EXHIBIT 10.1
EIGHTH AMENDMENT
TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT
This EIGHTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
(this "AMENDMENT") is dated as of June 24, 2005 and entered into by and among
INTERMET CORPORATION, a Georgia corporation ("COMPANY"), THE SUBSIDIARIES OF
COMPANY LISTED ON THE SIGNATURE PAGES HEREOF AS BORROWERS (collectively, Company
and such Subsidiaries of Company are "BORROWERS" and each a "BORROWER"), THE
BANK OF NOVA SCOTIA, as Administrative Agent for the Lenders ("ADMINISTRATIVE
AGENT") and as a Lead Lender, DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Collateral Agent and Co-Agent for the Lenders ("COLLATERAL AGENT") and as a Lead
Lender, and the undersigned Lenders, and is made with reference to that certain
Debtor-In-Possession Credit Agreement dated as of October 22, 2004 (as amended,
supplemented or otherwise modified to the date hereof, the "CREDIT AGREEMENT"),
by and among Borrowers, the Lenders, Administrative Agent and Collateral Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers and the undersigned Lenders desire to amend
the Credit Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 1.1.
Subsection 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions in appropriate alphabetical order:
"EQUITY COMMITMENT AGREEMENT" means the commitment
letter agreement (and related term sheet) among Stanfield
Capital Partners, LLC (on behalf of certain of its related or
associated entities), R2 Investments, LDC (on behalf of
certain of its related or associated entities) and Company, in
the form delivered to Agents pursuant to Section 3.3 of the
Eighth Amendment, with amendments, supplements or other
modifications thereto that are not adverse to Lenders (in the
judgment of Agents).
"EIGHTH AMENDMENT" means that certain Eighth
Amendment to Debtor-In-Possession Credit Agreement dated as of
June 24, 2005 by and among Borrowers, Agents, Lead Lenders and
the Lenders party thereto.
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"EIGHTH AMENDMENT EFFECTIVE DATE" has the meaning
assigned to that term in the Eighth Amendment.
1.2 AMENDMENT TO SUBSECTION 2.10.
Subsection 2.10 of the Credit Agreement is hereby amended by
deleting the last sentence thereof in its entirety and substituting therefor the
following new sentence:
"Notwithstanding anything to the contrary in this subsection
2.10, Borrowers, with the approval of the Bankruptcy Court,
may make the Exit Lender Work Fee Payments and enter into the
Lazard Agreements, the CMD Agreements and the Equity
Commitment Agreement.".
1.3 AMENDMENT TO SUBSECTION 4.3A.
Subsection 4.3A of the Credit Agreement is hereby amended by
adding immediately before the "."at the end thereof the following proviso:
"; provided, that certifications made on and after the Eighth
Amendment Effective Date pursuant to subsections 4.3A(ii)(a)
and 4.3A(ii)(b) shall be made without regard to payments made
and to be made pursuant to and in accordance with Borrowers'
obligations under the Equity Commitment Agreement".
1.4 AMENDMENT TO SUBSECTION 6.16.
Subsection 6.16 of the Credit Agreement is hereby amended by
deleting the reference to "$1,000,000" contained in clause (b) of the second
sentence therein and substituting therefor "$1,500,000".
1.5 AMENDMENT TO SUBSECTION 7.5.
Subsection 7.5(ii) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting therefor the following:
"(ii) payments permitted under subsection 2.10, Exit
Lender Work Fee Payments, payments made pursuant to and in
accordance with the terms of the Lazard Agreements, the CMD
Agreements and payments made pursuant to and in accordance
with the Equity Commitment Agreement;".
1.6 AMENDMENT TO SUBSECTION 7.6A(i).
Subsection 7.6A(i) of the Credit Agreement is hereby amended
by adding immediately after the reference to "Cash disbursements or
expenditures" contained therein the parenthetical phrase "(other than payments
made pursuant to and in accordance with Borrowers' obligations under the Equity
Commitment Agreement)".
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1.7 AMENDMENT TO SUBSECTION 8.6.
A. Subsection 8.6(a)(vii) of the Credit Agreement is hereby
amended by deleting the proviso contained therein and substituting therefor the
following proviso:
", provided, however, that entry by the Bankruptcy Court of an
order approving any of the Exit Lender Work Fee Payments, the
Lazard Agreements, the CMD Agreements and the Equity
Commitment Agreement shall not be an Event of Default under
this clause (vii)".
B. Subsection 8.6(b) of the Credit Agreement is hereby amended
by deleting the proviso contained therein and substituting therefor the
following proviso:
", provided, however, that the filing by Borrowers of a motion
or motions with the Bankruptcy Court for authority to make the
Exit Lender Work Fee Payments and/or authority to enter into
the Lazard Agreements, the CMD Agreements and the Equity
Commitment Agreement shall not be an Event of Default under
this clause (b)".
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Lenders and the Lenders to enter
into this Amendment and to amend the Credit Agreement in the manner provided
herein, Borrowers represent and warrant to each Lead Lender and Lender that the
following statements are true, correct and complete:
2.1 CORPORATE POWER AND AUTHORITY. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
2.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment has been duly authorized by all necessary action on the part of
each Borrower and the performance of the Amended Agreement has been duly
authorized by all necessary action on the part of each Borrower.
2.3 NO CONFLICT. The execution and delivery by each Borrower of
this Amendment and the performance by each Borrower of the Amended Agreement do
not and will not (i) violate any provision of any law or any governmental rule
or regulation applicable to any Borrower or any of its Subsidiaries, or the
Organizational Documents of any Borrower or any of its Subsidiaries or any
order, judgment or decree of the Bankruptcy Court of any other Government
Authority binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
Subsidiaries or any applicable order of the Bankruptcy Court, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of any Borrower or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Collateral Agent on behalf of the
Lenders), or (iv) require any
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approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of any Borrower or any of its Subsidiaries.
2.4 GOVERNMENTAL CONSENTS. The execution and delivery by each
Borrower of this Amendment and the performance by each Borrower of the Amended
Agreement do not and will not require any Governmental Authorization.
2.5 BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Borrower, and each of this Amendment and the Amended Agreement
is the legally valid and binding obligations of each Borrower enforceable
against each Borrower in accordance with its respective terms.
2.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Eighth Amendment Effective Date (as hereinafter
defined) to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
2.7 ABSENCE OF DEFAULT. As of the date hereof after giving effect
hereto, there exists no Event of Default or Potential Event of Default under the
Credit Agreement.
2.8 FINAL BORROWING ORDER. The Final Borrowing Order is in full
force and effect and has not been stayed by the Bankruptcy Court or any other
court of competent jurisdiction and has not been reversed, vacated or otherwise
modified after the entry thereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on the first date (such
date being referred to herein as the "EIGHTH AMENDMENT EFFECTIVE DATE") on which
(i) Borrowers shall have delivered to Agents a correct and complete copy of the
commitment letter and related term sheet to be entered into by Stanfield Capital
Partners, LLC (on behalf of certain of its related or associated entities), R2
Investments, LDC (on behalf of certain of its related or associated entities)
and Company, which commitment letter and term sheet shall be satisfactory in
form and substance to Agents, and (ii) Borrowers, Requisite Lenders and each
Lead Lender shall have each executed a counterpart hereof, and Company and
Agents shall have received written or telephonic notification of such execution
and authorization of delivery of such counterparts; provided, however, that
notwithstanding anything contained in this Amendment or any of the Loan
Documents to the contrary, (a) it shall be a condition subsequent to the
effectiveness of this Amendment that (1) on or prior to July 21, 2005, Borrowers
shall have paid in full all outstanding statements for fees and expenses of each
of Collateral Agent and Administrative Agent and their respective experts and
counsel (including, but not limited to, O'Melveny & Myers LLP, Wachtell, Lipton,
Rosen & Katz, Pepper Hamilton LLP and Capstone Corporate Recovery LLC) to the
extent submitted to Company prior to 12:00 Noon (New York City time) on July 14,
2005, (2) Borrowers shall have paid, in immediately available funds, not later
than two Business Days after either (x) the entry of an order by the Bankruptcy
Court approving the
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Equity Commitment Agreement or (y) if such order is stayed, the date, if any,
when such order ceases to be subject to such stay (the date of such entry or
cessation, as the case may be, the "EQUITY COMMITMENT AGREEMENT APPROVAL DATE"),
a nonrefundable amendment fee in the aggregate amount of $150,000 to
Administrative Agent, for distribution to each Lender that has executed and
delivered to Agents a counterpart of this Amendment prior to 12:00 Noon (New
York City time) on June 30, 2005 according to the relative Revolving Commitments
of all such Lenders, and (3) on or prior to the Equity Commitment Agreement
Approval Date, the Bankruptcy Court shall have approved this Amendment and the
payment of the fees described in clause (a)(2) of this proviso pursuant to an
order in form and substance satisfactory to Agents, and (b) all amendments
contained in or effected by this Amendment shall be immediately null and void,
ab initio, and of no force and effect whatsoever, if any of the conditions
subsequent set forth in clauses (a)(1) through (a)(3) of this proviso is not
satisfied by the relevant date set forth in such clause.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each Borrower hereby acknowledges that such Borrower has read
this Amendment and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the
obligations of such Borrower under each of the Loan Documents to which such
Borrower is a party shall not be impaired and each of the Loan Documents to
which such Borrower is a party are, and shall continue to be, in full force and
effect and are hereby confirmed and ratified in all respects.
SECTION 5. MISCELLANEOUS
5.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
A. On and after the Eighth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment
shall not constitute a waiver of any provision of, or operate as a waiver of (or
otherwise prejudice) any right, power or remedy of any Agent or any Lender
under, the Credit Agreement or any of the other Loan Documents.
5.2 FEES AND EXPENSES. Each Borrower acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and Collateral Agent and their respective
counsel (including, without limitation, O'Melveny & Myers LLP, Wachtell, Lipton,
Rosen & Katz, Pepper Hamilton LLP and Capstone
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Corporate Recovery LLC) with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrowers.
5.3 HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
5.4 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS:
INTERMET CORPORATION
By: /s/ Alan J. Miller
--------------------------------
Name: Alan J. Miller
Title: Vice President
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ Alan J. Miller
--------------------------------
Name: Alan J. Miller
Title: Vice President
CAST-MATIC CORPORATION
By: /s/ Alan J. Miller
--------------------------------
Name: Alan J. Miller
Title: Vice President
COLUMBUS FOUNDRY, L.P.
By: /s/ Alan J. Miller
--------------------------------
Name: Alan J. Miller
Title: Vice President
DIVERSIFIED DIEMAKERS, INC.
By: /s/ Alan J. Miller
--------------------------------
Name: Alan J. Miller
Title: Vice President
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GANTON TECHNOLOGIES INC.
By: /s/ Alan J. Miller
---------------------------------
Name: Alan J. Miller
Title: Vice President
INTERMET HOLDING COMPANY
By: /s/ Alan J. Miller
---------------------------------
Name: Alan J. Miller
Title: Vice President
INTERMET ILLINOIS, INC.
By: /s/ Alan J. Miller
---------------------------------
Name: Alan J. Miller
Title: Vice President
INTERMET INTERNATIONAL, INC.
By: /s/ Alan J. Miller
---------------------------------
Name: Alan J. Miller
Title: Vice President
INTERMET U.S. HOLDING, INC.
By: /s/ Alan J. Miller
---------------------------------
Name: Alan J. Miller
Title: Vice President
S-2
IRONTON IRON, INC.
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
LYNCHBURG FOUNDRY COMPANY
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
NORTHERN CASTINGS CORPORATION
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
SUDBURY, INC.
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
SUDM, INC.
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
TOOL PRODUCTS, INC.
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
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WAGNER CASTINGS COMPANY
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
WAGNER HAVANA, INC.
By: /s/ Alan J. Miller
----------------------------------
Name: Alan J. Miller
Title: Vice President
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AGENTS AND LENDERS:
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lead
Lender and a Lender
By: /s/ Ronald Dooley
--------------------------------------
Name: Ronald Dooley
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and as a Lead Lender
and a Lender
By: /s/ Frank Fazio
--------------------------------------
Name: Frank Fazio
Title: Director
DK ACQUISITION PARTNERS, LP,
as a Lender
By:
--------------------------------------
Name:
Title:
TRS CALLISTO LLC,
as a Lender
By:
--------------------------------------
Name:
Title:
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