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EXHIBIT 4.19
EXECUTION COUNTERPART
WAIVER AND THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT (the "Amendment")
dated as of November 15, 1993, by and among INTERMET CORPORATION, a Georgia
corporation (referred to herein either as "Intermet" or as the "Borrower"),
TRUST COMPANY BANK, a Georgia banking corporation, LANDESBANK SAAR
GIROZENTRALE, a German banking corporation, NBD BANK, N.A., a national banking
association, WACHOVIA BANK OF GEORGIA, N.A., a national banking association,
THE FIRST NATIONAL BANK OF BOSTON, a national banking association, FIRST UNION
NATIONAL BANK OF GEORGIA, a national banking association, NATIONSBANK OF
GEORGIA, N.A., a national banking association, and NATIONAL CITY BANK,
KENTUCKY, FORMERLY KNOWN AS THE FIRST NATIONAL BANK OF LOUISVILLE, a national
banking association (collectively, the "Lenders") and TRUST COMPANY BANK, in
its capacity as agent (in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties to a
certain Credit Agreement dated as of August 31, 1992, as amended by that
certain First Amendment to Credit Agreement dated as of December 11, 1992 and
as further amended by that certain Waiver and Second Amendment to Credit
Agreement dated as of March 19, 1993 (as amended, the "Credit Agreement"; all
terms used herein without definition shall have the meanings ascribed to such
terms in the Credit Agreement);
WHEREAS, based upon the Borrower's preliminary calculations, the
Borrower will not be in compliance with Section 8.08(b) of the Credit Agreement
upon delivery of its financial statements for its fiscal quarter ended
September 30, 1993 pursuant to Section 8.07(b);
WHEREAS, the Borrower has requested that the Lenders (i) waive
compliance with Section 8.08(b) for the fiscal period ending September 30,
1993, and (ii) amend Section 8.08(b) and various other financial covenants and
related definitions to make such covenants less restrictive;
WHEREAS, the Lenders have agreed to such amendments as more
specifically set forth below upon the condition that the Credit Agreement also
be amended to provide for certain increased interest rate margins;
WHEREAS, the parties wish to amend the Credit Agreement to reflect
these agreements and to waive compliance with Section 8.08(b) for the fiscal
quarter ending September 30, 1993, all
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upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual premises
contained herein and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Section 1.01 of the Credit Agreement is hereby amended as
follows:
(a) By adding the definitions of "Adjusted
Cash Flow," "Adjusted Fixed Charge Coverage Ratio"
and "Capital Expenditure" set forth below in the
appropriate alphabetical order:
`"Adjusted Cash Flow" shall mean, for any
fiscal period of Intermet, Consolidated EBITDAR minus
the sum of (i) Capital Expenditures made by the
Consolidated Companies during such fiscal period and
(ii) taxes on income paid by the Consolidated
Companies in cash (less cash refunds received) during
such fiscal period to any federal, state or local
authorities, determined on a consolidated basis in
accordance with GAAP. Notwithstanding the foregoing,
in the event that any of the Consolidated Companies
receives a refund of taxes during the fourth fiscal
quarter of 1993, such amount shall be added back to
offset the payment of income taxes pursuant to
subsection (ii) above in the first fiscal quarter of
1994.
"Adjusted Fixed Charge Coverage Ratio" shall
mean, with respect to any fiscal period of Intermet,
the ratio of (A) Adjusted Cash Flow to (B) the sum of
(i) Consolidated Interest Expense paid in cash during
such fiscal period, (ii) Consolidated Rental Expense
paid in cash during such fiscal period, and (iii)
scheduled principal reductions of Funded Debt of the
Consolidated Companies paid in cash during such
fiscal period, as determined on a consolidated basis
in accordance with GAAP.
"Capital Expenditure" shall mean, for any
fiscal period of Intermet, the sum of (i) cash
expenditures by the Consolidated Companies during
that fiscal period that, in conformity with GAAP, are
included in "capital expenditures", "additions to
property, plant or equipment" or comparable items in
the financial statements of the Consolidated
Companies, and (ii) to the extent not included in
clause (i) above, cash expenditures for all net
non-current assets of businesses acquired by the
Consolidated Companies during that period, including
all purchase price adjustments, other than such
assets acquired in transactions where all or
substantially all of the consideration paid for such
assets consisted of capital stock of a Consolidated
Company.'
(b) By deleting the definition of
"Applicable Margin" set forth therein and
substituting in lieu thereof the following
definition:
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EXECUTION COUNTERPART
`"Applicable Margin" shall mean (i) with
respect to all outstanding Borrowings through April
30, 1993, three quarters of one percent (0.75%) per
annum, (ii) with respect to all outstanding
Borrowings from May 1, 1993 through November 30,
1993, one and one quarter of one percent (1.25%) per
annum, (iii) with respect to all outstanding
Borrowings from December 1, 1993 through the last day
of the second fiscal quarter of 1994, one and
three-quarters of one percent (1.75%) per annum, and
(iv) with respect to all outstanding Borrowings
thereafter, the higher percentage of the relevant
percentages indicated for each of Intermet's Adjusted
Fixed Charge Coverage Ratio and Leverage Ratio on the
chart below as determined as of the last day of each
fiscal quarter (or fiscal year as the case may be) of
Intermet, commencing with the fiscal quarter ending
on or about March 31, 1994, to be effective as of the
first day of the second succeeding fiscal quarter
thereafter, commencing on or about July 1, 1994, with
such Applicable Margin to be immediately effective as
of such date with respect to all outstanding amounts
under the Revolving Loan Credit, Currency Loan
Commitment or Term Loans, as the case may be:
[CHART SET FORTH ON NEXT PAGE]
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Revolving/Currency Term Loans Adjusted Fixed Leverage
Revolving Charge Coverage Ratio
Loans Ratio
2.000% 2.250% less than 1.00:1.00 NOT APPLICABLE
1.750% 2.000% greater than or
equal to 1.00:1.00 greater than or
and less than equal to 0.45:1.00
1.30:1.00
1.500% 1.750% greater than or greater than or
equal to 1.30:1.00 equal to 0.40:1.00
and less than but less than
1.45:1.00 O.45:1.00
1.250% 1.500% greater than or greater than or
equal to 1.45 less equal to 0.40:1.00
than 1.65 but less than
0.45:1.00
1.00% 1.250% greater than or greater than or
equal to 1.65:1.00 equal to 0.35:1.00
but less than but less than
1.75:1.00 0.40:1.00
0.750% 1.00% greater than or greater than or
equal to 1.75:1.00 equal to 0.20:1.00
but less than but less than
3.50:1.00 0.35:1.00
0.625% 0.875% greater than less than 0.20:1.00
3.50:1.00
(c) By deleting the definitions of
"Consolidated EBIT" and "Consolidated EBITDA" set
forth therein and substituting the following
definition of "Consolidated EBITDAR" in lieu thereof:
`"Consolidated EBITDAR" shall mean, for any fiscal
period of Intermet, an amount equal to (A) the sum
for such fiscal period of Consolidated Net Income
(Loss) and, to the extent subtracted in determining
such Consolidated Net Income (Loss), provisions for
(i) taxes based on income, (ii) Consolidated Interest
Expense to the extent paid in
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EXECUTION COUNTERPART
cash, (iii) Consolidated Rental Expense to the extent
paidin cash, (iv) charges taken in conformity with
FASB 106 prior to fiscal year-end 1993, and (v)
depreciation and amortization expense of the
Consolidated Companies during such period, minus (B)
any items of gain (or plus any items of loss) which
were 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.'
(d) By deleting the definition of "Fixed
Charge Coverage Ratio" set forth therein.
2. Section 8.07 of the Credit Agreement is hereby amended as
follows:
(a) By amending subsection (a) thereof by
deleting "120" in the second line and substituting
in lieu thereof "90."
(b) By amending subsection (b) thereof by
adding "and consolidating" after the word
"consolidated" in the fifth, ninth and seventeenth
lines of such subsection.
(c) By amending subsection (e) thereof by
deleting "Within 120 days after" and substituting in
lieu thereof "No later than thirty (30) days prior
to".
(d) By adding the following new subsection
(u) thereto:
"(u) Monthly Financial Statements. As
soon as available and in any event within thirty (30)
days after the end of each calendar month, (a)
balance sheets of Intermet, Intermet Foundries, Inc.
("IFI") and Intermet Machining, Inc. ("IMI") as at
the end of such month, presented on a consolidated
and consolidating basis for Intermet, IFI and IMI,
(b) statements of cash flows of Intermet as at the
end of such month, presented on a consolidated and
consolidating basis for Intermet, and (c) the related
statements of income of Intermet, IFI and IMI as at
the end of such month, presented on a consolidated
and consolidating basis for Intermet, IFI and IMI, in
each case, setting forth in comparative form the
figures for such month shown in the budget prepared
by Intermet for its internal use (rather than the
budget delivered to the Lenders pursuant to
subsection (e) above), all in reasonable detail and
prepared
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by the chief financial officer or principal
accounting officer of Intermet in accordance with
GAAP consistently applied (subject to normal year-end
audit adjustments and the absence of certain
footnotes)."
3. Section 8.08 of the Credit Agreement is
hereby amended by deleting subsections (b), (d) and (e) thereof in their
entirety and substituting the following in lieu thereof:
"(b) Adjusted Fixed Charge Coverage Ratio.
Maintain as of the last day of each fiscal quarter, a
minimum Adjusted Fixed Charge Coverage Ratio,
calculated for the immediately preceding four fiscal
quarters, as shown below for each fiscal quarter
ending during the periods indicated; provided that,
with respect to the fiscal quarter ending on or about
December 31, 1993, the Adjusted Fixed Charge Coverage
Ratio shall be calculated for the period commencing
on October 1, 1993 and ending on such date; and
further provided that, with respect to the fiscal
quarters ending on or about March 31, 1994, June 30,
1994 and September 31, 1994, the Adjusted Fixed
Charge Coverage Ratio shall be calculated for the
period commencing on January 1, 1994 and ending on
such date:
Minimum Adjusted
Fixed Charge
Coverage
Period Ratio
------ ---------------
Fourth Fiscal Quarter End 1993 -2.30:1.0
First Fiscal Quarter End 1994 0.10:1.0
Second Fiscal Quarter End 1994 1.35:1.0
Third Fiscal Quarter End 1994
and thereafter 1.50:1.0.
(d) Leverage Ratio. Maintain as of the
last day of each fiscal quarter, a maximum Leverage
Ratio as shown below for each fiscal quarter ending
during the periods indicated:
Maximum Leverage
Period Ratio
------ ---------------
Third Fiscal Quarter End 1992 through
Third Fiscal Quarter End 1993 0.45:1.0
Fourth Fiscal Quarter End 1993 through
First Fiscal Quarter End 1994 0.51:1.0
Second Fiscal Quarter End 1994 through
Third Fiscal Quarter End 1994 0.50:1.0
Fourth Fiscal Quarter End 1994 through
First Fiscal Quarter End 1995 0.48:1.0
Second Fiscal Quarter End 1995
and thereafter 0.45:1.0
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EXECUTION COUNTERPART
(e) Funded Debt to Consolidated EBITDAR.
Maintain as of the last day of each fiscal quarter, a
maximum ratio of Funded Debt to Consolidated EBITDAR,
calculated for the immediately preceding four fiscal
quarters, less than or equal to 3.5:1.0; provided
that, for the period ending on or about March 31,
1994, such maximum ratio shall be less than or equal
to 3.75:1.0."
4. Pursuant to Section 8.08(b) of the Credit
Agreement, the Borrower is required to have a minimum Fixed Charge Coverage
Ratio, calculated as at the Third Fiscal Quarter End 1993, of not less than
1.00:1.00. Based on Borrower's preliminary calculations, the Borrower is not
in compliance with such covenant. The Borrower has requested and the Lenders
have agreed to waive compliance with Section 8.08(b) for the Third Fiscal
Quarter End 1993.
5. The Borrower hereby agrees that nothing
herein shall constitute a waiver by the Lenders of any Default or Event of
Default, whether known or unknown, which may exist under the Credit Agreement
except as specifically set forth in Section 4 hereof. Without limiting the
generality of the foregoing, the Borrower expressly acknowledges and agrees
that nothing herein shall constitute a waiver of a Default or an Event of
Default arising pursuant to Section 10.06 of the Credit Agreement with respect
to a default under any other agreement of the Borrower, except for any Default
or Event of Default arising pursuant to the Note Purchase Agreement which is
expressly waived in the amendment thereto referenced in Section 6 hereof. The
Borrower represents and warrants to the Lenders that as of the date hereof, no
Default or Event of Default exists pursuant to the Credit Agreement which is
not expressly waived herein. In addition, the Borrower acknowledges and agrees
that it has no knowledge of any defenses, counterclaims, offsets or objections
in its favor against the Lenders with regard to any of the obligations due
under the terms of the Credit Agreement as of the date of this Amendment.
6. In compliance with Section 9.13 of the Credit
Agreement, each of the Agent and the Lenders, by its signature below, hereby
consents to the execution by Intermet of the
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amendment to the Note Purchase Agreement attached hereto as Exhibit "A".
7. Intermet, without limiting the
representations and warranties provided in the Credit Agreement, represents and
warrants to the Lenders and the Agent as follows:
(a) The execution, delivery and
performance by Intermet of this Amendment are within
Intermet's corporate powers, have been duly
authorized by all necessary corporate action
(including any necessary shareholder action) and do
not and will not (a) violate any provision of any
law, rule or regulation, any judgment, order or
ruling of any court or governmental agency, the
articles of incorporation or by-laws of Intermet or
any indenture, agreement or other instrument to which
Intermet is a party or by which Intermet or any of
its properties is bound or (b) be in conflict with,
result in a breach of, or constitute with notice or
lapse of time or both a default under any such
indenture, agreement or other instrument.
(b) This Amendment constitutes the
legal, valid and binding obligations of Intermet,
enforceable against Intermet in accordance with its
terms.
(c) No Default or Event of Default has
occurred and is continuing as of the date hereof.
(d) All representations and warranties
by Intermet contained in the Credit Agreement, as
amended by this Amendment, are true and correct in
all material respects with the same effect as though
such representations and warranties had been made on
and as of the date hereof.
8. Except as expressly amended and modified
herein, all terms and covenants and provisions of the Credit Agreement shall
remain unaltered and in full force and effect, and the parties hereto do
expressly ratify and confirm the Credit Agreement as modified herein. All
future references to the Credit Agreement shall be deemed to refer to the
Credit Agreement as amended hereby.
9. Intermet agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation,
execution and delivery of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder.
10. This Amendment shall be effective upon
receipt by the Agent of (i) fully executed counterparts of this Amendment in
its offices in Atlanta, Georgia, (ii) an amendment fee paid by Intermet to the
Agent on behalf of each of the Lenders in the amount of $5,000 for each Lender,
(iii) a written consent to the
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EXECUTION COUNTERPART
terms of this amendment in form and substance satisfactory to the Agent
executed by a duly authorized officer of The Prudential Insurance Company of
America, and (iv) a duly executed amendment to the Note Purchase Agreement in
the form attached hereto as Exhibit "A".
11. This Amendment shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, successors,
successors-in-titles, and assigns.
12. This Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia, notwithstanding
any principles regarding conflicts of laws thereof.
13. This Agreement sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
14. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts and
may be delivered by telecopier. Each counterpart so executed and delivered
shall be deemed an original and all of which taken together shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
executed this Amendment through their authorized officers as of the date first
above written.
INTERMET CORPORATION
By:
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Title:
Attest:
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Title:
------------------------
[CORPORATE SEAL]
TRUST COMPANY BANK
By:
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Title:
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By:
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Title:
LANDESBANK SAAR GIROZENTRALE
By:
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Title:
By:
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Title:
NBD BANK, N.A.
By:
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Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:
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Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
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Title:
FIRST UNION NATIONAL BANK OF
GEORGIA
By:
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Title:
NATIONSBANK OF GEORGIA, N.A.
By:
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Title:
NATIONAL CITY BANK, KENTUCKY,
FORMERLY KNOWN AS THE FIRST
NATIONAL BANK OF LOUISVILLE
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EXECUTION COUNTERPART
By:
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Title:
TRUST COMPANY BANK, AS AGENT
By:
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Title:
By:
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Title:
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CONSENT AND RATIFICATION OF GUARANTORS
Each of the undersigned Guarantors acknowledges its receipt of and
consent to the Waiver and Third Amendment to Credit Agreement attached hereto
and incorporated herein by this reference and further acknowledges and agrees
that nothing contained therein shall release, discharge, modify, change or
affect the original liability of the Guarantors under the Guaranty Agreement
and each Guarantor ratifies and affirms the terms and conditions of the
Guaranty Agreement which remains in full force and effect.
IN WITNESS WHEREOF, each Guarantor has executed this Consent and
Ratification under seal as of this ______ day of November, 1993.
INTERMET FOUNDRIES, INC.
(a "Guarantor")
By:
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Title:
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COLUMBUS FOUNDRIES, INC.
(a "Guarantor")
By:
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Title:
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LYNCHBURG FOUNDRY COMPANY
(a "Guarantor")
By:
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Title:
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IRONTON IRON, INC.
(a "Guarantor")
By:
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Title:
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EXECUTION COUNTERPART
NORTHERN CASTINGS CORPORATION
(a "Guarantor")
By:
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Title:
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PENNSYLVANIA CASTINGS CORPORATION
(a "Guarantor")
By:
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Title:
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INTERMET INTERNATIONAL, INC.
(a "Guarantor")
By:
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Title:
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INTERMET MACHINING, INC.
(a "Guarantor")
By:
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Title:
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COMMERCIAL AND PRECISION MACHINING, INC.
(a "Guarantor")
By:
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Title:
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PBM INDUSTRIES, INC.
(a "Guarantor")
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By:
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Title:
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INTERMOTIVE TECHNOLOGIES, INC.
(a "Guarantor")
By:
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Title:
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NEW RIVER CASTINGS COMPANY
(a "Guarantor")
By:
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Title:
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INTERMET ALUMINUM, INC.
(a "Guarantor")
By:
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Title:
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I.C. VENTURE, INC.
(a "Guarantor")
By:
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Title:
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