------
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions on
such Consolidated Company's stock, or (ii) pay any indebtedness owed to Intermet
or any other Consolidated Company, or (iii) transfer any of its property or
assets to Intermet or any other Consolidated Company, except any consensual
encumbrance or restriction existing under the Credit Documents or the Pledge
Agreement (as defined in the Note Purchase Agreement) (as originally executed)
or as set forth on Schedule 5.20.
-------------
-75-
SECTION 7.12. ACTIONS UNDER CERTAIN DOCUMENTS.
-------------------------------
(a) Without the prior written consent of the Agent and the Required
Lenders, modify, amend or supplement the Note Purchase Agreement to (i) increase
the principal amount of the indebtedness thereunder, (ii) increase the interest
rate thereunder, (iii) modify any requirement of prepayment or repayment
thereunder which would shorten the final maturity or average life of the
indebtedness outstanding thereunder or make the requirement of prepayment more
onerous, or (iv) make any more onerous any other provision thereof.
(b) Without the prior written consent of the Agent and the Required
Lenders, modify, amend or supplement any agreement governing Subordinated Debt
to (i) increase the principal amount of the indebtedness thereunder, (ii)
increase the interest rate thereunder, (iii) modify any requirement of
prepayment or repayment thereunder which would shorten the final maturity or
average life of the indebtedness outstanding thereunder or make the requirement
of prepayment more onerous, (iv) make any more onerous any other provision
thereof, or (v) amend or modify the subordination provisions thereof.
ARTICLE VIII.
EVENTS OF DEFAULT
-----------------
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Intermet shall fail to make promptly when
--------
due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or Intermet shall fail to make within five
(5) days after the due date thereof any payment of interest, fee or other amount
payable hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Intermet shall fail to
------------------------
observe or perform any covenant or agreement contained in Sections 6.07(f),
----------------
6.08, 6.11, 7.01 through 7.07, 7.09 through 7.12;
- ---- ---- ---- ---- ----- -----
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SECTION 8.03. OTHER COVENANTS. Intermet shall fail to observe or
---------------
perform any covenant or agreement contained in this Agreement, other than those
referred to in Sections 8.01 and 8.02, and, if capable of being remedied, such
------------- ----
failure shall remain unremedied for thirty (30) days after the earlier of (i)
Intermet's obtaining knowledge thereof, or (ii) written notice thereof shall
have been given to Intermet by Agent or any Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or warranty made
---------------
or deemed to be made by Intermet or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
----------------------------------
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness
(other than the Obligations) exceeding $5,000,000 in the aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
-------------------------------
Company shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate, or any other
event shall occur if the effect of such failure or other event is to accelerate,
or to permit the holder of such Indebtedness or any other Person to accelerate,
the maturity of such Indebtedness; or any such Indebtedness shall be required to
be prepaid (other than by a regularly scheduled required prepayment) in whole or
in part prior to its stated maturity;
SECTION 8.07. BANKRUPTCY. Intermet or any other Consolidated Company
----------
shall commence a voluntary case concerning itself under the Bankruptcy Code or
applicable foreign bankruptcy laws; or an involuntary case for bankruptcy is
commenced against any Consolidated Company and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) or similar official
under applicable foreign
-77-
bankruptcy laws is appointed for, or takes charge of, all or any substantial
part of the property of any Consolidated Company; or any Consolidated Company
commences proceedings of its own bankruptcy or to be granted a suspension of
payments or any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction, whether now or hereafter in effect, relating to
any Consolidated Company or there is commenced against any Consolidated Company
any such proceeding which remains undismissed for a period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed for
a period of 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 8.08. ERISA. A Plan or Foreign Plan of a Consolidated
-----
Company or a Plan subject to Title IV of ERISA of any of its ERISA Affiliates
(i) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such Plan or Foreign
Plan, Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a
waiver of such standard is sought or granted with respect to such Plan or
Foreign Plan under applicable law, the terms of such Plan or Foreign Plan or
Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of such Plan or
Foreign Plan; or
(iii) shall require a Consolidated Company to provide security
under applicable law, the terms of such Plan
-78-
or Foreign Plan, Section 401 or 412 of the Tax Code or Section 306 or 307 of
ERISA; or
(iv) results for any reason, in a liability (including without
limitation, withdrawal liability) to a Consolidated Company under applicable
law, the terms of such Plan or Foreign Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC (or any similar Person with respect to any Foreign
Plan), a Plan or any other Person that would have a Materially Adverse Effect.
SECTION 8.09. MONEY JUDGMENT. A judgment or order for the payment of
--------------
money in excess of $5,000,000 or otherwise having a Materially Adverse Effect
shall be rendered against Intermet or any other Consolidated Company and such
judgment or order shall continue unsatisfied (in the case of a money judgment)
and in effect for a period of 30 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 8.10. OWNERSHIP OF CREDIT PARTIES AND PLEDGED ENTITIES. If
------------------------------------------------
Intermet shall at any time fail to own and control one hundred percent (100%) of
the voting stock of any Credit Party or entity whose stock is pledged to the
Lenders, either directly or indirectly through a wholly-owned Subsidiary of
Intermet, except for (x) as a result of any Asset Sale permitted pursuant to
Section 7.04(c) hereof, and (y) with respect to any Credit Party or Foreign
- ------- -------
Subsidiary whose stock is pledged to the Lenders after the Closing Date where
Intermet shall, directly or indirectly, maintain ownership and control of the
percentage of voting stock owned and controlled as of the date such Person
became a Credit Party hereunder or a Foreign Subsidiary or such greater
percentage as shall thereafter be obtained, directly or indirectly by Intermet;
SECTION 8.11. CHANGE IN CONTROL OF INTERMET. (i) Any "person" or
-----------------------------
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
shall become the "beneficial owner(s)" (as defined in said Rule 13d-3) of more
than fifty percent (50%) of the shares of the outstanding common stock of
Intermet entitled to vote for members of Intermet's board of directors, (ii) any
event or condition shall occur or exist which,
-79-
pursuant to the terms of any Change in Control Provision, requires or permits
the holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in whole or
in part, or the maturity of such Indebtedness to be accelerated in any respect,
or (iii) John Doddridge or another Person possessing substantially equivalent
qualifications, background, proven record of success in running a public company
and ability shall cease to hold the position and actively carry out the duties
of Chairman of the Board of Directors of Intermet.
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall
------------------------------------
exist or occur any "Event of Default" as provided under the terms of any other
Credit Document, or any Credit Document ceases to be in full force and effect or
the validity or enforceability thereof is disaffirmed by or on behalf of
Intermet or any other Credit Party, or at any time it is or becomes unlawful for
Intermet or any other Credit Party to perform or comply with its obligations
under any Credit Document, or the obligations of Intermet or any other Credit
Party under any Credit Document are not or cease to be legal, valid and binding
on Intermet or any such Credit Party or the Agent ceases to hold a perfected
lien on the Pledged Stock subject only to Liens permitted by the terms of this
Credit Agreement (and except for the release of the Lien on the Stock of
Columbus Neunkirchen pursuant to Section 6.11 hereof); or
------------
SECTION 8.13. ATTACHMENTS. An attachment or similar action shall be
-----------
made on or taken against any of the assets of any Consolidated Company with an
Asset Value exceeding $5,000,000 in aggregate and is not removed, suspended or
enjoined within 30 days of the same being made or any suspension or injunction
being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Agent may, with the consent of the Required
Lenders, and upon the written (including telecopied) 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
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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 8.07 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 obligations
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.
ARTICLE IX.
THE AGENT
---------
SECTION 9.01. APPOINTMENT OF AGENT. Each Lender hereby designates
--------------------
SunTrust as Agent to administer all matters concerning the Loans and Letters of
Credit and to act as herein specified. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of a Note shall be
deemed irrevocably to authorize, the Agent to take such actions on its behalf
under the provisions of this Agreement, the other Credit Documents, and all
other instruments and agreements referred to herein or therein, and to exercise
such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such
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other powers as are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through their agents or employees.
SECTION 9.02. AUTHORIZATION OF AGENT WITH RESPECT TO THE SECURITY
---------------------------------------------------
DOCUMENTS.
- ---------
(a) Each Lender hereby authorizes the Agent to enter into each of the
Security Documents substantially in the form attached hereto, and to take all
action contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Agent for the benefit of the Agent and the
Lenders and the other beneficiaries thereof upon the terms thereof. The Lenders
further agree that the Agent may assign its rights and obligations under any of
the Security Documents to any affiliate of the Agent or to any trustee, if
necessary or appropriate under applicable law, which assignee in each such case
shall (subject to compliance with any requirements of applicable law governing
the assignment of such Security Documents) be entitled to all the rights of the
Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any Security
Document, the Agent shall have the right to grant or withhold any consent,
exercise any remedy, make any determination or direct any action by the Agent
under such Security Document, the Agent shall act in respect of such consent,
exercise of remedies, determination or action, as the case may be, with the
consent of and at the direction of the Required Lenders; provided, however, that
-------- -------
no such consent of the Required Lenders shall be required with respect to any
consent, determination or other matter that is, in the Agent's judgment,
ministerial or administrative in nature. In each circumstance where any consent
of or direction from the Required Lenders is required, the Agent shall send to
the Lenders a notice setting forth a description in reasonable detail of the
matter as to which consent or direction is requested and the Agent's proposed
course of action with respect thereto. The Lenders shall endeavor to respond
promptly to such request but in the event the Agent shall not have received a
response from any Lender within five (5) Business Days after such Lender's
receipt of such notice, such Lender shall be deemed not to have agreed to the
course of action proposed by the Agent.
SECTION 9.03. NATURE OF DUTIES OF AGENT. The Agent shall have no
-------------------------
duties or responsibilities except those expressly
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set forth in this Agreement and the other Credit Documents. None of the Agent
nor any of its respective officers, directors, employees or agents shall be
liable for any action taken or omitted by it as such hereunder or in connection
herewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Agent shall be ministerial and administrative in nature; the
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Lender; and nothing in this Agreement, express or implied, is
intended to or shall be so construed as to impose upon the Agent any obligations
in respect of this Agreement or the other Credit Documents except as expressly
set forth herein.
SECTION 9.04. LACK OF RELIANCE ON THE AGENT.
-----------------------------
(a) Independently and without reliance upon the Agent, each Lender, to
the extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Credit
Parties in connection with the taking or not taking of any action in connection
herewith, and (ii) its own appraisal of the creditworthiness of the Credit
Parties, and, except as expressly provided in this Agreement, the Agent shall
have no duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time
or times thereafter.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements, the Pledge Agreement, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, the Notes, the
Guaranty Agreements, the Pledge Agreements or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or the
existence or possible existence of any Default or Event of Default; provided,
--------
however, to the extent that the Agent has been advised that a Lender has not
- -------
received any information formally delivered to the Agent
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pursuant to Section 6.07, the Agent shall deliver or cause to be delivered such
------------
information to such Lender.
SECTION 9.05. CERTAIN RIGHTS OF THE AGENT. If the Agent shall
---------------------------
request instructions from the Required Lenders with respect to any action or
actions (including the failure to act) in connection with this Agreement, the
Agent shall be entitled to refrain from such act or taking such act, unless and
until the Agent shall have received instructions from the Required Lenders; and
the Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
SECTION 9.06. RELIANCE BY AGENT. The Agent shall be entitled to
-----------------
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other documentary, teletransmission or
telephone message believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. The Agent may consult with legal
counsel (including counsel for any Credit Party), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 9.07. INDEMNIFICATION OF AGENT. To the extent the Agent is
------------------------
not reimbursed and indemnified by the Credit Parties, each Lender will reimburse
and indemnify the Agent, ratably according to the respective amounts of the
Loans outstanding under all Facilities (or if no amounts are outstanding,
ratably in accordance with the aggregate Commitments), in either case, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or the other
Credit Documents; provided that no Lender shall be liable to the Agent for any
--------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or
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disbursements resulting from the Agent's gross negligence or willful misconduct.
SECTION 9.08. THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to
------------------------------------
its obligation to lend under this Agreement, the Loans made by it and the Notes
issued to it, the Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust, financial advisory or other business with the Consolidated
Companies or any affiliate of the Consolidated Companies as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Consolidated Companies for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Agent may deem and treat the
----------------
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof shall have been filed
with the Agent. Any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is the holder
of any Note shall be conclusive and binding on any subsequent holder, transferee
or assignee of such Note or of any Note or Notes issued in exchange therefor.
SECTION 9.10. SUCCESSOR AGENT.
---------------
(a) The Agent may resign at any time by giving written notice thereof
to the Lenders and Intermet and may be removed at any time with or without cause
by the Required Lenders; provided, however, the Agent may not resign or be
-------- -------
removed until a successor Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Agent subject to Intermet's prior written
approval. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on
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behalf of the Lenders, appoint a successor Agent subject to Intermet's prior
written approval, which shall be a bank which maintains an office in the United
States, or a commercial bank organized under the laws of the United States of
America or any State thereof, or any Affiliate of such bank, having a combined
capital and surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article IX shall inure to its benefit as to any
----------
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
ARTICLE X.
MISCELLANEOUS
-------------
SECTION 10.01. NOTICES. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on the
signature pages hereof, or such other address or applicable teletransmission
number as such party may hereafter specify by notice to the Agent and Intermet.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate confirmation is received, or (iv) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; provided that notices to the Agent shall
--------
not be effective until received.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of any
----------------
provision of this Agreement or the other Credit
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Documents, nor consent to any departure by any Credit Party therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that no
--------
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders do any of the following: (i) waive any of the conditions specified in
Section 4.01 or 4.02, (ii) increase the Commitments or other contractual
- ------------- -----
obligations to Intermet under this Agreement, (iii) reduce the principal of, or
interest on, the Notes or any fees hereunder, (iv) postpone any date fixed for
the payment in respect of principal of, or interest on, the Notes or any fees
hereunder, (v) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number or identity of Lenders which
shall be required for the Lenders or any of them to take any action hereunder,
(vi) agree to release any of the Pledged Stock from the Lien of the Security
Documents to the extent securing the Obligations or to release any Guarantor
from its obligations under any Guaranty Agreement except in connection with an
Asset Sale permitted pursuant to Section 7.04(c) above where no consent of the
---------------
Lenders shall be required for such release, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 10.02. Notwithstanding the
-------------
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required hereinabove to take such
action, affect the rights or duties of the Agent under this Agreement or under
any other Credit Document.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay
------------------------------
on the part of the Agent, any Lender or any holder of a Note in exercising any
right or remedy hereunder or under any other Credit Document, and no course of
dealing between any Credit Party and the Agent, any Lender or the holder of any
Note shall operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right or remedy
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Agent, any
Lender or the holder of any Note would otherwise have. No notice to or demand
on any Credit Party not required hereunder or under any other Credit Document in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
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Agent, the Lenders or the holder of any Note to any other or further action in
any circumstances without notice or demand.
SECTION 10.04. PAYMENT OF EXPENSES, ETC. Intermet shall:
-------------------------
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the Agent
in the administration (both before and after the execution hereof and including
reasonable expenses actually incurred relating to advice of counsel as to the
rights and duties of the Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the other
Credit Documents and the documents and instruments referred to therein, and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees actually incurred and disbursements of counsel for the
Agent), and in the case of enforcement of this Agreement or any Credit Document
after an Event of Default, all such reasonable, out-of-pocket costs and expenses
(including, without limitation, the reasonable fees actually incurred and
disbursements of counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.07(b), pay and hold each of the Lenders harmless from
---------------
and against any and all present and future stamp, documentary, and other similar
Taxes with respect to this Agreement, the Notes and any other Credit Documents,
any collateral described therein, or any payments due thereunder, and save each
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such Taxes; and
(iii) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold each
of them harmless against, any and all costs, losses, liabilities, claims,
damages or expenses incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising out of or by reason of any
investigation, litigation or other proceeding related to any
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actual or proposed use of the proceeds of any of the Loans or any Credit Party's
entering into and performing of the Agreement, the Notes, or the other Credit
Documents, including, without limitation, the reasonable fees actually incurred
and disbursements of counsel (including foreign counsel) incurred in connection
with any such investigation, litigation or other proceeding; provided, however,
-------- -------
Intermet shall not be obligated to indemnify any Indemnitee for any of the
foregoing arising out of such Indemnitee's gross negligence or willful
misconduct;
(iv) In addition to amounts payable elsewhere provided
in this Agreement, without duplication, 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;
(v) without limiting the indemnities set forth above, indemnify
each Indemnitee for any and all expenses and costs (including without
limitation, remedial, removal, response, abatement, cleanup, investigative,
closure and monitoring costs), losses, claims (including claims for contribution
or indemnity and including the cost of investi gating or defending any claim and
whether or not such claim is ultimately defeated, and whether such claim arose
before, during or after any Credit Party's ownership, operation, pos session or
control of its business, property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the holders of any such claim),
lawsuits, liabilities, obligations, actions, judg ments, suits, disbursements,
encumbrances, liens, damages (including without limitation damages for
contamination or destruction of natural resources), penalties and fines of any
kind or nature whatsoever (including without limitation in
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all cases the reasonable fees actually incurred, other charges and disbursements
of counsel in connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental Laws based on,
arising out of or relating to in whole or in part, the existence or exercise of
any rights or remedies by any Indemnitee under this Agreement, any other Credit
Document or any related documents (but excluding those incurred, suffered or
sustained by any Indemnitee as a result of any action taken by or on behalf of
the Lenders with respect to any Subsidiary of Intermet (or the assets thereof)
owned or controlled by the Lenders, the Collateral Agent, or their nominees or
designees, as a result of their acquisition of Pledged Stock pursuant to
exercise of remedies under the Pledge Agreements).
If and to the extent that the obligations of Intermet under this Section 10.04
-------------
are unenforceable for any reason, Intermet hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in limitation
---------------
of all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's obligations hereunder
and under the other Credit Documents, all deposits of any Credit Party (general
or special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Lender or other
holder to any Credit Party, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify Intermet of any offset
hereunder.
SECTION 10.06. BENEFIT OF AGREEMENT.
--------------------
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto, provided that Intermet may not assign or transfer any of its interest
hereunder without the prior written consent of the Lenders.
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(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(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, Letter of Credit Obligations and the Loans at the time owing to it
and the Notes held by it) to any Eligible Assignee; 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 to
an Affiliate of the assigning Lender, (ii) the amount of the Commitments or
Loans or Letter of Credit Obligations, of the assigning Lender subject to each
assignment (determined as of the date the assignment and ac ceptance with
respect to such assignment is delivered to the Agent) shall not be less than
$5,000,000, (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 $2500, and (iv) the assignee must
execute and deliver a confirmation of its acceptance of the terms and conditions
of the Intercreditor Agreement to the other parties to the Intercreditor
Agreement in accordance with Section 10(g) thereof. 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 Assignment 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, the Loans and the Letter
of Credit Obligations, as the case may be, of $15,000,000; 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 assumed
by it pursuant to such Assignment
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and Acceptance and new Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments. 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.
(d) Each Lender may, without the consent of Intermet or the Agent,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitments, the Letter of Credit Obligations and the Loans owing to it
and the Notes held by it), provided, however, that (i) no Lender may sell a
-------- -------
participation in its aggregate Commitments (after giving effect to any permitted
assignment hereof) in an amount in excess of fifty percent (50%) of such
aggregate Commitments, provided, however, sales of participations to an
-------- -------
Affiliate of such Lender shall not be included in such calculation; provided,
--------
however, no such maximum amount shall be applicable to any such participation
- -------
sold at any time there exists an Event of Default hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and (iv) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article III of this Agreement, and (v)
-----------
Intermet and the Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such Lender
shall retain the sole right to enforce the obligations of Intermet relating to
the Loans and to approve any amendment, modification or waiver of any provisions
of this Agreement. Any Lender selling a participation hereunder shall provide
prompt written notice to Intermet of the name of such participant.
(e) Any Lender or participant may, in connection with the assignment
or participation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Intermet or the other Consolidated
Companies furnished to such Lender by or on behalf of Intermet or any other
Consolidated Company. With respect to any disclosure of confidential, non-
public, proprietary information, such proposed
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assignee or participant shall agree to use the information only for the purpose
of making any necessary credit judgments with respect to this credit facility
and not to use the information in any manner prohibited by any law, including
without limitation, the securities laws of the United States. The proposed
participant or assignee shall agree not to disclose any of such information
except (i) to directors, employees, auditors or counsel to whom it is necessary
to show such information, each of whom shall be informed of the confidential
nature of the information, (ii) in any statement or testimony pursuant to a
subpoena or order by any court, governmental body or other agency asserting
jurisdiction over such entity, or as otherwise required by law (provided prior
notice is given to Intermet and the Agent unless otherwise prohibited by the
subpoena, order or law), and (iii) upon the request or demand of any regulatory
agency or authority with proper jurisdiction. The proposed participant or
assignee shall further agree to return all documents or other written material
and copies thereof received from any Lender, the Agent or Intermet relating to
such confidential information unless otherwise properly disposed of by such
entity.
(f) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
--------
that no such assignment shall release the Lender from any of its obligations
hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b) have been levied
----------------
or imposed so as to require withholdings or deductions by Intermet and payment
by Intermet of additional amounts to any Lender as a result thereof, (ii) any
Lender shall make demand for payment of increased costs or reduced rate of
return pursuant to Section 3.10 or any Lender determines that LIBOR is
------------
unascertainable or illegal pursuant to Section 3.08 or Section 3.09, or any
------------ ------------
Lender makes a claim for increased costs or determines that its participation in
any Letter of Credit is illegal pursuant to Section 3.09, or (iii) any Lender
------------
shall decline to consent to a modification or waiver of the terms of this
Agreement or the other Credit Documents requested by Intermet, then and in such
event, upon request from Intermet delivered to such Lender and the Agent, such
Lender shall assign, in accordance with the provisions of Section 10.06(c), all
----------------
of its rights and obligations under this Agreement and the other Credit
Documents to another Lender or an Eligible Assignee selected by Intermet, in
consideration for the payment by such assignee to the Lender of the principal
of, and interest on, the outstanding Loans
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accrued to the date of such assignment, and the assumption of such Lender's
Commitment hereunder, together with any and all other amounts owing to such
Lender under any provisions of this Agreement or the other Credit Documents
accrued to the date of such assignment; provided, however, Lenders subject to
-------- -------
this shall be treated in a substantially identical manner.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
----------------------------------------------------
JURY TRIAL.
- ----------
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF
FULTON COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR OF THE
UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, INTERMET HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND INTERMET HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) INTERMET HEREBY IRREVOCABLY DESIGNATES RUPERT M. BARKOFF AND
KILPATRICK & CODY, AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR
AND ON BEHALF OF INTERMET, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS
IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR
ANY DOCUMENT RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS
SERVED ON SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY
THE SERVER OF SUCH PROCESS BY MAIL TO INTERMET AT ITS ADDRESS SET FORTH OPPOSITE
ITS SIGNATURE BELOW, BUT THE FAILURE OF INTERMET TO RECEIVE SUCH COPY SHALL NOT
AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. INTERMET FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE
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MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
INTERMET AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING.
(d) Nothing herein shall affect the right of the Agent, any Lender,
any holder of a Note or any Credit Party to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Intermet in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts
-------------------------------------
payable at any time hereunder to each Lender shall be a separate and independent
debt, and each Lender shall be entitled to protect and enforce its rights
pursuant to this Agreement and its Notes, and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such
purpose.
SECTION 10.09. COUNTERPARTS. This Agreement may be executed in any
------------
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
-----------------------
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent pursuant to Section 10.01 or, in the case of the Lenders, shall have given
-------------
to the Agent written or telex notice (actually received) that the same has been
signed and mailed to them.
(b) The obligations of Intermet under Sections 3.07(b), 3.12, 3.10,
------------- ----
3.13, 10.04 and 10.15 hereof shall survive the payment in full of the Notes and
- ---- ----- -----
all other Obligations after the Maturity Date. All representations and
warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement, the other Credit Documents, and such other
agreements and documents, the making of the Loans hereunder, and the execution
and delivery of the Notes.
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SECTION 10.11. SEVERABILITY. In case any provision in or obligation
------------
under this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants hereunder
-------------------------
shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that it would be permitted by
an exception to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
---------------------------------------------------
LAWS. If (i) any preparation of the financial statements referred to in Section
- ---- -------
6.07 hereafter occasioned by the promulgation of rules, regulations,
- ----
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) (other than changes
mandated by FASB 106) result in a material change in the method of calculation
of financial covenants, standards or terms found in this Agreement, (ii) there
is any change in Intermet's fiscal quarter or fiscal year, or (iii) there is a
material change in federal tax laws which materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, Intermet and the Required Lenders
agree to enter into negotiations in order to amend such provisions so as to
equitably reflect such changes with the desired result that the criteria for
evaluating any of the Consolidated Companies' financial condition shall be the
same after such changes as if such changes had not been made. Unless and until
such provisions have been so amended, the provisions of this Agreement shall
govern.
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings
--------------------------------------
of the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the
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terms of this Agreement constitute the entire agreement among the parties hereto
and thereto regarding the subject matters hereof and thereof and supersede all
prior agreements, representations and understandings related to such subject
matters.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and to be delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
Address for Notices: INTERMET CORPORATION
- -------------------
By: /s/ Doretha J. Christoph
------------------------------
5445 Corporate Drive Doretha J. Christoph
Suite 200 Vice President, Finance
Troy, Michigan 48098
Attn: Doretha J. Christoph
Attest: /s/ James W. Rydel
--------------------------
Telephone: (810) 952-2500 James W. Rydel
Telecopy: (810) 952-2501 Secretary
[CORPORATE SEAL]
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Address for Notices: SUNTRUST BANK, ATLANTA,
- ------------------- AS AGENT
One Park Place, N.E. By: /s/ H.T. Harvin, III
Atlanta, Georgia 30303 -------------------------
Attention: H. T. Harvin, III H.T. Harvin, III
Corporate Banking Officer
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ R. Michael Dunlap
-------------------------
Name: R. Michael Dunlap
------------------
Title: Vice President
-----------------
Payment Office:
- --------------
One Park Place, N.E.
Atlanta, Georgia 30303
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Address for Notices: SUNTRUST BANK, ATLANTA
- -------------------
One Park Place, N.E. By: /s/ H.T. Harvin, III
Atlanta, Georgia 30303 --------------------------
Attention: H.T. Harvin, III H.T. Harvin, III
Corporate Banking Officer
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ R. Michael Dunlap
--------------------------
Name: R. Michael Dunlap
------------------
Title: Vice President
-----------------
Lending Office and Payment Office:
- ---------------------------------
One Park Place, N.E.
Atlanta, Georgia 30303
COMMITMENT: $28,000,000
PRO RATA SHARE OF
COMMITMENTS: 28%
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Address for Notices: LANDESBANK SAAR GIROZENTRALE
- -------------------
Ursulinenstrasse 2 By: /s/ Dr. Georg Grasel
D-66111 Saarbrucken -------------------------
Germany Dr. Georg Grasel
Attention: Dr. Georg Grasel/ Vorstandsmitglied
Dr. Ingrid Walter
By: /s/ Dr. Ingrid Walter
Telex No.: 4 421 442 -------------------------
Answerback: gz sb d Dr. Ingrid Walter
Bankdirektorin
Telecopy No.: 681-3006-295
Lending Office and Payment Office:
- ---------------------------------
For Eurodollar Advances:
Ursulinenstrasse 2
D-66111 Saarbrucken
Germany
For Base Rate and
Overnight Rate Advances:
Lending Office: Ursulinenstrabe 2, 66111 Saarbrucken, Germany
- -------------------------------------------------------------
Payment Office: Account of Landesbunk Saar Girozentrale with
Bayerische Landesbank, New York, Account No: 10 23 27 0001
- --------------------------------------------------------------------------
COMMITMENT: $6,000,000
PRO RATA SHARE OF
COMMITMENTS: 6%
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Address for Notices: NBD BANK
- -------------------
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Kelly T. Cotton By: /s/ William C. Goodhue
-------------------------
Name: William C. Goodhue
------------------
Title: Vice President
-----------------
Telex No.: 164177
Answerback: NATIONSBANK DET
Telecopy No.: (313) 225-2290
Lending Office and Payment Office:
- ---------------------------------
611 Woodward Avenue
Detroit, Michigan 48226
COMMITMENT: $23,000,000
PRO RATA SHARE OF
COMMITMENTS: 23%
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Address for Notices: FIRST UNION NATIONAL
- ------------------- BANK OF NORTH CAROLINA
One First Union Center
TW-19
Charlotte, NC 28288-0745
Attn: Glen Edwards By: /s/ Mark M. Harden
-------------------------
Name: Mark M. Harden
------------------
Title: Vice President
-----------------
Telex No.:
Answerback:
Telecopy: (703) 374-2802
Lending Office and Payment Office:
- ---------------------------------
One First Union Center, TW19
Charlotte, NC 28288-0745
COMMITMENT: $23,000,000
PRO RATA SHARE OF
COMMITMENTS: 23%
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Address for Notices: COMERICA BANK
- -------------------
500 Woodward Avenue
Mail Code 3265
Detroit, Michigan 48226-3265 By: /s/ Mark B. Grover
-------------------------
Mark B. Grover
Vice President
Attention: Mark B. Grover
Telex Number: N/A
Answerback: N/A
Telecopy No.: (312) 222-3776
Lending Office and Payment Office:
- ---------------------------------
500 Woodward Avenue
Mail Code 3265
Detroit, Michigan 48226-3265
Attention: Susan Boyd
COMMITMENT: $20,000,000
PRO RATA SHARE OF
COMMITMENTS: 20%
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