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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 19, 1997
---------------
AMCAST INDUSTRIAL CORPORATION
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(Exact name of registrant as specified in its charter)
OHIO 1-9967 31-0258080
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification
Number)
7887 Washington Village Drive, Dayton, Ohio 45459
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(Address of principal execution offices) (zip code)
Registrant's telephone number, including area code (937) 291-7000
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(Former name or address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
- ------- -------------------------------------
A Share Purchase Agreement (the "Agreement") was entered into on July 21,
1997 among Amcast Industrial Corporation, as purchaser ("Amcast"), and Speedline
International Holding B.V., a Netherlands corporation, Gerance S.A., a Swiss
corporation, San Marco Finanziaria S.p.A., an Italian corporation, Antonio
Zacchello, Giancarlo Zacchello, Gianni Zacchello, Franco Zacchello and Graziella
Zacchello, as sellers (the "Sellers"). Sellers owned all of the outstanding
shares of capital stock of Speedline S.p.A., ("Speedline"). Pursuant to the
Agreement, Amcast, indirectly through its wholly-owned subsidiaries, acquired
from Sellers on August 19, 1997 all of the outstanding capital stock of
Speedline (the "Speedline Shares").
Speedline and its subsidiaries (Speedcast B.V., a Netherlands
corporation; Speedline Alumina S.p.A., an Italian corporation; Speedline
Engineering S.p.A., an Italian corporation; Speedline Competition S.r.l., an
Italian corporation, Autolambro S.r.l., an Italian corporation; Alustampi
S.r.l., an Italian corporation, Speedline UK Limited, an English corporation,
Speedline France S.a.r.l., a French corporation; and SL Wheels, Inc., a
Michigan corporation) are engaged in the business of designing, manufacturing,
and marketing aluminum, magnesium and alloy wheels and hubcaps and other
products for the automotive industry. Speedline and such listed subsidiaries
are herein referred to as the Acquired Companies. Amcast intends to continue
the businesses of the Acquired Companies.
The purchase price paid or payable to Sellers for the Speedline Shares in
U.S. $69.0 million (the "Purchase Price"), subject to adjustment based on the
net worth of the Acquired Companies as of August 19, 1997 (the "Closing Date")
and the amount of indebtedness existing as of the Closing Date, all as shown on
the audited closing statement prepared in accordance with Section 2.4 of the
Agreement. The Purchase Price consists of the following payments (ii) U.S. $48.5
million paid on the Closing Date; (ii) delivery of 478,240 common shares of
Amcast having a value of U.S. $12.5 million (calculated on the basis of the
average closing price per share of the common shares of Amcast on the New York
Stock Exchange for the 20-day trading period ended July 25, 1997); (iii) U.S.
$4.0 million, together with interest from the Closing Date, payable on May 19,
1998; and (iv) an additional U.S. $4.0 million, payable on December 31, 1999,
together with interest, provided that the Acquired Companies' financial
performance for the 12-month period ending December 31, 1997 meets certain
criteria specified in the Agreement.
In connection with the purchase, Amcast entered into a Credit Agreement,
dated August 14, 1997, with Keybank National Association, (the "Credit
Agreement"). The Credit Agreement provides for up to a maximum of $200 million
in revolving credit loans during the commitment period ending August 14, 2002,
subject to the Bank's right to reduce or terminate the commitment period as
provided in the Credit Agreement. On August 15, 1997, Amcast borrowed
approximately $50.0 million under the Credit Agreement as a source of funds
for the purchase of the Acquired Companies.
The Agreement and the Credit Agreement are filed as Exhibits to this Report
on Form 8-K and reference is made to such Exhibits for additional information.
There is no material relationship between Sellers and Amcast or any affiliate,
director or officer of Amcast or any associate of any director or officer of
Amcast.
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ITEM 7. FINANCIAL STATEMENTS
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Financial statements and Pro Forma Financial Information. Amcast intends to
file as an amendment to this Report as soon as practicable, but no later than
November 3, 1997, the following audited financial statements and related notes
thereto and pro forma financial information:
(A) Audited financial statements: Acquired Companies
(1) Consolidated Balance Sheets of the Acquired Companies as of December
31, 1996 and 1995.
(2) Consolidated Statements of Income of the Acquired Companies for the
years ended December 31, 1996, 1995, and 1994.
(3) Consolidated Statements of Cash Flows of the Acquired Companies for the
years ended December 31, 1996, 1995 and 1994.
(B) Unaudited Pro forma financial information: Amcast Industrial Corporation
(1) Pro Forma Condensed Consolidated Balance Sheet at June 1, 1997.
(2) Pro Forma Condensed Consolidated Statements of Income for the
nine-month period ended June 1, 1997.
(3) Pro Forma Condensed Consolidated Statements of Income for the year
ended August 31, 1996.
(4) Notes to the Pro Forma Condensed Consolidated Financial Statements.
(C) Index to Exhibits.
(1) Share Purchase Agreement between Amcast Industrial Corporation and the
Sellers of the Speedline Shares, dated July 21, 1997.
(2) Credit Agreement between Amcast Industrial Corporation and Keybank
National Association, dated August 14, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Amcast Industrial Corporation
By /s/ Douglas D. Watts
--------------------------------
Douglas D. Watts
Vice President, Finance
Dated: September 3, 1997
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SHARE PURCHASE AGREEMENT
between
AMCAST INDUSTRIAL CORPORATION
and
Speedline International Holding B.V.
Gerance S.A.
San Marco Finanziaria S.p.A.
Mr. Antonio Zacchello
Mr. Giancarlo Zacchello
Mr. Gianni Zacchello
Mr. Franco Zacchello
Ms. Graziella Zacchello
GIANNI, ORIGONI & PARTNERS
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<TABLE>
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TABLE OF CONTENTS
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ARTICLE 1: RECITALS: DEFINITIONS: INTERPRETATIONS ..................... .. Page 4
1.1 Recitals ...................................................... Page 4
1.2 Definitions ................................................... Page 4
1.3 Gender and Number ............................................. Page 4
1.4 Headings, Etc. ................................................ Page 4
1.5 Currency ...................................................... Page 4
1.6 Severability .................................................. Page 5
1.7 Adverse Construction .......................................... Page 5
1.8 Incorporation of Enclosures and Sellers' Disclosure Schedule .. Page 5
ARTICLE 2: SALE AND PURCHASE ............................................. Page 6
2.1 Sale and Purchase ............................................. Page 6
2.2 Closing ....................................................... Page 6
2.3 Price ......................................................... Page 7
2.4 Adjustment of the Purchase Price .............................. Page 12
2.4.1 Closing Statement ............................................. Page 12
2.4.2 Adjustment .................................................... Page 13
2.4.3 Closing Statement Disputes .................................... Page 14
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF THE SELLERS ................. Page 15
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER ............... Page 16
ARTICLE 5: SURVIVAL OF REPRESENTATIONS AND WARRANTIES .................... Page 16
5.1 Survival of Representations and Warranties of the Sellers ..... Page 16
5.2 Survival of the Representations and Warranties of the Purchaser Page 16
5.3 Interruption Due to Notice of Claim ........................... Page 17
5.4 Independent Obligations ....................................... Page 17
ARTICLE 6: CLOSING COVENANTS ............................................. Page 17
6.1 Operation of the Business Pending the Closing ................. Page 17
6.2 Access to Information and Documents ........................... Page 20
6.3 Antitrust Filings ............................................. Page 20
6.4 Notice of Untrue Representation or Warranty ................... Page 21
6.5 Actions to Satisfy Closing Conditions ... ..................... Page 21
6.6 Risk of Loss .................................................. Page 21
6.7 Opinions of Counsel ........................................... Page 21
6.8 Corporate Actions ............................................. Page 22
6.9 Key Managers .................................................. Page 22
6.10 Performance ................................................... Page 22
6.11 Related Party Agreements ...................................... Page 22
6.12 Press Releases ................................................ Page 22
6.13 Not used ...................................................... Page 22
6.14 Related Party Leases .......................................... Page 23
6.15 FLT Option .................................................... Page 23
6.16 Revocation of banking powers .................................. Page 23
6.17 Leases extension or amendments ................................ Page 23
ARTICLE 7: POST-CLOSING COVENANTS ........................................ Page 24
7.1 Non-Competition Clause ........................................ Page 24
7.2 Non-Solicitation .............................................. Page 24
7.3 Duty of Confidentiality ....................................... Page 25
7.4 Consideration ................................................. Page 25
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7.5 Modification of Name ......................................... Page 25
7.6 Obligations to bind Affiliates, etc. ......................... Page 25
7.7 Environmental Permitting and Remediation Plan ................ Page 25
7.8 Accounts Receivable .......................................... Page 26
7.9 Releases ..................................................... Page 26
ARTICLE 8: CONDITIONS PRECEDENT OF THE CLOSING .......................... Page 26
8.1 Conditions to Obligations of All Parties ..................... Page 26
8.1.1 No Legal Obstruction ......................................... Page 26
8.1.2 Change in Law ................................................ Page 26
8.2 Conditions to Obligations of Purchaser ....................... Page 27
8.2.1 Board of Directors Approval; Audited Financial Statements .... Page 27
8.2.2 Representations and Warranties ............................... Page 27
8.2.3 Performance .................................................. Page 28
8.2.4 Opinion of Sellers' Counsel .................................. Page 28
8.2.5 Agreement with Mr. Zacchello and Key Managers ................ Page 28
8.2.6 Resignation .................................................. Page 29
8.2.7 Closing Certificate .......................................... Page 29
8.2.8 Deliveries ................................................... Page 29
8.2.9 Material Adverse Change ...................................... Page 31
8.2.10 Satisfactory Meetings with Key Customers ..................... Page 31
8.2.11 Termination of Agreement by Purchaser ........................ Page 31
8.3 Conditions to Obligations of the Sellers ..................... Page 32
8.3.1 Representations and Warranties ............................... Page 32
8.3.2 Performance .................................................. Page 32
8.3.3 Deliveries ................................................... Page 32
8.3.4 Termination of Agreement by Sellers .......................... Page 32
ARTICLE 9: INDEMNIFICATION BY THE SELLERS ............................... Page 33
9.1 Indemnification by the Sellers ............................... Page 33
9.2 Liability of the Sellers ..................................... Page 33
9.3 Indemnification by the Purchaser ............................. Page 37
9.4 Notice of Claim .............................................. Page 37
9.5 Direct Claims ................................................ Page 37
9.6 Third Party Claims ........................................... Page 38
9.7 Settlement of Third Party Claims ............................. Page 38
9.8 Limitation of Liability ...................................... Page 39
9.9 Not used ..................................................... Page 41
9.10 Payment of Amounts ........................................... Page 41
9.11 No Waiver .................................................... Page 41
ARTICLE 10: ARBITRATION .................................................. Page 42
10.1 General ...................................................... Page 42
10.2 Place of Arbitration ......................................... Page 42
10.3 Costs of Arbitration ......................................... Page 42
10.4 Italian Law .................................................. Page 42
ARTICLE 11: MISCELLANEOUS ................................................ Page 43
11.1 Notices ...................................................... Page 43
11.2 Expenses ..................................................... Page 44
11.3 Assignment; No Third Party Beneficiaries ..................... Page 44
11.4 Governing Law; Language ...................................... Page 45
11.5 Integration .................................................. Page 45
11.6 Further Assurances ........................................... Page 45
11.7 Common Representative of the Sellers ......................... Page 45
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11.8 Amendments and Waivers ....................................... Page 45
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PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of July 18/21, 1997 (hereinafter, the "Agreement")
AMCAST INDUSTRIAL CORPORATION, a corporation organized under the laws of Ohio,
USA with registered offices at 7887 Washington Village Drive, Dayton, Ohio
45401-0098 USA ("Amcast"), represented herein by Mr. John H. Shuey, in his
capacity as President and Chief Executive Officer of Amcast, directly or through
one or more companies designated by Amcast that are directly or indirectly
controlled by Amcast (hereinafter, the "Purchaser");
- ON THE ONE SIDE -
SPEEDLINE INTERNATIONAL HOLDING B.V., a company organized under the laws of The
Netherlands, with registered office at Olympic Plaza, Fred. Roeskestraat 123,
1st Floor, 1076EE Amsterdam, The Netherlands, being the owner of 12.33 percent
of the Speedline Shares, represented herein by Mr. Giancarlo Zacchello, as
proxy, pursuant to the duly notarized power of attorney dated July 15, 1997 and
the resolution of the Board of Directors dated July 15, 1997, (hereinafter,
"Speedline Holding");
GERANCE S.A., a company organized under the laws of Switzerland, with registered
office at Gartenstrasse n. 31, Basel, Switzerland, being the owner of 47.79
percent of the Speedline Shares, represented herein by Mr. Werner Krummenacher,
as sole director, pursuant to the resolution of the Board of Directors dated
July 17, 1997 (hereinafter, "Gerance");
SAN MARCO FINANZIARIA S.p.A., a company organized under the laws of Italy, with
registered office at Dorsoduro 1415, Zattere, Venice, Italy, being the owner of
8 percent of the Speedline Shares, represented herein by Mr. Gianni Zacchello,
in his capacity of managing director (hereinafter "San Marco Finanziaria");
(hereinafter, the "Corporate Sellers")
AND
MR. ANTONIO ZACCHELLO, an Italian citizen, born in Venice, Italy on July 6, 1910
domiciled at San Marco 3055, Venice, Italy, owner of 4.76 percent of the
Speedline Shares;
MR. GIANCARLO ZACCHELLO, an Italian citizen, born in Mogliano Veneto, Italy on
July 2, 1933 domiciled at San Marco 3055, Venice, Italy, owner of 6.70 percent
of the
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Speedline Shares;
MR. GIANNI ZACCHELLO, an Italian citizen, born in Mestre, Italy on January 24,
1938 domiciled at Castello 4427 Venice, Italy, owner of 6.70 percent of the
Speedline Shares;
MR. FRANCO ZACCHELLO, an Italian citizen, born in Venice, Italy on December 11,
1935 domiciled at Via Porte Cantarine, Padua, Italy, owner of 6.86 percent of
the Speedline Shares;
MS. GRAZIELLA ZACCHELLO, an Italian citizen, born in Venice, Italy on June 9,
1941 domiciled at Via Calza , Padua, Italy, owner of 6.86 percent of the
Speedline Shares;
(hereinafter, the "Individual Shareholders")
(hereinafter, the Corporate Sellers and the Individual Shareholders, jointly and
severally referred to as the "Sellers");
- ON THE OTHER SIDE -
(hereinafter, collectively referred to as the "Parties").
RECITALS
A. The Sellers directly or indirectly own all of the issued and
outstanding shares as well as all of the quotas of the following
companies:
(i) Gerance (47.79%), Speedline Holding (12.33%), San
Marco Finanziaria (8%), Mr. Antonio Zacchello
(4.76%), Mr. Giancarlo Zacchello (6.70%), Mr. Gianni
Zacchello (6.70%), Mr. Franco Zacchello (6.86%) and
Ms. Graziella Zacchello (6.86%) own all of the issued
and outstanding shares of SPEEDLINE S.p.A., a company
organized under the laws of Italy with outstanding
capital of ITL 30,000,000,000 and registered office
at Dorsoduro 1415, Zattere (Venezia).
(ii) Speedline owns all of the issued and outstanding
shares of SPEEDCAST B.V., a company organized under
the laws of The Netherlands, with registered office
at Olympic Plaza, Fred. Roeskestraat 123, 1ST floor,
Amsterdam, The Netherlands (hereinafter,
"Speedcast");
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(iii) Speedcast owns all of the issued and outstanding
shares of SPEEDLINE ALUMINIA S.p.A. a company
organized under the laws of Italy with registered
office at Bolzano, Via Volta, 25 (hereinafter,
"Speedline Aluminia");
(iv) Speedcast owns all of the issued and outstanding
shares of SPEEDLINE ENGINEERING S.p.A., a company
organized under the laws of Italy, with registered
office at Santa Maria di Sala (Venezia), Via Noalese
184 (hereinafter, "Speedline Engineering");
(v) Speedcast owns all the quotas of SPEEDLINE
COMPETITION S.r.l., a company organized under the
laws of Italy, with registered office at Dorsoduro
1415, Zattere, Venezia (hereinafter, "Speedline
Competition");
(vi) Speedline Aluminia, owns all the quotas of AUTOLAMBRO
S.r.l., a company organized under the laws of Italy,
with registered office at Dorsoduro 1415, Zattere,
Venezia (hereinafter, "Autolambro");
(vii) Speedline owns all the quotas of ALUSTAMPI S.r.l., a
company organized under the laws of Italy, with
registered office at Santa Maria di Sala (Venezia),
Via Salgari 6 (hereinafter, "Alustampi");
(viii) Speedcast owns the entire outstanding capital of
SPEEDLINE UK LIMITED, a private company limited by
shares organized under the laws of England with
registered office at c/o Shakespeare, 10 Bennetts
Hill, Birmingham B25RS, United Kingdom (hereinafter,
"Speedline UK");
(ix) Speedcast owns the entire outstanding capital of
SPEEDLINE FRANCE S.a.r.l., a private company limited
by shares organized under the laws of France, with
registered office at Immeuble Espace Elysee, 307
Square des Champs-Elysees, 91026 Evry Cedex, France
(hereinafter, "Speedline France");
(x) Speedline owns all of the issued and outstanding
shares of SL WHEELS, INC., a corporation organized
under the laws of the State of Michigan, USA, with
registered office at 17515 West Nine Mile Road, Suite
800, Southfield, Michigan, USA (hereinafter,
"Speedline USA");
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(Speedline, Speedcast, Speedline Aluminia, Speedline Engineering,
Speedline Competition, Autolambro, Alustampi, Speedline UK, Speedline
France and Speedline USA hereinafter, jointly and severally, referred
to as the "Companies").
B. The Companies are engaged in the following areas of operations: (a)
manufacturing, distribution and sale of aluminum, magnesium and alloy
wheels and hubcaps and other fittings for the automotive industry, and
(b) all activities incidental, or related to those indicated in the
preceding letter (a).
C. The Sellers wish to sell, and the Purchaser wishes to purchase all, but
not less than all, of the Speedline Shares, and thereby to acquire sole
direct and indirect ownership of the Companies, upon the terms and
subject to the conditions hereinafter set forth and in reliance upon
the representations, warranties, covenants and indemnities of the
Sellers contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, warranties and indemnities herein contained, the Parties hereto
agree as follows.
ARTICLE 1
RECITALS: DEFINITIONS: INTERPRETATIONS
--------------------------------------
1.1 RECITALS. All the foregoing recitals as well as the enclosures and any
document related thereto are an integral and substantial part of this Agreement.
1.2 DEFINITIONS. Enclosure 1 hereto sets forth the definitions used in this
Agreement.
1.3 GENDER AND NUMBER. Any reference in this Agreement to gender shall include
all genders, and words importing the singular number only shall include the
plural and vice versa. All references, both plural and singular, to the Sellers
shall be deemed to refer to them individually, jointly and severally.
1.4 HEADINGS, ETC. The provision of a table of contents, the division of this
Agreement into Articles, Sections, Subsections and other subdivisions and the
insertion of headings are for convenience of reference only and shall not affect
or be utilized in the construction or interpretation of this Agreement.
1.5 CURRENCY. All references in this Agreement to currency, unless otherwise
specifically indicated, shall be in United States Dollars. The term ITL means
Italian Lire.
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1.6 SEVERABILITY. Any Article, Section, Subsection or other subdivision of this
Agreement or any other provision of this Agreement which is, or becomes,
illegal, invalid or unenforceable shall be severed from this Agreement and be
ineffective to the extent of such illegality, invalidity or unenforceability and
shall not affect or impair the remaining provisions hereof, unless it was an
essential inducement for either Party to enter into this Agreement or it
materially affects the contents thereof, in which event the Parties shall
promptly meet and negotiate in good faith a solution granting, to the extent
permitted by law, the achievement of a substantially similar result.
1.7 ADVERSE CONSTRUCTION. The language in all parts of this Agreement shall in
all cases be construed as a whole according to its fair meaning and without
implying a presumption that the terms thereof shall be more strictly construed
against one party as opposed to another by reason of the rule of construction
that a document is to be construed more strictly against the party who has
prepared the same, it being agreed that the representatives of all Parties have
participated in the preparation hereof and negotiation of this Agreement.
1.8 INCORPORATION OF ENCLOSURES AND SELLERS' DISCLOSURE SCHEDULE. The following
are the Enclosures attached to and incorporated herein as an integral and
substantial part of this Agreement:
1. Definitions.
2. FLT Option Agreement.
3. Representations and Warranties of Sellers.
4. Representations and Warranties of Purchaser.
5. Escrow Agreement for the Additional Purchase Price Stock.
6. Not used.
7. Opinion of Sellers' Counsel.
8. Side letter with the Key Managers.
9. Financial Statements
10. List of the Key Managers.
11. Employment Agreement for certain Key Managers.
12. 1997 Operating Budget.
13. Closing Certificate.
14. Environmental Permitting and Remediation Plan.
15. Guarantee of Giancarlo Zacchello.
The Sellers' Disclosure Schedule is hereby incorporated herein as an integral
and substantial part of this Agreement.
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ARTICLE 2
SALE AND PURCHASE
-----------------
2.1 SALE AND PURCHASE. Subject to the terms and conditions of this Agreement, at
the Closing, the Sellers shall sell, transfer and deliver to the Purchaser and
the Purchaser shall purchase from the Sellers all (but not less than all) of the
issued and outstanding shares representing the capital stock of Speedline (the
"Speedline Shares"), free and clear of all Liens, for the consideration
specified in Section 2.3 hereof, subject to adjustment as provided in Section
2.4 hereof and to the further terms of this Agreement. The Speedline Shares
shall be transferred to the Purchaser as follows:
a) Speedline Holding shall sell to the Purchaser no. 3,700,000
shares of Speedline capital stock, equal to 12.33% of the
Speedline Shares;
b) Gerance shall sell to the Purchaser no. 14,337,000 shares of
Speedline capital stock, equal to 47.79% of the Speedline
Shares;
c) San Marco Finanziaria shall sell to the Purchaser no.
2,400,000 shares of Speedline capital stock, equal to 8% of
the Speedline Shares;
d) Mr. Antonio Zacchello shall sell to the Purchaser no.
1,428,052 shares of Speedline capital stock, equal to 4.76% of
the Speedline Shares;
e) Mr. Giancarlo Zacchello shall sell to the Purchaser no.
2,008,737 shares of Speedline capital stock, equal to 6.70% of
the Speedline Shares;
f) Mr. Gianni Zacchello shall sell to the Purchaser no. 2,008,737
shares of Speedline capital stock, equal to 6.70% of the
Speedline Shares;
g) Mr. Franco Zacchello shall sell to the Purchaser no. 2,058,737
shares of Speedline capital stock, equal to 6.86% of the
Speedline Shares;
h) Ms. Graziella Zacchello shall sell to the Purchaser no.
2,058,737 shares of Speedline capital stock, equal to 6.86% of
the Speedline Shares.
2.2 CLOSING. The closing of the sale and purchase of the Speedline Shares
(hereinafter, the "Closing") shall take place at the offices of Swiss Bank
Corporation, located in Lugano, Switzerland, beginning at 10:00 a.m. (Lugano
time) on August 19, 1997, or at a date and time as soon as practicable
thereafter as the parties may agree
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in writing, provided that each of the conditions precedent contained in this
Agreement is fulfilled or waived, or at such other date, time and place as the
Parties may agree in writing (hereinafter, the "Closing Date"). At the Closing:
a) the Sellers holding the Speedline Shares shall duly endorse in
favor of the Purchaser and shall deliver to the Purchaser the
share certificates representing all the Speedline Shares free
and clear from any Liens, as well as the shareholders' book of
Speedline containing the annotation attesting that the
Purchaser has been registered therein as the owner and the
holder of the Speedline Shares, free and clear of any Liens;
b) the Sellers shall execute and deliver the Closing Certificate,
substantially in the form of Enclosure 13, and all other
documents and instruments required to be executed or delivered
under this Agreement by the Sellers before or at the Closing;
c) the Purchaser shall execute and deliver the Closing
Certificate substantially in the form of Enclosure 13 hereof,
and all other documents and instruments required to be
executed or delivered under this Agreement by the Purchaser
before or at the Closing;
d) the Purchaser shall pay to the Sellers the Initial Purchase
Price, as described in Section 2.3 of this Agreement.
2.3 PRICE. Subject to determination and adjustment as provided in this Article
2, the purchase price for the Speedline Shares as well as for any obligation,
undertaking, covenant, representation and warranty contained in this Agreement,
or any agreement or document delivered pursuant hereto or in connection herewith
(including the non-competition and other covenants set forth under Article 7
below), shall be up to SIXTY NINE MILLION UNITED STATES DOLLARS (US$
69,000,000.00) (hereinafter, the "Purchase Price"), and shall be paid by the
Purchaser to the Sellers as follows:
a) at the Closing Date, the Purchaser shall pay to the Sellers
FORTY-EIGHT MILLION FIVE HUNDRED THOUSAND UNITED STATES
DOLLARS (US$ 48,500,000.00) less the Environmental Holdback
Amount as determined pursuant to Section 2.3 (f) of this
Agreement (hereinafter, the "Initial Purchase Price"), to be
allocated among the Sellers as follows (hereinafter, the
"Initial Purchase Price Fractions"):
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- Speedline Holding: 12.33% of the Initial Purchase Price;
- Gerance: 47.79% of the Initial Purchase Price;
- San Marco Finanziaria: 8.00% of the Initial Purchase Price;
- Mr. Antonio Zacchello: 4.76% of the Initial Purchase Price;
- Mr. Giancarlo Zacchello: 6.70% of the Initial Purchase Price;
- Mr. Gianni Zacchello: 6.70% of the Initial Purchase Price;
- Mr. Franco Zacchello: 6.86% of the Initial Purchase Price;
- Ms. Graziella Zacchello: 6.86% of the Initial Purchase Price.
</TABLE>
The payment of the Initial Purchase Price Fractions shall be
made by wire transfer, in immediately available funds, value
date as of the Closing Date, to the bank accounts that shall
be indicated in writing by the Sellers to the Purchaser not
later than 5 Business Days prior to the Closing Date.
b) If the Closing Date Exchange Rate is outside the range of
between 1,625 ITL and 1,775 ITL to US$1.00, then the parties
shall meet and in good faith renegotiate any relevant terms of
this Agreement, in which event the Parties shall not be
obligated to complete the Closing until and unless the
Purchaser and the Common Representative have agreed on all
such terms.
c) (i) At the Closing Date, the Purchaser shall cause Amcast to
deliver to the Escrow Agent, in the name of the Sellers, to be
held by the Escrow Agent pursuant to an escrow agreement
substantially in the form of Enclosure 5 hereto (hereinafter,
the "Escrow Agreement") that number of Common Shares of
Amcast, having a total value of TWELVE MILLION FIVE HUNDRED
THOUSAND UNITED STATES DOLLARS (US$ 12,500,000.00), allocated
among the Sellers in accordance with the Initial Purchase
Price Fractions, based on the Announcement Date Share Value
(hereinafter, the "Additional Purchase Price Shares").
"Additional Purchase Price Shares" also shall be deemed to
refer to any bank guaranty or other security substituted for
the Additional Purchase Price Shares in accordance with the
terms of this Agreement or of the Escrow Agreement. The
Additional Purchase Price Shares shall be delivered to the
Sellers only in accordance with the terms and subject to the
conditions of the Escrow Ageement. "Announcement Date Share
Value" means the average closing price per share of the Common
Shares traded on the New York Stock Exchange, Inc.
(hereinafter, the "NYSE") for the twenty (20) consecutive
Trading Days ending on the Trading Day immediately prior to
any Public Announcement concerning the
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<PAGE> 13
transactions contemplated by this Agreement (hereinafter, the
"Announcement Date").
(ii) Subject to the rights of offset and other provisions of
this Article 2 and Article 9 hereof, for the period beginning
on the Second Anniversary and ending 180 days thereafter, the
Purchaser shall provide to the Sellers limited price
protection on the Additional Purchase Price Shares delivered
to the Sellers pursuant to the Escrow Agreement within 180
days after the Second Anniversary (hereinafter, the "Protected
Shares"), against a decrease in the value of the Common Shares
between the Announcement Date Share Value and the Second
Anniversary Share Value.
(a) The "Second Anniversary Share Value" shall mean
the average closing price per share of the Common Shares
traded on the NYSE for the twenty (20) consecutive Trading
Days ending on the Second Anniversary. "Second Anniversary"
shall mean the second annual anniversary of the Closing Date
or, if that day is not a Trading Day, then the first Trading
Day thereafter.
(b) In the event the Second Anniversary Share Value
is equal to or greater than the Announcement Date Share Value,
Purchaser shall not provide any price protection to the
Sellers upon sale of the Protected Shares by the Sellers.
(c) In the event the Second Anniversary Share Value
is less than the Announcement Date Share Value, then for each
share of Protected Stock sold by the Sellers either directly
or through duly appointed financial intermediaries on the NYSE
during the period ending 180 days after the Second Anniversary
at a price per share lower than the Announcement Date Share
Value, the Purchaser shall pay to the Sellers, as an
adjustment to the Purchase Price, an amount per share sold by
the Sellers equal to the difference between the Announcement
Date Share Value and the price per share at which the Sellers
sold such share, either directly or through duly appointed
financial intermediaries but not exceeding the difference
between the Announcement Date Share Value and the Second
Anniversary Share Value per share of Protected Shares sold by
the Sellers either directly or through duly appointed
financial intermediaries during such 180 day period.
d) Subject to the rights of offset and other provisions of this
Article 2 and
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<PAGE> 14
Article 9 of this Agreement, the Purchaser shall pay to the
Sellers in accordance with the Initial Purchase Price
Fractions, on the date that is nine (9) months after the
Closing (hereinafter the "Nine Month Anniversary"), the amount
of FOUR MILLION UNITED STATES DOLLARS (US$4,000,000.00) plus
interest on such amount from the Closing Date through the Nine
Month Anniversary at the Reference Rate (hereinafter, the
"Deferred Payment"). In addition, as security for payment of
the Deferred Payment, the Purchaser shall procure and deliver
to the Sellers at Closing an irrevocable standby bank letter
of credit issued by a bank reasonably acceptable to the
Sellers, in accordance with the UCP 500, and otherwise in form
and substance reasonably satisfactory to the Sellers, in the
amount of the Deferred Payment, as the same may be reduced by
offset from time to time, in accordance with the terms of this
Agreement.
e) Subject to the right of offset and other provisions of this
Article 2 and Article 9 of this Agreement, the Purchaser shall
pay to the Sellers, in accordance with the Initial Purchase
Price Fractions up to a maximum amount of FOUR MILLION UNITED
STATES DOLLARS (US$ 4,000,000.00) (hereinafter, the
"Contingent Payment"), provided that, if the Companies'
consolidated operating income, as determined in accordance
with the Accounting Principles, for the twelve month period
ending December 31, 1997 (hereinafter, the "1997 Profit"), as
indicated in the audited, consolidated financial statements of
the Companies for such period prepared in accordance with the
Accounting Principles (hereinafter, the "1997 Financial
Statements"), is less than the 1997 Profit Budget, then the
Contingent Payment shall be reduced in accordance with Section
2.3 e)(i) below. If the Purchaser causes the fiscal year of
the Companies to be changed, or if the parties agree that an
event outside the ordinary course of business has occurred,
then the 1997 Profit shall be determined based upon a pro
forma, consolidated, reviewed financial statement of the
Companies for the twelve month period ending December 31, 1997
prepared in accordance with the Accounting Principles. "1997
Profit Budget" is hereby defined as an operating profit of
NINETEEN BILLION NINE-HUNDRED TWENTY-FIVE MILLION ITALIAN LIRE
(ITL 19,925,000,000.00) as set forth in the 1997 Operating
Budget prepared in accordance with the Accounting Principles.
Unless otherwise agreed mutually in writing by the Purchaser
and the Sellers in case of events outside the ordinary course
of business:
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<PAGE> 15
(i) if the 1997 Profit is less than the 1997 Profit
Budget, then the Contingent Payment shall be reduced
by one United States Dollar (US$1.00) for each Seven
Hundred Thirty One Italian Lire (ITL 731.00) by which
the 1997 Profit is less than the 1997 Profit Budget
(hereinafter, the "Contingent Payment Reduction")
with no payment being made if the 1997 Profit is less
than Seventeen Billion Italian Lire (ITL
17,000,000,000.00); and
(ii) if the Contingent Payment is reduced as provided in
paragraph 2.3e)(i), then the amount of the Contingent
Payment Reduction shall be paid to the Sellers if,
and only if, the Companies' consolidated operating
income, as determined in accordance with the
Accounting Principles, for the twelve month period
ending December 31, 1998, (hereinafter, the "1998
Profit"), as indicated in the audited, consolidated
financial statements of the Companies for such
period, prepared in accordance with the Accounting
Principles (hereinafter, the "1998 Financial
Statements"), equals or exceeds twenty-six billion
Italian Lire (ITL 26,000,000,000). If the Purchaser
causes the fiscal year of the Companies to be
changed, or if the parties agree that an event
outside the ordinary course of business has occurred,
then the 1998 Profit shall be determined based upon a
pro forma, consolidated, reviewed, financial
statement of the Companies for the twelve month
period ending December 31, 1998 prepared in
accordance with the Accounting Principles.
The foregoing notwithstanding, it is agreed that any amount
owed by the Purchaser to the Sellers under this Section 2.3 e)
shall not be paid by the Purchaser until December 31, 1999,
and then paid, subject to the right of offset and other
provisions of Article 2 and Article 9 hereof, to the Sellers
with interest on such owed amount calculated at the Reference
Rate from the date in which the owed amount becomes due to
December 31, 1999.
It is agreed that in case of any dispute between the Parties
concerning the Sellers' right to receive all or part of the
Contingent Payment under this Section 2.3 e), the dispute
resolution procedure provided under Section 2.4.3 below shall
apply, MUTATIS MUTANDIS.
f) The Environmental Holdback Amount shall be ONE BILLION FIVE
HUNDRED MILLION ITALIAN LIRE (ITL 1,500,000,000.00), which
shall
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<PAGE> 16
serve as a partial payment of the cost of the actions set
forth in the Environmental Permitting and Remediation Plan
pursuant to Section 7.7 hereof. For purposes of calculating
the Initial Purchase Price Payment, the Environmental Holdback
Amount shall be converted into United States Dollars at the
average of the current exchange rates for conversion of United
States Dollars into Italian Lire published in The Wall Street
Journal on the third (3rd) Trading Day prior to the Closing
Date (hereinafter, the "Closing Date Exchange Rate").
g) If the current exchange rate for conversion of United States
Dollars into Italian Lire published in The Wall Street Journal
on the third (3rd) Trading Day prior to the date the Deferred
Payment is due and payable, is outside the range of between
97% and 103% of the Closing Date Exchange Rate, then the
Deferred Payment shall be adjusted as follows: the Deferred
Payment in United States Dollars shall be converted into
Italian Lire at the Closing Date Exchange Rate, and then
converted back and paid in United States Dollars at the
current exchange rate for conversion of United States Dollars
into Italian Lire published in The Wall Street Journal on such
third (3rd) Trading Day prior to the date the Deferred Payment
is due and payable.
h) If the current exchange rate for conversion of United States
Dollars into Italian Lire published in The Wall Street Journal
on the third (3rd) Trading Day prior to the date[s] the
Contingent Payment, if any, is due and payable, is outside the
range of between 97% and 103% of the Closing Date Exchange
Rate, then the Contingent Payment shall be adjusted as
follows: the Contingent Payment in United States Dollars shall
be converted into Italian Lire at the Closing Date Exchange
Rate, and then converted back and paid in United States
Dollars at the current exchange rate for conversion of United
States Dollars into Italian Lire published in The Wall Street
Journal on such third (3rd) Trading Day prior to the date[s]
the Contingent Payment is due and payable.
2.4 ADJUSTMENT OF THE PURCHASE PRICE. Without prejudice to the provisions of
Article 9, the Purchase Price shall be subject to adjustment after the Closing
as specified in this Section 2.4.
2.4.1 CLOSING STATEMENT. Within 90 days following the Closing Date, the
Purchaser and its independent public accountants shall prepare and deliver to
the Sellers the Closing Statement certified by such independent public
accountants. Such Closing Statement shall specifically indicate the Adjusted
Purchase Price calculated pursuant
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<PAGE> 17
to the formula indicated in Section 2.4.2 below. The Closing Statement shall
specifically indicate the value of the Closing Net Worth and the Closing
Indebtedness and shall be prepared on the basis of the Accounting Principles
consistently applied.
2.4.2 ADJUSTMENT. Subject to Section 2.4.3 below, the Purchase Price shall be
adjusted if the value of the Closing Net Worth is lower than the 1996 Net Worth
and/or the value of the Reference Indebtedness is higher or lower than the
Closing Indebtedness.
a) The Purchase Price shall be adjusted after the Closing as
follows:
(i) if the 1996 Net Worth is greater than the Closing Net
Worth, then the Purchase Price shall be adjusted
downward after the Closing by the amount of the
difference, converted into United States Dollars at
the Closing Date Exchange Rate (hereinafter, the "Net
Worth Adjustment"); and
(ii) there shall be no adjustment if the Closing Net Worth
is greater than the 1996 Net Worth; and
(iii) the Purchase Price shall be adjusted upward after the
Closing if the Closing Indebtedness is less than the
Reference Indebtedness, or downward if the Reference
Indebtedness is less than the Closing Indebtedness,
as the case may be, in each case by the amount of the
difference, converted into United States Dollars at
the Closing Date Exchange Rate (hereinafter, the
"Debt Adjustment").
b) The Purchase Price, as adjusted downward by the Net Worth
Adjustment, if any, and upward or downward by the Debt
Adjustment, if any, shall be the "Adjusted Purchase Price".
Amounts due from the Sellers to the Purchaser, or from the
Purchaser to the Sellers, with respect to the Adjusted
Purchase Price, shall be increased by an amount equal to
interest at the Reference Rate on the amount due and unpaid
from and after the Closing Date until such amount is paid in
full. If the Purchase Price exceeds the Adjusted Purchase
Price, then the Sellers shall pay to the Purchaser, in United
States Dollars, the amount of the difference, plus interest as
calculated above, within five (5) days after final
determination of the Closing Statement or, if Sellers fail to
make such payment, such amount shall be paid to the Purchaser
by Giancarlo Zacchello pursuant to his personal guarantee in
accordance with Section
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<PAGE> 18
9.2 a) v) or, at the Purchaser's discretion, in accordance
with Section 9.2 a) iii) and 9.2 a) iv) of this Agreement. If
the Adjusted Purchase Price exceeds the Purchase Price, the
Purchaser shall pay to the Sellers, in accordance with the
Initial Purchase Price Fractions, the difference in United
States Dollars, plus interest as calcuated above, within five
(5) days after final determination of the Closing Statement.
2.4.3 CLOSING STATEMENT DISPUTES. a) Subject to Section 2.4.3 (b), the Closing
Statement, the calculation of the Closing Net Worth and of the Closing
Indebtedness delivered by the Purchaser to the Sellers shall be final, binding
and conclusive on the Parties hereto.
b) (i) The Sellers, in a single action to be taken by the
Common Representative, may dispute any amount
reflected on the Closing Statement by written notice
delivered to the Purchaser within 30 days of Sellers'
receipt of the Closing Statement, specifying each
disputed item, the amount thereof and the basis on
which such dispute is made. Any items not in dispute
shall be paid in accordance with Section 2.4.2(b).
The Sellers, at their own expense, may cause such Big
Six firm of independent accountants designated by the
Sellers, through the Common Representative
(hereinafter, the "Sellers' Accountants") to conduct
an audit, review or other report of the Closing
Statement and the calculation of the Closing Net
Worth and/or the Closing Indebtedness. For such
purposes the Sellers' Accountants shall have
reasonable access to the Books and Records of the
Companies. The report of the Sellers' Accountants, if
any, referred to in the second sentence of this
sub-paragraph must accompany Sellers' written notice
of dispute.
(ii) In the event of such a dispute, the Purchaser and the
Sellers shall attempt to reconcile their differences
and any resolution reached by them as to any disputed
amounts shall be final, binding and conclusive on the
Parties, and the Purchaser shall revise the Closing
Statement to reflect any such resolutions and may
adjust the Closing Statement in light of any such
dispute, in each case within 30 days of Sellers'
written notice of dispute to the Purchaser.
(iii) If Purchaser and Sellers are unable to reach a
solution within the later of (x) 30 days of Sellers'
written notice of dispute to the
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<PAGE> 19
Purchaser and (y) 5 days after Purchaser's delivery
of an adjusted Closing Statement pursuant to clause
(ii) above, the Purchaser and the Sellers shall
submit the items remaining in dispute for resolution
to a Big Six firm of independent accountants
(hereinafter, the "Third Accounting Firm"), to be
jointly selected by the Parties, or in case of
disagreement between them, by the Chairman of the
Chamber of Commerce of Torino. The Third Accounting
Firm shall, within 30 days after submission,
determine and report to the Parties upon such
remaining disputed items in accordance with the
provisions hereof. The report of the Third Accounting
Firm will be final, binding and conclusive on the
Parties hereto. The Third Accounting Firm shall make
such determination in its sole discretion on the
basis of the Accounting Principles. In the event the
Third Accounting Firm selected as indicated above
does not submit its determination and report within
the aforementioned deadline, as it may be extended by
mutual agreement of the Parties, the Purchaser and
the Common Representative on behalf of the Sellers
shall have the right to request the Chairman of the
Torino Chamber of Commerce to select a new Third
Accounting Firm that shall carry out the above
indicated activities. The fees and disbursements of
the Third Accounting Firm shall be allocated between
the Purchaser and the Sellers in the same proportion
that the aggregate amount of such remaining disputed
items so submitted to the Third Accounting Firm that
is unsuccessfully disputed by each (as finally
determined by the Third Accounting Firm) bears to the
total amount of such remaining disputed items so
submitted.
(iv) Within 5 days following the delivery of the report of
the Third Accounting Firm to the Parties hereto,
containing the determination of any disputed item,
any outstanding amount, plus interest calculated at
the Reference Rate from the Closing Date up to the
date of payment, shall be settled in accordance with
the provisions of Article 2.4.2 b).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
---------------------------------------------
The Sellers make the representations and warranties set forth in Enclosure 3
hereto. The Sellers acknowledge that the representations and warranties made by
them are correct and true as of the date of this Agreement, that they shall be
correct and true as of the Closing Date and that the Purchaser is relying upon
such representations and warranties in connection with the purchase by it of the
Speedline Shares and thereby the Participation.
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<PAGE> 20
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
The Purchaser makes the representations and warranties contained in Enclosure 4
hereto, and acknowledges that they are correct and true as of the date of this
Agreement and they shall be correct and true as of the Closing Date and that the
Sellers are relying upon such representations and warranties in connection with
the sale of the Speedline Shares and thereby the Participation.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
------------------------------------------
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Unless otherwise
indicated herein, the representations and warranties of the Sellers contained in
this Agreement, Enclosures or Sellers' Disclosure Schedules hereto, and any
agreement, instrument, certificate or other document executed or delivered
pursuant hereto or thereto (it being understood that with regard to the
representations and warranties reference shall be made to Article 3 and
Enclosure 3 hereof) shall survive the Closing of the transactions contemplated
hereby until the end of the 24th month after the Closing Date, except for (a)
the representations and warranties provided under Sections 3.4, 3.5, 3.13, 3.22,
3.23, 3.34, 3.35 and 3.37 of Enclosure 3 as well as (b) the covenants of the
Sellers contained in this Agreement, Enclosures or Sellers' Disclosure Schedules
hereto concerning environmental matters, tax, title to the assets of the
Companies, title to the Speedline Shares and thereby the Participation, and the
covenants contained in Article 7 hereof, each of which shall survive until the
date of expiry of the applicable statute of limitation or the terms provided for
herein as the case may be.
5.2 SURVIVAL OF THE REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Unless
otherwise provided herein, the representations and warranties of the Purchaser
contained in this Agreement, Enclosures hereto or in any document, certificate
or undertaking given pursuant hereto or thereto (it being understood that with
regard to the representations and warranties reference shall be made to Article
4 and Enclosure 4 hereof) shall survive the Closing of the transactions
contemplated hereby until the end of the 24th month after the Closing Date. The
Purchaser's representations and warranties and covenants as to any Additional
Purchase Price Shares to be delivered to the Sellers shall survive the Closing
of the transactions contemplated hereby until (x) delivery of the Additional
Purchase Price Shares in accordance with this Agreement and the Escrow Agreement
and (y) discharge of the Purchaser's obligation under Section 2.3 c) (ii) of
this Agreement, if any.
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<PAGE> 21
5.3 INTERRUPTION DUE TO NOTICE OF CLAIM. It is agreed that in the event of a
Claim of Indemnity, the representations and warranties and covenants contained
in this Agreement, Enclosures or Schedules hereto, pursuant to which a Claim of
Indemnity has been delivered, the corresponding limitation of liability in
respect of any indemnification relating thereto and the corresponding guaranty
or other security therefor pursuant to this Agreement and/or the Escrow
Agreement, will continue to survive beyond the relevant terms indicated under
Sections 5.1 and 5.2. above, until the relevant Claim of Indemnity has been
resolved pursuant to Article 9 or, as the case may be, Article 10 of this
Agreement.
5.4 INDEPENDENT OBLIGATIONS. The Sellers and the Purchaser acknowledge and agree
that the representations, warranties and indemnities of the Sellers and the
Purchaser are autonomous and independent and that any right or remedy of the
Purchaser or the Sellers, respectively, however arising under this Agreement in
connection with any misrepresentation or breach of any warranty shall not be
subject to the statute of limitation periods and forfeiture restrictions under
Article 1495 c.c.
ARTICLE 6
CLOSING COVENANTS
-----------------
6.1 OPERATION OF THE BUSINESS PENDING THE CLOSING. (1) At all times during the
Interim Period, the Sellers, undertake that each of the Companies will conduct
its business and operations only in the ordinary course and consistent with past
practice, including but not limited to, maintaining normal working capital
levels consistent with past practice. In addition, except as permitted below,
the Sellers, jointly and severally, undertake that each of the Companies, during
the Interim Period, (unless otherwise agreed by the Parties) will not:
a) create, incur, assume, prepay or refinance any debt for money
borrowed, except for short-term indebtedness in the ordinary
course of business and consistent with past practice, not to
exceed the Companies' normal operating levels of short-term
indebtedness as well as indebtedness outstanding under the
existing Loans as of the date of this Agreement, or make any
loans, advance or capital contributions to, or investment in,
any Person;
b) increase in any manner the compensation (wages, salaries,
bonuses or other compensation) of any of its officers,
directors, "dirigenti" or employees, except if such increase
is required by Law or by collective labor agreements or
increases in the compensation of employees (other than
officers, directors, and "dirigenti") consistent with past
practice
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<PAGE> 22
and in the ordinary course of business;
c) sell, transfer, or otherwise dispose of or agree to sell,
transfer, or otherwise dispose of, any properties or assets
(excluding inventory in the ordinary course of business and
consistent with past practice and through regular trade
channels), real, personal or mixed;
d) make any capital expenditures or capital additions or
improvements, which individually or in the aggregate exceed
the amounts set forth in the 1997 Operating Budget therefor;
e) pay or declare any dividend in cash or stock or other assets
or allow other equity withdrawal or make any distribution,
bonus or profit sharing distribution or similar payment in
cash or stock or other assets;
f) issue any stock, quotas or other securities (or rights to
acquire stock, quotas or other securities) of any of the
Companies;
g) incur any liability or obligation of any nature (whether
accrued, absolute, contingent or otherwise), except in the
ordinary course of business and consistent with past practice;
h) permit any of its property or assets to be subjected to any
Liens;
i) write-off as uncollectible any notes or accounts receivable,
except write- offs in the ordinary course of business and
consistent with past practice, charged to the bad debt
reserves or to the provision for contractual risks;
j) settle any pending claims or claims that arise in the Interim
Period by or against any of the Companies, or settle, cancel
or waive any material claims or rights of the Companies;
k) make any change in any method of accounting or auditing
practice;
l) cancel or reduce any of its insurance coverage;
m) permit any Authorization or any Intellectual Property Rights
to expire;
n) change the prices or other terms on which the Companies
purchase and sell raw material, finished goods, supplies and
other property; or
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<PAGE> 23
o) agree, whether or not in writing, to do any of the foregoing.
(2) The Sellers undertake that, during the Interim Period, each of the
Companies will use its best efforts, to:
p) maintain adequate and appropriate levels of Inventory to carry
on the Business in the ordinary course, to accomplish the 1997
Profit Budget, and consistent with past practice as of
December 31, 1996;
q) keep available the services of its employees;
r) maintain the relations and goodwill with the suppliers,
customers, distributors and any others with which it has
business relations;
s) preserve the possession and control of its properties and
assets;
t) preserve the confidentiality of any confidential or
Proprietary Information of the Business;
u) pay and discharge its liabilities in the ordinary course of
business;
v) conduct the Business in such a manner that on the Closing Date
the representations and warranties of the Sellers contained in
this Agreement will be true, correct and complete as if such
representations and warranties were made on and as of such
date; and
w) promptly notify the Purchaser in writing of any change in
respect of items p) through v) hereof.
(3) During the Interim Period, the Sellers shall not sell, transfer, or
otherwise dispose of or agree to sell, transfer, or otherwise dispose of, any
shares, quotas, properties, assets, or other participation (financial or
otherwise).
(4) Prior to the Closing, the Sellers shall:
x) take all actions necessary to complete the April
Restructuring;
y) cause Speedline to enter into an agreement with Pitagora
S.r.l., a company organized under the laws of Italy with
registered office at Venezia, Zattere 1415 (hereinafter,
"Pitagora") to amend that certain purchase agreement dated
December 23, 1996 between them, with
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<PAGE> 24
respect to the sale of Speedline's former operating facility
in Brescia (hereinafter, the "Brescia Plant") with retroactive
effect to the date thereof, to provide that Pitagora shall (1)
be liable for all actual, contingent and other liabilities
arising from or related to the ownership, operations or
activities of the Brescia Plant both prior to and after
December 23, 1996, and (2) release, hold harmless, indemnify
and defend Speedline from and against any and all such
liabilities;
z) obtain all required consents of, or give all required notice
to third parties under each of the Material Contracts, the
Master Agreement between Speedline Aluminia and the Provincia
di Bolzano, any guarantee (e.g., fideiussioni or any other
form of guarantee) or security granted by each of the
Companies in favor of any other Companies, and the Loans.
6.2 ACCESS TO INFORMATION AND DOCUMENTS. (a) During the Interim Period, the
Sellers shall give, and shall cause each of the Companies to give to the
Purchaser and to its agents and representatives (including, without limitation,
accountants, lawyers and appraisers) reasonable access during normal working
hours upon reasonable notice (i) to any and all of the properties, assets, Books
and Records, Corporate Records and other documents of the Companies, and (ii) to
any key personnel of the Companies to enable the Purchaser to make such
examinations and inspections as the Purchaser may reasonably determine are
necessary or appropriate. The Sellers shall provide, and undertake that Mr.
Giancarlo Zacchello or other appropriate representatives shall provide the
Purchaser with such information and copies of such documents and records as the
Purchaser may reasonably request.
(b) Without limiting the foregoing Section 6.2(a), promptly upon the
Announcement Date, the Sellers shall arrange one or more meetings between the
Purchaser and the authorized representatives of Fiat, Audi and Mercedes-Benz
(hereinafter, the "Key Customers") with whom the Companies customarily
communicate on significant business matters. Mr. Giancarlo Zacchello or other
appropriate representatives of the Sellers shall participate in such meetings
with the Purchaser.
6.3 ANTITRUST FILINGS. It is understood that the Purchaser, the Sellers and each
of the Companies shall cooperate in the preparation and delivery of any required
filings or documentation in connection with the antitrust filing made to the
Italian Competition Authority (Autorita Garante della Concorrenza e del Mercato)
and each Party shall provide any document and information and shall use all
reasonable efforts that may be necessary or useful to obtain the required
approval of the transactions contemplated hereby.
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<PAGE> 25
6.4 NOTICE OF UNTRUE REPRESENTATION OR WARRANTY. The Sellers shall, and
undertake that the Companies shall, promptly notify the Purchaser upon any
representation or warranty of the Sellers contained in this Agreement becoming
untrue or incorrect as of or prior to the Closing Date.
6.5 ACTIONS TO SATISFY CLOSING CONDITIONS. The Parties hereby agree to take all
such reasonable actions within their power to control, and to use all reasonable
efforts to cause other actions to be taken which are not within their power to
control, so as to ensure compliance with all of the conditions set forth in
Article 8 below. Each of the Parties will cooperate with the others in obtaining
all other Authorizations, Consents, orders and approvals which are required in
connection with the consummation of the transactions contemplated by this
Agreement, and will take all reasonable actions to avoid the entry of any order
or decree by any Governmental Authority prohibiting the consummation of the
transactions contemplated hereby.
6.6 RISK OF LOSS. If, prior to the completion of the Closing, any material
property or material assets of the Companies is destroyed or damaged by fire or
any other casualty or is appropriated, expropriated or seized by any lawful
authority, the Purchaser shall have the option, exercisable by notice in writing
given within 30 (thirty) Business Days of the Purchaser receiving notice in
writing from the Sellers of such destruction, damage, expropriation or seizure:
(a) to reduce the Purchase Price by an amount equal to the cost of repair, or if
expropriated, seized, destroyed or damaged beyond repair, by an amount equal to
the replacement cost of the assets forming part of the assets so expropriated,
seized, damaged or destroyed and to complete the purchase, in which event all
cash proceeds of any insurance or compensation effectively realized by the
Companies, in relation to such expropriation, seizure, damage or destruction,
shall be paid pro-rata to the Sellers (and in this case the Sellers shall have
the option to assume the control of the relevant insurance claim); (b) to
complete the purchase without reduction of the Purchase Price, in which event
all proceeds of any insurance or compensation for expropriation, seizure, damage
or destruction shall be payable to the Companies, all rights and claims of the
Companies will remain with the Companies and all rights and claims of the
Sellers or any other Party to any such amounts not paid by the Closing Date
shall be assigned to the Purchaser; or (c) to terminate this Agreement if such
destruction, damage, expropriation or seizure materially interferes with the
operation of the Companies. The Sellers shall provide prompt notice to the
Purchaser of such destruction, damage, expropriation or seizure.
6.7 OPINIONS OF COUNSEL. The Sellers shall provide to the Purchaser legal
opinions, dated as of the Closing Date, from the Sellers' Counsel, in the form
of Enclosure 7 hereto. The Sellers shall assume and pay any and all legal fees
and costs deriving
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from the opinions rendered by such counsel.
6.8 CORPORATE ACTIONS. (a) The Sellers shall deliver the resignation of all the
Directors of the Companies effective as of the Closing Date. (b) The Sellers
shall use their best efforts so that the Statutory Auditors of the Companies
submit their resignation effective as of the Closing Date.
6.9 KEY MANAGERS. The Sellers will use their best efforts to cause the Key
Managers to execute a letter, substantially in the form of Enclosure 8, waiving
their right to resign, to the extent of the applicable law, from the Companies
pursuant to article 13 of the Collective Labor Agreement for Dirigenti
dell'Industria or to any other relevant applicable law.
6.10 PERFORMANCE. Each Party to this Agreement shall severally comply in all
material respects with all covenants, agreements and undertakings required by
this Agreement to be performed or complied with by each of them at or prior to
the completion of the Closing.
6.11 RELATED PARTY AGREEMENTS. At or prior to the Closing Date, the Companies
shall have entered into binding, purchase, supply, service or other appropriate
agreements reflecting their respective business activities with the following
companies on terms and conditions acceptable to the Purchaser (hereinafter, the
"Related Party Agreements"):
i) Metallic Alloys S.p.A.;
ii) MIM Ruote Alloy Wheels S.p.A.;
iii) Fusione e Lavorazioni Tecnologiche S.r.l..
6.12 PRESS RELEASES. The Sellers and the Purchaser will mutually agree upon any
public announcements pertaining to this Agreement and the purchase of the
Speedline Shares and thereby the Participation and shall not issue any such
public announcement, except as may be required by applicable law in the opinion
of Amcast's Securities Law counsel, in which case the Parties shall use all
reasonable efforts to consult, in good faith, with each other before issuing any
such public announcement. The Sellers shall use their best efforts to assure
compliance with this Section 6.12 by their respective Affiliates, shareholders,
directors, officers and employees.
6.13 CONSENTS. The Sellers shall make best efforts to obtain the consents to the
execution and delivery of this Agreement under the letters of patronage
indicated under Section 3.1(a) of Sellers' Disclosure Schedule.
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6.14 RELATED PARTY LEASES.
(a) The Sellers hereby agree to confirm to Speedline in writing
the intention of San Marco Finanziaria to negotiate in good
faith with Speedline an extension of the lease between San
Marco Finanziaria and Speedline of industrial property located
at Speedline's plant at Via Salgari, Santa Maria di Sala (VE),
Italy on terms and conditions equivalent to rates, terms and
conditions prevailing in the market for industrial property
leases between unrelated third parties. San Marco Finanziaria
hereby grants and shall deliver to Speedline (or at
Speedline's discretion one or more, of the other Companies) at
Closing an irrevocable right of first refusal, during the term
of the lease, to receive sufficient prior notice of any
proposed sale of the aforesaid property and of the relevant
terms and conditions thereof, and to purchase such property on
the same terms and conditions offered, in good faith, by any
ready, willing and able third party;
(b) at the Purchaser's request, the Sellers hereby agree to amend
or cause to be amended the other Real Property Leases, if any,
between Sellers (or any Affiliates thereof) and the Companies
by providing extensions of the terms of such Real Property
Leases for a period of at least six years automatically
renewable for a further period of six years at rental rates,
and on other terms and conditions, equivalent to rates, terms
and conditions prevailing in the markets where each property
is located for commercial leases between unrelated parties.
6.15 FLT OPTION. At the Closing, the Purchaser and the quotaholders of Fusione e
Lavorazioni Tecnologiche S.r.l., an Italian limited liability company, having
its registered office at Bassano del Grappa (Vicenza), Via S.G. Emiliani, 25,
("FLT") shall enter into an option agreement substantially in the form attached
to this Agreement as Enclosure 2 (the "FLT Option Agreement"). The Sellers
hereby agree to cause the quotaholders of FLT to execute the FLT Option
Agreement at the Closing and to perform the obligations thereof after the
Closing.
6.16 REVOCATION OF BANKING POWERS. At or prior to the Closing, the Sellers shall
revoke any and all banking powers to the persons indicated under Section 3.9 of
Sellers' Disclosure Schedule.
6.17 LEASES EXTENTION OR AMENDMENTS. At the Purchasers' request, the Sellers
shall use their best efforts to obtain extentions to the lease agreements
indicated under no. 4, 9, 10, 11of Section 3.25 of Sellers' Disclosure Schedule
for a period of at least 6 years starting from the Closing Date.
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ARTICLE 7
POST-CLOSING COVENANTS
----------------------
7.1 NON-COMPETITION CLAUSE. None of the Sellers shall, directly or indirectly
(including, without limitation, through companies, associations, joint ventures,
family members, relatives or other means): (i) engage, in the entire territories
of North America and Europe (as defined in Enclosure 1), in any activity which
may be directly, or indirectly, in competition with the Business, (ii) provide
any financing for or perform any service which may be in competition with the
Business or (iii) utilize its know-how with respect to the Business in a way
that is prejudicial to any of the Companies, its organizational structure or the
Business, for a period of five (5) years from the later of the Closing Date or
the date of termination of any applicable employment or consulting agreement
related to them, if any. Notwithstanding the foregoing, the Sellers shall have
the right to continue their current involvement in the manufacture and sale of
aluminum wheels and related products for the automotive after-market through
their current ownerships in MIM Ruote Alloy Wheels S.p.A. as of the date of this
Agreement. The Parties to this Agreement agree that, if any court or arbitrator
having jurisdiction over this Agreement holds invalid any aspects of the
non-competition covenants contained herein, such non-competition covenants and
obligations shall be limited but shall survive to the greatest extent permitted
by the applicable laws.
7.2 NON-SOLICITATION. Without prejudice to applicable laws on unfair
competition, for a period of five (5) years from the later of (i) the Closing
Date, or (ii) the date of termination of any applicable employment or consulting
agreement, the Sellers shall not in any way, directly or indirectly, solicit,
recruit, hire, assist others in recruiting or hiring, or discuss employment
arrangements with any employee of any of the Companies without the prior consent
of the Purchaser, and shall refrain from interfering with:
a) any employment arrangement between the Companies and their
employees;
b) any business relationship between the Companies and their
suppliers, or members of their distribution network, and shall
not in any way assist any Person in soliciting or entering
into agreements with any suppliers of the Companies or members
of their distribution network or solicit or enter into
agreement with members of the distribution network;
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c) the Companies' relationships with their respective customers;
d) any other business activity or relationship of the Companies
which could be interpreted, in good faith, as an interference
with the Business.
7.3 DUTY OF CONFIDENTIALITY. The Sellers shall keep strictly confidential and
shall not use, directly or indirectly, any of the information concerning the
Companies received, obtained by or otherwise known to them in any capacity.
7.4 CONSIDERATION. Sellers acknowledge to the Purchaser, on their own behalf and
on behalf of Sellers' Shareholders, that the Purchase Price, as adjusted, also
includes substantial and sufficient consideration for the above undertakings of
non-competition, non-solicitation and confidentiality.
7.5 MODIFICATION OF NAME. Speedline Holding shall cause its company's name to be
modified, removing the word "Speedline", and each Seller shall not use in any
way whatsoever the name "Speedline" or other similar name, except as provided in
Section 7.5 of Seller's Disclosure Schedule.
7.6 OBLIGATIONS TO BIND AFFILIATES, ETC. Each of the Corporate Sellers shall use
its best efforts to assure that its Affiliates, shareholders, directors,
officers and employees comply with the undertakings set forth in Sections 7.1,
7.2, 7.3 and 7.5 as if they were parties to this Agreement.
7.7 ENVIRONMENTAL PERMITTING AND REMEDIATION PLAN. (1) As soon as practicable
following the Closing, the Purchaser shall carry out the permitting and
remediation measures set forth in Enclosure 14 hereto with respect to health,
safety and environmental matters (the "Environmental Permitting and Remediation
Plan"). The Purchaser shall provide the Sellers with a budget submitted by a
reliable environmental firm as well as with all the relevant technical
specifications in order to perform the work required to complete the
Environmental Permitting and Remediation Plan and any other environmental
remediations or compliance measures which may be proposed by the Companies after
the Closing to be paid from the Environmental Holdback Amount other than
pursuant to an order of a Governmental Authority. Purchaser shall allow the
Sellers to have reasonable access to the premises and Books and Records of the
Companies necessary for determination of the responsibility for, necessity and
extent of any proposed action and reasonably to participate in any contacts with
Governmental Authorities. In the event the Sellers should object to the budget
presented by the Purchaser concerning the work, the technical specifications or
any other matter related to such work within fifteen (15) days from receipt of
said documents from the Purchaser, the Parties agree to have the relevant
matters in
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dispute determined by a third party jointly selected. In case the parties should
not agree in connection with the above selection, the third party shall be
selected by the Chairman of the Torino Chamber of Commerce.
(2) All out of pocket costs of such measures in excess of the Environmental
Holdback Amount incurred by the Purchaser pursuant to the Environmental
Permitting and Remediation Plan shall be paid to the Purchaser in accordance
with Section 9.2 of this Agreement. This Section 7.7 and the Environmental
Permitting and Remediation Plan shall not in any way limit the Purchaser's
rights and the Sellers' obligations of indemnification pursuant to Section
9.1(d) (ii).
7.8 ACCOUNTS RECEIVABLE. To the extent the Purchaser is indemnified in respect
of any uncollected account receivable, Purchaser shall assign to the Common
Representative its rights in respect of such receivable and the Common
Representative shall notify Purchaser in advance of any effort to collect such
receivable.
7.9 RELEASES. Within 60 days following the Closing, the Sellers shall cause the
Companies to be released as guarantors of any and all obligations of any third
party or any Affiliates of the Sellers other than the Companies, including,
without limitation, Speedline's guarantees of obligations of TEC Flam S.r.l.,
Interservizi S.r.l., Metallic Alloys S.r.l., Nuova Perani S.r.l. and Indel
S.r.l. and provide satisfactory evidence of such release to the Purchaser.
ARTICLE 8
CONDITIONS PRECEDENT OF THE CLOSING
-----------------------------------
8.1 CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The respective obligations of the
Parties to consummate the transactions contemplated by this Agreement with
regard to the Closing are subject to the fulfillment at or prior to the Closing
Date of the following conditions:
8.1.1 NO LEGAL OBSTRUCTION. No injunction or other order issued by a court of
competent jurisdiction shall have been obtained (and be continuing) by any
Person restraining or prohibiting the consummation of the transactions
contemplated by this Agreement.
8.1.2 CHANGE IN LAW. Since the date hereof, no Law, proposed Law, any change in
any Law, or the interpretation or enforcement of any Law shall have been
introduced, or enacted the effect of which will be to prevent the Closing, to
increase materially the cost to the Seller or the Purchaser of the completion of
the transactions
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contemplated in this Agreement, or to materially adversely affect the
continuation of the Business after the Closing Date on substantially the same
basis as heretofore operated.
If the conditions in this Section 8.1, to be fulfilled at or prior to the
Closing Date, shall not have been fulfilled or performed, or waived by mutual
agreement of the Parties to the extent permitted by Laws, by such time, and such
conditions cannot be fulfilled within a reasonable time thereafter agreed upon
by the Parties, this Agreement shall be terminated pursuant to article 1353 of
the Italian Civil Code, and in such event both Parties shall be released from
all obligations hereunder.
8.2 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of the Purchaser to
consummate the transactions contemplated hereby shall be subject to the
fulfillment (or waiver by the Purchaser) at or prior to the Closing Date of the
following conditions, which are provided in the interest of the Purchaser:
8.2.1 BOARD OF DIRECTORS APPROVAL; AUDITED FINANCIAL STATEMENTS. a) The Board of
Directors of Amcast shall have approved this Agreement and the purchase of the
Speedline Shares and thereby the Participation. The Sellers acknowledge that
Amcast's Board of Directors' approval is a requirement to execute the Closing.
b) The Purchaser shall have received not later than August 4, 1997, i)
audited, aggregated financial statements (balance sheet and income statement) of
the Core Companies prepared in accordance with the Accounting Principles, as of
December 31, 1996 and for the year then ended, and ii) reviewed, consolidated
income statements of the Core Companies plus Alustampi and Autolambro prepared
in accordance with the Accounting Principles, as of May 31, 1997 and for the
five months then ended, which financial statements shall have been prepared by
Ernst & Young LLP (the "E&Y Financial Statements"). Further, the E&Y Financial
Statements shall indicate results of the Core Companies' or the Core Companies'
plus Alustampi's and Autolambro's, as the case may be, financial condition for
the relevant periods that are equal to or more favorable than as indicated in
the Financial Statements including, without limitation, in regard to net worth,
sales, operating income and net income of such Companies.
c) Purchaser shall have received written confirmation from Ernst &
Young LLP that such firm shall timely issue all audited, consolidated financial
statements of the Companies sufficient for purposes of compliance by Amcast with
all relevant Securities Laws.
8.2.2 REPRESENTATIONS AND WARRANTIES. (a) The representations and warranties
made
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by the Sellers in this Agreement shall be true and correct when made, during the
Interim Period, and at and as of the Closing Date as if such representations and
warranties were made at, and as of the Closing Date, except (i) for
representations made as of a specified date and for a specified period, which
shall be true and correct as of the specified date or for the specified period
or (ii) as affected by actions taken after the date hereof in accordance with
the terms of this Agreement or with the prior written consent of the Purchaser.
The Sellers shall have executed and delivered a closing certificate to that
effect.
(b) If at any time the Purchaser reasonably determines that any of the
covenants or representations and warranties contained in this Agreement or in
any other document delivered by the Sellers pursuant hereto are not true and
correct in any material respect, or if the Purchaser becomes aware of any
information not previously disclosed that could have a material adverse effect
on the Business, the Companies, or the Purchaser's operation thereof, the
Purchaser shall have the right to terminate this Agreement pursuant to Section
8.2.11 hereof. The Purchaser shall promptly notify the Sellers in writing if it
intends to terminate this Agreement in accordance with the terms of this Section
8.2.2(b).
8.2.3 PERFORMANCE. The Sellers and the Companies shall each have performed and
complied in all material respects with all covenants, agreements and
undertakings required by this Agreement to be performed or complied with by them
at or prior to the Closing Date. The Sellers each shall execute and deliver a
closing certificate to that effect.
8.2.4 OPINION OF SELLERS' COUNSEL. The Purchaser shall have received a legal
opinion dated the Closing Date from Sellers' Counsel substantially in the form
of Enclosure 7 hereto.
8.2.5 AGREEMENT WITH MR. ZACCHELLO AND KEY MANAGERS. Mr. Giancarlo Zacchello
shall have entered into a consulting agreement with the Purchaser on terms and
conditions to be negotiated between Mr. Giancarlo Zacchello and the Chief
Executive Officer of the Purchaser, and the following individuals employed by
the Companies shall have entered into employment agreements with the respective
Companies by which they are employed, substantially in the form of Enclosure 11
hereto:
- Guido Bolognari;
- Giuliano Fazzini;
- Giorgio Muffato;
- Giovanni Scarlini;
- Corrado Fischer.
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For such purposes the Purchaser and the Common Representative jointly shall
approach such employees and attempt to negotiate such agreements or terms and
conditions acceptable to such employees, respectively, and the Companies.
8.2.6 RESIGNATION. Each of the Directors of the Companies shall have submitted
their resignations effective as of the Closing Date in accordance with Section
6.8 hereof.
8.2.7 CLOSING CERTIFICATE. The Sellers shall have executed and delivered to the
Purchaser at the Closing the Closing Certificate, substantially in the form of
Enclosure 13.
8.2.8 DELIVERIES. The Sellers also shall have delivered to the Purchaser, at or
prior to the Closing, the following in form and substance reasonably
satisfactory to the Purchaser:
(a) the endorsed share certificates representing the Speedline
Shares, free and clear from any Liens, duly recording the
transfer in favor of the Purchaser, together with the
shareholders' book of Speedline containing the annotation
attesting that the Purchaser has been registered therein as
the holder of the Speedline Shares free and clear of any
Liens;
(b) notarized copies of all corporate resolutions or appropriate
corporate powers of the Corporate Sellers approving the
entering into of this Agreement and the completion of all
transactions contemplated hereunder;
(c) letters, if any, from the Key Managers, executed pursuant to
Section 6.9 indicating that they waive their right to resign
from the Companies pursuant to article 13 of the Collective
Labor Agreement for Dirigenti dell'Industria, to be entered
into substantially in the form of Enclosure 8;
(d) notarized copies of the powers of attorney granted by each
Seller's representative, approving the entering into of this
Agreement and any other document indicated herein and the
completion of all transactions contemplated hereunder;
(e) a certificate of status, compliance and good standing
("certificato di vigenza" or other equivalent certificate) for
each of the Companies;
(f) a certificate, executed by the Sellers, attesting that there
has been no
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material adverse change in the assets, liabilities,
operations, earnings, prospects, conditions (financial or
otherwise) or business of any the Companies since the date of
the Financial Statements;
(g) all shareholders' or equivalent books and all share
certificates of the Companies;
(h) the certificate executed by the Sellers and duly signed by
each of the Sellers in accordance with the provisions set
forth under Section 8.2.2 and 8.2.3;
(i) the Closing Certificate, substantially in the form of
Enclosure 13;
(j) jointly with the Purchaser and the Escrow Agent, the Escrow
Agreement pursuant to Section 2.3 c)(i);
(k) the Related Party Agreements pursuant to Section 6.11;
(l) the notarial deed and the quotaholders' book of Autolambro
evidencing that Speedline Aluminia owns all the quotas of such
company;
(m) the notarial deed and the quotaholders' book of Alustampi
evidencing that Speedline owns all the quotas of such company;
(n) the amendment of the agreement as indicated under Section
6.1(4)(y) duly executed between the parties thereto;
(o) appropriate documentation evidencing that pre-closing
covenants indicated under Section 6.1(4)(x), and 6.1(4)(z)
have been properly and satisfactorily completed;
(p) the Sellers' written confirmation, right of first refusal and
undertakings pursuant to Section 6.14 hereof in form and
substance reasonably satisfactory to the Purchaser;
(q) the personal guarantee of Mr. Giancarlo Zacchello in the form
attached to this Agreement as Enclosure 15;
(r) the consents pursuant to the letters of patronage referred in
Section 6.13;
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(s) the consents referred in Section 6.1(4) (z);
(t) the FLT Option Agreement pursuant to Section 6.15;
(u) the banking powers revocations referred in Section 6.16;
(v) the lease amendments and extentions referred in Section 6.17;
(w) any policies of insurance then in force covering pollution or
business interruption perils insuring any of the Companies;
and
(x) full release of Speedline's guarantee of the performance of
Speedline Holding under a contract with Norsk Hydro A.S. dated
July 7, 1997 concerning payment in favor of Hydro Aluminium
A.S..
8.2.9 MATERIAL ADVERSE CHANGE. There will have been no material adverse change
in the condition (financial or otherwise), assets, liabilities, operations,
earnings, prospects or Business of the Companies since the date of the Financial
Statements.
8.2.10 SATISFACTORY MEETINGS WITH KEY CUSTOMERS. The meetings referred to in
Section 6.2(b) shall have occurred and Purchaser, in its reasonable discretion,
shall have been satisfied as to the likelihood, quality and extent of the
continuing customer relationship between the Companies and the Key Customers.
The Purchaser shall promptly inform the Sellers in writing if such meetings are
unsatisfactory and shall describe in a notice in reasonable detail the reason
for such dissatisfaction. Without limiting the Purchaser's rights to terminate
this Agreement, the Sellers with the Purchaser may re-contact the Key Customers
directly to attempt to accomplish a meeting that is satisfactory to the
Purchaser.
8.2.11 TERMINATION OF AGREEMENT BY PURCHASER. If any condition, obligation or
covenant in this Section 8.2, shall not have been fulfilled or performed in any
material respect at or prior to the Closing Date, the Purchaser may terminate
this Agreement by notice in writing to the Sellers, and in such event the
Purchaser shall be released from all obligations hereunder, provided that the
non-fulfillment or non-performance shall be material for the purposes of the
transactions contemplated herein. Notwithstanding the foregoing, the Purchaser
shall be entitled to waive compliance with any of such conditions, obligations
or covenants, in whole or in part, if it sees fit to do so, without prejudice to
any of its rights of termination in the event of non-performance of any other
condition, obligation, or covenant in whole or in part. In the event the
Purchaser terminates this Agreement pursuant to this Section 8.2.11 as a result
of the failure of the condition described in either Sections 8.2.1 (b) or
8.2.10,
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the Sellers shall pay to the Purchaser, up to a maximum amount of $ 350,000,
one-half of the usual and customary expenses reasonably incurred by the
Purchaser arising from or in connection with this Agreement, and the other
agreements and transactions contemplated herein, including but not limited to
due diligence fees and expenses incurred by Purchaser and its agents.
8.3 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligation of the Sellers to
consummate the transactions contemplated hereby shall be subject to the
fulfillment at or prior to the Closing Date of the following additional
conditions.
8.3.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made by
the Purchaser in this Agreement shall be true and correct in all material
respects when made and at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date. The Purchaser shall have
executed and delivered a closing certificate to that effect.
8.3.2 PERFORMANCE. The Purchaser shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement.
The Purchaser shall deliver a closing certificate to that effect.
8.3.3 DELIVERIES. The Purchaser shall have delivered to the Sellers at the
Closing:
(a) the Initial Purchase Price , and the written confirmation of
receipt of the Additional Purchase Price Stock by the Escrow
Agent;
(b) in form and substance reasonably satisfactory to the Sellers,
a certified copy of the resolutions of the Board of Directors
of the Purchaser approving the entering into of this Agreement
and the completion of all transactions contemplated hereunder;
(c) the Deferred Payment Guarantee in accordance with Section 2.3
d);
(d) the Closing Certificate, substantially in the form of
Enclosure 13; and
(e) the Escrow Agreement pursuant to Section 2.3 (c) (i).
8.3.4 TERMINATION OF AGREEMENT BY SELLERS. If any condition, obligation or
covenant of the Purchaser to be performed at or prior to the Closing Date as
provided in this Section 8.3 shall not have been fulfilled or performed in any
material respect by such time acting in good faith, the Sellers may terminate
this Agreement by notice in writing to the Purchaser, and in such event the
Sellers shall be released from all
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obligations hereunder, provided that the non-fulfillment or non-performance
shall be material for the purposes of the transactions contemplated herein.
Notwithstanding the foregoing, the Sellers shall be entitled to waive compliance
with any of such conditions, obligations or covenants in whole or in part if
they see fit to do so, without prejudice to any of their rights of termination
in the event of non-performance of any other condition, obligation or covenant
in whole or in part.
ARTICLE 9
INDEMNIFICATION BY THE SELLERS
------------------------------
9.1 INDEMNIFICATION BY THE SELLERS. Subject to this Article 9, from and after
the Closing Date, the Sellers agree to indemnify and/or hold harmless the
Purchaser and the Companies from all Losses suffered or incurred by the
Purchaser and/or the Companies as a result of, or arising out of, or in
connection with:
(a) any breach by the Sellers of, or any inaccuracy of any
representation or warranty of the Sellers contained in this
Agreement or in any agreement, certificate or other document
delivered pursuant hereto;
(b) any breach or non-performance by the Sellers of any covenant
or undertaking to be performed by each of them that is
contained in this Agreement or in any agreement, certificate
or other document delivered pursuant hereto;
(c) any and all debts, liabilities whatsoever (whether accrued,
absolute, contingent or otherwise) of the Companies existing
at the Closing Date, and/or related to events that occurred or
conditions that existed prior to the Closing Date including,
without limitation, notwithstanding the disclosures set forth
in the Sellers' Disclosure Schedule, any liabilities for Taxes
for any period up to and including the Closing Date, and not
provided for or included or disclosed in the Financial
Statements;
(d) notwithstanding the disclosures set forth in the Sellers'
Disclosure Schedule: (i) products manufactured or sold by the
Companies prior to the Closing Date; (ii) notwithstanding the
payment of the Environmental Holdback Amount and the
Environmental Permitting and Remediation Plan, any and all
events that occurred or conditions existing prior to the
Closing Date pertaining to violations of Environmental Laws
and Environmental Permits whether or not known to the
Purchasers or the Sellers; (iii) the April Restructuring; (iv)
operations of the Companies prior to the Closing in areas of
activity other than the Business including,
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without limitation, operations of Speedcast prior to its
acquisition by Speedline Holding, and the operations of the
Brescia Plant; and (v) any failure by the Companies to comply
with the terms and conditions of the Loans prior to Closing.
9.2 LIABILITY OF THE SELLERS. For the purpose of this Article 9, it is agreed as
follows:
a) i) From and after the Closing Date, the Sellers shall
indemnify and hold harmless the Purchaser pursuant to Section
9.1 for any and all Losses incurred by the Purchaser and/or
the Companies pursuant to this Agreement (hereinafter, the
"Purchaser's Losses"). Each of the Sellers shall indemnify the
Purchaser for that portion of the Purchaser's Losses
equivalent to such Seller's Initial Purchase Price Fraction
thereof, provided, that Giancarlo Zacchello's guarantee
pursuant to Section 9.2 a) iv) and 9.2 (a) (v) shall not be
limited by this Section 9.1 a) i), and further provided, that
the amount of the Purchaser's Losses allocable to Gerance in
excess of the limit set forth in Section 9.8 e) shall be
indemnified by each Seller in the proportion that the number
of Speedline Shares owned by such Seller immediately prior to
the Closing bears to the total number of issued and
outstanding Speedline Shares excluding those Speedline Shares
owned by Gerance.
ii) The Parties hereby agree (but without limitation upon
Section 2.4.2(b)) that at and as of the dates set forth below,
the Sellers' obligations (x) to pay any adjustments to the
Purchase Price under Article 2, (y) to indemnify the
Purchaser's Losses under Article 9 of this Agreement, and (z)
to pay any costs or expenses of the Environmental Permitting
and Remediation Plan in excess of those paid from
Environmental Holdback Amount shall be secured by the Deferred
Payment, the Additional Purchase Price Shares, and any amount
of the Contingent Payment owed to the Sellers, in the amounts
set forth below as to each date:
A) on the Closing Date, $ 16,500,000 plus the
full amount of the Contingent Payment to the
extent same shall become available for
payment ("Guaranty Amount I);
B) on the Second Anniversary, the amount of any
Claims of Indemnity pending but not yet paid
on such date, plus the lesser of (1)
Guaranty Amount I less Claims of Indemnity
paid to the Purchaser between the Closing
Date and the
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Second Anniversary, and (2) $6,500,000.00
plus the amount of the Contingent Payment
to the extent available for payment
("Guaranty Amount II");
C) on January 1, 2000, the amount of any Claims
of Indemnity pending but not yet paid on
such date, plus the lesser of (1) Guaranty
Amount II less Claims of Indemnity paid to
the Purchaser between the Second Anniversary
and January 1, 2000, and (2) $ 6,500,000.00
("Guaranty Amount III");
D) on January 1, 2001, the amount of any Claims
of Indemnity pending but not yet paid on
such date, plus the lesser of (1) Guaranty
Amount III, less the amount of any Claims of
Indemnity paid to the Purchaser prior to
such date, and (2) $4,300,000.00 ("Guaranty
Amount IV");
E) on January 1, 2002 until expiration of the
Sellers' representations, warranties and
covenants under this Agreement, the amount
of any Claims of Indemnity pending but not
yet paid on January 1, 2002, plus the lesser
of (1) Guaranty Amount IV less the amount of
any Claims of Indemnity paid to the
Purchaser prior to such date, and (2)
$2,150,000.00 ("Guaranty Amount V").
iii) It is agreed that, except as provided in Section 2.4.2
(b), any indemnification or other payment due to the Purchaser
pursuant to this Agreement first will be deducted from the
Deferred Payment. In the event the Deferred Payment is not
available or is not sufficient to cover payments due to the
Purchaser, such amounts shall be deducted from the Contingent
Payment up to the outstanding amount owed to the Sellers, if
any. In the event the Contingent Payment is not available or
is not sufficient to payments due to the Purchaser, such
amounts shall be paid out of the Additional Purchase Price
Stock pursuant to the terms hereof and of the Escrow
Agreement.
iv) It is also understood that to the extent that at any time
and subject to Section 9.2 a) ii) of this Agreement, the
amounts of the indemnification or other payments due to the
Purchaser exceed the sum of the Deferred Payment, the
Contingent Payment, if any, and the value of the Additional
Purchase Price Stock then available, and/or the
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Purchaser is not able (due to whatever circumstance) to
recover the amount due to it, the Sellers will be liable to
the Purchaser for the amount not so recovered. It is agreed
that any indemnification and other amounts payable by the
Sellers to the Purchaser pursuant to this Agreement, are
secured by Mr. Giancarlo Zacchello in his capacity of
"fideiussore" of the Sellers pursuant to Article 1944 c.c. and
in accordance with a personal guarantee in the form of
Enclosure 15 hereto, which Giancarlo Zacchello shall deliver
to the Purchaser at the Closing.
v) At such time or times the Sellers shall be obligated to
make any payments pursuant to this Agreement, the Purchaser
shall have the right to immediately demand and obtain payments
due to it under this Agreement directly from Giancarlo
Zacchello as "fideiussore" for the Sellers under the guarantee
referred to in Section 9.2 (a) (iv) provided, that the
Purchaser shall have made written demand for payment upon the
Sellers and the amount demanded shall not have been paid to
the Purchaser within 15 days after such demand.
b) In the event of a reduction of any amount from the Deferred
Payment by the Purchaser the Sellers shall cause the amount of
Deferred Payment Guarantee to be reduced by such amount
promptly upon notice from the Purchaser of such reduction or,
if there is a dispute concerning such reduction, within 5 days
after resolution of such dispute by mutual agreement or upon
decision of the arbitrators pursuant to Article 10 hereof. Any
failure by the Sellers to cause a reduction in the Deferred
Payment Guarantee in accordance with this Section 9.2 b) shall
constitute a material breach of this Agreement.
c) The Sellers shall be deemed to act as one party for the
purposes of Article 10 in respect of any dispute which may
arise between the Sellers and the Purchaser in connection with
the Purchaser's rights under this Article 9.
d) To the extent the Corporate Sellers are unable, for any
reason, to fulfill any of their obligations pursuant to
Sections 9.1 and 9.2, the Corporate Sellers hereby agree to
use their respective best efforts to cause their shareholders
to assume and pay such obligations.
e) In the event that the Companies are eligible to participate in
any tax or social security amnesty programs offered by the
Italian national tax
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authority ("Tax Amnesties"), the Sellers shall have the right
to request that the Companies participate in any such amnesty
programs. If any Company or the Companies collectively elect
to participate in any Tax Amnesty, then the Sellers shall pay
in cash the entire amount due in respect of such Tax Amnesty
to the applicable Governmental Authority, and the Sellers
shall then have no further obligations to indemnify the
Purchaser with respect to the periods and taxes specified by
such Tax Amnesty. Any such payments by the Sellers shall be
counted for purposes of limits on indemnification set forth in
Section 9.8. If any Company declines to participate in any Tax
Amnesty as to any matter or time period, then the Sellers'
obligation to indemnify the Purchaser as to such matter and
time period shall be limited to the amount which otherwise
would have been paid by Sellers to obtain the Tax Amnesty.
9.3 INDEMNIFICATION BY THE PURCHASER. Subject to this Article 9, from and after
the Closing Date, the Purchaser agrees to indemnify and hold harmless the
Sellers from all Losses suffered or incurred by the Sellers as a result of, or
arising out of, or in connection with:
(a) any breach by the Purchaser or any inaccuracy of any
representation or warranty contained in this Agreement or in
any certificate or other document delivered pursuant hereto;
(b) any breach or non-performance by the Purchaser of any covenant
or undertaking to be performed by it that is contained in this
Agreement or in any certificate or other document delivered
pursuant hereto.
9.4 NOTICE OF CLAIM. In the event that a Party (hereinafter, the "Indemnified
Party") shall become aware of any claim, proceeding or other matter in respect
of which another Party (hereinafter, the "Indemnifying Party") agreed to
indemnify the Indemnified Party pursuant to this Agreement (hereinafter, a
"Claim of Indemnity"), the Indemnified Party shall promptly give written notice
thereof to the Indemnifying Party. Such notice (which will have the effect
indicated under Section 5.3 of this Agreement) shall specify whether the Claim
of Indemnity arises as a result of a claim by a Person against the Indemnified
Party (hereinafter, a "Third Party Claim") or whether the Claim of Indemnity
does not so arise (hereinafter, a "Direct Claim"), and shall also specify with
reasonable particularity (to the extent that the information is available) the
factual basis for the Claim of Indemnity and the amount of the Claim of
Indemnity, if known, together with copy of any relevant documents to the extent
available.
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If, through the fault of the Indemnified Party, the Indemnifying Party does not
receive notice of any Claim of Indemnity in time to contest effectively the
determination of any liability susceptible of being contested, the Indemnifying
Party shall be entitled to set off against the amount claimed by the Indemnified
Party the amount of any Losses incurred by the Indemnifying Party resulting
directly from the Indemnified Party's failure to give such notice on a timely
basis.
9.5 DIRECT CLAIMS. With respect to any Direct Claim, following receipt of notice
from the Indemnified Party of the Claim of Indemnity, the Indemnifying Party
shall have 30 days to make such investigation of the Claim of Indemnity as it
considers necessary or desirable. For the purpose of such investigation, the
Indemnified Party shall make available to the Indemnifying Party the information
relied upon by the Indemnified Party to substantiate the Claim of Indemnity,
together with all such other information as the Indemnifying Party may
reasonably request. If both Parties agree at or prior to the expiration of such
30 day period (or any mutually agreed upon extension thereof) to the validity
and amount of such Claim of Indemnity, the Indemnifying Party shall immediately
pay to the Indemnified Party the full agreed amount of the Claim of Indemnity,
failing which the matter shall be referred to binding arbitration as provided
pursuant to the provisions of Article 10 hereof.
9.6 THIRD PARTY CLAIMS. With respect to any Third Party Claim, the Indemnifying
Party shall have the right, at its expense, to participate in or assume control
of the negotiation, settlement or defense of the Claim of Indemnity and, in such
event, the Indemnifying Party shall reimburse the Indemnified Party for all of
the Indemnified Party's out-of-pocket expenses as a result of such participation
or assumption. If the Indemnifying Party elects to assume such control, the
Indemnified Party shall have the right to participate in the negotiation,
settlement or defense of such Third Party Claim and to retain counsel to act on
its behalf, provided that the fees and disbursements of such counsel shall be
paid by the Indemnified Party unless the Indemnifying Party consents to the
retention of such counsel or unless the named parties to any action or
proceeding include both the Indemnifying Party and the Indemnified Party and a
representation of both the Indemnifying Party and the Indemnified Party by the
same counsel would be inappropriate due to the actual or potential differing
interests between them (such as the availability of different defenses). If the
Indemnifying Party, having elected to assume such control, thereafter fails to
defend the Third Party Claim within a reasonable time, the Indemnified Party
shall be entitled to assume such control, and the Indemnifying Party shall be
bound by the results obtained by the Indemnified Party with respect to such
Third Party Claim. If any Third Party Claim is of a nature such that the
Indemnified Party is required by applicable law to make a payment to any third
party with respect to the Third Party Claim before the completion of settlement
negotiations or related legal proceedings, the Indemnified
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Party may make such payment and the Indemnifying Party shall, forthwith after
demand by the Indemnified Party, reimburse the Indemnified Party for such
payment. If the amount of any liability of the Indemnified Party under the Third
Party Claim in respect of which such payment was made, as finally determined, is
less than the amount that was paid by the Indemnifying Party to the Indemnified
Party, the Indemnified Party shall, forthwith after receipt of the difference
from such third party, pay the amount of such difference to the Indemnifying
Party.
9.7 SETTLEMENT OF THIRD PARTY CLAIMS. (1) If the Indemnifying Party fails to
assume control of the defense of any Third Party Claim, the Indemnified Party
shall have the exclusive right to contest, settle or pay the amount claimed.
Whether or not the Indemnifying Party assumes control of the negotiation,
settlement or defense of any Third Party Claim, the Indemnifying Party shall not
settle any Third Party Claim without the written consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed. In the event
the Indemnified Party shall not provide its written consent to the settlement,
the Indemnifying Party's obligation to indemnify shall be limited to (i) the
amount of the lesser or the lowest good faith settlement proposal made or
confirmed in writing at any time since the commencement of the foregoing Third
Party Claim, and (ii) the amount of the counsel fees and cost of proceedings
incurred prior to the rejection of said settlement proposal. (2) Any Indemnified
Party shall use its reasonable efforts to mitigate expenditures, losses, damages
and liabilities to be indemnified under Section 9.1 or 9.3 above.
9.8 Limitation of Liability.
-----------------------
a) The Sellers' obligation to indemnify the Purchaser pursuant to
Section 9.1(d)(iii) shall be unlimited as to duration and
amount.
b) The Sellers' obligation to indemnify the Purchaser for Losses
arising from or related to the temporary or permanent closure
or restriction of use of any of the Buildings and Fixtures,
Owned Properties and Leased Properties due to the Companies'
lack of any Environmental Permit shall be limited to the
Adjusted Purchase Price excluding the amount of any unearned
portion of the Contingent Payment (the "Cap Price").
c) The Sellers' obligations to indemnify the Purchaser pursuant
to Section 9.1(d)(ii), other than the obligations referred to
in Section 9.8 (b), shall be subject to the limitations of
Section 9.8(d), but not to the limitations of Section
9.8(d)(i).
d) The following limitations shall apply to the Sellers'
obligations to
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indemnify the Purchaser pursuant to Section 9.1 and 9.2 of
this Agreement with respect to all Losses other than those
matters described in Sections 9.8 (a) and 9.8(b), provided,
that the limitations set forth in Section 9.8 d) shall not
apply to any payments due in respect of the Adjusted Purchase
Price, and the limitations set forth in Section 9.8(d)(i)
shall not apply to matters described in Section 9.8(c):
(i) the Sellers shall have the obligation to make
payments to the Purchaser with respect to Claims of
Indemnity only if and to the extent that the
aggregate total of Claims of Indemnity payable by the
Sellers to the Purchaser exceeds TWO HUNDRED FIFTY
THOUSAND DOLLARS ($ 250,000.00), in the full amount
of the excess;
(ii) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser on or prior to December 31, 1999
shall be equal to 50% of the Cap Price, and Claims of
Indemnity notified by the Purchaser prior to such
date shall remain subject to that limitation
notwithstanding any lower limitation applicable
thereafter;
(iii) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser between January 1, 2000 and December
31, 2000 shall be equal to 25% of the Cap Price, plus
the amount of any Claims of Indemnity notified by the
Purchaser prior to such date and not yet settled
pursuant to Articles 9 and 10 of this Agreement;
Claims of Indemnity notified by the Purchaser during
the period mentioned in this Section 9.8(d)(iii)
shall remain subject to such 25% limitation
notwithstanding any lower limitation applicable
thereafter;
(iv) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser between January 1, 2001 and December
31, 2001 shall be equal to 16.67% of the Cap Price,
plus the amount of any Claims of Indemnity notified
by the Purchaser prior to such date and not yet
settled pursuant to Articles 9 and 10 of this
Agreement; Claims of Indemnity notified by the
Purchaser during the period mentioned in this Section
9.8(d)(iv) shall remain subject to such 16.67%
limitation notwithstanding any lower limitation
applicable
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thereafter;
(v) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser from and after January 1, 2002 shall
be equal to 8.33% of the Cap Price plus the amount of
any Claims of Indemnity notified by the Purchaser
prior to such date;
(vi) anything to the contrary herein notwithstanding, the
maximum cumulative amount payable to the Purchaser
with respect to Claims of Indemnity under this
Agreement that are subject to this Section 9.8(d)
shall not exceed 50% of the Cap Price.
e) Anything to the contrary in this Agreement or the other
agreements and instruments delivered in connection herewith
notwithstanding, Gerance shall not be obligated to make
payments to the Purchaser in regard to adjustments to the
Purchase Price, indemnification, payments pursuant to the
Environmental Permitting and Remediation Plan or otherwise,
except by Purchaser's withholding of payment to Gerance of its
portion of the Deferred Payment or the Contingent Payment, if
any, and by withdrawal pursuant to the Escrow Agreement, and
in accordance with its terms, of the Additional Purchase Price
Shares issued to Gerance. This Section 9.8 e) shall not in any
way limit the Purchaser's right to seek and obtain payment
from the Sellers other than Gerance with respect to the full
amount of any and all payments due to the Purchaser.
f) The Purchaser's obligation to indemnify the Sellers pursuant
to Section 9.3 of this Agreement shall be limited to the Cap
Price and shall be subject to the limitations set forth in
Section 9.8(d), MUTATIS MUTANDIS.
9.9 CALCULATION OF INDEMNIFICATION. For the purpose of this Article 9 the
liability of the Indemnifying Party shall be net of any tax benefit effectively
realized by the relevant Indemnified Party as jointly determined by the Parties'
independent public accountants. However, if the indemnification to be paid by
the Indemnifying Party is taxable to the relevant Indemnified Party, the
indemnification shall be increased by an amount sufficient to cover the relevant
tax to be paid up to the amount of the gross indemnification by the Indemnified
Party as a result of the indemnification.
9.10 PAYMENT OF AMOUNTS. Payments of all amounts due as a result of indemnities
provided in this Article 9, plus interest calculated at the Reference Rate from
the date of the notice of claim up to the date of the actual payment of any
amount due, shall
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<PAGE> 46
be made promptly following such determination, but in no event later than 30
Business Days after such determination.
9.11 NO WAIVER. Except as specifically identified in the Sellers' Disclosure
Schedule and except for items disclosed prior to the Closing Date by the Sellers
to the Purchaser, in writing, specifically identifying the issue and making
reference to this Section 9.11, no investigations made by or on behalf of the
Purchaser, pursuant to this Agreement or otherwise, will have the effect of
waiving, diminishing the scope of, or otherwise affecting any representations,
warranties, covenants or indemnities made in this Agreement, or any other remedy
available to the Purchaser pursuant to the applicable law.
ARTICLE 10
ARBITRATION
-----------
10.1 GENERAL. Unless settled by mutual agreement, any dispute or difference
whatsoever that might arise from the performance or as to the meaning of this
Agreement or as to any matter or items of whatsoever nature howsoever arising
out of or in connection with this Agreement, shall be submitted to arbitration
in accordance with and subject to the Rules of Arbitration and Conciliation of
the International Chamber of Commerce in Paris, France, and finally settled by
three arbitrators appointed in accordance with such rules then in force. For the
purpose of this Agreement, it is understood that the Sellers shall be deemed to
act as one party in respect of any dispute which may arise between the Sellers
(or any of them) and the Purchaser.
The panel of arbitrators will be appointed as follows: each Party will appoint
an arbitrator; the two arbitrators appointed by the Parties will appoint a third
arbitrator who shall act as chairman of the panel. In case the third arbitrator
is not appointed within 30 days from the appointment of the two arbitrators
appointed by the Parties or one of the Parties has not appointed its arbitrator
within 15 days from the notice of the appointment of the arbitrator by the other
Party the third arbitrator and/or the arbitrator not appointed by the relevant
Party will be appointed by President of the Court of Arbitration of the
International Chamber of Commerce in Paris upon request of any of each of the
Parties.
10.2 PLACE OF ARBITRATION. Unless otherwise agreed to in writing by the Parties,
the arbitration will take place in Paris, France, unless otherwise agreed, in
the English language, provided that the arbitrators shall be fluent in the
English and Italian languages.
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10.3 COSTS OF ARBITRATION. Each Party shall pay its own counsel's fees and
costs. The cost of any arbitration will be assessed against the unsuccessful
Party, with respect to any claim unsuccessfully disputed by the relevant Party,
and the arbitrators will be required to make such cost allocation, if any, part
of any ruling issued by them.
10.4 ITALIAN LAW. The arbitrators shall decide the dispute according to Italian
substantive law and pursuant to the rules of procedure applied by the Rules of
Arbitration and Conciliation of the International Chamber of Commerce in Paris,
France with respect to international arbitration rules; provided, however, that
any disputes submitted by the Sellers pursuant to Article 2 shall be resolved in
accordance with the provisions thereof.
ARTICLE 11
MISCELLANEOUS
-------------
11.1 NOTICES. (1) Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be delivered in person,
transmitted by fax, or sent by international air courier service or registered
mail, charges prepaid, addressed as follows:
If to the Sellers, to:
acting as Common Representative: Mr. Giancarlo Zacchello
San Marco 3055
Venice, Italy
Telefax: +39-41-52-105-67 c/o San Marco Finanziaria
with copies to: Avv. Francesco Camilotti
Camilotti - Ceccon - Polettini
Galleria Borromeo, 3
Padova, Italy
Telefax: +39-49-666-086
If to the Purchaser, to: Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45401-0098 USA
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<PAGE> 48
To the attention of: Mr. John H. Shuey
President and Chief Executive Officer
Telefax: +1-937-291-7007
with copies to: Michael R. Oestreicher, Esq.
Thompson Hine & Flory, LLP
312 Walnut Street, Suite 1400
Cincinnati, Ohio 45202-4029 USA
Telefax: +1-513-241-4771
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<PAGE> 49
- and -
Avv. Francesco Gianni
Gianni, Origoni & Partners
Via Delle Quattro Fontane, 20
00184 Rome, Italy
Telefax: +39-6-4871101
(2) Any such notice or other communication shall be deemed to have been
given on the day on which it was received (or, if such day is not a Business
Day, on the next following Business Day).
(3) Any party may at any time change its address for service from time
to time by giving notice to the other Parties in accordance with this Section
11.1.
11.2 EXPENSES. Except as provided in Section 8.2.11, the Purchaser and the
Sellers shall each bear their own expenses, costs and fees (including, without
limitation, brokers', investment bankers', attorneys' and auditors' fees) in
connection with the transactions contemplated hereby, including the preparation
and execution of this Agreement and compliance with its terms, whether or not
the transactions contemplated hereby shall be consummated. Any cost and expense
(including the notarial fees) to be borne in connection with the transfer of the
Speedline Shares shall be paid equally by the Parties. However, the cost of the
Fissato Bollato for the sale of the Speedline Shares will be paid by the
Purchaser. Any and all expenses, costs and fees incurred by the Sellers
described in the first sentence of this Section 11.2 that are not paid prior to
the Closing Date shall be paid by the Individual Shareholders.
11.3 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of each of the
Parties hereto and their respective successors and permitted assigns, and such
successors and permitted assigns shall have the benefit of the indemnities set
forth in Article 9 hereof. This Agreement and the rights, interests and
obligations hereunder shall not be assigned by the Purchaser or the Sellers
without the prior written consent of the other Party, and any attempt to assign
this Agreement without consent shall be void and of no effect; provided,
however, that the Purchaser may assign this Agreement and the rights, interests
and obligations hereunder to any Affiliate of the Purchaser without the prior
written consent of the Sellers, it being understood that Amcast will guarantee
the performance of the obligations of the Purchaser contained in this Agreement
(x) by the Purchaser, to the extent Amcast is not the Purchaser, or (y) by
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such assignee, if any. Nothing in this Agreement shall confer any third party
beneficiary or other rights upon any person which is not a party or a successor
or permitted assignee of a Party to this Agreement.
11.4 GOVERNING LAW; LANGUAGE. This Agreement shall be governed by, construed and
enforced in accordance with the laws of Italy. This Agreement is being executed
in the English language, and the English version shall prevail, control and
supersede any translation hereof into any other language.
11.5 INTEGRATION. This Agreement, together with the Enclosures hereto, the
Sellers' Disclosure Schedule, the documents and agreements delivered or to be
delivered in connection herewith, constitutes the entire agreement of the
Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, of the Parties with
respect to the subject matter hereof.
11.6 FURTHER ASSURANCES. Each Party to this Agreement covenants and agrees that,
from time to time both prior to and subsequent to the Closing Date, it will, at
the request and expense of the requesting party, execute and deliver all such
documents, including, without limitation, all such additional certifications,
conveyances, transfers, consents and other assurances and do all such other acts
and things as any other party hereto, acting reasonably, may from time to time
request to be executed or done in order to better evidence or perfect or
effectuate any provision of this Agreement or of any agreement or other document
executed pursuant to this Agreement or any of the respective obligations
intended to be created hereby or thereby.
11.7 COMMON REPRESENTATIVE OF THE SELLERS. The Sellers hereby appoint Mr.
Giancarlo Zacchello domiciled in San Marco 3055, Venice, Italy, as their common
representative (the "Common Representative"), unless and until a new Common
Representative shall be appointed by the Sellers with two weeks prior written
notice to Purchaser, in connection with: (a) any action that may be required
under this Agreement on the part of any of them or of all of them collectively,
including, but not limited to, any communication, notice, appointment and
exercise of any rights, so that each of the Sellers shall be prevented from
exercising any such activity or right directly and without the intervention of
Mr. Giancarlo Zacchello; (b) any communication, notice, or advice directed to
one or more of the Sellers pursuant to this Agreement; and (c) the appointment
of the arbitrator to be nominated pursuant to Article 10 hereof.
11.8 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Agreement shall be binding on any party unless consented to in writing by such
party.
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<PAGE> 51
No waiver of any provision of this Agreement shall constitute a waiver of any
other provision, nor shall any waiver constitute a continuing waiver unless
otherwise expressly provided.
THE REMAINDER OF THIS PAGE IS BLANK
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<PAGE> 52
IN WITNESS WHEREOF, the Parties have executed this Agreement or caused
this Agreement to be executed by officers duly authorized thereunto as of the
date first above written.
Date: July 18, 1997
By: /s/ John H. Shuey
------------------------------------
John H. Shuey, President and Chief Executive Officer
on behalf of AMCAST INDUSTRIAL CORPORATION
By: * Giancarlo Zacchello
------------------------------------
Speedline International Holding B.V.
By: /s/ Werner Krummenacher
------------------------------------
Gerance S.A.
By: ** Gianni Zacchello
------------------------------------
San Marco Finanziaria S.p.A.
* Antonio Zacchello
------------------------------------
Mr. Antonio Zacchello
/s/ Giancarlo Zacchello
------------------------------------
Mr. Giancarlo Zacchello
* Power of Attorney
* Gianni Zacchello
------------------------------------
Mr. Gianni Zacchello
** Power of Attorney
* Franco Zacchello
------------------------------------
Mr. Franco Zacchello
* Graziella Zacchello
------------------------------------
Ms. Graziella Zacchello
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<PAGE> 53
LIST OF ENCLOSURES (EXHIBITS) TO SHARE PURCHASE AGREEMENT
---------------------------------------------------------
The following enclosures (exhibits) to the Share Purchase Agreement are filed
herewith, any other enclosures or exhibits the Commission requests will be filed
upon request.
Enclosure 1 Definitions
Enclosure 3 Representations and Warranties of Sellers
Enclosure 4 Representations and Warranties of Purchasers
Enclosure 5 Escrow Agreement
<PAGE> 54
ENCLOSURE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below (and grammatical variations of such terms
shall have corresponding meanings):
"ACCOUNTING PRINCIPLES": means the law concerning (consolidated)
financial statements, as interpreted and supplemented by the accounting
principles promulgated by the Italian Accounting Profession (Consiglio Nazionale
dei Dottori Commercialisti e dei Ragionieri) and in the absence thereof, by
those issued by the International Accounting Standard Committee (IASC).
"ADDITIONAL PURCHASE PRICE SHARES": as defined in Section 2.3(c)(i)
hereof.
"ADJUSTED PURCHASE PRICE": as defined in Section 2.4.2(b) hereof.
"AFFILIATE" OR "AFFILIATES": means any Person, as defined herewith,
which, directly or indirectly controls, is controlled by, or is under common
control with, such Person.
"AGREEMENT": means this purchase agreement and all enclosures and
instruments in amendment or confirmation of it; "hereof", "hereto", and
"hereunder" and similar expressions mean and refer to this Agreement and not to
any particular Article, Section, Subsection or other subdivision; "Article",
"Section", "Subsection" or other subdivision of this Agreement followed by a
number mean and refer to the specified Article, Section, Subsection or other
subdivision of this Agreement.
"AMCAST": as defined in page 1 hereof.
"ALUSTAMPI": as defined in Recital A hereof.
"ANNOUNCEMENT DATE": as defined in Section 2.3 c)(i) hereof.
"ANNOUNCEMENT DATE SHARE VALUE": as defined in Section 2.3 c)(i)
hereof.
"ANTITRUST AUTHORITY": means any Governmental Authority having power or
authority with respect to antitrust matters.
"APRIL RESTRUCTURING": means the transactions described in that certain
Heads of Agreement dated April 18, 1997 entered into among Speedline, Speedline
Holding, Hyspeed S.p.A., a company organized under the laws of Italy having its
registered offices at Via Cognaro, 57, Santa Maria di Sala (VE), Italy, San
Marco Finanziaria and Gerance and the transactions related hereto.
"AUTHORIZATION" OR "AUTHORIZATIONS": means any governmental license,
permit,
1
<PAGE> 55
concession, application, filing, registration and other authorization
necessary for the Companies to carry on the Business as presently or previously
conducted or for the ownership or use of its property and assets.
"AUTOLAMBRO": as defined in Recital A hereof.
"BIG SIX": means the following internationally recognized accounting
firms: Arthur Andersen; Coopers & Lybrand LLP; Ernst & Young LLP; Deloitte &
Touche LLP; KPMG Peat Marwick LLP; and Price Waterhouse LLP.
"BOOKS AND RECORDS": means all technical, business and financial
records, (including those which are relevant from a tax viewpoint) financial
books and records of account, books, data, reports, files, drawings, plans,
briefs, customer and supplier lists, deeds, certificates, contracts, surveys, or
any other documentation and information in any form whatsoever (including
written, printed, electronic or computer printout form) relating to the
Companies.
"BRESCIA PLANT": as defined in Section 6.1(4) (y) hereof.
"BUILDINGS AND FIXTURES": means all plant, buildings, structures,
erections, improvements, appurtenances and fixtures (including fixed machinery
and fixed equipment) situated on the Owned Properties or the Leased Properties
or any of them as the context requires.
"BUSINESS": means, collectively, the businesses presently and
heretofore carried on by the Companies and in particular the business described
in Recital B hereof.
"BUSINESS DAY": means any day other than Saturday, Sunday, legal
holiday or a day on which banking institutions in Milan and Rome, Italy, are
authorized to be closed.
"CAP PRICE": as defined in Section 9.8 (b) hereof.
"CLAIM OF INDEMNITY": as defined in Section 9.4 hereof.
"CLOSING": as defined in Section 2.2 hereof.
"CLOSING CERTIFICATE": means the certificate to be delivered at Closing
in the form indicated under Enclosure 13 in connection with the transfer of the
Participation hereunder.
"CLOSING DATE": as defined in Section 2.2 hereof.
"CLOSING DATE ALLOWANCE": as defined in Section 3.29 of Enclosure 3
attached hereto.
"CLOSING DATE EXCHANGE RATE": as defined in Section 2.3(f) hereof.
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"CLOSING INDEBTEDNESS": means the average daily Indebtedness of the
Companies to banks and other lenders calculated based on the thirty (30)
calendar days prior to the Closing Date.
"CLOSING INVENTORY": as defined in section 3.28 of Enclosure 3 attached
hereto.
"CLOSING NET WORTH": means the excess of assets over liabilities of the
Core Companies in Italian Lire reflected in the Closing Statement as of the
Closing Date determined in accordance with Section 2.4.2 hereof and with the
Accounting Principles.
"CLOSING STATEMENT": means (1) a statement of the aggregated
balance-sheet of the Core Companies representing the financial situation of the
Core Companies, including the Closing Net Worth, together with (2) the Closing
Indebtedness as of the Closing Date, prepared in accordance with Section 2.4.1
hereof, and with the Accounting Principles.
"COMMON REPRESENTATIVE": as defined in Section 11.7 hereof.
"COMMON SHARES": means the common shares, without par value, of Amcast.
"COMPANIES": as defined in Recital A hereof.
"CONSENT" OR "CONSENTS": means any consent required to be obtained from
a contracting party to the Material Contracts to the change in control of the
Companies contemplated by this Agreement.
"CONTINGENT PAYMENT": as defined in Section 2.3 e) hereof.
"CONTINGENT PAYMENT REDUCTION": as defined in Section 2.3(e)(i) hereof
"CORE COMPANIES": means Speedline, Speedline Aluminia, Speedline
Competition and Speedline Engineering.
"CORPORATE RECORDS": means the minute books and corporate records of
the Companies including, without limitation, the share certificate books,
register of shareholders, register of transfers and register of directors.
"CORPORATE SELLERS": means, collectively Speedline Holding, Gerance,
and San Marco Finanziaria.
"DEBT ADJUSTMENT": as defined in Section 2.4.2 hereof.
"DEFERRED PAYMENT": as defined in Section 2.3 d) hereof.
"DIRECT CLAIM": as defined in Section 9.4 hereof.
"E&Y FINANCIAL STATEMENTS": as defined in Section 8.2.1(b) hereof.
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"EMPLOYEE BENEFIT PLANS": as defined in Section 3.35(9) of Enclosure 3
attached hereto.
"ENCLOSURES": means the enclosures indicated in Section 1.8 hereof and
attached to this Agreement.
"ENVIRONMENTAL HOLDBACK AMOUNT": as defined in Section 2.3 f) hereof.
"ENVIRONMENTAL LAWS": as defined in Section 3.37 of Enclosure 3
attached hereto.
"ENVIRONMENTAL PERMITS": as defined in Section 3.37 of Enclosure 3
attached hereto.
"ENVIRONMENTAL PERMITTING AND REMEDIATION PLAN": as defined in Section
7.7 hereof.
"ESCROW AGREEMENT": as defined in Section 2.3(c)(i) hereof.
"ESCROW AGENT": means Star Bank, N.A., Cincinnati, Ohio, USA.
"EUROPE": means the territory of Europe, including, but not limited to,
the member states of the European Union, Albania, Bosnia-Herzegovnia, Bulgaria,
Croatia, Cyprus, The Czech Republic, Estonia, Hungary, Iceland, Latvia,
Lithuania, Malta, Montenegro, Norway, Poland, Romania, Slovakia, Slovenia,
Switzerland, Turkey, Ukraine and Yugoslavia.
"E&Y FINANCIAL STATEMENTS": as defined in Section 8.2.1 b) hereof.
"FINANCIAL STATEMENTS": means the 1996 Financial Statements and the
aggregated income statement of the Core Companies plus Alustampi and Autolambro
as of and for the five month period ended May 31, 1997, prepared in accordance
with the Accounting Principles on a combined and consolidated basis, as attached
hereto as Enclosure 9.
"FLT OPTION AGREEMENT": as defined in Section 6.15 hereof.
"GERANCE": as defined on page 1 hereof.
"GUARANTY AMOUNT I" as defined in Section 9.2 a) i) A) on page 1
hereof.
"GUARANTY AMOUNT II" as defined in Section 9.2 a) i) B) on page 1
hereof.
"GUARANTY AMOUNT III" as defined in Section 9.2 a) i) C) on page 1
hereof.
"GUARANTY AMOUNT IV" as defined in Section 9.2 a) i) D) on page 1
hereof.
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"GUARANTY AMOUNT V" as defined in Section 9.2 a) i) E) on page 1
hereof.
"GOVERNMENTAL AUTHORITY": means any domestic or foreign court or
governmental or quasi-governmental agency, commission, authority or
instrumentality.
"INDEBTEDNESS": means the categories of indebtedness of the Companies
identified in the extract of the unaudited balance sheet of the Companies
attached to this Enclosure 1 as Exhibit A. Anything to the contrary herein
notwithstanding, Indebtedness shall not include obligations of the Companies
under any leases or factoring arrangements.
"INDEMNIFIED PARTY" and "INDEMNIFYING PARTY": as defined in Section 9.4
hereof.
"INDIVIDUAL SHAREHOLDERS": as defined in page 2 hereof.
"INITIAL PURCHASE PRICE": as defined in Section 2.3 a) hereof.
"INITIAL PURCHASE PRICE FRACTIONS": as defined in Section 2.3 a)
hereof.
"INTELLECTUAL PROPERTY RIGHTS": as defined in Section 3.21 of Enclosure
3 attached hereto.
"INTERIM PERIOD": means the period between the date hereof and the
Closing Date.
"INVENTORY": means the inventory, including raw materials, work in
progress and finished goods, relating to the Business.
"ITALIAN ANTITRUST AUTHORITY" means the Autorita Garante della
Concorrenza e del Mercato having jurisdiction under Law no. 287 of October 10,
1990.
"JOINT STOCK COMPANIES": means Speedline, Speedcast, Speedline
Aluminia, Speedline Engineering and Speedline USA.
"KEY CUSTOMERS": as defined in Section 6.2(b) hereof.
"KEY MANAGERS": means the managers indicated under Enclosure 10 hereof.
"LAW" OR "LAWS": means all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, judicial or arbitral or administrative or
ministerial or departmental or regulatory judgments, orders, decisions, rulings
or awards, or any provisions of such laws, binding on or affecting the Person
referred to in the context in which such word is used; and "Law" means any one
of them.
"LEASED PROPERTIES": means, collectively, the real properties forming
the subject matter of the Real Property Leases, as described (municipal
addresses and legal descriptions) in Section 3.25 of Sellers' Disclosure
Schedule.
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"LIEN" OR "LIENS": means any security interest, mortgage, lien,
usufruct, charge, pledge, encumbrance, claim, defects of title or restriction of
any kind, including, without limitation, any restriction on the voting, transfer
or receipt of income or other attributes of ownership or rights of set-off, and
other encumbrances of any kind.
"LIMITED LIABILITY COMPANIES": means Speedline Competition, Autolambro,
Alustampi, Speedline France, and Speedline UK.
"LOANS": mean those agreements (written or oral) of the Companies for
the borrowing of funds or the granting of credit, as listed and described in
Section 3.32 of Sellers' Disclosure Schedule.
"LOSS" OR "LOSSES": means any actual loss whatsoever, including,
without limitation, all claims, liabilities, obligations, actions, expenses,
costs, damages, penalties, fines and interest charges.
"MATERIAL CONTRACTS": means those contracts and agreements of the
Companies listed and described in Section 3.16 of Sellers' Disclosure Schedule
having the characteristics described under Section 3.16 of Enclosure 3.
"NET WORTH ADJUSTMENT": as defined in Section 2.4.2 hereof.
"NINE MONTH ANNIVERSARY": as defined in Section 2.3 c) hereof.
"NORTH AMERICA": means Canada, Mexico and the United States and all
states and possessions thereof.
"NYSE": as defined in Section 2.3 c)(i) hereof.
"1996 FINANCIAL STATEMENTS": means the aggregated balance sheet as of
December 31, 1996 and the aggregated income statement for the twelve month
period ended December 31, 1996 for the Core Companies (comprising a part of
Enclosure 9).
"1996 NET WORTH": means the excess of assets over liabilities of the
Core Companies, as such assets and liabilities are reflected in the 1996
Financial Statements, in the amount of ITL 48,010,000,000.
"1997 OPERATING BUDGET": as defined in Section 3.33 of Enclosure 3
attached hereto, and comprising Enclosure 12.
"1997 FINANCIAL STATEMENTS": as defined in Section 2.3 e) hereof.
"1997 PROFIT": as defined in Section 2.3 e) hereof.
"1997 PROFIT BUDGET": as defined in Section 2.3 e) hereof.
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"1998 FINANCIAL STATEMENTS": as defined in Section 2.3 e)(ii) hereof.
"1998 PROFIT": as defined in Section 2.3 e)(ii) hereof.
"OWNED PROPERTIES": means, collectively, the real property owned by the
Companies, which is described (municipal addresses and legal descriptions) in
Section 3.24 of the Sellers' Disclosure Schedule.
"PARTICIPATION" means collectively any and all Shares and Quotas.
"PARTIES": means, collectively, each of the Sellers and the Purchaser,
and "Party" means any of them.
"PERSON": means any natural person, firm, partnership, association,
corporation, trust, public body or government.
"POLLUTING SUBSTANCES": as defined in Section 3.37 of Enclosure 3
attached hereto.
"PROPRIETARY INFORMATION": means the know-how and trade secrets owned,
licensed, or utilized by the Companies.
"PROTECTED SHARES": as defined in Section 2.3 c)(ii) hereof.
"PUBLIC ANNOUNCEMENT": shall mean any press release or other public
announcement pursuant to Section 6.12 hereof.
"PURCHASE PRICE": as defined in Section 2.3 hereof.
"PURCHASER": as defined in page 1 hereof.
"PURCHASER'S LOSSES": as defined in section 9.2 a) hereof.
"QUOTAS" means any and all quotas representing the entire capital of
the Limited Liability Companies.
"RELATED PARTY AGREEMENTS": as defined in Section 6.11 hereof.
"REAL PROPERTY LEASES": means the leases and subleases of real property
to which the Companies are parties, as described in Section 3.25 of Sellers'
Disclosure Schedule.
"REFERENCE INDEBTEDNESS": means Indebtedness of the Companies equal to
ONE HUNDRED SEVEN BILLION THREE HUNDRED TEN MILLION ITALIAN LIRE (ITL
107,310,000,000).
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"REFERENCE RATE": means the rate of interest that is 100 basis points
below the rate of interest payable on nine month United States Treasury
obligations from time to time.
"RELATED PARTY AGREEMENT": as defined in Section 6.11 hereof.
"SAN MARCO FINANZIARIA": as defined in page 1 hereof.
"SECOND ANNIVERSARY": as defined in Section 2.3 c)(ii) hereof.
"SECOND ANNIVERSARY STOCK VALUE": as defined in Section 2.3 c) (ii) (a)
hereof.
"SECURITIES LAWS": as defined in Section 4.5 of Enclosure 4 attached
hereto.
"SELLERS": as defined in page 2 hereof.
"SELLERS' ACCOUNTANTS": as defined in Section 2.4.3 (b) (i) hereof.
"SELLERS' COUNSEL": means Camilotti - Ceccon - Polettini, Galleria
Borromeo, 3, Padova, Italy appointed by the Sellers in order to render the legal
opinion mentioned in Section 8.2.4 hereof.
"SELLERS' DISCLOSURE SCHEDULE": means the disclosure schedule delivered
by the Sellers to the Purchaser pursuant hereto. Section numbers in the Sellers'
Disclosure Schedule refer to the corresponding section numbers in this
Agreement.
"SELLERS' SHAREHOLDERS": means any firm, corporation and/or individual
holding a participation directly or indirectly in the Corporate Sellers.
"SHARES": means any and all shares representing the capital stock of
the Joint Stock Companies.
"SPEEDCAST": as defined in Recital A hereof.
"SPEEDLINE": as defined in Recital (A) hereof.
"SPEEDLINE ALUMINIA": as defined in Recital A hereof.
"SPEEDLINE COMPETITION": as defined in Recital A hereof.
"SPEEDLINE ENGINEERING": as defined in Recital A hereof.
"SPEEDLINE FRANCE": as defined in Recital A hereof.
"SPEEDLINE SHARES": as defined in Section 2.1 hereof.
"SPEEDLINE UK": as defined in Recital A hereof.
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"SPEEDLINE USA": as defined in Recital A hereof.
"TAX AMNESTIES": as defined in Section 9.2 e).
"TAX" OR "TAXES": means all national, local or foreign taxes, social
security contributions, fees, imposts, levies or other assessments, including,
without limitation, all net income, gross receipts, sales, ad valorem, value
added, transfer, recording, franchise, profits, inventory, capital stock,
license, withholding, payroll, stamp, occupation and property taxes, customs
duties or other similar fees, assessments and charges however denominated,
together with all interest, penalties, additions to tax or additional amounts
imposed by any taxing authority (Italian or foreign), and any transferee
liability in respect of any of the foregoing taxes.
"THIRD ACCOUNTING FIRM" as defined in Section 2.4.3 b)(iii) hereof.
"THIRD PARTY CLAIM": as defined in Section 9.4 hereof.
"TRADING DAY": means any day other than a Saturday, Sunday, legal
holiday or other day on which the NYSE or banking institutions in New York, New
York, USA are authorized to be closed.
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ENCLOSURE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------
The Sellers make the following representations and warranties and
acknowledge that the Purchaser is relying upon such representations and
warranties in connection with the purchase by it of the Speedline Shares and
thereby the Participation. The above notwithstanding, the Parties hereby agree
that in no event shall the Sellers be responsible for inaccuracies or omissions
that are capable of being completed satisfactorily, or integrated by any
information, data and/or statement contained in any representation or warranty
made in this Enclosure 3 and/or the Sellers' Disclosure Schedule and any
Prospectus attached thereto.
A) MATTERS RELATING TO THE SELLERS
3.1.a DUE INCORPORATION AND LEGAL POWER OF THE CORPORATE SELLERS. Each
of the Corporate Sellers is a corporation duly constituted, validly existing and
in good standing under the laws of Italy with regard to San Marco Finanziaria,
the laws of The Netherlands with regard to Speedline Holding, and the laws of
Switzerland with regard to Gerance and have full power and authority to own
their property, to carry on business as heretofore conducted, to execute and
deliver this Agreement, to perform their obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized and approved by all requisite actions necessary on the part of
each of the Corporate Sellers and do not (or would not with the giving of
notice, the lapse of time or the happening of any other event or condition)
result in a violation or a breach of, or a default under, or give rise to a
right of termination, amendment, or cancellation, or the acceleration of any
obligation under (i) any charter or by-law instruments of each of the Corporate
Sellers, (ii) any contract or instrument to which any of the Corporate Sellers
is a party or by which any of the Corporate Sellers is bound, except as
disclosed under Section 3.1 (a) of the Sellers' Disclosure Schedule, or (iii)
any Laws applicable to each of the Corporate Sellers. This Agreement constitutes
a valid and legally binding obligation of each of the Corporate Sellers,
enforceable against each of the Corporate Sellers in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, insolvency or similar laws affecting creditors
rights generally and by general principles of equity.
3.1.b LEGAL POWER OF INDIVIDUAL SHAREHOLDERS. Subject to the matters
disclosed under Section 3.1 (b) of the Sellers' Disclosure Schedule, Mr. Antonio
Zacchello, Mr. Giancarlo Zacchello, Mr. Gianni Zacchello, Mr. Franco Zacchello
and Ms. Graziella Zacchello have each the legal power to own the respective
Speedline Shares owned by each of them and to enter into this Agreement and any
other document indicated herein and to consummate the transactions contemplated
hereby. None of the spouses of the Individual Shareholders has any legal or
beneficial interest in the Speedline Shares and
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the consents of the Individual Shareholders' spouses are not required to
transfer good and marketable title in the Speedline Shares to the Purchaser free
and clear of any and all Liens.
B) MATTERS RELATING TO THE COMPANIES.
3.2 DUE INCORPORATION OF THE COMPANIES. Each of the Companies is a
corporation duly incorporated, validly existing and in good standing under the
relevant laws of incorporation and has full corporate power and authority to own
its property and to carry on its business as now conducted. Each of the
Companies is duly qualified to do business in all jurisdictions in which the
nature of its assets or its business makes such qualification necessary.
Sections 3.2 and 3.10 (b) of Sellers' Disclosure Schedule and related Prospectus
indicates a true and complete list of all the permanent establishments and/or
representative offices of the Companies including all locations where any of the
Companies maintain an office, plant, warehouse, assets, equipment, employees or
any other indications related to existence of such permanent establishments or
representative offices. Correct and complete copies of the deed of incorporation
and of the current by-laws of the Companies or similar documents have been
previously provided to the Purchaser.
3.3 AUTHORIZED CAPITAL (AS TO EACH OF THE COMPANIES). The authorized
and issued and paid in capital stock and relevant ownership of each of the
Companies is laid out in Prospectus 3.3(a) attached to the Sellers' Disclosure
Schedule.
All issued and outstanding shares have been duly authorized and validly issued
and are fully paid and are owned as indicated in the Prospectus 3.3 (a) of the
Sellers' Disclosure Schedule and are represented by the share certificates
listed in Section 3.3 (B) of Sellers' Disclosure Schedule. Any and all the
Quotas have been duly and validly registered in the relevant quotaholders books
and fully paid and owned as indicated in the Prospectus 3.3(a) of the Sellers'
Disclosure Schedule.
3.4 NO OPTIONS, ETC. As of the Closing Date, no Person will have any
option, warrant, right, call, commitment, conversion right, right of exchange or
other agreement (written or oral) or any right or privilege (whether by law,
preemptive or contractual) capable of becoming an option, warrant, right, call,
commitment, conversion right, right of exchange or other agreement (i) for the
purchase from any of the Sellers of the Speedline Shares; (ii) for the purchase,
subscription or issuance of any unissued shares and/or quotas in the capital of
the Companies or of any securities of the Companies; for the acquisition, by
purchase of all or substantially all of the assets, merger consolidation or
otherwise, of any of the Companies; or (iv) for the voting of any Shares and/or
Quotas. There are no shareholders' agreements entered into between or among any
of the Companies' shareholders or otherwise affecting the Companies. It must
however be noted that a resolution was passed on April 28th, 1997 by the
Shareholders' Meeting of Speedcast for the increase of Speedcast's authorized
and issued capital respectively to HFL 35,000,000 and HFL 30,114,600. Speedline
has obtained all necessary waivers or rights of first refusal
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required to complete the sale of the minority participation to Speedline Holding
during the April Restructuring.
3.5 TITLE TO SPEEDLINE SHARES, SHARES AND QUOTAS. (1) The Speedline
Shares, are owned by each of the Sellers, in the amount indicated under Section
3.3 (a) of the Sellers' Disclosure Schedule, as the registered owner thereof
with a good and valid title thereto. The Speedline Shares are held free and
clear of all Liens, including, without limitation, any voting trust, shareholder
agreement or voting agreement. Upon completion of the formalities related to the
transfer of the Speedline Shares owned by each of the Sellers (a) the Purchaser
will obtain good, exclusive and valid title to the Speedline Shares and thereby
to the Participation, free and clear of all Liens, options, charges and
encumbrances of any kind, and (b) (i) Speedline shall have good, exclusive and
valid title to 100% of the issued and outstanding shares of Speedcast, Speedline
USA, and 100% of the quotas of Alustampi, (ii) Speedcast shall have good,
exclusive and valid title to 100% of the issued and outstanding shares and/or
quotas of Speedline Aluminia, Speedline Competition, Speedline Engineering,
Speedline France, Speedline and UK, and (iii) Speedline Aluminia shall have
good, exclusive and valid title to 100% of the quotas of Autolambro, in all such
instances free and clear of all Liens, options, charges and encumbrances of any
kind on such shares and quotas
(2) No participation or interest owned by any of the Companies
in the capital of any companies ("associazioni, societa di capitali, societa di
persone, etc") in Italy or any entity of whatsoever nature abroad.
3.6 CORPORATE RECORDS. The Corporate Records of the Companies are
complete and accurate in all material respects and all corporate proceedings and
actions reflected therein have been conducted or taken in material compliance
with all applicable Laws and with the relevant documents of incorporation.
3.7 CONFLICTING AGREEMENTS, ETC. The execution and delivery of this
Agreement by the Sellers and the consummation of the transactions contemplated
hereby will not result in:
(a) the breach or violation of any of the provisions of, or a default
under, or a conflict with or cause the acceleration of any obligation of the
Companies under: (i) any Material Contract subject to what set forth in Section
3.7 of the Sellers' Disclosure Schedule; (ii) any Authorization; (iii) any
provision of the constituent documents, by-laws or resolutions of the Board of
Directors (or any committee thereof) or resolution of the shareholders or
quotaholders of the Companies; (iv) any judgment, injunction, decree, order or
award of any court, governmental body or arbitrator having jurisdiction over the
Companies, having a material effect on the transactions contemplated herein; (v)
any license, permit, approval, consent or authorization necessary to the
ownership of the Participation and the operation of the Business; or (vi) any
applicable Law; or
(b) the creation or imposition of any Lien on any of the Shares/Quotas
or
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on any of the property or assets of the Companies; or
(c) the discontinuance or impairment of the operation of the
Business after the date hereof or the Closing Date on substantially the same
basis as such Business has heretofore been operated.
3.8 CONSENTS AND APPROVALS. To the best of Sellers' knowledge, save for
the approval of the Italian Antitrust Authority, no other consent or approval,
or registration, declaration or filing with, any Governmental Authority is
required to be obtained or made on the part of the Sellers or the Companies in
connection with the execution and delivery of this Agreement by the Sellers or
the consummation of the transactions contemplated hereunder.
3.9 BANK ACCOUNTS AND POWERS OF ATTORNEY. Section 3.9 of Sellers'
Disclosure Schedule is a correct and complete list showing the name of each bank
in which the Companies have an account or safe deposit box and the names of all
persons authorized to draw thereon or to have access thereto.
C) GENERAL MATTERS RELATING TO THE BUSINESS
3.10 BUSINESS OF THE COMPANIES. The Business is the only business
operation carried on by the Companies, and, to the best of Sellers' knowledge,
and save for what set forth in Section 3.10 (a) of the Sellers' Disclosure
Schedule the property and assets now owned or leased by the Companies (and as
reflected in the Financial Statements) are sufficient to carry on the Business
as it is now conducted. With the exception of inventory in transit, and save for
the assets displaced at third parties facilities on a gratuitous loans scheme
according to the agreements listed in Section 3.10 (b) of the Sellers'
Disclosure Schedule all the tangible property and assets of the Companies, are
situated at the locations set out in Section 3.2 of Sellers' Disclosure
Schedule.
3.11 CONDUCT OF BUSINESS IN ORDINARY COURSE. Since December 31, 1996,
the Business has been conducted in the ordinary course consistent with past
practice and will continue to be conducted in the ordinary course consistent
with past practice up to the Closing Date.
3.12 NO MATERIAL ADVERSE CHANGE. Except for the provisions of Article 3
of Law no. 140/97, since December 31, 1996 there has been no change in the
affairs, assets, liabilities, business, operations, conditions (financial or
otherwise) or prospects of the Companies, or the Business, whether arising as a
result of any legislative or regulatory change, revocation of any Authorization,
license or right to do business, fire, explosion, accident, casualty, labor
trouble (specifically connected to the Companies) public force, any other act of
God or any other circumstance which has materially adversely affected or which
may reasonably be expected to materially adversely affect the Companies or the
Business.
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3.13 COMPLIANCE WITH LAWS. Subject to implementation of the
interventions provided for in the Environmental Permitting and Remediation Plan,
each of the Companies is conducting the Business in compliance with all
applicable Laws of each jurisdiction in which the Business is carried on.
Without limiting the foregoing, the Consortium Agreement among Speedline
Engineering and Alloy Wheels International (UK) Ltd., Wales, Hitachi Metals
Ltd., Japan, Montupet SA, France, Ormet Primary Aluminium Corporation, USA,
Volkswagen Canada Inc., Canada, Buhler Ltd., Switzerland, dated March 8, 1995
does not violate provisions of competition laws of any applicable jurisdiction.
3.14 AUTHORIZATIONS. Each Company has obtained and is in possession of
all Authorizations except for those which will be obtained only upon
implementation of the Environmental Permitting and Remediation Plan, and those
the absence of which would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the operation of the Business.
None of the Companies is in default, nor has it received any notice of any claim
in default, with respect to any such Authorizations. To the best of the Sellers'
knowledge, no threat of revocation exists and there is no reason to revoke any
of the Authorizations. All such Authorizations are, subject to completion of the
Environmental Permitting and Remediation Plan, renewable by their terms or in
the ordinary course of business without the need for the Companies to comply
with any special qualification or procedure or to pay any amount other than
routine filing fees.
3.15 OWNERSHIP OF OTHER INTERESTS. None of the Companies owns, or has
entered into any agreement of any nature to acquire, directly or indirectly,
shares in the capital of or other equity or proprietary interests in any Person,
or to acquire or lease any other business operations.
3.16 Material Contracts. The contracts listed and described in Section
3.16 of Sellers' Disclosure Schedule constitute (a) all the Companies'
contracts, agreements or commitments with any Affiliate or related party
thereof, and (b) all other contracts, agreements or commitments of the
Companies, except those contracts, agreements or commitments, that are (x)
entered into in the ordinary course of business, (y) do not have a contractual
value in excess of ITL 150,000,000 and (z) may be terminated, without penalty,
on notice of one year or less. To the best of sellers' knowledge, true, correct
and complete copies of all Material Contracts in writing have been previously
made available for review to the Purchaser.
3.17 NO BREACH OF CONTRACTS. Save for what set forth in the prospectus
3.16(a) attached to the Sellers Disclosure Schedule, each of the Material
Contracts is in full force and effect, unamended, and, at the date hereof, to
the best of Sellers' knowledge, there exists no default or event of default or
event, occurrence, condition or act which, with the giving of notice, the lapse
of time or the happening of any other event or condition, would become a default
or event of default thereunder, except for such defaults of a minor nature and
except for the necessity of obtaining the Consents. None of the Companies has
violated or breached, in any material respect, any of the terms or conditions of
any Material Contract, and all the covenants to be performed by any other party
thereto have been fully
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performed.
3.18 INSURANCE. Section 3.18 of Sellers' Disclosure Schedule contains a
correct and complete list of insurance policies which are maintained by the
Companies with respect to the Business, their respective property and assets or
employees with an indication of the type of policy, name of insurer, coverage
allowance, expiration dates, annual premiums and any pending claim thereunder.
None of the Companies is in default with respect to the payment of any premium
under any such insurance policy and has not failed to give any notice or to
present any claim under any such insurance policy in a due and timely fashion.
Such insurance policies are in full force and effect free from any right of
termination on the part of the insurers, except upon notice as stipulated in
such policies.
3.19 LITIGATION. Except as set forth in Section 3.19 of Sellers'
Disclosure Schedule, none of the Companies is a party to any pending litigation,
whether before the ordinary courts or before administrative or other courts or
arbitrators, and, to the best of Sellers' knowledge, no such litigation is
threatened by or against the Companies. Except as set forth in Section 3.19 of
Sellers' Disclosure Schedule, none of the Companies is presently subject to any
judgment, order or decree entered in any law suit or proceeding. It is
understood that litigation which, individually or in the aggregate, potentially
would expose the Companies to liability of less than ITL 100 million are not
subject to inclusion in this Section 3.19 and the related Section 3.19 of the
Sellers' Disclosure Schedule.
3.20 CUSTOMERS, SUPPLIERS. Section 3.20 of Sellers' Disclosure Schedule
is a true and correct list setting forth the largest customers and suppliers of
the Business updated as of December 31, 1996. Except as set forth in Section
3.20 of Sellers' Disclosure Schedule, none of the Sellers nor, to the best of
the Sellers' knowledge, any officer or director of the Companies possesses,
directly or indirectly, any financial interest in, or is a director, officer or
employee of, any Person which is a customer, supplier, lessor, lessee, or
competitor or potential competitor of the Companies. Except as set forth in
Section 3.20 of Sellers' Disclosure Schedule, the Sellers are not aware of any
written or oral communication, fact, event or action which exists or has
occurred within 6 months prior to the date of this Agreement, which would lead
the Sellers to believe that any current customer of the Companies or any
supplier to the Companies of items which are material to the Companies and
cannot be replaced at comparable cost, will terminate or adversely modify its
business relationship with the Companies.
3.21 INTELLECTUAL PROPERTY, PROPRIETARY INFORMATION. Section 3.21 of
Sellers' Disclosure Schedule is a true and correct list (including, where
applicable, registration numbers, dates of filing renewal and termination) of
all the material patents, patent applications, registered designs and models,
trademarks, trademark registrations and applications therefor, service marks,
service mark registrations and applications therefor, trade names (whether or
not registered or registrable), registered copyrights and registered copyright
applications, used or held for use by the Companies in the conduct of the
Business as currently, and as proposed to be conducted (hereinafter,
collectively, "Intellectual Property Rights"). The Companies are the true,
lawful and exclusive owners
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of all right, title and interest in and to the Intellectual Property Rights and
the Proprietary Information, free and clear of all Liens, including, without
limitation, claims of Employees or any third parties for compensation for use or
inventions of any Intellectual Property Rights utilized by the Companies and the
Intellectual Property Rights and Proprietary Information are valid and
subsisting. There is no intellectual property right of any third party which is,
utilized by the Companies. None of the Companies has conveyed, assigned,
licensed or encumbered any of the Intellectual Property Rights and Proprietary
Information. The Companies have the exclusive right to use such Intellectual
Property Rights and Proprietary Information. None of the Companies is a party to
any pending litigation, whether before the ordinary courts or before
administrative or other courts or arbitrators, and no such litigation is
threatened by or against the Companies with respect to Intellectual Property
Rights. To the best of the Sellers' knowledge, conduct of the Business of the
Companies does not infringe upon the intellectual property rights of any other
Person.
D) MATTERS RELATING TO PROPERTY AND ASSETS
3.22 TITLE TO THE PROPERTY AND ASSETS.
(1) Each of the Companies has good and marketable title to and
legal and beneficial ownership of all its respective property and assets, free
and clear of all Liens, except as otherwise indicated in Section 3.22 of
Sellers' Disclosure Schedule. All Liens granted by the Companies to secure fully
repaid loan agreements, overdraft, discount notes or other credit facilities
have been duly canceled. The Companies have obtained the consent from the
relevant bank institutions for the cancellation of the registered mortgages
pertaining to Loans and obligations fully reimbursed.
(2) The Companies own all of the assets and property reflected
in the Financial Statements, which constitute, save for the leased properties
and assets listed in Sections 3.25 and 3.27 of Sellers Disclosure Schedule as
well as the assets of third parties manufacturers entrusted by the Companies
with certain manufacturing process, all of the assets and property used in and
necessary for the operation of the Business by the Companies.
3.23 NO OPTIONS, ETC. No Person has any written or oral agreement,
option, understanding or commitment, or any right or privilege capable of
becoming such for the purchase from the Companies of any of their respective
property or assets.
3.24 REAL PROPERTY.
(1) Section 3.24 (1) (a) and (b) of the Sellers' Disclosure
Schedule lists all of the real property owned by the Companies, Except as set
forth in Section 3.24(1) of Sellers' Disclosure Schedule, each of the Companies
has good and marketable title to its interest in the Owned Properties, free and
clear of all Liens.
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(2) Except as set forth in Section 3.24(1)(b) of Sellers'
Disclosure Schedule, none of the Companies is the owner of, or under any
agreement or option to own, any real property or any interest therein, other
than the Owned Properties.
(3) All of the Buildings and Fixtures on the Owned Properties
were built in accordance with all applicable laws and with all required
authorizations validly issued pursuant thereto. All of the Buildings and
Fixtures on the Owned Properties and the Leased Properties: (i) to the best of
Sellers' knowledge, are in good operating condition and in a state of good
maintenance and repair, except for normal wear and tear; and (ii) are adequate
and suitable for the purposes for which they are presently being used; and (iii)
with respect to each of them the Companies have adequate rights of ingress and
egress for the operation of their business in the ordinary course. None of the
Owned Properties or the Buildings and Fixtures thereon, nor the use, operation
or maintenance thereof for the purpose of carrying on the Business, violates any
restrictive covenant or any provision of any Law or encroaches on any property
owned by any other Person and the same is the case regarding the Leased
Properties. No condemnation or expropriation proceeding is pending or, to the
best of Sellers' knowledge, threatened with respect to the Owned Properties nor
pending or threatened with respect to the Leased Properties which would preclude
or impair the use of any such real property or any part thereof for the purposes
for which it is currently used.
(4) There are no outstanding work orders with respect to any
of the Owned Properties, the Leased Properties or the Buildings or Fixtures
thereon, from or required by any municipality, police department, fire
department, sanitation, health or safety authorities or from any other Person
and/or Governmental Authorities and there are no matters under discussion with
or by the Companies relating to work orders, to the extent any such work orders
or matters would have a material adverse effect on
the Companies or the Business.
(5) Section 3.24(5) of Sellers' Disclosure Schedule contains a
true, complete, and correct list of the building amnesties duly filed by the
Companies, in compliance with the relevant Laws, with respect to Buildings,
Fixtures and Owned Properties. All the amounts due in connection with such
amnesties indicated under this subsection (5) have been fully paid and no
further obligations are pending towards the relevant Governmental Authority and
no claims have been filed or are expected to be filed by such Governmental
Authority.
3.25 REAL PROPERTY LEASES. Section 3.25 of Sellers' Disclosure Schedule
lists all of the Real Property Leases, the term of each Real Property Lease, the
rental payments thereunder, any rights of renewal and the term thereof and any
restrictions on assignment concerning the Companies. None of the Companies is a
party to, or under any agreement or option to become a party to, any lease with
respect to real property used or to be used in the Business, other than the Real
Property Leases. Each Real Property Lease is in good standing, creates a good
and valid leasehold estate in the Leased Property thereby demised and is in full
force and effect without amendment thereto, except as otherwise
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disclosed in Section 3.25 of the Sellers' Disclosure Schedule. With respect to
each Real Property Lease (i) all rents and additional rents due thereunder have
been paid; (ii) neither the lessor nor the lessee is in material default
thereunder; (iii) no waiver, indulgence or postponement of the lessee's
obligations thereunder has been granted by the lessor; (iv) there exists no
event of default or event, occurrence, condition or act (including, without
limitation, the purchase of the Participation) which, with the giving of notice,
the lapse of time or the happening of any other event or condition, would become
a default under any such Real Property Leases; (v) none of the Companies has
violated any of the terms or conditions under any such Real Property Leases in
any material respect; (vi) all of the covenants to be performed by any other
party under any such Real Property Leases have been fully performed; and (vii)
except as disclosed in Section 3.25 of the Sellers' Disclosure Schedule, none of
the Sellers or any of their Affiliates has any direct or indirect ownership or
other interest in the Leased Properties or the Real Property Leases.
3.26 CONDITION OF ASSETS - GENERAL. To the best of Sellers' knowledge,
all of the property and assets owned or used by each of the Companies are in
good operating condition and are in a state of good repair and maintenance,
having regard to the age and use thereof, reasonable wear and tear excepted.
During the two years preceding the date of this Agreement, there has not been
any significant interruption of operations (being an interruption of more than
seven days) of the Business due to inadequate maintenance of any of the property
and assets owned and used by each of the Companies.
3.27 LEASED PERSONAL PROPERTY. None of the Companies leases any
material non-real property in the conduct of the Business, other than as set
forth in Section 3.27 of Sellers' Disclosure Schedule. None of the Sellers or
any of their Affiliates has any ownership or other interest in equipment or
other non-real property leased by the Companies or the corresponding lease
agreements.
3.28 INVENTORY. At the Closing Date, the Inventory (hereinafter, the
"Closing Inventory") will be: (i) usable, merchantable, and saleable in the
normal course, (ii) in conformity with warranties customarily given to
purchasers of like products and (iii) at levels adequate in relation to the
circumstances of the Business and in accordance with inventory stocking
practices as of December 31, 1996.
3.29 ACCOUNTS RECEIVABLES. Except as set forth in Section 3.29 of
Sellers' Disclosure Schedule, all accounts receivable as shown on the Financial
Statements and arising thereafter are bona fide and, subject to the allowance
for doubtful accounts, as shown on the Financial Statements, and carried on
thereafter until the Closing Date at comparable levels (hereinafter, the
"Closing Date Allowance"), collectible without set off or counterclaim in the
ordinary course of business.
E) FINANCIAL MATTERS
3.30 BOOKS AND RECORDS. All Books and Records have been fully, properly
and accurately kept and completed in accordance with the applicable rules of the
Italian civil
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code or other applicable foreign legislation and there are no material
inaccuracies or discrepancies of any kind contained or reflected therein. All of
the records, controls, data or information of the Companies are under the
exclusive ownership and the direct control of the Companies.
3.31 FINANCIAL STATEMENTS. The Financial Statements (as defined in the
Agreement) have been prepared in accordance with the Accounting Principles
applied except as disclosed in Section 3.31 of the Sellers' Disclosure Schedule
on a basis consistent with those of previous fiscal periods and present fairly,
respectively: (a) the property, assets, liabilities (whether accrued, absolute,
contingent or otherwise) and the financial condition of the Core Companies, as
of December 31, 1996; (b) the financial position of the Core Companies, as of
December 31, 1996; and (c) the sales, gross profit operating profit and earnings
before taxes and net income for the period ended December 31, 1996 of the Core
Companies and sales, gross profit, operating profit, and earnings before taxes
for the 5 months period ended May 31, 1997 of the Core Companies plus Alustampi
and Autolambro, during the periods covered by the said Financial Statements.
There are no other liabilities except for those reflected in the Financial
Statements.
3.32 LOANS. Section 3.32 of Sellers' Disclosure Schedule lists and
describes all loan agreements, overdrafts, discounted notes and similar credit
facilities, to which each of the Companies is a party. All such loan agreements
and credit facilities are in full force and effect and there has been, on the
part of the Companies, no material default or breach of the Companies'
obligations thereunder, or delay of payments of principal or interest in respect
thereof.
3.33 CAPITAL EXPENDITURES. Except as disclosed in Section 3.33 of
Sellers' Disclosure Schedule, no capital expenditures in excess of any items
included in the capital budget of the Companies for 1997 have been made or
authorized by the Companies since December 31, 1996. A copy of the capital
budget and of the operating budget of the Companies for 1997 (hereinafter, the
"1997 Operating Budget") is attached as Enclosure 12.
3.34 TAXES. Each of the Companies has filed or caused to be filed,
within the times and within the manner prescribed by Law, all tax returns, tax
reports and social security returns which are required to be filed by each of
them. Such returns and reports reflect accurately all liabilities for Taxes of
each of the Companies for the periods covered thereby. Except as disclosed in
Section 3.34 of the Sellers' Disclosure Schedule all Taxes (including interest
and penalties) payable by or due from each of the Companies (as a result of a
fiscal assessment or otherwise), have been fully paid or adequately disclosed
and fully provided for in the Books and Records and the Financial Statements.
Each of the Companies has duly applied for the tax and social security amnesties
deemed necessary and has effected payment of or made adequate provision in the
Financial Statements for the entire amounts due for such amnesties. Except as
disclosed in Section 3.34 of the Sellers' Disclosure Schedule, no amount is
still due or will be due in consequence of the filing for the said amnesties in
order for the Companies to keep the right to the benefits
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provided for by the above-mentioned amnesties.
F) EMPLOYEE MATTERS AND AGENCY
3.35 EMPLOYEES. (1) Section 3.35(1) of Sellers' Disclosure Schedule
sets forth a complete list of each of the Companies' employees, their position
and length of service with the Companies, their salary, bonuses and any other
employee benefits other than those provided by law, and whether any written
employment agreements exist relating to any such employees.
(2) Each of the Companies is in material compliance with all
Laws and applicable labor collective agreements respecting employment and
employment practices, terms and conditions of employment, pay equity, wages and
hours, and laws and regulations concerning health and safety in the workplace.
(3) There is no labor strike, dispute, slowdown or stoppage
actually pending or involving or, to the best of Sellers' knowledge, threatened
against the Companies with respect to the Business or any part thereof.
(4) No employment related complaint or grievance exists which
might reasonably be expected to have a material adverse effect upon the
Companies or the conduct of the Business or any part thereof.
(5) Except as disclosed in Section 3.35(5) of Sellers'
Disclosure Schedule, none of the Companies is bound by any collective bargaining
or similar agreement nor are any such agreements currently being negotiated.
(6) No employee of the Companies has any agreement as to
length of notice required to terminate his employment, other than such as may be
required by Law from the employment of an employee without agreement as to such
notice or as to length of employment.
(7) All vacation pay (including all banked vacation pay),
bonuses, commissions and other employee benefit payments are to the extent
required by law and applicable labor collecting agreements reflected and have
been accrued in the Books and Records.
(8) No payments of salary, pension, bonuses or other
remuneration of any nature have been made or authorized since December 31, 1996
to any officers, directors, former directors, shareholders or employees of the
Companies, or to any Person not dealing at arm's length with any of the
foregoing, except in the ordinary course of business and at regular rates.
(9) There exist no employee benefit plans or other foreign
pension, welfare or retirement benefit plans of the Companies.
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(10) Section 3.35(10) of Sellers' Disclosure Schedule provides
for the complete list of all agents who/which render their services in favor of
any of the Companies (the "Agents"). All of the agency agreements pertaining to
the Agents are in full force and effect. Each of the Companies has duly paid all
the contributions due to the relevant agencies as well as any other amount due
to the Agents. The Sellers acknowledge that each of the Companies, where
necessary, has duly accrued or paid as termination indemnities to the former
agents and/or to the Agents only the ENASARCO and F.I.R.R. required by the
applicable collective bargaining agreements for national agents and such
accruals are duly reflected in the Financial Statements. None of the Companies
is a party to any agency agreement except as indicated under Section 3.35 (10)
of Sellers' Disclosure Schedule.
(11) Any and all consulting agreements entered into between
the Companies and any of its consultants, advisors, accountants, etc. comply
with all Laws.
3.36 NO BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any person acting on behalf of the Sellers in such manner as to give rise to
any valid claim against the Purchaser for any brokerage or finder's commission,
fee or similar compensation, and the Sellers shall so indemnify the Purchaser.
G) ENVIRONMENTAL MATTERS
3.37 ENVIRONMENTAL MATTERS. To the best of Sellers' knowledge, (1)
except as described in Section 3.37(1) of Sellers' Disclosure Schedule, each of
the Companies has been and is in material compliance with all applicable
national, regional, municipal, local and other applicable laws, statutes,
ordinances and regulations and orders, directives and decisions rendered by any
ministry, department or administrative or regulatory agency (hereinafter, the
"Environmental Laws") relating to the protection of the environment, the
manufacture, processing, distribution, use, treatment, storage, disposal,
discharge, transport or handling of any pollutants, contaminants, chemicals or
industrial, toxic or hazardous wastes or substances (hereinafter, the "Polluting
Substances").
(2) Except as disclosed under Section 3.37(2) of Sellers
Disclosure Schedule, each of the Companies has obtained all Authorizations,
certificates and registrations under Environmental Laws (hereinafter, the
"Environmental Permits") required for the operation of the Business and each
part thereof. Save for what set forth above, each Environmental Permit is valid,
subsisting and in good standing; none of the Companies is in default or breach
of any Environmental Permit and no proceeding is pending or threatened, to
revoke or limit any Environmental Permit.
(3) None of the Companies has used or permitted to be used,
except in compliance with all Environmental Laws, any of its respective property
(including the Leased Properties) or facilities or any property or facility that
it previously owned or leased, to generate, manufacture, process, distribute,
use, treat, store, dispose of, transport or
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handle any Polluting Substance.
(4) None of the Companies has received any notice of, nor been
prosecuted for an offense alleging non-compliance with any Environmental Laws,
and the Sellers and the Companies have not settled any allegation of
non-compliance short of prosecution. There are no orders or directions relating
to environmental matters requiring any work, repairs, construction or capital
expenditures with respect to the Business or any part thereof or any property of
the Companies, nor have the Companies received notice of any of the same.
(5) To the best of Sellers' knowledge, none of the Companies
has caused or permitted, the release, in any manner whatsoever, of any Polluting
Substance on or from any of the properties of the Companies (including any of
the Leased Properties) or assets or any property or facility that were
previously owned or leased by the Companies or any such release on or from a
facility owned or operated by third parties but, with respect to which, the
Companies is or may reasonably be alleged to have liability regardless of any
violation of Environmental Laws. All Polluting Substances and all other wastes
and other materials and substances used in whole or in part by the Companies or
resulting from the Business have been disposed of, treated and stored in
compliance with all Environmental Laws.
(6) None of the Companies has received any notice that it is
potentially responsible for state, municipal or local clean-up site or
corrective action under any Environmental Laws.
(7) There are no environmental audits, evaluations,
assessments or studies relating to the Companies or the Business (or any part
thereof) in the possession of the Companies or the Sellers which have not been
delivered to the Purchaser.
H) MISCELLANEOUS MATTERS
3.38 FULL DISCLOSURE. All the financial and business and other
information, provided by the Sellers to the Purchaser also with respect to the
period following the end of the last fiscal year are accurate, complete and
correct. Neither this Agreement nor any document to be delivered pursuant to
this Agreement by the Sellers nor any certificate, report, statement or other
document furnished by the Sellers or the Companies in connection with the
negotiation of this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading. There has been no
event, transaction or information that has come to the attention of the Sellers
or the Companies that has not been disclosed to the Purchaser in writing that
could reasonably be expected to have a material adverse effect on the assets,
business, earnings, properties or conditions (financial or otherwise) of the
Companies.
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ENCLOSURE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser makes the following representations and warranties
and acknowledges that the Sellers are relying upon such representations and
warranties in connection with the sale by them of the Speedline Shares.
4.1 ORGANIZATION, GOOD STANDING, AUTHORITY AND ENFORCEABILITY. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation. Purchaser has full corporate authority and power
to carry on its business as it is now conducted, and to own, lease and operate
the assets owned, leased or operated by it. Purchaser has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, subject to the approval of the Board of
Directors of Purchaser. Such approval will not be obtained prior to the signing
of this Agreement; Purchaser shall promptly advise Seller in writing when such
approval have been obtained. This Agreement and each other agreement herein
contemplated to be executed in connection herewith by Purchaser have been (or
upon execution will have been) duly executed and delivered by Purchaser and
constitute (or upon execution will constitute) legal, valid and binding
obligations of Purchaser enforceable against Purchaser (subject to approval of
the Board of Directors of Purchaser as provided above), in accordance with their
respective terms.
4.2 AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate or result in a breach of any of
the terms or provisions of, or constitute a default (or any event which, with
notice or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the performance
required by, (i) any agreement, indenture or other instrument to which Purchaser
is a party or by which it is bound, (ii) the Articles of Incorporation or Code
of Regulations of Purchaser, (iii) any judgment, decree, order or award of any
court, governmental body or arbitrator by which Purchaser is bound, or (iv) any
law, rule or regulation applicable to Purchaser.
4.3 COMPLIANCE WITH LAWS. All consents, approvals and authorizations and all
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by Purchaser and which are necessary for the execution and
delivery by Purchaser of this Agreement and the documents to be executed and
delivered by Purchaser in connection herewith and in order to permit the
consummation of the transactions contemplated by this Agreement have been
obtained and satisfied or shall be obtained and satisfied prior to the Closing.
4.4 NO LEGAL BAR. Purchaser is not prohibited by any order, writ, injunction or
decree of any body of competent jurisdiction from consummating the transactions
contemplated by this Agreement and all other agreements referenced herein, and
no such action or proceeding is pending against Purchaser that questions the
validity of this Agreement or any such other agreements, any of the transactions
contemplated hereby or thereby or any action which has been taken by any of the
parties in connection herewith or therewith or
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in connection with any of the transactions contemplated hereby or thereby.
4.5 ADDITIONAL PURCHASE PRICE STOCK. The Additional Purchase Price Stock, upon
delivery thereof to the Sellers pursuant to the Escrow Agreement, (i) shall be
validly issued, fully paid and non-assessable, and (ii) effectively listed for
sale on the New York Stock Exchange, Inc., and (iii) freely tradeable pursuant
to (a) available exemptions under the securities laws of the United States,
including, without limitation, the Securities Act of 1993, as amended, the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as amended (collectively, the "Securities Laws"), or (b)
pursuant to one or more registration statements filed by Amcast, subject,
however, to such reasonable restrictions imposed by the issuer, its Board of
Directors or underwriters, if any, in connection with any offering of the
Additional Purchase Price Stock that may be necessary for compliance with the
Securities Laws or the terms and conditions of such registration statement or
statements.
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ENCLOSURE 5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of this ___ day of ________, 1997, by
and among
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Amcast"); and
______________________, an Italian limited liability company ("Italco");
and
SPEEDLINE INTERNATIONAL HOLDING B.V., a corporation organized and existing under
the laws of The Netherlands, SAN MARCO FINANZIARIA S.p.A., a corporation
organized and existing under the laws of Italy, GERANCE S.A., a corporation
organized under the laws of Switzerland, ANTONIO ZACCHELLO, an Italian citizen,
residing at SAN MARCO 3055, ITALY, GIANCARLO ZACCHELLO, an Italian citizen,
residing at SAN MARCO 3055, ITALY, GIANNI ZACCHELLO, an Italian citizen,
residing at CASTELLO 4427, VENICE, ITALY, FRANCO ZACCHELLO, an Italian citizen,
residing at VIA PORTE CANTARINE, PADUA, ITALY, and GRAZIELLA ZACCHELLO, an
Italian citizen, residing at VIA CALZA, PADUA, ITALY, (all such corporations and
individuals together referred to as the "Shareholders");
and
STAR BANK N.A., A NATIONAL BANKING ASSOCIATION, with its offices at 425 Walnut
Street, Cincinnati,Ohio 45202 USA, as escrow agent (the "Escrow Agent").
IN CONSIDERATION of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed that:
ARTICLE I
DEFINITIONS
When used in this Escrow Agreement, the following terms shall have the
meanings specified:
ARBITRATION AWARD. "Arbitration Award" shall mean a written award from
the panel of arbitrators in accordance with Article 10 of the Share Purchase
Agreement.
ESCROW AGREEMENT. "Escrow Agreement" shall mean this Escrow Agreement,
as the same may be amended from time to time in accordance with the terms
hereof.
ESCROWED AMCAST SHARES. "Escrowed Amcast Shares" shall mean _______
(______) common shares of Amcast, without par value, issued in the names of the
Shareholders and delivered by Amcast to the Escrow Agent.
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ESCROW CLAIM NOTICE. "Escrow Claim Notice" shall mean a notice from
Amcast, Italco or any of the Companies to the Shareholders and the Escrow Agent
which sets forth: (a) the fact that an Indemnity Matter has occurred; (b) the
fact that an Indemnity Payment has been made or may be required to be made to
Amcast, Italco or the Companies (c) a specification of the amount of the
Indemnity Payment; (d) a brief description of the facts which gave rise to the
Indemnity Matter; and (e) a request that the Escrow Agent deliver to Amcast, out
of the Escrow Fund, an amount of Indemnity Shares corresponding to the Indemnity
Payment.
ESCROW FUND. "Escrow Fund" shall mean as of a specified date (i) the
Escrowed Amcast Shares (plus all NON-TRADEABLE, non-cash distributions payable
in respect of the Escrowed Amcast Shares) then held in escrow by the Escrow
Agent pursuant to this Escrow Agreement and (ii) the share transfer powers, duly
endorsed in blank, relating to the Escrowed Amcast Shares held in escrow by the
Escrow Agent pursuant to this Escrow Agreement.
INDEMNITY CLAIM OBJECTION NOTICE. "Indemnity Claim Objection Notice"
shall mean a notice from the Shareholders to Amcast, Italco and the Escrow Agent
which sets forth: (a) an objection to delivery of all or any portion of the
Escrowed Amcast Shares in accordance with the terms of an Escrow Claim Notice;
(b) a brief description of the facts which constitute the basis for the
objection; and (c) a demand for arbitration in accordance with Article 10 of the
Share Purchase Agreement.
INDEMNITY MATTER. "Indemnity Matter" shall mean (1) any price
adjustment due to the Purchaser pursuant to Article 2 of the Share Purchase
Agreement; (2) any event or state of facts as to which the Shareholders have
agreed to indemnify Amcast, Italco or the Companies pursuant to Article 9 of the
Share Purchase Agreement; and (3) any other payment due from the Sellers to the
Purchaser in connection with the Share Purchase Agreement.
INDEMNITY PAYMENT. "Indemnity Payment" shall mean any payment of money,
loss suffered or liability incurred, by Amcast, Italco or the Companies, or
asserted against Amcast, Italco or the Companies, as a result of an Indemnity
Matter.
INDEMNITY SHARES. "Indemnity Shares" shall mean, for any Indemnity
Payment, that number of Escrowed Amcast Shares equal to: (a) the relevant
Indemnity Payment converted to United States Dollars at the applicable Share
Payment Exchange Rate; divided by (b) the Amcast Share Payment Price.
JOINT DIRECTION. "Joint Direction" shall mean a notice from, and
executed by each of, Amcast, Italco and the Shareholders to the Escrow Agent
directing the Escrow Agent to take a specified action.
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<PAGE> 80
SHARE PAYMENT EXCHANGE RATE. "Share Payment Exchange Rate" shall mean
the current rate for conversion of any currency other than United States Dollars
published in The Wall Street Journal on the date prior to any sale or delivery
of Escrowed Amcast Shares pursuant to this Agreement.
SHAREHOLDER PERCENTAGE. "Shareholder Percentage" shall mean that
percentage for each Shareholder as is set forth on Schedule A attached to this
Escrow Agreement.
SHARE PAYMENT PRICE. "Share Payment Price" shall mean the closing price
per share of common shares of Amcast, without par value, traded on The New York
Stock Exchange, Inc. on the date prior to any sale or delivery of Escrowed
Amcast Shares pursuant to this Agreement.
SHARE PURCHASE AGREEMENT. "Share Purchase Agreement" shall mean the
Purchase Agreement, dated as of July _____, 1997, by and among the Purchaser,
and the Shareholders together with the Enclosures and Schedules attached
thereto, as the same may be amended from time to time in accordance with the
terms thereof.
TERMINATION DATE. "Termination Date" shall mean the earlier of: (a) the
last day on which there is any amount in the Escrow Fund or (b) December 31,
2002, PROVIDED, HOWEVER, that if any portion of the Escrow Fund is the subject
of one or more pending Escrow Claim Notices as of the date specified in clause
(b) above, as to such portion only, "Termination Date" shall mean the date on
which there has been a final disposition of all such Escrow Claim Notices
pursuant to Section 2.4 or 2.5 of this Escrow Agreement.
Terms not otherwise defined herein are hereby defined as in the Share
Purchase Agreement.
ARTICLE II
THE ESCROW
2.1 BACKGROUND AND INTENTION OF PARTIES. Pursuant to the Share Purchase
Agreement, Italco has acquired all of the issued and outstanding capital stock
of Speedline, and Speedline has become a wholly-owned subsidiary of Italco.
Pursuant to the Share Purchase Agreement, the Shareholders (a) have agreed to
certain adjustments to the Purchase Price and (b) have agreed to indemnify
Amcast, Italco and the Companies against losses, damages, costs and other
matters arising as a result of or related to Indemnity Matters. The purpose of
this Escrow Agreement is to provide a non-exclusive mechanism for payment of and
to secure the rights of Amcast, Italco and the Companies pursuant to the Share
Purchase Agreement with respect to Indemnity Matters.
2.2 ESTABLISHMENT OF ESCROW. Amcast hereby deposits with the Escrow
Agent on behalf of each Shareholder certificates representing such Shareholder's
Shareholder Percentage of the Escrowed Amcast Shares. Each Shareholder hereby
deposits with the Escrow Agent share transfer powers, duly endorsed in blank,
relating to the Escrowed Amcast Shares owned by such Shareholder. Except for any
Indemnity Shares utilized to
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<PAGE> 81
satisfy Claims of Indemnity or other payments due to the Purchaser pursuant to
the Share Purchase Agreement and this Escrow Agreement, from time to time, each
Shareholder shall be deemed to own all of the Escrowed Amcast Shares delivered
by Amcast on his or her behalf to the Escrow Agent pursuant to this Section 2.2,
and shall be entitled to vote, and receive all cash dividends AND TRADEABLE NON-
CASH DIVIDENDS with respect to, that number of the Escrowed Amcast Shares
remaining in the Escrow Fund from time to time corresponding to such
Shareholder's Shareholder Percentage. There also shall be deposited with the
Escrow Agent and included as additional Escrowed Amcast Shares any and all
NON-TRADEABLE shares or other NON-TRADEABLE securities issuable to the
Shareholders as a result of any share dividend, share split, reclassification,
recapitalization, split-up, combination, merger, exchange or readjustment with
respect to the Escrowed Amcast Shares then held by the Escrow Agent. In
addition, prior to transfer and delivery of any Escrowed Amcast Shares, and as a
condition precedent thereto, each Shareholder shall promptly replace any share
transfer powers that the Escrow Agent delivers in connection with a distribution
of THE Escrow Fund pursuant to Section 2.4 or Section 2.5 of this Escrow
Agreement.
2.3 SECURITY INTEREST. The Shareholders hereby grant to Amcast, Italco
and the Escrow Agent (as agent for Amcast, Italco and the Companies) a security
interest in the Escrowed Amcast Shares, and all proceeds and products thereof
(other than cash dividends in respect thereof), to secure the rights of Amcast,
Italco and the Companies under the Share Purchase Agreement with respect to
Indemnity Matters. The provisions of the Uniform Commercial Code as adopted in
the State of Ohio shall govern the security interest granted hereby and, to the
extent required by the Uniform Commercial Code as adopted in the State of Ohio
for perfection of security interests, the Escrow Agent shall act solely as the
agent of Amcast, Italco and the Companies FOR SUCH PURPOSES, and possession of
the Escrowed Amcast Shares by the Escrow Agent shall be, for all legal intents
and purposes, equivalent to possession by Amcast, Italco and the Companies.
2.4 INDEMNITY CLAIM PROCEDURE. Amcast, Italco or any of the Companies
shall issue, or cause to be issued to the Escrow Agent, and provide a copy
thereof to the Shareholders, an Escrow Claim Notice in the event and to the
extent Amcast, Italco or any of the Companies determines that it is entitled to
a payment with respect to an Indemnity Matter. On the date that is fourteen (14)
calendar days after the Escrow Agent has received an Escrow Claim Notice, the
Escrow Agent shall deliver to Amcast, for itself and as agent for Italco and
the Companies, a number of Indemnity Shares (together with the related share
transfer powers) calculated based on the Indemnity Payment set forth in and in
accordance with, the terms of the Escrow Claim Notice, unless within such
fourteen (14) calendar day period the Escrow Agent has received an Indemnity
Claim Objection Notice from the Shareholders. If an Indemnity Claim Objection
Notice is so received, the Escrow Agent thereafter shall not make the delivery
requested in the Escrow Claim Notice except in accordance with either: (a) a
Joint Direction or (b) an Arbitration Award.
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<PAGE> 82
2.5 JOINT DIRECTION. Notwithstanding any other provision of this
Escrow Agreement, the Escrow Agent shall promptly deliver all or any part of
the Escrow Fund in accordance with the terms of a Joint Direction.
2.6 TERMINATION OF ESCROW.
(a) On the Second Anniversary the Escrow Agent shall transfer
to each Shareholder, in accordance with the Shareholder Percentages, a number of
the Escrowed Amcast Shares then remaining in the Escrow Fund calculated as
follows: the number of Escrowed Amcast Shares remaining in the Escrow Fund shall
be multiplied by the Share Payment Price on the Second Anniversary; the
resulting product in United States Dollars shall be reduced by the AMOUNT
CALCULATED PURSUANT TO SECTION 9.2 (A) (II) (B) OF THE SHARE PURCHASE AGREEMENT;
the resulting difference shall be divided by the Share Payment Price on such
date, and the resulting number of Escrowed Amcast Shares shall be transfered to
the Shareholders in accordance with the Shareholder Percentages.
(b) On December 31, 2000, the Escrow Agent shall transfer to
each Shareholder, in accordance with the Shareholder Percentages, a number of
the Escrowed Amcast Shares then remaining in the Escrow Fund, if any, calculated
as follows: the number of Escrowed Amcast Shares remaining in the Escrow Fund
shall be multiplied by the Share Payment Price on such date; the resulting
product in United States Dollars, less the AMOUNT CALCULATED PURSUANT TO SECTION
9.2 (A) (II) (D) OF THE SHARE PURCHASE AGREEMENT; the resulting difference
shall be divided by the Share Payment Price on such date, and the resulting
number of Escrowed Amcast Shares shall be transfered to the Shareholders in
accordance with the Shareholder Percentages.
(c) On December 31, 2001, the Escrow Agent shall transfer to
each Shareholder, in accordance with the Shareholder Percentages, a number of
the Escrowed Amcast Shares then remaining in the Escrow Fund, if any, calculated
as follows: the number of Escrowed Amcast Shares remaining in the Escrow Fund
shall be multiplied by the Share Payment Price on such date; the resulting
product in United States Dollars, less the AMOUNT CALCULATED PURSUANT TO SECTION
9.2 (A) (II) (E) OF THE SHARE PURCHASE AGREEMENT; the resulting difference
shall be divided by the Share Payment Price on such date, and the
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<PAGE> 83
resulting number of Escrowed Amcast Shares shall be transfered to the
Shareholders in accordance with the Shareholder Percentages
(d) Subject to Section 2.6(e) of this Escrow Agreement, on the
Termination Date this Escrow Agreement shall terminate and the Escrow Agent
shall transfer to each Shareholder, in accordance with the Shareholder
Percentages, the number of shares then remaining, if any, in the Escrow Fund.
(e) The Escrow Agent shall deduct from any amounts otherwise
payable to the Shareholders under Section 2.6(d) of this Escrow Agreement and
shall retain, and this Escrow Agreement shall continue as to, any portion of the
Escrow Fund which is the subject of an Escrow Claim Notice and as to which no
final disposition has been made pursuant to Sections 2.4 or 2.5 of this Escrow
Agreement until final disposition of all Escrow Claim Notices pursuant to
Section 2.4 or 2.5 of this Escrow Agreement.
2.7 REPLACEMENT OF ESCROWED AMCAST SHARES.
On the Second Anniversary and at any time thereafter, the Shareholders
jointly shall have the right to receive from the Escrow Agent all of the
Escrowed Amcast Shares then held in the Escrow Fund in exchange for a bank
guaranty or other security instrument equal in amount to the number of Escrowed
Amcast Shares then remaining in the Escrow Fund multiplied by the Share Payment
Price on the date of the exchange, PROVIDED, that Amcast, Italco and the
Shareholders, each in their absolute discretion, have agreed in writing as to
the terms and form of bank guaranty or security instrument to be provided by the
Shareholders. Notwithstanding the foregoing, in no event shall the amount of
such guaranty or other security be required to exceed the amounts required in
Section 2.6 of this Escrow Agreement from time to time.
2.8 DELIVERIES OF INDEMNITY SHARES.
(a) All deliveries of Indemnity Shares by the Escrow Agent to
Amcast pursuant to this Escrow Agreement shall be deemed to be made by all of
the Shareholders. Each Shareholder shall be deemed to have delivered that number
of the relevant Indemnity Shares equal to the Shareholder Percentage for that
Shareholder multiplied by the relevant number of Indemnity Shares.
(b) Upon a delivery of any Indemnity Shares pursuant to this
Escrow Agreement which are less than the total number of shares of Escrowed
Amcast Shares, Amcast thereafter shall deliver new share certificates to the
Escrow Agent representing the number of shares of the Escrowed Amcast Shares
remaining in the Escrow Fund; PROVIDED, however, that as a condition precedent
to any such delivery, each Shareholder
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<PAGE> 84
shall have replaced (DULY ENDORSED) any share transfer powers previously
delivered to the Escrow Agent.
ARTICLE III
ARBITRATION; JURISDICTION
3.1 RIGHTS OF ARBITRATION. All claims, disputes and other matters in
question arising out of, or in connection with, this Escrow Agreement shall be
decided by arbitration in accordance with Article 10 of the Share Purchase
Agreement.
3.2 JURISDICTION. The parties hereby consent to the jurisdiction of the
United States federal courts in and for Hamilton County, Ohio for purposes of
enforcement and execution of any and all Arbitration Awards and this Escrow
Agreement.
ARTICLE IV
THE ESCROW AGENT
4.1 AGREEMENT. The Escrow Agent hereby acknowledges receipt of the
Escrowed Amcast Shares and agrees to hold and deliver the Escrowed Amcast Shares
on all of the terms and conditions set forth in this Escrow Agreement.
4.2 LIABILITY OF AGENT. The Escrow Agent shall be obligated to perform
only the duties described in this Escrow Agreement. The Escrow Agent may rely on
any instrument or signature believed by it to be genuine and to have been signed
or presented by the proper party or parties duly authorized to do so. The Escrow
Agent shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized, nor for action taken or omitted by it in
accordance with advice of counsel, and shall not be liable for any mistake of
fact or error of judgment or for any acts or omissions of any kind unless caused
by willful misconduct or gross negligence. Each party agrees to indemnify the
Escrow Agent and to hold it harmless against any and all liabilities, including
reasonable attorneys' fees, incurred by it as a consequence of that party's
action, and the parties agree jointly to indemnify the Escrow Agent and to hold
it harmless against any and all liabilities, including reasonable attorneys'
fees, incurred by it which are not a consequence of any party's action, except
in either case for the Escrow Agent's own willful misconduct or gross
negligence.
4.3 ADVICE OF COUNSEL. The Escrow Agent shall be entitled to consult
with competent and responsible counsel of its choice with respect to the
interpretation of the provisions hereof, and any other legal matters relating
hereto, and shall be fully protected in taking any action or omitting to take
any action in good faith in accordance with the advice of such counsel.
-7-
<PAGE> 85
4.4 FEES OF ESCROW AGENT. The Escrow Agent shall serve hereunder in
consideration of the fees described on Schedule B to this Escrow Agreement and
the reimbursement of any expenses and other charges reasonably incurred by the
Escrow Agent in connection with the performance of its duties hereunder. Amcast
and the Shareholders each shall pay fifty percent (50%) of all such fees,
expenses and other charges.
4.5 STATEMENTS. The Escrow Agent shall mail to Amcast and the
Shareholders a written accounting of all transactions relating to the Escrow
Fund not less frequently than quarterly.
4.6 SUCCESSOR. If the Escrow Agent at any time resigns, refuses to act
or is removed pursuant to a Joint Direction, then a successor Escrow Agent shall
be jointly selected by Amcast and the Shareholders, or if Amcast and the
Shareholders cannot agree, the successor Escrow Agent shall be selected by the
outgoing Escrow Agent. Any successor Escrow Agent shall be an Ohio banking
corporation or a national banking association with its principal place of
business located in the State of Ohio.
ARTICLE V
TAXES AND REPORTS
5.1 BY THE SHAREHOLDERS. The Shareholders, jointly and severally,
hereby assume all obligations imposed now or hereafter by any applicable tax law
with respect to any payments from the Escrow Fund to the Shareholders under this
Escrow Agreement, and undertake to instruct the Escrow Agent in writing with
respect to the Escrow Agent's responsibility for withholding and other taxes,
assessments or other governmental charges, certificates and governmental
reporting in connection with any such payments.
5.2 BY AMCAST AND ITALCO. Amcast and Italco, jointly and severally,
hereby assume all obligations imposed now or hereafter by any applicable tax law
with respect to any payments from the Escrow Fund to Amcast or Italco under this
Escrow Agreement, and undertake to instruct the Escrow Agent in writing with
respect to the Escrow Agent's responsibility for withholding and any other
taxes, assessments or other governmental charges, certifications and
governmental reporting in connection with any such payments.
ARTICLE VI
MISCELLANEOUS
6.1 ASSIGNABILITY; SUCCESSORS. None of the rights and liabilities of
Amcast, Italco or the Shareholders under this Escrow Agreement are assignable or
delegable, in whole or in part, without the prior written consent of the other
parties; PROVIDED, that either or both of Amcast and Italco may assign their
respective rights hereunder to an affiliated entity and/or any
successor-in-interest to Amcast or Italco, whether by operation of law, purchase
-8-
<PAGE> 86
of all or substantially all of the assets or capital stock thereof or otherwise,
without the prior written consent of the Shareholders. In the event of death of
any individual shareholder, this Escrow Agreement shall be binding upon, and
inure to the benefit of, the heirs of such Shareholder.
6.2 SURVIVAL. All agreements, representations and warranties made in
this Escrow Agreement or in any document delivered pursuant to this Escrow
Agreement shall survive the execution and delivery of this Escrow Agreement and
the delivery of any such documents.
6.3 GOVERNING LAW. This Escrow Agreement and the documents issued
pursuant hereto shall be construed and interpreted according to the laws of the
State of Ohio. Notwithstanding the foregoing, it is hereby understood that
Indemnity Matters and the Shareholders' obligations to indemnify Amcast and
Italco shall be determined according to Italian substantive law as set forth in
Section 10.4 and Section 11.4 of the Share Purchase Agreement.
6.4 COUNTERPARTS; HEADINGS. This Escrow Agreement may be executed in
several counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same agreement. The
article and section headings in this Escrow Agreement are inserted for
convenience of reference only and shall not constitute a part of this Escrow
Agreement.
6.5 ENTIRE AGREEMENT. This Escrow Agreement, the Share Purchase
Agreement and the documents referred to herein and therein contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no restrictions, promises, warranties, covenants or undertakings other than
those expressly set forth herein and therein. This Escrow Agreement supersedes
all prior negotiations, agreements and undertakings among the parties with
respect to such subject matter.
6.6 NOTICES. All communications or notices required or permitted by
this Escrow Agreement shall be in writing and shall be deemed to have been given
at the earlier of the date when actually delivered to an individual party or to
an officer of a corporate party by personal delivery or telephonic facsimile
transmission (with confirmed receipt) or three (3) business days after being
mailed by, certified or registered mail, postage prepaid, return receipt
requested, and addressed as follows, unless and until any of such parties
notifies the others in accordance with this Section of a change of address:
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<PAGE> 87
If to the Shareholders:
c/o Mr. Giancarlo Zacchello
Castello 4427
Venice, Italy
with a copy to:
Avv Francesco Camillotti
Camillotti - Ceccon - Polettini
Galleria Borromeo
Padova, Italy
Telefax Number: 39-49-666-086
If to Amcast or Italco:
Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45401-0098 USA
Telefax Number: 1-937-291-7007
Attention: Chief Executive Officer
with a copy to:
Thompson, Hine & Flory LLP
312 Walnut Street, Suite 1400
Cincinnati, Ohio 45202-4029 USA
Telefax Number: 1-513-241-4771
Attention: Michael R. Oestreicher, Esq.
and
Gianni, Origoni & Partners
Via Quattro Fontane, 20
00184 Rome, Italy
Telefax Number: 39-6-487-1101
Attention: Avv. Francesco Gianni
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<PAGE> 88
If to the Escrow Agent:
Star Bank N.A.
425 Walnut Street
Cincinnati, Ohio 45202 USA
Telefax Number: 1-___-___-____
Attention: Mr. _______________]
6.7 AMENDMENT. No amendment of this Escrow Agreement shall be effective
unless in writing and signed by all of the parties hereto.
6.8 SEVERABILITY. Any provision of this Escrow Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Escrow Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
6.9 INTERPRETATION. Unless the context requires otherwise, all words
used in this Escrow Agreement in the singular number shall extend to and include
the plural number, all words in the plural number shall extend to and include
the singular number and all words in any gender shall extend to and include all
genders.
6.10 DATES. If the date of any action provided for in this Escrow
Agreement falls on a public holiday in Ohio, or a Saturday or Sunday, then such
date shall be deemed extended to the next business day.
6.11 POWER OF ATTORNEY. The Shareholders hereby appoint Mr. Giancarlo
Zacchello as their common representative and attorney in fact, unless and until
a successor shall be appointed unanimously by the Shareholders with two weeks'
prior written notice to Amcast, with full power: a) to bind the Shareholders and
to take any and all actions that are required or permited under this Escrow
Agreement on the part of any or all of them, including, but not limited to, any
communication, notice, appointment and exercise of any rights, so that each of
the Shareholders shall be prevented from exercising any such activity or right
directly and without the intervention of Mr. Giancarlo Zacchello; and b) to
receive any communication, notice or advice directed to one or more of the
Shareholders pursuant to to this Escrow Agreement.
6.12 FURTHER ASSURANCES. Each party to this Escrow Agreement covenants
and agrees that, from time to time, such party shall at the request of and
expense of any requesting party, execute and deliver all such documents,
including, without limitation, all such additional certifications, conveyances,
transfers, consents and other assurances, and do all such other acts and things
as any other party hereto, acting reasonably, may from
-11-
<PAGE> 89
time to time request to be executed or done in order to better evidence or
perfect or effectuate any provision of this Escrow Agreement or of any agreement
or other document executed in connecion herewith, or any of the respective
obligations intended to be created hereby or thereby.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the day and year first above written.
WITNESS AMCAST INDUSTRIAL CORPORATION
By:
- ------------------------------ ----------------------------
John H. Shuey
President
ITALCO
By:
- ------------------------------ ----------------------------
------------------
President
WITNESS: THE SHAREHOLDERS:
SPEEDLINE INTERNATIONAL
HOLDING B.V.
By:
- ------------------------------ ----------------------------
SAN MARCO FINANZIARIA S.p.A.
By:
- ------------------------------ ----------------------------
GERANCE S.A.
By:
- ------------------------------ ----------------------------
- ------------------------------ -------------------------------
ANTONIO ZACCHELLO
- ------------------------------ -------------------------------
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<PAGE> 90
GIANCARLO ZACCHELLO
- ------------------------------ -------------------------------
GIANNI ZACCHELLO
- ------------------------------ -------------------------------
FRANCO ZACCHELLO
- ------------------------------ -------------------------------
GRAZIELLA ZACCHELLO
WITNESS: THE ESCROW AGENT:
STAR BANK N.A.
By:
- ------------------------------- -----------------------------
Title:
-------------------------
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<PAGE> 91
SCHEDULE A
----------
SHAREHOLDER PERCENTAGES:
Name Shareholder Percentage
SPEEDLINE INTERNATIONAL
HOLDING B.V. 12.33 %
SAN MARCO FINANZIARIA S.p.A. 8.00 %
GERANCE S.A.. 47.79 %
ANTONIO ZACCHELLO 4.76 %
GIANCARLO ZACCHELLO 6.70 %
GIANNI ZACCHELLO 6.70 %
FRANCO ZACCHELLO 6.86 %
GRAZIELLA ZACCHELLO 6.86 %
---------
TOTAL: 100.00 %
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<PAGE> 92
SCHEDULE B
- ----------
ESCROW AGENT'S FEES
-15-
<PAGE> 1
EXHIBIT 2
================================================================================
CREDIT AGREEMENT
dated as of August 14, 1997
among
AMCAST INDUSTRIAL CORPORATION
as Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as Banks,
and
KEYBANK NATIONAL ASSOCIATION
as Agent
================================================================================
<PAGE> 2
This Credit Agreement (as it may from time to time be amended, restated
or otherwise modified, the "Agreement") is made effective as of the 14th day of
August, 1997, among AMCAST INDUSTRIAL CORPORATION, an Ohio corporation, 7887
Washington Village Drive, Dayton, Ohio 45459, (the "Borrower"), the banking
institutions named in Schedule 1 attached hereto and made a part hereof
(collectively, the "Banks", and individually, a "Bank") and KEYBANK NATIONAL
ASSOCIATION, 127 Public Square, Cleveland, Ohio 44114-1306, as Agent for the
Banks under this Agreement ("Agent").
WITNESSETH:
WHEREAS, Borrower and the Banks desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrower upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Absolute Rate Auction" shall mean a solicitation of Competitive Bids
setting forth Competitive Bid Absolute Rates pursuant to Section 2.1C hereof.
"Adjusted LIBOR" shall mean a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the nearest 1/100th of 1%) by
dividing (a) the applicable LIBOR rate by (b) 1.00 minus the Reserve Percentage.
"Adjusted Prime Rate" shall mean the greater of (a) the Prime Rate or
(b) one-half of one percent (1/2%) in excess of the Federal Funds Effective
Rate. Any change in the Adjusted Prime Rate shall be effective immediately from
and after such change in the Adjusted Prime Rate.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Bank in respect of the Debt, if such payment results in that
Bank having less than its pro rata share of the Debt then outstanding, than was
the case immediately before such payment.
"Applicable Commitment Fee Rate" shall mean:
(a) for the period from the Closing Date through the fiscal quarter
ending on or about April 30, 1998, twenty (20) basis points; and
(b) commencing on February 28, 1998, the number of basis points set
forth in the following matrix based on the result of the computation of the
Leverage Ratio for the most recently completed four (4) fiscal quarters (subject
to the Proviso) shall be used to establish the number of basis points that will
go into effect on May 1, 1998 and thereafter:
<PAGE> 3
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
APPLICABLE COMMITMENT
LEVERAGE RATIO FEE RATE
- -----------------------------------------------------------------------------------------------------------
<S> <C>
Greater than or equal to 3.50 to 1.00 35 basis points
- -----------------------------------------------------------------------------------------------------------
Greater than or equal to 3.25 to 1.00 but less than 3.50 to 1.00 30 basis points
- -----------------------------------------------------------------------------------------------------------
Greater than or equal to 3.00 to 1.00 but less than 3.25 to 1.00 25 basis points
- -----------------------------------------------------------------------------------------------------------
Greater than or equal to 2.75 to 1.00 but less than 3.00 to 1.00 20 basis points
- -----------------------------------------------------------------------------------------------------------
Greater than or equal to 2.50 to 1.00 but less than 2.75 to 1.00 17.5 basis points
- -----------------------------------------------------------------------------------------------------------
Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00 15 basis points
- -----------------------------------------------------------------------------------------------------------
Less than 2.00 to 1.00 12.5 basis points
- -----------------------------------------------------------------------------------------------------------
</TABLE>
Changes to the Applicable Commitment Fee Rate shall be effective on the first
day of each month following the date upon which Agent received, or, if earlier,
should have received, pursuant to Section 5.3 hereof, the financial statements
of the Companies. The above matrix does not modify or waive, in any respect, the
requirements of Section 5.7 hereof, the rights of the Banks to charge the
Default Rate, or the rights and remedies of the Banks pursuant to Articles VII
and VIII hereof.
"Applicable LIBOR Margin" shall mean:
(a) for the period from the Closing Date through the fiscal quarter
ending on or about April 30, 1998, sixty two and one-half (62.5) basis points;
(b) commencing on February 28, 1998, the number of basis points set
forth in the following matrix based on the result of the computation of the
Leverage Ratio for the most recently completed four (4) fiscal quarters (subject
to the Proviso) shall be used to establish the number of basis points that will
go into effect on May 1, 1998 and thereafter:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
APPLICABLE LIBOR
LEVERAGE RATIO MARGIN
----------------------------------------------------------------------------------------------------
<S> <C>
Greater than or equal to 3.50 to 1.00 125 basis points
----------------------------------------------------------------------------------------------------
Greater than or equal to 3.25 to 1.00 but less than 3.50 to 1.00 100 basis points
----------------------------------------------------------------------------------------------------
Greater than or equal to 3.00 to 1.00 but less than 3.25 to 1.00 75 basis points
----------------------------------------------------------------------------------------------------
Greater than or equal to 2.75 to 1.00 but less than 3.00 to 1.00 62.5 basis points
----------------------------------------------------------------------------------------------------
Greater than or equal to 2.50 to 1.00 but less than 2.75 to 1.00 50 basis points
----------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 4
<TABLE>
<S> <C>
Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00 40 basis points
----------------------------------------------------------------------------------------------------
Less than 2.00 to 1.00 30 basis points
----------------------------------------------------------------------------------------------------
</TABLE>
Changes to the Applicable LIBOR Margin shall be effective on the first day of
each month following the date upon which Agent received, or, if earlier, should
have received, pursuant to Section 5.3 hereof, the financial statements of the
Companies. The above matrix does not modify or waive, in any respect, the
requirements of Section 5.7 hereof, the rights of the Banks to charge the
Default Rate, or the rights and remedies of the Banks pursuant to Articles VII
and VIII hereof.
"Acquisition" shall mean the acquisition of the stock of Speedline by
Levante S.p.A., an Italian corporation.
"Acquisition Documents" shall mean the Share Purchase Agreement and all
documents, instruments, and agreements referenced therein and related thereto in
connection with the sale of shares pursuant to the Share Purchase Agreement.
"Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Cleveland, Ohio, and, if the applicable
Business Day relates to any LIBOR Loan, on which dealings are carried on in the
London interbank eurodollar market.
"Casting" shall mean Casting Technology Company, an Indiana general
partnership.
"Casting Guaranty" shall mean the guaranty of Borrower of certain
indebtedness of Casting, existing prior to the Closing Date, which guaranty
shall in no event exceed the amount of Twenty Five Million Dollars
($25,000,000).
"Closing Date" shall mean the effective date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
together with the rules and regulations promulgated thereunder.
"Commitment" shall mean the obligation hereunder of the Banks to make
Loans pursuant to the Revolving Credit Commitments and to participate in the
issuance of Letters of Credit up to the Total Commitment Amount during the
Commitment Period (or such lesser amount as shall be determined pursuant to
Section 2.5 hereof).
"Commitment Percentage" shall mean, for each Bank, the percentage set
forth opposite such Bank's name under the column headed "Commitment Percentage"
as described in Schedule 1 hereof.
"Commitment Period" shall mean the period from the Closing Date to
August 14, 2002, or such earlier date on which the Commitment shall have been
terminated pursuant to Article VIII hereof.
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<PAGE> 5
"Company" shall mean Borrower and any Subsidiary, including, without
limitation, Speedline.
"Companies" shall mean Borrower and all of its Subsidiaries, including,
without limitation, Speedline.
"Competitive Bid" shall mean an offer by a Bank to make a Competitive
Bid Loan in accordance with Section 2.1C hereof.
"Competitive Bid Absolute Rate" shall have the meaning set forth in
subpart (d) of Section 2.1C hereof.
"Competitive Bid Absolute Rate Loan" shall mean a Loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Competitive Bid Interest Period" shall mean:
(a) with respect to a Competitive Bid LIBOR Loan, a period of
one (1), two (2), three (3), or six (6) Months (as established through
the LIBOR Auction), commencing on the applicable borrowing date of each
Competitive Bid LIBOR Loan and ending on each Interest Adjustment Date
with respect thereto; provided, however, that if any such period would
be affected by a reduction in Commitment as provided in Section 2.5
hereof, prepayment or conversion rights or obligations as provided in
Section 2.1 or 3.5 hereof, or maturity of such Competitive Bid LIBOR
Loan as provided in Section 2.1 hereof, such period shall be shortened
to end on the date such Loan is to be prepaid or converted pursuant to
such provisions. Each Competitive Bid LIBOR Loan shall be repaid on the
last day of the applicable Competitive Bid Interest Period; and
(b) with respect to a Competitive Bid Absolute Rate Loan, the
period commencing on the date of such borrowing and ending such number
of days thereafter (but not less than seven (7) days and not greater
than one hundred eighty (180) days (as established through the Absolute
Rate Auction); provided, however, that if any such period would be
affected by a reduction in Commitment as provided in Section 2.5
hereof, prepayment obligations as provided in Section 2.1 hereof, or
maturity of such Competitive Bid Absolute Rate Loan as provided in
Section 2.1 hereof, such period shall be shortened to end on the date
such Loan is to be prepaid pursuant to such provisions. Each
Competitive Bid Absolute Rate Loan shall be repaid on the last day of
the applicable Competitive Bid Interest Period.
"Competitive Bid LIBOR Loan" shall mean a Loan to be made by a Bank
pursuant to a LIBOR Auction.
"Competitive Bid Loan" shall mean a fixed rate Loan granted to Borrower
by a Bank in accordance with Section 2.1C hereof.
"Competitive Bid Margin" shall have the meaning set forth in subpart
(d) of Section 2.1C hereof.
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<PAGE> 6
"Competitive Bid Rate Note" shall mean any Competitive Bid Rate Note
executed and delivered pursuant to Section 2.1C hereof.
"Consolidated" shall mean the resultant consolidation of the financial
statements of Borrower and its Subsidiaries in accordance with GAAP.
"Consolidated Depreciation, Obsolescence and Amortization Charges"
shall mean the aggregate of all such charges for fixed assets, leasehold
improvements and general intangibles (specifically including goodwill) of
Borrower and its Subsidiaries for the period in question as determined on a
Consolidated basis and in accordance with GAAP.
"Consolidated EBIT" shall mean, for any period, on a Consolidated basis
for Borrower and its Subsidiaries, the sum of the amounts for such period of:
(a) Consolidated Net Earnings, provided that: (i) all gains
and all losses realized by Borrower and its Subsidiaries upon the sale
or other disposition (including, without limitation, pursuant to sale
and leaseback transactions) of property or assets which are not sold or
otherwise disposed of in the ordinary course of business, or pursuant
to the sale of any capital stock of Borrower or any Subsidiary, shall
be excluded from such Consolidated Net Earnings, (ii) all items of gain
or loss which are properly classified as extraordinary in accordance
with GAAP shall be excluded from such Consolidated Net Earnings, and
(iii) all items which are properly classified in accordance with GAAP
as cumulative effects of accounting changes shall be excluded from such
Consolidated Net Earnings;
(b) Consolidated Interest Expense; and
(c) charges for federal, state, local and foreign income
taxes;
provided, however, that in determining Consolidated EBIT with respect to
Speedline and its Subsidiaries ("Speedline EBIT"): (i) for the fiscal quarter of
Borrower which ends on or about November 30, 1997, Speedline EBIT for such
quarter shall be multiplied by 3/2, (ii) for the fiscal quarter of Borrower
which ends on or about February 28, 1998, Speedline EBIT for such quarter shall
be multiplied by 6/5, (iii) for the fiscal quarter of Borrower which ends on or
about May 31, 1998, Speedline EBIT for such quarter shall be multiplied by 9/8,
and (iv) for the fiscal quarter of Borrower which ends on or about August 31,
1998, Speedline EBIT for such quarter shall be multiplied by 12/11.
"Consolidated EBITDA" shall mean, for any period on a Consolidated
basis for Borrower and its Subsidiaries, the sum of the amounts for such period
of:
(a) Consolidated Net Earnings, provided that: (i) all gains
and all losses realized by Borrower and its Subsidiaries upon the sale
or other disposition (including, without limitation, pursuant to sale
and leaseback transactions) of property or assets which are not sold or
otherwise disposed of in the ordinary course of business, or pursuant
to the sale of any capital stock of Borrower or any Subsidiary, shall
be excluded from such Consolidated Net
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<PAGE> 7
Earnings, (ii) all items of gain or loss which are properly classified
as extraordinary in accordance with GAAP shall be excluded from such
Consolidated Net Earnings, and (iii) all items which are properly
classified in accordance with GAAP as cumulative effects of accounting
changes shall be excluded from such Consolidated Net Earnings;
(b) Consolidated Interest Expense;
(c) charges for federal, state, local and foreign income
taxes; and
(d) Consolidated Depreciation, Obsolescence and
Amortization Charges;
provided, however, that in determining Consolidated EBITDA with respect to
Speedline and its Subsidiaries ("Speedline EBITDA"): (i) for the fiscal quarter
of Borrower which ends on or about November 30, 1997, Speedline EBITDA for such
quarter shall be multiplied by 3/2, (ii) for the fiscal quarter of Borrower
which ends on or about February 28, 1998, Speedline EBITDA for such quarter
shall be multiplied by 6/5, (iii) for the fiscal quarter of Borrower which ends
on or about May 31, 1998, Speedline EBITDA for such quarter shall be multiplied
by 9/8, and (iv) for the fiscal quarter of Borrower which ends on or about
August 31, 1998, Speedline EBITDA for such quarter shall be multiplied by 12/11.
"Consolidated Interest Expense" shall mean, for any period, interest
expense of Borrower and its Subsidiaries for such period, determined on a
Consolidated basis and in accordance with GAAP; provided, however, that in
determining Consolidated Interest Expense with respect to Speedline and its
Subsidiaries ("Speedline Interest Expense"): (i) for the fiscal quarter of
Borrower which ends on or about November 30, 1997, Speedline Interest Expense
for such quarter shall be multiplied by 3/2, (ii) for the fiscal quarter of
Borrower which ends on or about February 28, 1998, Speedline Interest Expense
for such quarter shall be multiplied by 6/5, (iii) for the fiscal quarter of
Borrower which ends on or about May 31, 1998, Speedline Interest Expense for
such quarter shall be multiplied by 9/8, and (iv) for the fiscal quarter of
Borrower which ends on or about August 31, 1998, Speedline Interest Expense for
such quarter shall be multiplied by 12/11.
"Consolidated Net Earnings" shall mean, for any period, the
Consolidated net income (loss) of Borrower and its Subsidiaries for such period,
determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any date, the Consolidated
shareholders' equity of Borrower and its Subsidiaries, determined as of such
date in accordance with GAAP.
"Controlled Group" shall mean a Company and each "person" (as therein
defined) required to be aggregated with a Company under Code Sections 414(b),
(c), (m) or (o).
"Debt" shall mean, collectively, all Indebtedness incurred by Borrower
to the Banks pursuant to this Agreement and includes the principal of and
interest on all Notes and each extension, renewal or refinancing thereof in
whole or in part, the commitment fees, other fees and any prepayment premium
payable hereunder.
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<PAGE> 8
"Default Rate" shall mean a rate per annum which shall be two percent
(2%) in excess of the Prime Rate from time to time in effect.
"Derived LIBOR Rate" shall mean a rate per annum which shall be the sum
of the Applicable LIBOR Margin plus Adjusted LIBOR.
"Dollar" and the sign "$" shall mean lawful money of the United States
of America.
"Dollar Equivalent" of a Eurocurrency Loan shall mean the Dollar
equivalent of the amount of such Eurocurrency Loan, determined by Agent on the
basis of its spot rate at approximately 11:00 A.M. London time on the date two
(2) Business Days before the date of such Eurocurrency Loan for the purchase of
the relevant Eurocurrency with Dollars for delivery on the date of such
Eurocurrency Loan. Agent shall notify Borrower of the Dollar Equivalent of such
Eurocurrency Loan at the time that Dollar Equivalent is determined.
"Environmental Laws" shall mean all provisions of law, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the government
of the United States of America or any other country whose laws are applicable
to any Company or wherein any Company does business, or by any state or
municipality thereof, or by any court, agency, instrumentality, regulatory
authority or commission of any of the foregoing concerning health, safety and
protection of, or regulation of the discharge of substances into, the
environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations promulgated pursuant
thereto.
"ERISA Event" shall mean: (a) the existence of any condition or event
with respect to an ERISA Plan which presents a risk of the imposition of an
excise tax or any other liability on a Company or of the imposition of a Lien on
the assets of a Company, (b) a Controlled Group member has engaged in a
non-exempt "prohibited transaction" (as defined under ERISA Section 406 or Code
Section 4975) or a breach of a fiduciary duty under ERISA which could result in
liability to a Company, (c) a Controlled Group member has applied for a waiver
from the minimum funding requirements of Code Section 412 or ERISA Section 302
or a Controlled Group member is required to provide security under Code Section
401(a)(29) or ERISA Section 307, (d) a "reportable event" (as defined under
ERISA Section 4043) has occurred with respect of any Pension Plan as to which
notice is required to be provided to the PBGC, (e) a Controlled Group member has
withdrawn from a Multi-employer Plan in a "complete withdrawal" or a "partial
withdrawal" (as such terms are defined in ERISA Sections 4203 and 4205,
respectively), (f) a Multi-employer Plan is in or is likely to be in
reorganization under ERISA Section 4241, (g) an ERISA Plan (and any related
trust) which is intended to be qualified under Code Sections 401 and 501 fails
to be so qualified or any "cash or deferred arrangement" under any such ERISA
Plan fails to meet the requirements of Code Section 401(k), (h) the PBGC takes
any steps to terminate a Pension Plan or appoint a trustee to administer a
Pension Plan, or a Controlled Group member takes steps to terminate a Pension
Plan, (i) a Controlled Group member or an ERISA Plan fails to satisfy any
requirements of law applicable to an ERISA Plan, (j) a claim, action, suit,
audit or investigation is pending or threatened with respect to
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<PAGE> 9
an ERISA Plan, other than a routine claim for benefits, or (k) a Controlled
Group member incurs or is expected to incur any liability for post-retirement
benefits under any Welfare Plan, other than as required by ERISA Section 601,
et. seq. or Code Section 4980B.
"ERISA Plan" shall mean an "employee benefit plan" (within the meaning
of ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation to
contribute to such plan.
"Eurocurrency" shall mean Eurodollars, Deutsche Marks, Pounds Sterling,
French Francs, Italian Lira, Swiss Francs, Belgian Francs or any other non-U.S.
currency agreed to by Agent and the Banks.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Loan" shall mean a Loan which is denominated in
Eurocurrency.
"Eurodollar" shall mean a Dollar denominated deposit in a bank or bank
branch outside of the United States.
"Event of Default" shall mean an event, condition or thing which
constitutes an event of default as defined in Article VII hereof.
"Federal Funds Effective Rate" shall mean for any day, the rate per
annum (rounded upward to the nearest 1/100 of one percent) announced by the
Federal Reserve Bank of New York (or any successor) on such day as being the
weighted average of the rates on overnight federal funds transactions arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank (or any successor) in substantially the same manner
as such Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement.
"Financial Officer" shall mean any of the following officers: chief
executive officer, president, chief financial officer, vice president of
finance, treasurer, or vice president and controller.
"Funded Indebtedness" shall mean all Indebtedness that is funded,
including, but not limited to, current, long-term and Subordinated Indebtedness,
if any.
"GAAP" shall mean generally accepted accounting principles as then in
effect, which shall include the official interpretations thereof by the
Financial Accounting Standards Board, applied on a basis consistent with the
past accounting practices and procedures of Borrower.
"Guarantor" shall mean one who pledges its credit or property in any
manner for the payment or other performance of the indebtedness, contract or
other obligation of another and includes (without limitation) any guarantor
(whether of payment or of collection), surety, co-maker, endorser
8
<PAGE> 10
or one who agrees conditionally or otherwise to make any purchase, loan or
investment in order thereby to enable another to prevent or correct a default of
any kind.
"Guarantor of Payment" shall mean any one of Elkhart Products
Corporation, an Indiana corporation, Wheeltek, Inc., an Indiana corporation,
Amcast Investment Services Corporation, a Delaware corporation, and AS
International, Inc., a Delaware corporation, which are each executing and
delivering a Guaranty of Payment, or any other Person which shall deliver a
Guaranty of Payment to Agent for the benefit of the Banks subsequent to the
Closing Date.
"Guaranty of Payment" shall mean each of the guaranties of payment of
debt executed and delivered on or after the date hereof in connection herewith
by the Guarantors of Payment, as the same may be from time to time amended,
restated or otherwise modified.
"Indebtedness" shall mean, for any Company (a) all obligations to repay
borrowed money, direct or indirect, incurred, assumed, or guaranteed, (b) all
obligations for the deferred purchase price of capital assets excluding trade
payables, (c) all obligations under conditional sales or other title retention
agreements, (d) all lease obligations which have been or should be capitalized
on the books of such Company in accordance with GAAP, (e) all reimbursement
obligations (contingent or otherwise) under any letter of credit, banker's
acceptance, interest rate swap, cap, collar or floor agreement or other interest
rate management device, and (f) any other transaction (including forward sale or
purchase agreements or agreements for the sale of receivables on a full recourse
basis) having the commercial effect of a borrowing of money entered into by such
Company to finance its operations or capital requirements; provided that the
term Indebtedness for purposes of calculation of the Leverage Ratio, shall not
include the Casting Guaranty.
"Insurance Company Loans" shall mean the 7.09% Senior Notes, due
November 7, 2005, issued by Borrower in the original aggregate principal amount
of Fifty Million Dollars ($50,000,000) and originally issued to Principal Mutual
Life Insurance Company and Northwestern Mutual Life Insurance Company and the
9.0% Senior Notes, due 1999 issued by Borrower in the original aggregate
principal amount of Ten Million Dollars ($10,000,000) issued to Principal Mutual
Life Insurance Company and the Northwestern Mutual Life Insurance Company.
"Interest Adjustment Date" shall mean the last day of each Interest
Period or Competitive Bid Interest Period, as applicable.
"Interest Period" shall mean a period of one (1), two (2), three (3),
or six (6) Months (as selected by Borrower) commencing on the applicable
borrowing or conversion date of each LIBOR Loan and ending on each Interest
Adjustment Date with respect thereto; provided, however, that if any such period
would be affected by a reduction in Commitment as provided in Section 2.5
hereof, prepayment or conversion rights or obligations as provided in Section
2.1 or 3.5 hereof, or maturity of such LIBOR Loan as provided in Section 2.1
hereof, such period shall be shortened to end on the date such Loan is to be
prepaid or converted pursuant to such provisions. If Borrower fails to select a
new Interest Period with respect to an outstanding LIBOR Loan that is
denominated in Eurodollars at least three (3) Business Days prior to any
Interest Adjustment Date, Borrower shall be deemed to have converted such LIBOR
Loan to a Prime Rate Loan at the end of the then current Interest
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<PAGE> 11
Period. If Borrower fails to select a new Interest Period with respect to an
outstanding LIBOR Loan that is denominated in a Eurocurrency other than
Eurodollars at least three (3) Business Days prior to any Interest Adjustment
Date, such Loan shall be repaid on the last day of the applicable Interest
Period.
"Letter of Credit" shall mean any standby letter of credit which shall
be issued by Agent for the benefit of Borrower, including amendments thereto, if
any, and shall have an expiration date no later than fifteen (15) days prior to
the last day of the Commitment Period.
"Leverage Ratio" shall mean, for the time period in question and on a
Consolidated basis and in accordance with GAAP, the ratio for the Companies of
all Funded Indebtedness to Consolidated EBITDA.
"LIBOR" shall mean the average (rounded upward to the nearest 1/16th of
1%) of the per annum rates at which deposits in immediately available funds in
the relevant Eurocurrency or Dollars for the relevant Interest Period or
Competitive Bid Interest Period, as applicable, and in the amount of the LIBOR
Loan to be disbursed or to remain outstanding, as the case may be, during such
Interest Period or Competitive Bid Interest Period, as applicable, are offered
to the Reference Bank by prime banks in any Eurocurrency market reasonably
selected by the Reference Bank, determined as of 11:00 A.M. London time (or as
soon thereafter as practicable), two (2) Business Days prior to the beginning of
the relevant Interest Period or Competitive Bid Interest Period, as applicable,
pertaining to a LIBOR Loan hereunder.
"LIBOR Auction" shall mean a solicitation of Competitive Bids setting
forth Competitive Bid Margins for a Loan that is in Eurodollars and based on the
London interbank offered rate pursuant to Section 2.1C hereof.
"LIBOR Loan" shall mean a Eurocurrency Loan on which Borrower shall pay
interest at a rate based on LIBOR.
"Lien" shall mean any mortgage, security interest, lien, charge,
encumbrance on, pledge or deposit of, or conditional sale or other title
retention agreement with respect to any property or asset.
"Loan" or "Loans" shall mean the credit to Borrower extended by the
Banks in accordance with Section 2.1A or C hereof.
"Loan Documents" shall mean this Agreement, each of the Notes, each of
the Guaranties of Payment, all documentation relating to each Letter of Credit
and any other documents relating to any of the foregoing.
"Majority Banks" shall mean, at any time, Banks having at least
fifty-one percent (51%) of the Total Commitment Amount, or, if the Commitment
shall have been terminated, having at least fifty-one (51%) of the aggregate
unpaid principal amount of the Loans, or, if no Commitments are in effect and no
Loans are outstanding, Banks which had at least fifty-one percent (51%) of the
Commitment at the time of termination.
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<PAGE> 12
"Month", with respect to an Interest Period or Competitive Bid Interest
Period, as applicable, shall mean the interval between the days in consecutive
calendar months numerically corresponding to the first day of such Interest
Period (or Competitive Bid Interest Period). If any Interest Period (or
Competitive Bid Interest Period) begins on a day of a calendar month for which
there is no numerically corresponding day in the month in which such Interest
Period (or Competitive Bid Interest Period) is to end, the final month of such
Interest Period (or Competitive Bid Interest Period) shall be deemed to end on
the last Business Day of such final month.
"Multi-employer Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
"Note" or "Notes " shall mean any Revolving Credit Note or Notes, any
Competitive Bid Rate Note or Notes, or any other note delivered pursuant to this
Agreement.
"Obligor" shall mean one whose credit or any of whose property is
pledged to the payment of the Debt and includes, without limitation, any
Guarantor.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan" shall mean an ERISA Plan that is a "pension plan" within
the meaning of ERISA Section 3(2).
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, corporation, limited
liability company, institution, trust, estate, government or other agency or
political subdivision thereof or any other entity.
"Prime Rate" shall mean the interest rate established from time to time
by Agent as Agent's prime rate, whether or not such rate is publicly announced;
the Prime Rate may not be the lowest interest rate charged by Agent for
commercial or other extensions of credit. Each change in the Prime Rate shall be
effective immediately from and after such change.
"Prime Rate Loan" shall mean a Loan on which Borrower shall pay
interest at a rate based on the Prime Rate.
"Proviso" shall mean that for Borrower's fiscal quarters ending prior
to the fiscal year ending on or about August 31, 1998, Consolidated EBITDA, as
referred to in the Leverage Ratio, shall be calculated as follows: (a) for the
fiscal year ending on or about August 31, 1997, Consolidated EBITDA shall be
calculated as disclosed in the pro forma statement provided by Borrower to Agent
on or about July 30, 1997, (b) for the fiscal quarter ending on or about
November 30, 1997, Consolidated EBITDA shall be annualized by multiplying the
Consolidated EBITDA for that fiscal quarter by four (4), (c) for the fiscal
quarter ending on or about February 28, 1998, Consolidated EBITDA shall be
annualized by multiplying the Consolidated EBITDA for that fiscal quarter and
the previous fiscal quarter by two (2), and (d) for the fiscal quarter ending on
or about May 31, 1998, Consolidated EBITDA shall be annualized by multiplying
the Consolidated EBITDA for that fiscal quarter and the three (3) previous
fiscal quarters by one and one-third (1.333).
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<PAGE> 13
"Reference Bank" shall mean the Cayman Islands branch office of KeyBank
National Association.
"Related Writing" shall mean the Loan Documents and any assignment,
mortgage, security agreement, guaranty agreement, subordination agreement,
financial statement, audit report or other writing furnished by Borrower, any
Subsidiary or any Obligor, or any of their respective officers, to Agent or the
Banks pursuant to or otherwise in connection with this Agreement.
"Reserve Percentage" shall mean for any day that percentage (expressed
as a decimal rounded up to the nearest 1/100 of 1%) which is in effect on such
day, as prescribed by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, all basic, supplemental, marginal and other reserves and
taking into account any transitional adjustments or other scheduled changes in
reserve requirements) for a member bank of the Federal Reserve System in
Cleveland, Ohio, in respect of Eurocurrency Liabilities. The Adjusted LIBOR
shall be adjusted automatically on and as of the effective date of any change in
the Reserve Percentage.
"Revolving Credit Commitment" shall mean the obligation hereunder of
each Bank, during the Commitment Period, to make Revolving Loans and to
participate in the issuance of Letters of Credit, up to the aggregate amount of
Dollars (or its Dollar Equivalent in Eurocurrency) set forth opposite such
Bank's name under the column headed "Maximum Amount" as listed in Schedule 1
hereof (or such lesser amount as shall be determined pursuant to Section 2.5
hereof).
"Revolving Credit Note" shall mean any Revolving Credit Note executed
and delivered pursuant to Section 2.1A hereof.
"Revolving Loan" shall mean a Loan granted to Borrower by the Banks in
accordance with Section 2.1A hereof.
"Seller" shall mean the Corporate Sellers and the Individual Sellers,
each as defined in the Share Purchase Agreement.
"Share Purchase Agreement" shall mean that certain Share Purchase
Agreement between Borrower, Speedline International Holding B.V., Gerance S.A.,
San Marco Finanziaria S.p.A., Mr. Antonio Zacchello, Mr. Giancarlo Zacchello,
Mr. Gianni Zacchello, Mr. Franco Zacchello and Ms. Graziella Zacchello, dated
July18/21 1997, as the same may be from time to time amended, supplemented or
otherwise modified.
"Speedline" shall mean Speedline S.p.A., a company organized under the
laws of Italy, and each of its Subsidiaries.
"Subordinated", as applied to Indebtedness, shall mean that the
Indebtedness has been subordinated (by written terms or written agreement being,
in either case, in form and substance satisfactory to Agent and the Banks) in
favor of the prior payment in full of the Debt.
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"Subsidiary" of a Company or any of its Subsidiaries shall mean (a) a
corporation more than fifty percent (50%) of the voting power or capital stock
of which is owned, directly or indirectly, by a Company or by one or more other
Subsidiaries of a Company or by a Company and one or more Subsidiaries of a
Company, (b) a partnership or limited liability company of which a Company, one
or more other Subsidiaries of a Company or a Company and one or more
Subsidiaries of a Company, directly or indirectly, is a general partner or
managing member, as the case may be, or otherwise has the power to direct the
policies, management and affairs thereof or (c) any other Person (other than a
corporation) in which a Company, one or more other Subsidiaries of a Company or
such Person, directly or indirectly, has at least a majority ownership interest
or the power to direct the policies, management and affairs thereof; provided,
however, that the term "Subsidiary" shall not be construed to include either
Amcast Casting Technologies, Inc., an Indiana corporation and partner of
Casting, or Casting.
"Total Commitment Amount" shall mean the obligation hereunder of the
Banks, during the Commitment Period, to make Loans and to participate in the
issuance of Letters of Credit up to the maximum aggregate principal amount of
Two Hundred Million Dollars ($200,000,000) (or such lesser amount as shall be
determined pursuant to Section 2.5 hereof). For purposes of determining the
Total Commitment Amount, the amount utilized by each Eurocurrency Loan shall be
the Dollar Equivalent amount of each such Eurocurrency Loan as of the most
recent Interest Adjustment Date.
"Unmatured Event of Default" shall mean an event, condition or thing
which constitutes, or which with the lapse of any applicable grace period or the
giving of notice or both would constitute, an Event of Default and which has not
been appropriately waived by the Majority Banks in writing or fully corrected
prior to becoming an actual Event of Default.
"Voting Stock" shall mean stock of a corporation of a class or classes
having general voting power under ordinary circumstances to elect a majority of
the board of directors, managers or trustees of such corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
might have voting power by the reason of the happening of any contingency).
"Welfare Plan" shall mean an ERISA Plan that is a "welfare plan" within
the meaning of ERISA Section 3 (1).
"Wholly-Owned Subsidiary" shall mean each Subsidiary all of whose
outstanding stock, other than directors' qualifying shares, shall at the time be
owned by Borrower and/or by one or more Wholly-Owned Subsidiaries.
Any accounting term not specifically defined in this Article I shall
have the meaning ascribed thereto by GAAP.
The foregoing definitions shall be applicable to the singular and
plurals of the foregoing defined terms.
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ARTICLE II. AMOUNT AND TERMS OF CREDIT
SECTION 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms and
provisions of this Agreement, each Bank shall participate to the extent
hereinafter provided in making Loans to Borrower, and issuing Letters of Credit
at the request of Borrower, in such aggregate amount as Borrower shall request
pursuant to the Commitment; provided, however, that in no event shall the
aggregate principal amount of all Loans and Letters of Credit outstanding under
this Agreement during the Commitment Period be in excess of the Total Commitment
Amount.
Each Bank, for itself and not one for any other, agrees to participate
in Loans made and Letters of Credit issued hereunder during the Commitment
Period on such basis that (a) immediately after the completion of any borrowing
by Borrower or issuance of a Letter of Credit hereunder, the aggregate principal
amount then outstanding on the Notes issued to such Bank, when combined with
such Bank's pro rata share of the aggregate undrawn face amount of issued and
outstanding Letters of Credit (but specifically excluding any Competitive Bid
Loans payable to such Bank), shall not be in excess of the amount shown opposite
the name of such Bank under the column headed "Maximum Amount" as set forth in
Schedule 1 hereto, and (b) such aggregate principal amount outstanding on the
Notes issued to such Bank shall represent that percentage of the aggregate
principal amount then outstanding on all Notes (including the Notes held by such
Bank but specifically excluding any Competitive Bid Rate Note) which is such
Bank's Commitment Percentage.
Each borrowing from the Banks hereunder (except for Competitive Bid
Loans) shall be made pro rata according to the Banks' respective Commitment
Percentages. The Loans shall be made and the Letters of Credit shall be issued,
as follows:
A. Revolving Loans. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Banks shall make a Revolving Loan
or Revolving Loans to Borrower in such amount or amounts as Borrower may from
time to time request, but not exceeding in aggregate principal amount at any one
time outstanding hereunder the Revolving Credit Commitment, when such Revolving
Loans are combined with (a) the aggregate undrawn face amount of all issued and
outstanding Letters of Credit and (b) the aggregate outstanding principal amount
of all Competitive Bid Loans. Borrower shall have the option, subject to the
terms and conditions set forth herein, to borrow Revolving Loans hereunder by
means of any combination of (i) Prime Rate Loans maturing on the last day of the
Commitment Period, bearing interest at a rate per annum which shall be the
Adjusted Prime Rate from time to time in effect, or (ii) LIBOR Loans maturing on
the last day of the Commitment Period bearing interest at a rate per annum which
shall be the Derived LIBOR Rate, fixed in advance of each Interest Period which
shall be selected by Borrower for each LIBOR Loan, but subject to changes in the
Applicable LIBOR Margin.
Each Revolving Loan shall be drawn down in an aggregate amount (or in
the case of a Eurocurrency Loan, in an aggregate Dollar Equivalent amount) of
not less than Five Million Dollars ($5,000,000), increased by increments of One
Million Dollars ($1,000,000) (or, with respect to a Eurocurrency Loan other than
a Eurodollar Loan, such approximately comparable amount as shall result in a
rounded number of the applicable Eurocurrency). Each Prime Rate Loan shall be
made in Dollars. With respect to each LIBOR Loan, subject to the other
provisions of this Agreement,
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Borrower shall have the right to receive all of the proceeds of such LIBOR Loan
in Eurocurrency. Each LIBOR Loan shall be made in a single currency.
Borrower shall pay interest on the unpaid principal amount of Prime
Rate Loans outstanding from time to time from the date thereof until paid, on
the last day of each succeeding February, May, August and November of each year
and at the maturity thereof, commencing November 30, 1997. Borrower shall pay
interest at a fixed rate for each Interest Period on the unpaid principal amount
of each LIBOR Loan outstanding from time to time from the date thereof until
paid, payable on each Interest Adjustment Date with respect to an Interest
Period (provided that if an Interest Period exceeds three (3) Months, the
interest must be paid every three (3) Months, commencing three (3) Months from
the beginning of such Interest Period).
At the request of Borrower, provided no Unmatured Event of Default or
Event of Default exists hereunder, the Banks shall convert Prime Rate Loans to
LIBOR Loans that are in Eurodollars at any time, subject to the notice
provisions of Section 2.2 hereof, and shall convert LIBOR Loans that are in
Eurodollars to Prime Rate Loans on any Interest Adjustment Date.
The obligation of Borrower to repay the Revolving Loans made by each
Bank and to pay interest thereon shall be evidenced by a Revolving Credit Note
of Borrower substantially in the form of EXHIBIT A hereto, with appropriate
insertions, dated the Closing Date and payable to the order of such Bank on the
last day of the Commitment Period in the principal amount of its Revolving
Credit Commitment, or, if less, the aggregate unpaid principal amount of
Revolving Loans made hereunder by such Bank. Subject to the provisions of this
Agreement, Borrower shall be entitled under this Section 2.1A to borrow funds,
repay the same in whole or in part and reborrow hereunder at any time and from
time to time (subject to the applicable notice provisions) during the Commitment
Period.
B. Letters of Credit. Subject to the terms and conditions of this
Agreement, during the Commitment Period, Agent shall, in its own name, but only
as agent for the Banks, issue such Letters of Credit for the account of
Borrower, as Borrower may from time to time request. Borrower shall not request
any Letter of Credit (and Agent shall not be obligated to issue any Letter of
Credit) if, after giving effect thereto, (a) the aggregate amount of all issued
and outstanding Letters of Credit would exceed Fifty Million Dollars
($50,000,000) or (b) the sum of (i) the aggregate outstanding principal amount
of the Revolving Loans, plus (ii) the aggregate of all issued and outstanding
Letters of Credit, plus (iii) the aggregate amount of all outstanding
Competitive Bid Loans shall exceed the Commitment. The issuance of each Letter
of Credit shall confer upon each Bank the benefits and liabilities of a
participation consisting of an undivided pro rata interest in the Letter of
Credit to the extent of such Bank's Commitment Percentage.
Each request for a Letter of Credit shall be delivered to Agent not
later than 11:00 A.M. (Cleveland, Ohio time) three (3) Business Days prior to
the day upon which the Letter of Credit is to be issued. Each such request shall
be in a form acceptable to Agent and specify the face amount thereof, the
account party, the beneficiary, the intended date of issuance, the expiry date
thereof, and the nature of the transaction to be supported thereby. Concurrently
with each such request, the Borrower for whose benefit the Letter of Credit is
to be issued shall execute and deliver to Agent an appropriate application and
agreement, being in the standard form of Agent for such letters of credit,
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as amended to conform to the provisions of this Agreement if required by Agent.
Agent shall give each Bank notice of each such request for a Letter of Credit.
In respect of each Letter of Credit and the drafts thereunder, if any,
Borrower agrees (a) to pay to Agent, for the pro rata benefit of the Banks, a
non-refundable commission based upon the face amount of the Letter of Credit,
which shall be paid in advance on a quarter-annual basis, at the rate per annum
of the then current Applicable LIBOR Margin (i.e. the Applicable LIBOR Margin in
effect on the date that the Letter of Credit is issued and, as to each
quarter-annual payment date thereafter, the Applicable LIBOR Margin in effect on
the date of such quarter-annual payment) times the face amount of the Letter of
Credit from the date of the Letter of Credit to the date of its expiry; (b) to
pay to Agent, for its sole account, an additional Letter of Credit fee, which
shall be paid on the date that such Letter of Credit is issued, at the rate per
annum of one-eighth of one percent (1/8%) of the face amount of the Letter of
Credit from the date of the Letter of Credit to the date of its expiry; and (c)
to pay to Agent for its sole account, such other issuance, amendment,
negotiation, draw, acceptance, telex, courier, postage and similar transactional
fees as are generally charged by Agent from time to time.
Whenever a Letter of Credit is drawn, unless the amount drawn is
immediately reimbursed by Borrower, the amount outstanding thereunder shall be
deemed to be a Revolving Loan to Borrower subject to the provisions and
requirements of Section 2.1A and 2.2 hereof (unless any such requirement shall
pertain to a minimum draw requirement and such requirement shall be waived by
Agent) and shall be evidenced by the Revolving Credit Notes. Each such Revolving
Loan shall be deemed to be a Prime Rate Loan unless otherwise requested by (in
accordance with the notice provisions of Section 2.2(b) hereof) and available to
Borrower hereunder. Each Bank is hereby authorized to record on its records
relating to its Revolving Credit Note such Bank's pro rata share of the amounts
paid and not reimbursed on the Letters of Credit.
C. Competitive Bid Loans.
(a) THE COMPETITIVE BID OPTION. Subject to the terms and conditions of
this Agreement, during the Commitment Period, Borrower may request the Banks to
make offers to make Competitive Bid Loans to Borrower from time to time in
amounts such that the aggregate amount of all Revolving Loans, Competitive Bid
Loans and all issued and outstanding Letters of Credit by all Banks at any one
time outstanding shall not exceed the Total Commitment Amount. The Banks may,
but shall have no obligation to, make such offers and Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section 2.1C.
(b) COMPETITIVE BID REQUEST. A request by Borrower to obtain
Competitive Bid Loans shall be made by Borrower transmitting to Agent by telex
or facsimile transmission a Competitive Bid Request substantially in the form of
Exhibit C-1 hereto, so as to be received (i) no later than 11:00 A.M.
(Cleveland, Ohio time) on the fourth Business Day immediately prior to the date
of the proposed borrowing, in the case of a LIBOR Auction or (ii) no later than
11:00 A.M. (Cleveland, Ohio time) on the Business Day immediately prior to the
date of the proposed borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as Borrower and Agent shall have mutually
agreed and shall have notified the Banks not later than the date of the
Competitive Bid
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Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying:
(A) the proposed date of borrowing, which shall be a Business
Day,
(B) the amount of the Loan requested and that the Loan
requested is a Competitive Bid Loan,
(C) the duration of the Competitive Bid Interest Period
applicable thereto, which shall not be later than the last day of the
Commitment Period, and
(D) whether the Competitive Bids requested are to set forth a
Competitive Bid Margin or a Competitive Bid Absolute Rate.
Borrower may request offers to make a Competitive Bid Loan for no more than two
(2) Competitive Bid Interest Periods in any Competitive Bid Request under this
Agreement. No Competitive Bid Request shall be made within five (5) Business
Days of any other Competitive Bid Request.
(c) INVITATION FOR COMPETITIVE BIDS. Promptly upon receipt of a
Competitive Bid Request, Agent shall send to the Banks by telex or facsimile
transmission an Invitation for Competitive Bids substantially in the form of
EXHIBIT C-2 hereto, which shall constitute an invitation by Borrower to each
Bank to submit Competitive Bids offering to make the Competitive Bid Loans to
which such Competitive Bid Request relate in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BIDS. Each Bank may submit a
Competitive Bid containing an offer or offers to make Competitive Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive Bid must
comply with the requirements of this Section 2.1C and must be submitted to Agent
by telex or facsimile transmission at its offices specified on the signature
page hereof or as otherwise directed by Agent not later than (i) 9:30 A.M.
(Cleveland, Ohio time) on the third Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (ii) 9:30 A.M. (Cleveland, Ohio
time) on the proposed date of borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as Borrower and Agent shall have
mutually agreed and shall have notified the Banks not later than the date of the
Competitive Bid Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective); provided that any Bank submitting a
Competitive Bid (A) after 9:00 A.M. (Cleveland, Ohio time) on such third
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (B) 9:00 A.M. (Cleveland, Ohio time) on the proposed date of
borrowing, in the case of an Absolute Rate Auction, shall confirm Agent's
receipt of such Competitive Bid by telephone, and provided further that
Competitive Bids submitted by Agent (or any affiliate of Agent) in the capacity
of a Bank may be submitted, and may only be submitted, if Agent or such
affiliate notifies Borrower of the terms of the offer or offers contained
therein not later than fifteen (15) minutes prior to the respective deadline for
the other Banks, in the case of either a LIBOR Auction or an Absolute Rate
Auction. Any Competitive Bid so made shall be irrevocable except with the
written consent of Agent.
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Each Competitive Bid shall be in substantially the form of EXHIBIT C-3
hereto and shall in any case specify:
(1) the proposed date of borrowing, and the duration of each
relevant Competitive Bid Interest Period to be applicable thereto;
(2) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount may be greater
than or less than the Revolving Credit Commitment of the quoting Bank,
must be Five Million Dollars ($5,000,000), increased by increments of
One Million Dollars ($1,000,000), may not exceed the principal amount
of Competitive Bid Loans for which offers were requested and may be
subject to an aggregate limitation as to the principal amount of
Competitive Bid Loans for which offers being made by such quoting Bank
may be accepted;
(3) in the case of a LIBOR Auction, the margin above or below
the applicable LIBOR (the "Competitive Bid Margin") offered for each
such Competitive Bid Loan, expressed as a percentage (specified to the
nearest six (6) decimal places) to be added to or subtracted from the
applicable LIBOR;
(4) in the case of an Absolute Rate Auction, the rate of
interest per annum, expressed as a percentage (specified to the nearest
six (6) decimal places) (the "Competitive Bid Absolute Rate") offered
for each such Competitive Bid Loan; and
(5) the identity of the quoting Bank.
A Competitive Bid may set forth up to two (2) separate offers by the quoting
Bank with respect to each Competitive Bid Interest Period specified in the
related Invitation for Competitive Bids.
Any Competitive Bid shall be disregarded if it:
(w) is not substantially in conformity with Exhibit C-3 hereto
or does not specify all of the information required by this Section
2.1C;
(x) except as permitted by subpart (e) hereof, contains
qualifying, conditional or similar language;
(y) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
(z) arrives after the time set forth in the first paragraph of
subpart (d) hereof.
(e) NOTICE TO BORROWER. Not later than (i) 10:00 A.M. (Cleveland, Ohio
time) on the third Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (ii) 10:00 A.M. (Cleveland, Ohio time) on the
proposed date of borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as Borrower and Agent shall have mutually
agreed
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and shall have notified the Banks not later than the date of the
Competitive Bid Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective), Agent shall notify Borrower of the terms
(A) of any Competitive Bid submitted by a Bank that is in accordance with
subpart (d) and (B) of any Competitive Bid that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid submitted by such Bank with respect
to the same Competitive Bid. Any such subsequent Competitive Bid shall be
disregarded by Agent unless such subsequent Competitive Bid is submitted solely
to correct a manifest error in such former Competitive Bid. Agent's notice to
Borrower shall specify (1) the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Competitive Bid Interest
Period specified in the related Competitive Bid Request, (2) the respective
principal amounts and Competitive Bid Margins or Competitive Bid Rates, as the
case may be, so offered and (3) if applicable, limitations on the aggregate
principal amount of Competitive Bid Loans for which offers in any single
Competitive Bid may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i) 10:30 A.M.
(Cleveland, Ohio time) on the third Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (ii) 10:30 A.M. (Cleveland, Ohio
time) on the proposed date of borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as Borrower and Agent shall have
mutually agreed and shall have notified the Banks not later than the date of the
Competitive Bid Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective), Borrower shall notify Agent of its
irrevocable acceptance or non-acceptance, such notice (a "Notice of Competitive
Bid Borrowing") shall specify the aggregate principal amount of offers for each
Competitive Bid Interest Period that are accepted. Borrower may accept any
Competitive Bid in whole or in part; provided that:
(A) the aggregate principal amount of each Competitive Bid
borrowing must be Ten Million Dollars ($10,000,000), increased by
increments of One Million Dollars ($1,000,000);
(B) acceptance of offers may be made only on the basis of
ascending Competitive Bid Margins or Competitive Bid Absolute Rates, as
the case may be; and
(C) Borrower may not accept any offer that is described in the
last paragraph of subpart (d) above or that otherwise fails to comply
with the requirements of this Agreement.
Not later than (1) 11:00 A.M. (Cleveland, Ohio time) on the third Business Day
prior to the proposed date of borrowing, in the case of a LIBOR Auction or (2)
11:00 A.M. (Cleveland, Ohio time) on the proposed date of borrowing, in the case
of an Absolute Rate Auction (or, in either case, such other time or date as
Borrower and Agent shall have mutually agreed and shall have notified the Banks
not later than the date of the Competitive Bid Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective),
Agent shall notify the Banks of Borrower's acceptance or non-acceptance of the
offers so notified to Borrower pursuant to subpart (e) hereof.
(g) ALLOCATION BY AGENT. If offers are made by two (2) or more Banks
with the same Competitive Bid Margins or Competitive Bid Absolute Rates, as the
case may be, for a greater
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aggregate principal amount than the amount in respect of which such offers are
accepted for the related Competitive Bid Interest Period, the principal amount
of Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by Agent among such Banks as nearly as possible (in multiples of Five
Hundred Thousand Dollars ($500,000), as Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determinations by
Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence
of manifest error.
(h) EVIDENCE OF DEBT AND OTHER PROVISIONS. The obligation of Borrower
to repay the Competitive Bid Loans made by each Bank and to pay interest thereon
shall be evidenced by a Competitive Bid Rate Note of Borrower substantially in
the form of Exhibit B hereto, with appropriate insertions, dated the Closing
Date and payable to the order of such Bank on the last day of the Commitment
Period in the principal amount of the Total Commitment Amount, or, if less, the
aggregate unpaid principal amount of Competitive Bid Loans made hereunder by
such Bank. No Competitive Bid Loan may be converted to a Revolving Loan and the
Bank making a Competitive Bid Loan shall have no right to request that the other
Banks share the risk of such Competitive Bid Loan. A Bank's extension of credit
to Borrower in the form of a Competitive Bid Loan shall not diminish such Bank's
obligation to participate in any other or future Revolving Loans to the full
extent of such Bank's Commitment Percentage. Anything herein to the contrary
notwithstanding, the extension of Competitive Bid Loans shall be deemed to be
usage of the Commitment, and all such Competitive Bid Loans shall be subtracted
from the Total Commitment Amount for purposes of determining availability for
Loans under the Commitment.
With respect to any Competitive Bid Loan, Borrower shall reimburse the
Bank making such Competitive Bid Loan on demand for any resulting losses or
expenses incurred by such Bank as a result of Borrower's repayment of such
Competitive Bid Loan prior to the end of the Competitive Bid Interest Period
applicable thereto, including, without limitation, any loss incurred in
obtaining, liquidating or employing deposits from third parties. In the event
that such Bank incurs, directly or indirectly, any additional costs in making,
maintaining or allocating capital to any Competitive Bid Loan as a result of
complying with any charge, cost, reserve or other requirement imposed from time
to time by any United States regulatory agency or law or regulation applicable
to Borrower, except for income taxes of such Bank, Borrower shall pay to such
Bank promptly upon such Bank's written notice, such amount as in the reasonable
judgment of Bank shall compensate it for such additional cost.
SECTION 2.2. CONDITIONS TO LOANS AND LETTERS OF CREDIT. The obligation
of the Banks to make Loans and of Agent to issue Letters of Credit hereunder is
conditioned, in the case of each borrowing or issuance hereunder, upon:
(a) all conditions precedent as listed in Article IV hereof shall have
been satisfied;
(b) (i) with respect to Revolving Loans that are Prime Rate Loans,
receipt by Agent of a Notice of Revolving Loan in the form of Exhibit D
hereto, by 11:00 A.M. (Cleveland, Ohio time) on the proposed date of
borrowing, such notice to provide the aggregate amount of Prime Rate
Loans and the name of the requesting Borrower, and, if LIBOR Loans
(other than Competitive Bid Loans) are requested, receipt by Agent of
such Notice of Revolving
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Loan by 11:00 A.M. three (3) Business Days prior to the proposed date
of borrowing; or, with respect to Letters of Credit, satisfaction of
the notice provisions set forth in Section 2.1B hereof. Agent shall
notify each Bank of the date, amount, type of currency, initial
Interest Period (if applicable) and the name of the Borrower making the
request promptly upon the receipt of such notice. With respect to
Competitive Bid Loans, Borrower shall comply with the notice provisions
set forth in Section 2.1C; and
(ii) With respect to Competitive Bid Loans, Prime Rate Loans
and LIBOR Loans that are in Eurodollars, each Bank shall provide Agent,
not later than 1:00 P.M. (Cleveland, Ohio time) on the date such Loan
is to be made, with the amount, in Dollars (federal or other
immediately available funds) required of it. With respect to LIBOR
Loans that are to be funded in a Eurocurrency other than Eurodollars,
each Bank shall provide Agent, not later than 1:00 P.M. (Cleveland,
Ohio time) on the date such Loan is to be made, with the amount of the
applicable Eurocurrency required of it in such Eurocurrency, in
immediately available funds;
(c) the fact that no Unmatured Event of Default or Event of Default
shall then exist or immediately after the Loan or issuance of the Letter of
Credit would exist; and
(d) the fact that each of the representations and warranties contained
in Article VI hereof shall be true and correct with the same force and effect as
if made on and as of the date of such Loan, or the issuance of the Letter of
Credit, except to the extent that any thereof expressly relate to an earlier
date.
Each request for a Loan or the issuance of a Letter of Credit by
Borrower hereunder shall be deemed to be a representation and warranty by
Borrower as of the date of such request as to the facts specified in (c) and (d)
above. At no time shall Borrower request that LIBOR Loans and Competitive Bid
Loans be outstanding for more than six (6) different Interest Periods or
Competitive Bid Interest Periods at any one (1) time, and, if Prime Rate Loans
are outstanding, then LIBOR Loans and Competitive Bid Loans shall be limited to
five (5) different Interest Periods or Competitive Bid Interest Periods at any
one (1) time.
Each request for a LIBOR Loan shall be irrevocable and binding on
Borrower and Borrower shall indemnify Agent and the Banks against any loss or
expense incurred by Agent or the Banks as a result of any failure by Borrower to
consummate such transaction including, without limitation, any loss (including
loss of anticipated profits) or expense incurred by reason of liquidation or
re-employment of deposits or other funds acquired by the Banks to fund the Loan.
A certificate as to the amount of such loss or expense submitted by the Banks to
Borrower shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.3. PAYMENT ON NOTES, ETC.
(a) Payments in Eurocurrency. With respect to any LIBOR Loan that was
made by the Banks in a Eurocurrency other than Eurodollars, all payments
(including prepayments) to Agent and the Banks of the principal of or interest
on such LIBOR Loan shall be made in same day funds and
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in the same Eurocurrency as the original Loan. All such payments shall be
remitted by Borrower to Agent at Agent's main office (or at such other office or
account as designated in writing by Agent to Borrower) not later than 11:00 A.M.
(Cleveland, Ohio time) on the due date thereof in same day funds. In the event
that such payment is due on a date when Agent's main office is not open for
business, then such payment shall be made on the next preceding day upon which
the main office is open for business. Any payments received by Agent after 11:00
A.M. (Cleveland, Ohio time) shall be deemed to have been made and received on
the next following Business Day.
(b) Payments in Dollars. With respect to any LIBOR Loan or Prime Rate
Loan that was made by the Banks in Eurodollars or Dollars, all payments
(including prepayments) to Agent and the Banks of the principal of or interest
on such Loan shall be made in Dollars. With respect to any other payment to
Agent and the Banks that is not covered by subsection (a) hereof, such other
payment, including but not limited to principal, interest, fees or any other
amount owed by Borrower under this Agreement shall be made in Dollars. All
payments described in this subsection (b) shall be remitted to Agent at its main
office for the account of the Banks not later than 2:00 P.M. (Cleveland, Ohio
time) on the due date thereof in immediately available funds. Any such payments
received by Agent after 2:00 P.M. (Cleveland, Ohio time) shall be deemed to have
been made and received on the next following Business Day.
(c) Payments Net of Taxes. All payments under this Agreement shall be
made absolutely net of, without deduction or offset for, and altogether free and
clear of, any and all present and future taxes, levies, deductions, charges and
withholdings and all liabilities with respect thereto, under the laws of the
United States of America or any foreign jurisdiction (or any state or political
subdivision thereof), excluding income and franchise taxes imposed on any Bank
under the laws of the United States or any foreign jurisdiction (or any state or
political subdivision thereof). If Borrower is compelled by law to deduct any
such taxes or levies (other than such excluded taxes) or to make any such other
deductions, charges or withholdings, Borrower shall pay such additional amounts
as may be necessary in order that the net payments after such deduction, and
after giving effect to any United States or foreign jurisdiction (or any state
or political subdivision thereof) income taxes required to be paid by the Banks
in respect of such additional amounts, shall equal the amount of interest
provided in Section 2.1 hereof for each Loan plus any principal then due.
(d) Payments to Banks. Upon Agent's receipt of payments hereunder,
Agent shall immediately distribute to each Bank its ratable share of the amount
of principal, interest, and commitment and other fees received by it for the
account of such Bank. Payments received by Agent in Dollars shall be delivered
to the Banks in immediately available funds. Payments received by Agent in a
Eurocurrency (other than Eurodollars) shall be delivered to the Banks in same
day funds. Each Bank shall record any principal, interest or other payment, the
principal amounts of the Prime Rate Loans and the LIBOR Loans, the type of
currency for each Loan, all prepayments and the applicable dates with respect to
the Loans and payments, by such method as such Bank may generally employ;
provided, however, that failure to make any such entry shall in no way detract
from Borrower's obligations under each such Note. The aggregate unpaid amount of
Loans set forth on the records of Agent shall be rebuttably presumptive evidence
of the principal and interest owing and unpaid on each Note.
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(e) Timing of Payments. Whenever any payment to be made hereunder,
including without limitation any payment to be made on any Note, shall be stated
to be due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of time shall in each case
be included in the computation of the interest payable on such Note; provided,
however, that, with respect to any LIBOR Loan, if the next succeeding Business
Day falls in the succeeding calendar Month, such payment shall be made on the
preceding Business Day and the relevant Interest Period or Competitive Bid
Interest Period, as applicable, shall be adjusted accordingly.
SECTION 2.4. PREPAYMENT. Borrower shall have the right at any time or
from time to time to prepay on a pro rata basis, all or any part of the
principal amount of the Notes then outstanding as designated by Borrower, plus
interest accrued on the amount so prepaid to the date of such prepayment.
Borrower shall give Agent notice of prepayment of any Prime Rate Loans by not
later than 11:00 A.M. (Cleveland, Ohio time) on the Business Day such prepayment
is to be made and written notice of the prepayment of any LIBOR Loan or
Competitive Bid Loan not later than 1:00 P.M. (Cleveland, Ohio time) three (3)
Business Days before the Business Day on which such prepayment is to be made.
Prepayments of Prime Rate Loans shall be without any premium or penalty.
In any case of prepayment of any LIBOR Loan or Competitive Bid
Loan, Borrower agrees to indemnify the Banks and to hold each Bank harmless
from any loss or expense which such Bank may sustain or incur as a consequence
of the making by Borrower of a prepayment of any LIBOR Loan (or Competitive Bid
Loan) on a day which is not the last day of the Interest Period or Competitive
Bid Interest Period, applicable thereto. Any such loss shall be an amount equal
to the excess, if any, of (a) the amount of interest which would have accrued
on the amount so prepaid for the period from the date of such prepayment to the
last day of such Interest Period or Competitive Bid Interest Period, as
applicable, in each case at the applicable rate of interest for such Loans
provided for herein, over (b) the amount of interest (as reasonably determined
by Agent) which would have accrued to the Banks on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurocurrency market. In addition, Borrower shall immediately pay directly to
Agent, for the account of the Banks, the amount of any additional costs or
expenses (including, without limitation, cost of telex, wires, or cables)
reasonably incurred by Agent or the Banks in connection with the prepayment,
upon Borrower's receipt of a written statement from Agent.
Each prepayment of a LIBOR Loan (other than a Competitive Bid Loan)
shall be in the aggregate principal sum of not less than Five Million Dollars
($5,000,000). Each Prepayment of any Competitive Bid Loan shall be in the full
amount of such Loan and all accrued but unpaid interest thereon. In the event
Borrower cancels a proposed LIBOR Loan (or Competitive Bid Loan) subsequent to
the delivery to Agent of the notice of the proposed date, aggregate amount and
initial Interest Period or Competitive Bid Interest Period, as applicable, of
such Loan, but prior to the draw down of funds thereunder, such cancellation
shall be treated as a prepayment subject to the aforementioned prepayment fee.
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SECTION 2.5. COMMITMENT AND OTHER FEES; TERMINATION OR REDUCTION OF
COMMITMENT.
(a) Borrower shall pay to Agent, for the ratable account of the Banks,
as a consideration for the Commitment hereunder, a commitment fee from the date
hereof to and including the last day of the Commitment Period, equal to (a) the
Applicable Commitment Fee Rate, times (b)(i) the Total Commitment Amount, less
(ii) the aggregate average daily outstanding principal amount of Loans, less
(iii) the aggregate average daily amount of all issued and outstanding Letters
of Credit. The commitment fee shall be payable, in arrears, on November 30, 1997
and quarter-annually thereafter.
(b) Borrower shall pay to Agent, for its sole benefit, on the Closing
Date and on each anniversary of the Closing Date, all fees as set forth in the
Credit Facilities Fee Letter from Bank to Borrower dated August 6, 1997 and
accepted by Borrower on August 12, 1997.
(c) Borrower may at any time or from time to time terminate in whole or
ratably in part the Commitment of the Banks hereunder to an amount not less than
the aggregate principal amount of the Loans and Letters of Credit then
outstanding, by giving Agent not fewer than three (3) Business Days' notice,
provided that any such partial termination shall be in an aggregate amount for
all of the Banks of Five Million Dollars ($5,000,000), increased by increments
of One Million Dollars ($1,000,000). Agent shall promptly notify each Bank of
its proportionate amount and the date of each such termination. After each such
termination, the commitment fees payable hereunder shall be calculated upon the
Total Commitment Amount as so reduced. If Borrower terminates in whole the
Commitment of the Banks, on the effective date of such termination (Borrower
having prepaid in full the unpaid principal balance, if any, of the Notes
outstanding, together with all interest and commitment and other fees accrued
and unpaid and provided that no issued and outstanding Letters of Credit shall
exist) all of the Notes outstanding shall be delivered to Agent marked
"Canceled" and redelivered to Borrower. Any partial reduction in the Total
Commitment Amount shall be effective during the remainder of the Commitment
Period.
SECTION 2.6. COMPUTATION OF INTEREST AND FEES; DEFAULT RATE. Interest
on Loans and commitment and other fees and charges hereunder shall be computed
on the basis of a year having three hundred sixty (360) days and calculated for
the actual number of days elapsed. Anything herein to the contrary
notwithstanding, if an Event of Default shall occur hereunder, (a) the principal
of each Note and the unpaid interest thereon shall bear interest, until paid, at
the Default Rate; and (b) the fee for the aggregate undrawn face amount of
issued and outstanding Letters of Credit shall be increased to two percent (2%)
in excess of the then applicable fee from time to time in effect pursuant to
subpart (a) of Section 2.1B hereof. In no event shall the rate of interest
hereunder exceed the rate allowable by law.
SECTION 2.7. MANDATORY PAYMENT AND CURRENCY FLUCTUATIONS. If the sum of
(a) the aggregate principal amount of all Loans outstanding (after converting
each Eurocurrency Loan to its Dollar Equivalent) and (b) the undrawn face amount
of all issued and outstanding Letters of Credit at any time exceeds the Total
Commitment Amount, Borrower shall, as promptly as practicable, but in no event
to be later than two (2) Business Days after receipt by Borrower of notice from
Agent of such event, prepay an aggregate principal amount of the Loans
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sufficient to bring the aggregate outstanding principal amount of all Loans and
the undrawn face amount of all issued and outstanding Letters of Credit within
the Commitment of the Banks. For purposes of (i) computing the unused amount of
the Commitment and the commitment fee referenced in Section 2.5 hereof and (ii)
the principal outstanding on the Notes, the principal amount of Eurocurrency
Loans shall be converted to their Dollar Equivalents. Any prepayment of a LIBOR
Loan or a Competitive Bid Loan pursuant to this Section 2.7 shall be subject to
the prepayment fees set forth in Section 2.4 hereof.
SECTION 2.8. EXTENSION OF COMMITMENT. After each fiscal year of
Borrower, upon the written request of Borrower received by Agent upon delivery
of the financial statements as described in Section 5.3(b) hereof, the Banks
shall have the option of extending the Commitment for an additional year. Each
such extension shall require the unanimous written consent of all of the Banks
and shall be upon such terms and conditions as may be agreed to by Agent,
Borrower, and the Banks.
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR LOANS
SECTION 3.1. RESERVES OR DEPOSIT REQURIEMENTS, ETC. If at any time any
law, treaty or regulation (including, without limitation, Regulation D of the
Board of Governors of the Federal Reserve System) or the interpretation thereof
by any governmental authority charged with the administration thereof or any
central bank or other fiscal, monetary or other authority shall impose (whether
or not having the force of law), modify or deem applicable any reserve and/or
special deposit requirement (other than reserves included in the Reserve
Percentage, the effect of which is reflected in the interest rate(s) of the
LIBOR Loan(s) in question) against assets held by, or deposits in or for the
amount of any Loans by, any Bank, and the result of the foregoing is to increase
the cost (whether by incurring a cost or adding to a cost) to such Bank of
making or maintaining hereunder LIBOR Loans or to reduce the amount of principal
or interest received by such Bank with respect to such LIBOR Loans, then, upon
demand by such Bank, Borrower shall pay to such Bank from time to time on
Interest Adjustment Dates with respect to such LIBOR Loans, as additional
consideration hereunder, additional amounts sufficient to fully compensate and
indemnify such Bank for such increased cost or reduced amount, assuming (which
assumption such Bank need not corroborate) such additional cost or reduced
amount was allocable to such LIBOR Loans. A certificate as to the increased cost
or reduced amount as a result of any event mentioned in this Section 3.1,
setting forth the calculations therefor, shall be promptly submitted by such
Bank to Borrower and shall, in the absence of manifest error, be conclusive and
binding as to the amount thereof. Notwithstanding any other provision of this
Agreement, after any such demand for compensation by any Bank, Borrower, upon at
least three (3) Business Days' prior written notice to such Bank through Agent,
may prepay the affected LIBOR Loans in full or, with respect to LIBOR Loans that
are in Eurodollars, convert all LIBOR Loans to Prime Rate Loans regardless of
the Interest Period or Competitive Bid Interest Period, as applicable, of any
thereof. Each Bank shall notify Borrower as promptly as practicable (with a copy
thereof delivered to Agent) of the existence of any event which will likely
require the payment by Borrower of any such additional amount under this
Section.
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SECTION 3.2. TAX LAW, ETC. In the event that by reason of any law,
regulation or requirement or in the interpretation thereof by an official
authority, or the imposition of any requirement of any central bank whether or
not having the force of law, any Bank shall, with respect to this Agreement or
any transaction under this Agreement, be subjected to any tax, levy, impost,
charge, fee, duty, deduction or withholding of any kind whatsoever (other than
any tax imposed upon the total net income of such Bank) and if any such measures
or any other similar measure shall result in an increase in the cost to such
Bank of making or maintaining any LIBOR Loan or in a reduction in the amount of
principal, interest or commitment fee receivable by such Bank in respect
thereof, then such Bank shall promptly notify Borrower stating the reasons
therefor. Borrower shall thereafter pay to such Bank upon demand from time to
time on Interest Adjustment Dates with respect to such LIBOR Loans, as
additional consideration hereunder, such additional amounts as shall fully
compensate such Bank for such increased cost or reduced amount. A certificate as
to any such increased cost or reduced amount, setting forth the calculations
therefor, shall be submitted by such Bank to Borrower and shall, in the absence
of manifest error, be conclusive and binding as to the amount thereof.
If any Bank receives such additional consideration from Borrower
pursuant to this Section 3.2, such Bank shall use reasonable best efforts to
obtain the benefits of any refund, deduction or credit for any taxes or other
amounts on account of which such additional consideration has been paid and
shall reimburse Borrower to the extent, but only to the extent, that such Bank
shall receive a refund of such taxes or other amounts together with any interest
thereon or an effective net reduction in taxes or other governmental charges
(including any taxes imposed on or measured by the total net income of such
Bank) of the United States or any state or subdivision thereof by virtue of any
such deduction or credit, after first giving effect to all other deductions and
credits otherwise available to such Bank. If, at the time any audit of such
Bank's income tax return is completed, such Bank determines, based on such
audit, that it was not entitled to the full amount of any refund reimbursed to
Borrower as aforesaid or that its net income taxes are not reduced by a credit
or deduction for the full amount of taxes reimbursed to Borrower as aforesaid,
Borrower, upon demand of such Bank, shall promptly pay to such Bank the amount
so refunded to which such Bank was not so entitled, or the amount by which the
net income taxes of such Bank were not so reduced, as the case may be.
Notwithstanding any other provision of this Agreement, after any such
demand for compensation by any Bank, Borrower, upon at least three (3) Business
Days' prior written notice to such Bank through Agent, may prepay the affected
LIBOR Loans in full or, with respect to LIBOR Loans that are in Eurodollars,
convert all LIBOR Loans to Prime Rate Loans regardless of the Interest Period or
Competitive Bid Interest Period, as applicable, of any thereof.
SECTION 3.3. EUROCURRENCY DEPOSITS UNAVAILABLE OR INTEREST RATE
UNASCERTAINABLE. In respect of any LIBOR Loans, in the event that Agent shall
have determined that (a) for Eurodollar Loans, that Dollar deposits or (b) for
other Eurocurrency Loans, that deposits of the relevant amount for the relevant
Interest Period or Competitive Bid Interest Period, as applicable, for such
LIBOR Loans are not available to the Reference Bank in the applicable London
interbank market or that, by reason of circumstances affecting such market,
adequate and reasonable means do not exist for ascertaining the LIBOR rate
applicable to such LIBOR Loan for such Interest Period or Competitive Bid
Interest Period, as the case may be, Agent shall promptly
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give notice of such determination to Borrower and (a) any notice of new LIBOR
Loans (or conversion of existing Loans to LIBOR Loans) previously given by
Borrower and not yet borrowed (or converted, as the case may be) shall be deemed
a notice to make Prime Rate Loans, and (b) Borrower shall be obligated either to
prepay, or, with respect to LIBOR Loans that are in Eurodollars, to convert to
Prime Rate Loans, any outstanding LIBOR Loans on the last day of the then
current Interest Period or Competitive Bid Interest Period, as applicable, with
respect thereto.
SECTION 3.4. INDEMNITY. Without prejudice to any other provisions of
this Article III, Borrower hereby agrees to indemnify each Bank against any loss
or expense which such Bank may sustain or incur as a consequence of any default
by Borrower in payment when due of any amount hereunder in respect of any LIBOR
Loan, including, but not limited to, any loss of profit, premium or penalty
incurred by such Bank in respect of funds borrowed by it for the purpose of
making or maintaining such LIBOR Loan, as determined by such Bank in the
exercise of its sole but reasonable discretion. A certificate as to any such
loss or expense shall be promptly submitted by such Bank to Borrower and shall,
in the absence of manifest error, be conclusive and binding as to the amount
thereof.
SECTION 3.5. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any
time any new law, treaty or regulation, or any change in any existing law,
treaty or regulation, or any interpretation thereof by any governmental or other
regulatory authority charged with the administration thereof, shall make it
unlawful for any Bank to fund any LIBOR Loans which it is committed to make
hereunder in any Eurocurrency or Dollars, as the case may be, the Commitment of
such Bank to fund such LIBOR Loan shall, upon the happening of such event
forthwith be suspended for the duration of such illegality, and such Bank shall
by written notice to Borrower and Agent declare that its Commitment with respect
to such Loans has been so suspended and, if and when such illegality ceases to
exist, such suspension shall cease and such Bank shall similarly notify Borrower
and Agent. If any such change shall make it unlawful for any Bank to continue in
effect the funding in the applicable Eurodollar market of any LIBOR Loan
previously made by it hereunder, such Bank shall, upon the happening of such
event, notify Borrower, Agent and the other Banks thereof in writing stating the
reasons therefor, and Borrower shall, on the earlier of (a) the last day of the
then current Interest Period or (b) if required by such law, regulation or
interpretation, on such date as shall be specified in such notice, either prepay
all affected LIBOR Loans to the Banks in full or convert all affected LIBOR
Loans that are Eurodollar Loans to Prime Rate Loans.
SECTION 3.6. FUNDING. Each Bank may, but shall not be required to, make
LIBOR Loans hereunder with funds obtained outside the United States.
ARTICLE IV. CONDITIONS PRECEDENT
The obligation of the Banks to make the first Loan and of Agent to
issue the first Letter of Credit is subject to Borrower satisfying each of the
following conditions:
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SECTION 4.1. NOTES. Borrower shall have executed and delivered to each
Bank its Revolving Credit Note and its Competitive Bid Rate Note.
SECTION 4.2. GUARANTIES OF PAYMENT OF DEBT. Each of Elkhart Products
Corporation, Wheeltek, Inc., Amcast Investment Services Corporation and AS
International, Inc. shall have executed and delivered its Guaranty of Payment to
Agent for the benefit of the Banks, each to be in form and substance
satisfactory to Agent and the Banks.
SECTION 4.3. OFFICER'S CERTIFICATE, RESOLUTIONS, ORGANIZATIONAL
DOCUMENTS. Borrower and each Guarantor of Payment shall deliver to each Bank an
officer's certificate certifying the names of the officers of Borrower or such
Guarantor of Payment authorized to sign the Loan Documents, together with the
true signatures of such officers and certified copies of (a) the resolutions of
the board of directors of Borrower and Guarantor of Payment evidencing approval
of the execution and delivery of the Loan Documents and the execution of other
Related Writings to which Borrower or such Guarantor of Payment, as the case may
be, is a party, and (b) the Articles (or Certificate) of Incorporation and all
amendments thereto, and bylaws and all amendments thereto, of Borrower and
Guarantor of Payment.
SECTION 4.4. LEGAL OPINIONS. Opinions of counsel for Borrower and each
Guarantor of Payment, in form and substance satisfactory to Agent and the Banks,
shall be delivered to each Bank.
SECTION 4.5. GOOD STANDING CERTIFICATES. A good standing certificate
for Borrower and each Guarantor of Payment issued on or about the Closing Date
by the Secretary of State in the state(s) where Borrower or such Guarantor of
Payment is incorporated or qualified as a foreign corporation shall be delivered
to each Bank.
SECTION 4.6. AGENT AND LEGAL FEES. Borrower shall pay to Agent, for its
sole benefit, such fees as described in Credit Facilities Fee Letter referenced
in Section 2.5 hereof. Borrower shall also pay all legal fees and expenses of
Agent in connection with the preparation and negotiation of the Loan Documents.
SECTION 4.7. LIEN SEARCHES. With respect to the property owned by
Borrower and each Guarantor of Payment, Borrower shall cause to be delivered to
each Bank: (a) the results of U.C.C. lien searches, satisfactory to Agent and
the Banks; and (b) the results of federal and state tax lien and judicial lien
searches, satisfactory to Agent and the Banks.
SECTION 4.8. NO MATERIAL ADVERSE CHANGE. No material adverse change, in
the opinion of Agent and the Majority Banks, shall have occurred in the
financial condition, operations or prospects of the Companies.
SECTION 4.9. ACQUISITION DOCUMENTS. Borrower shall provide copies of
the Acquisition Documents, including but not limited to the Share Purchase
Agreement, certified by the Secretary of Borrower as being true and complete,
all such Acquisition Documents to be in form and substance satisfactory to Agent
and the Banks.
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SECTION 4.10. FINANCIAL STATEMENTS OF SPEEDLINE. Borrower shall provide
to Agent and the Banks audited financial statements for Speedline for fiscal
year ended 1996 and reviewed interim financial statements for 1997, which
financial statements shall not be materially, in the opinion of Agent and the
Majority Banks, different from the financial statements previously provided.
SECTION 4.11. WIRE TRANSFER INSTRUCTIONS. Borrower shall provide
written wire transfer instructions to Agent.
SECTION 4.12. MISCELLANEOUS. Such other items and conditions as may be
reasonably required by Agent or the Banks shall be satisfied.
ARTICLE V. COVENANTS
Borrower agrees that so long as the Commitment remains in effect and
thereafter until the principal of and interest on all Notes and all other
payments and fees due hereunder shall have been paid in full, Borrower shall
perform and observe, and shall cause each Subsidiary to perform and observe,
each of the following provisions:
SECTION 5.1. INSURANCE. Each Company shall (a) maintain insurance to
such extent and against such hazards and liabilities as is commonly maintained
by companies similarly situated; and (b) within ten (10) days of any Bank's
written request, furnish to such Bank such information about any Company's
insurance as that Bank may from time to time reasonably request, which
information shall be prepared in form and detail satisfactory to such Bank and
certified by an officer of such Company.
SECTION 5.2. MONEY OBLIGATIONS. Each Company shall pay in full (a)
prior in each case to the date when penalties would attach, all taxes,
assessments and governmental charges and levies (except only those so long as
and to the extent that the same shall be contested in good faith by appropriate
and timely proceedings and for which adequate reserves have been established in
accordance with GAAP) for which it may be or become liable or to which any or
all of its properties may be or become subject; (b) all of its wage obligations
to its employees in compliance with the Fair Labor Standards Act (29 U.S.C.
206-207) or any comparable provisions; and (c) all of its other obligations
calling for the payment of money (except only those so long as and to the extent
that the same shall be contested in good faith and for which adequate reserves
have been established in accordance with GAAP) before such payment becomes
overdue.
SECTION 5.3. FINANCIAL STATEMENTS. Borrower shall furnish to each Bank:
(a) within forty-five (45) days after the end of each of the first
three quarter-annual periods of each fiscal year of Borrower, balance sheets of
Borrower and its Subsidiaries as of the quarter then ended and statements of
income (loss), shareholders equity and cash flow for the quarter and fiscal year
to date periods then ended, all prepared on a Consolidated and consolidating
basis, in accordance with GAAP and reporting requirements, subject to normal
year-end adjustments and
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without footnotes, and in form and detail reasonably satisfactory to the Banks
and certified by a Financial Officer of Borrower;
(b) within ninety (90) days after the end of each fiscal year of
Borrower, an annual audit report of Borrower and its Subsidiaries for that year
prepared on a Consolidated and consolidating basis, in accordance with GAAP, and
in form and detail reasonably satisfactory to the Banks and certified by an
independent public accountant satisfactory to the Banks, which report shall
include balance sheets and statements of income (loss), stockholder's equity and
cash-flow for that period, together with a certificate by the accountant setting
forth the Unmatured Events of Default and Events of Default coming to its
attention during the course of its audit or, if none, a statement to that
effect;
(c) concurrently with the delivery of the financial statements set
forth in (a) and (b) above, a Compliance Certificate in the form of EXHIBIT E
hereto, signed by a Financial Officer of Borrower;
(d) with the delivery of the quarterly and annual financial statements
described in (a) and (b) above, a copy of any management report, letter or
similar writing furnished to the Companies by the accountants in respect of the
Companies' systems, operations, financial condition or properties;
(e) at least sixty (60) days after the end of each fiscal year of
Borrower, annual pro-forma projections of Borrower and its Subsidiaries for the
next fiscal year, to be in form reasonably acceptable to Agent and the Majority
Banks;
(f) as soon as available, copies of all notices, reports, definitive
proxy or other statements and other documents sent by Borrower to its
shareholders, to the holders of any of its debentures or bonds or the trustee of
any indenture securing the same or pursuant to which they are issued, or sent by
Borrower (in final form) to any securities exchange or over the counter
authority or system, or to the Securities and Exchange Commission or any similar
federal agency having regulatory jurisdiction over the issuance of Borrower's
securities; and
(g) within ten (10) days of any Bank's written request, such other
information about the financial condition, properties and operations of any
Company as such Bank may from time to time reasonably request, which information
shall be submitted in form and detail satisfactory to such Bank and certified by
a Financial Officer of the Company or Companies in question.
SECTION 5.4. FINANCIAL RECORDS. Each Company shall at all times
maintain true and complete records and books of account including, without
limiting the generality of the foregoing, appropriate reserves for possible
losses and liabilities, all in accordance with GAAP, and at all reasonable times
(during normal business hours and upon notice to the Company in question) permit
the Banks to examine that Company's books and records and to make excerpts
therefrom and transcripts thereof. Borrower shall maintain its fiscal year end
as on or about August 31, unless otherwise consented to by the Majority Banks,
which consent shall not be unreasonably withheld.
SECTION 5.5. FRANCHISES. Each Company shall preserve and maintain at
all times its corporate existence.
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SECTION 5.6. ERISA COMPLIANCE. No Company shall incur any material
accumulated funding deficiency within the meaning of ERISA, or any material
liability to the PBGC, established thereunder in connection with any ERISA Plan.
Borrower shall furnish to the Banks (a) as soon as possible and in any event
within thirty (30) days after any Company knows or has reason to know that any
Reportable Event, as defined under ERISA Section 4043, with respect to any ERISA
Plan has occurred, a statement of the Financial Officer of such Company, setting
forth details as to such Reportable Event and the action which such Company
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to the PBGC if a copy of such notice is available to
such Company, and (b) promptly after receipt thereof a copy of any notice such
Company, or any member of the Controlled Group may receive from the PBGC or the
Internal Revenue Service with respect to any ERISA Plan administered by such
Company; provided, that this latter clause shall not apply to notices of general
application promulgated by the PBGC or the Internal Revenue Service. Borrower
shall promptly notify the Banks of any material taxes assessed, proposed to be
assessed or which Borrower have reason to believe may be assessed against a
Company by the Internal Revenue Service with respect to any ERISA Plan. As used
in this Section "material" means the measure of a matter of significance which
shall be determined as being an amount equal to five percent (5%) of the
Consolidated Net Worth of Borrower and its Subsidiaries. As soon as practicable,
and in any event within twenty (20) days, after any Company becomes aware that
an ERISA Event has occurred, such Company shall provide Bank with notice of such
ERISA Event with a certificate by a Financial Officer of such Company setting
forth the details of the event and the action such Company or another Controlled
Group member proposes to take with respect thereto. Borrower shall, at the
request of Agent or any Bank, deliver or caused to be delivered to Agent or such
Bank, as the case may be, true and correct copies of any documents relating to
the ERISA Plan of any Company.
SECTION 5.7. FINANCIAL COVENANTS.
(a) INTEREST COVERAGE. Borrower shall not suffer or permit at any time
the ratio of Consolidated EBIT to Consolidated Interest Expense for Borrower and
its Subsidiaries to be less than 2.00 to 1.00, based upon Borrower's financial
statements for the most recent fiscal quarter and the three (3) previous fiscal
quarters (on a rolling four (4) quarter basis); provided that, anything herein
to the contrary notwithstanding, for any period prior to the fiscal quarter
ending on or about August 31, 1998, each such calculation pursuant to this
Section shall be for the fiscal year-to-date period.
(b) LEVERAGE. Borrower shall not suffer or permit at any time the
Leverage Ratio of Borrower and it Subsidiaries to exceed (i) 3.65 to 1.00 on the
Closing Date through August 30, 1998, (ii) 3.25 to 1.00 on August 31, 1998
through August 30, 1999, and (iii) 3.00 to 1.00 on August 31, 1999 and
thereafter, based upon Borrower's financial statements for the most recent
fiscal quarter and the three (3) previous fiscal quarters (on a rolling four (4)
quarter basis), subject to the Proviso.
SECTION 5.8. LIENS. No Company shall create, assume or suffer to exist
any Lien upon any of its property or assets whether now owned or hereafter
acquired; provided that this Section shall not apply to the following:
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(a) Liens for taxes not yet due or which are being actively contested
in good faith by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP;
(b) other statutory Liens incidental to the conduct of its business or
the ownership of its property and assets which (i) were not incurred in
connection with the borrowing of money or the obtaining of advances or credit,
and (ii) which do not in the aggregate materially detract from the value of its
property or assets or materially impair the use thereof in the operation of its
business;
(c) Liens on property or assets of a Subsidiary to secure obligations
of such Subsidiary to Borrower or a Guarantor of Payment;
(d) purchase money Liens securing credit extended to a Company for the
purchase of fixed assets, so long as each such Lien is limited to the assets
being purchased; and
(e) Liens existing as of the Closing Date and described on Schedule 5.8
hereto (with the understanding, however, that the Indebtedness secured by such
Liens may be extended, renewed, or replaced by Indebtedness of the same amount).
SECTION 5.9. REGULATIONS U and X. No Company shall take any action that
would result in any non-compliance of the Loans with Regulations U and X of the
Board of Governors of the Federal Reserve System.
SECTION 5.10. INVESTMENTS AND LOANS. No Company shall (a) make or keep
outstanding any advance or loan to any Person (other than Borrower), or (b) be
or become a Guarantor of any kind, except guarantees securing only indebtedness
of the Companies incurred or permitted pursuant to this Agreement or guaranties
of loans to Borrower; provided, that this Section shall not apply to (i) any
endorsement of a check or other medium of payment for deposit or collection
through normal banking channels or similar transaction in the normal course of
business; (ii) any investment in direct obligations of the United States of
America or in certificates of deposit issued by a member bank of the Federal
Reserve System; (iii) any investment in commercial paper or securities which at
the time of such investment is assigned the highest quality rating in accordance
with the rating systems employed by either Moody's Investor Service, Inc. or
Standard and Poor's Corporation; (iv) any loans to any Subsidiary and guaranties
of the Indebtedness of a Subsidiary not in excess of the aggregate amount, for
all Companies and for all such loans and guaranties, of Fifty Million Dollars
($50,000,000); (v) in addition to the amount set forth in subpart (iv) hereof,
the Casting Guaranty; (vi) in addition to the amount set forth in subpart (iv)
hereof, the guaranty of the Insurance Company Loans; or (vii) in addition to the
amount set forth in subpart (iv) hereof but at all times subject to the proviso
at the end of this Section 5.10, loans for the purchase price of the Speedline
stock and retirement of Indebtedness of Speedline existing on the Closing Date;
provided that, anything herein to the contrary notwithstanding, no loans shall
be made to, investments in, or guaranties or other consideration given for the
benefit of, Speedline and any other Subsidiaries of Borrower that are not
organized under the laws of a state of the United States in excess of the
aggregate of, for all such loans, investments, guaranties or other
considerations, One Hundred Fifty Million Dollars ($150,000,000).
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SECTION 5.11. MERGER AND SALE OF ASSETS. No Company shall merge or
consolidate with any other Person or sell, lease or transfer or otherwise
dispose of all or a substantial part of its assets to any Person, except that if
no Unmatured Event of Default or Event of Default shall then exist or
immediately thereafter shall begin to exist:
(a) any Subsidiary may merge with (i) Borrower (provided that Borrower
shall be the continuing or surviving corporation) or (ii) any one or more
Guarantors of Payment, provided that either (a) the continuing or surviving
corporation shall be a Wholly-Owned Subsidiary which is a Guarantor of Payment,
or (B) after giving effect to any merger pursuant to this sub-clause (ii),
Borrower and/or one or more Wholly-Owned Subsidiaries which are Guarantors of
Payment shall own not less than the same percentage of the outstanding Voting
Stock of the continuing or surviving corporation as Borrower and/or one or more
Wholly-Owned Subsidiaries (which are Guarantors of Payment) owned of the merged
Subsidiary immediately prior to such merger, or
(b) any Subsidiary may sell, lease, transfer or otherwise dispose of
any of its assets to (i) Borrower, (ii) any Wholly-Owned Subsidiary which is a
Guarantor of Payment, or (iii) any Guarantor of Payment, of which Borrower
and/or one or more Wholly-Owned Subsidiaries, which are Guarantors of Payment,
shall own not less than the same percentage of Voting Stock as Borrower and/or
one or more Wholly-Owned Subsidiaries (which are Guarantors of Payment) then own
of the Subsidiary making such sale, lease, transfer or other disposition.
SECTION 5.12. ACQUISITIONS. No Company shall acquire or permit any
Subsidiary to acquire the assets or stock of any other Person; provided,
however, that Borrower or any Guarantor of Payment may acquire the stock or
assets of another Person so long as: (a) Borrower or such Guarantor of Payment,
as the case may be, is the surviving entity; (b) the business to be acquired is
similar to the lines of business of the Companies (unless otherwise agreed to by
the Majority Banks); (c) the Companies are in full compliance with the Loan
Documents both prior to and subsequent to the transaction; and (d) Borrower
shall provide to Agent and the Banks, at least twenty (20) days prior to such
acquisition, historical financial statements of the target entity and a pro
forma financial statement of the Companies accompanied by a certificate of a
Financial Officer of Borrower showing pro forma compliance with Section 5.7
hereof, both before and after the proposed acquisition.
SECTION 5.13. NOTICE. Borrower shall cause its Financial Officer to
promptly notify the Banks whenever any Unmatured Event of Default or Event of
Default may occur hereunder or any other representation or warranty made in
Article VI hereof or elsewhere in this Agreement or in any Related Writing may
for any reason cease in any material respect to be true and complete.
SECTION 5.14. ENVIRONMENTAL COMPLIANCE. Each Company shall comply in
all material respects with any and all Environmental Laws including, without
limitation, all Environmental Laws in jurisdictions in which any Company owns or
operates a facility or site, arranges for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts for transport any hazardous
substances, solid waste or other wastes or holds any interest in real property
or otherwise. Borrower shall furnish to the Banks promptly after receipt thereof
a copy of any notice any Company may receive from any governmental authority,
private person or entity or otherwise that
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any material litigation or proceeding pertaining to any environmental, health or
safety matter has been filed or is threatened against such Company, any real
property in which such Company holds any interest or any past or present
operation of such Company. Except for inadvertent releases of an immaterial
nature, no Company shall allow the release or disposal of hazardous waste, solid
waste or other wastes on, under or to any real property in which any Company
holds any interest or performs any of its operations, in violation of any
Environmental Law. As used in this Section, "litigation or proceeding" means any
demand, claim, notice, suit, suit in equity action, administrative action,
investigation or inquiry whether brought by any governmental authority, private
person or entity or otherwise. Borrower shall defend, indemnify and hold Agent
and the Banks harmless against all costs, expenses, claims, damages, penalties
and liabilities of every kind or nature whatsoever (including attorneys fees)
arising out of or resulting from the noncompliance of any Company with any
Environmental Law.
SECTION 5.15. CORPORATE NAMES. No Company shall change its corporate name,
unless, in each case, Borrower shall provide Agent and each Bank with at least
thirty (30) days prior written notice thereof. Borrower's principal place of
business and the location where Borrower maintains its corporate records is the
address designated on the signature pages of this Agreement.
SECTION 5.16. SUBSIDIARY GUARANTIES. Each Subsidiary which (a) comprises
more than five and one-half percent (5-1/2%) of either the revenues or assets
(or both) of Borrower and (b) is not organized outside of the United States of
America that is created, acquired or held subsequent to the Closing Date, shall
immediately execute and deliver to Agent a Guaranty of Payment of all of the
Debt, such agreement to be in form and substance acceptable to Agent and the
Majority Banks.
SECTION 5.17. AFFILIATE TRANSACTIONS. No Company shall, or shall permit any
Subsidiary to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
a Company on terms that are less favorable to such Company or such Subsidiary,
as the case may be, than those that might be obtained at the time in a
transaction with a non-Affiliate; provided, however, that the foregoing shall
not prohibit the payment of (a) customary and reasonable directors' fees to
directors who are not employees of a Company or any Affiliate of a Company, or
(b) any transaction between Borrower and an Affiliate (if a Guarantor of
Payment) which Borrower reasonably determines in good faith is beneficial to
Borrower and its Affiliates as a whole and which is not entered into for the
purpose of hindering the exercise by Agent or the Banks of their rights or
remedies under this Agreement. For purposes of this provision, "Affiliate" shall
mean any person or entity, directly or indirectly, controlling, controlled by or
under common control with a Company and "control" (including the correlative
meanings, the terms "controlling", "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Company, whether through
the ownership of voting securities, by contract or otherwise.
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SECTION 5.18. ACQUISITION. The Acquisition shall be completed in accordance
with the terms of the Share Purchase Agreement on or before August 19, 1997 or
such later date determined in accordance with the Share Purchase Agreement but
in no event later than August 31, 1997. No amendment shall be made to, or any
waiver granted under, the Share Purchase Agreement from and after the date
hereof without Agent's prior written consent. After the Acquisition, Borrower
shall provide evidence in form and substance satisfactory to Agent and the
Majority Banks that the Acquisition has been completed and that all necessary
documents or instruments have been filed with all appropriate governmental
offices and that all necessary governmental or other consents or approvals have
been obtained.
SECTION 5.19. SYNDICATION OF CREDIT. Each Company shall provide to
Agent, upon request, such information and assistance, including but not limited
to participation of senior level management, in Agent's efforts to syndicate the
Commitment and the Loans.
SECTION 5.20. VALUE OF COMPANIES. Borrower and the Guarantors, on a
combined basis, shall at all times represent at least fifty five percent (55%)
of the Consolidated Net Worth of the Companies.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Subject only to such exceptions, if any, as may be fully disclosed in
an officer's certificate furnished by Borrower to each Bank prior to the
execution and delivery hereof, Borrower represents and warrants that the
statements set forth in this Article VI are true, correct and complete.
SECTION 6.1. CORPORATE EXISTENCE; SUBSIDIARIES; FOREIGN QUALIFICATION. Each
Company is a corporation duly organized, validly existing, and in good standing
under the laws of its state of incorporation and is duly qualified and
authorized to do business and is in good standing as a foreign corporation in
the jurisdictions set forth opposite its name on SCHEDULE 6.1, which are all of
the states or jurisdictions where the character of its property or its business
activities makes such qualification necessary, except where the failure to so
qualify will not cause or result in a material adverse effect to the business,
operations or condition (financial or otherwise) of such Company. Schedule 6.1
sets forth each Subsidiary of Borrower, its state of incorporation, its
relationship to Borrower, including the percentage of each class of stock owned
by a Company, the location of its chief executive offices and its principal
place of business. Borrower owns, directly or indirectly, all of the capital
stock of each of its Subsidiaries.
SECTION 6.2. CORPORATE AUTHORITY. Each Company has the right and power and
is duly authorized and empowered to enter into, execute, deliver the Loan
Documents to which it is a party and to perform and observe the provisions of
the Loan Documents. The Loan Documents to which each Company is a party have
been duly authorized and approved by such Company's Board of Directors and are
the valid and binding obligations of such Company, enforceable against such
Company in accordance with their respective terms. The execution, delivery and
performance of the Loan Documents will not conflict with nor result in any
breach in any of the provisions of, or constitute a default under, or result in
the creation of any Lien (other than Liens permitted under
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Section 5.8. of this Agreement) upon any assets or property of any Company under
the provisions of, each Company's Articles (or Certificate) of Incorporation,
Bylaws or Regulations or any agreement.
SECTION 6.3. COMPLIANCE WITH LAWS. Each Company:
(a) holds permits, certificates, licenses, orders, registrations,
franchises, authorizations, and other approvals from federal, state, local, and
foreign governmental and regulatory bodies necessary for the conduct of its
business and is in compliance with all applicable laws relating thereto, except
to the extent any failure will not cause or result in a material adverse effect
to the business, operations or condition (financial or otherwise) of such
Company;
(b) is in compliance with all federal, state, local, or foreign
applicable statutes, rules, regulations, and orders including, without
limitation, those relating to environmental protection, occupational safety and
health, and equal employment practices; and
(c) is not in violation of or in default under any agreement to which
it is a party or by which its assets are subject or bound, except to the extent
any failure will not cause or result in a material adverse effect to the
business, operations or condition (financial or otherwise) of such Company.
SECTION 6.4. LITIGATION AND ADMINISTRATIVE PROCEEDINGS. Except as disclosed
on SCHEDULE 6.4, hereto, as to each of which, if determined adversely, would not
have a material adverse effect on the business, property or operations
(financial or otherwise) of a Company, there are (a) no lawsuits, actions,
investigations, or other proceedings pending or threatened against any Company,
or in respect of which any Company may have any liability, in any court or
before any governmental authority, arbitration board, or other tribunal ; (b) no
orders, writs, injunctions, judgments, or decrees of any court or government
agency or instrumentality to which any Company is a party or by which the
property or assets of any Company are bound; and (c) no grievances, disputes, or
controversies outstanding with any union or other organization of the employees
of any Company, or threats of work stoppage, strike, or pending demands for
collective bargaining.
SECTION 6.5. TITLE TO ASSETS. Each Company has good title to and ownership
of all property it purports to own, which property is free and clear of all
Liens, except those permitted under Section 5.8 hereto.
SECTION 6.6. LIENS AND SECURITY INTERESTS. Except for Liens permitted
pursuant to Section 5.8 hereof, (a) there is no financing statement outstanding
covering any personal property of any Company; (b) there is no mortgage
outstanding covering any real property of any Company; and (c) no real or
personal property of any Company is subject to any security interest or Lien of
any kind.
SECTION 6.7. TAX RETURNS. All federal, state and local tax returns and
other reports required by law to be filed in respect of the income, business,
properties and employees of any Company have been filed and all taxes,
assessments, fees and other governmental charges which are
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due and payable have been paid, except as otherwise permitted herein or the
failure to do so does not and will not cause or result in a material adverse
effect on the business, operations or condition (financial or otherwise) of a
Company. The provision for taxes on the books of each Company is adequate for
all years not closed by applicable statutes and for the current fiscal year.
SECTION 6.8. ENVIRONMENTAL LAWS. Each Company is in material compliance
with any and all Environmental Laws including, without limitation, all
Environmental Laws in all jurisdictions in which any Company owns or operates,
or has owned or operated, a facility or site, arranges or has arranged for
disposal or treatment of hazardous substances, solid waste or other wastes,
accepts or has accepted for transport any hazardous substances, solid waste or
other wastes or holds or has held any interest in real property or otherwise. No
litigation or proceeding arising under, relating to or in connection with any
Environmental Law is pending or, to the best of their knowledge, threatened
against any Company, any real property in which any Company holds or has held an
interest or any past or present operation of any Company. No release, threatened
release or disposal of hazardous waste, solid waste or other wastes is
occurring, or has occurred (other than those that are currently being cleaned up
in accordance with Environmental Laws), on, under or to any real property in
which any Company holds any interest or performs any of its operations, in
violation of any Environmental Law. As used in this Section, "litigation or
proceeding" means any demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
governmental authority, private person or entity or otherwise.
SECTION 6.9. CONTINUED BUSINESS. There exists no actual, pending, or, to
Borrower's knowledge, any threatened termination, cancellation or limitation of,
or any modification or change in the business relationship of any Company and
any customer or supplier, or any group of customers or suppliers, whose
purchases or supplies, individually or in the aggregate, are material to the
business of any Company, and there exists no present condition or state of facts
or circumstances which would materially affect adversely any Company in any
respect or prevent a Company from conducting such business or the transactions
contemplated by this Agreement in substantially the same manner which it was
theretofore conducted.
SECTION 6.10. EMPLOYEE BENEFITS PLANS. SCHEDULE 6.10 identifies each ERISA
Plan. No ERISA Event has occurred or is expected to occur with respect to an
ERISA Plan. Full payment has been made of all amounts which a Controlled Group
member is required, under applicable law or under the governing documents, to
have been paid as a contribution to or a benefit under each ERISA Plan. The
liability of each Controlled Group member with respect to each ERISA Plan has
been fully funded based upon reasonable and proper actuarial assumptions, has
been fully insured, or has been fully reserved for on its financial statements.
No changes have occurred or are expected to occur that would cause a material
increase in the cost of providing benefits under the ERISA Plan. With respect to
each ERISA Plan that is intended to be qualified under Code Section 401(a): (a)
the ERISA Plan and any associated trust operationally comply with the applicable
requirements of Code Section 401(a), (b) the ERISA Plan and any associated trust
have been amended to comply with all such requirements as currently in effect,
other than those requirements for which a retroactive amendment can be made
within the "remedial amendment period" available under Code Section 401(b) (as
extended under Treasury Regulations and other Treasury pronouncements upon which
taxpayers may rely), (c) the ERISA Plan and any associated trust have
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received a favorable determination letter from the Internal Revenue Service
stating that the ERISA Plan qualifies under Code Section 401(a), that the
associated trust qualifies under Code Section 501(a) and, if applicable, that
any cash or deferred arrangement under the ERISA Plan qualifies under Code
Section 401(k), unless the ERISA Plan was first adopted at a time for which the
above-described "remedial amendment period" has not yet expired, (d) the ERISA
Plan currently satisfies the requirements of Code Section 410(b), without regard
to any retroactive amendment that may be made within the above-described
"remedial amendment period", and (e) no contribution made to the ERISA Plan is
subject to an excise tax under Code Section 4972; and. With respect to any
Pension Plan, the "accumulated benefit obligation" of Controlled Group members
with respect to the Pension Plan (as determined in accordance with Statement of
Accounting Standards No. 87, "Employers' Accounting for Pensions") does not
exceed the fair market value of Pension Plan assets. In the event all Controlled
Group members were to withdraw from all Multi-employer Plans in a "complete
withdrawal" (within the meaning of ERISA Section 4203), the resultant liability,
if any, would not have a material and adverse impact on the Companies taken as a
whole.
SECTION 6.11. CONSENTS OR APPROVALS. No consent, approval or authorization
of, or filing, registration or qualification with, any governmental authority or
any other Person is required to be obtained or completed by any Company in
connection with the execution, delivery or performance of any of the Loan
Documents, which has not already been obtained or completed.
SECTION 6.12. SOLVENCY. Borrower has received consideration which is the
reasonable equivalent value of the obligations and liabilities that Borrower has
incurred to the Banks. No Borrower is insolvent as defined in any applicable
state or federal statute, nor will Borrower be rendered insolvent by the
execution and delivery of the Loan Documents to Agent and the Banks. No Borrower
is engaged or about to engage in any business or transaction for which the
assets retained by it will be an unreasonably small capital, taking into
consideration the obligations to Agent and the Banks incurred hereunder. No
Borrower intends to, nor does it believe that it will, incur debts beyond its
ability to pay them as they mature.
SECTION 6.13. FINANCIAL STATEMENTS. The audited 1996 fiscal year-end and
third quarter 1997 fiscal year-to-date financial statements of Borrower, and the
December 31, 1996 financial statements and the interim financial statements for
the five month period ending May 31, 1997 of Speedline, furnished to Agent and
the Banks are true and complete, have been prepared in accordance with GAAP
(except that interim financial statements do not contain footnotes and do not
reflect year end adjustments), and fairly present Borrower's and Speedline's
financial condition as of the dates of such financial statements and the results
of their operations for the respective periods then ended. Since the dates of
such financial statements, there has been no material adverse change in any
Company's or Speedline's financial condition, properties or business nor any
change in any Company's or Speedline's accounting procedures, other than in
connection with the Acquisition.
SECTION 6.14. REGULATIONS. No Company is engaged principally or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States of
America). Neither the granting of any Loans (or any
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conversion thereof) nor the use of the proceeds of the Loans will violate, or be
inconsistent with, the provisions of Regulation U or X of said Board of
Governors.
SECTION 6.15. MATERIAL AGREEMENTS. No Company is a party to any (a) debt
instrument; (b) lease (capital, operating or otherwise), whether as lessee or
lessor thereunder; (c) contract, commitment, agreement, or other arrangement
involving the purchase or sale of any inventory by it, or the license of any
right to or by it;, (d) contract, commitment, agreement, or other arrangement
with any of its "Affiliates" (as such term is defined in the Securities Exchange
Act of 1934, as amended); (e) management or employment contract or contract for
personal services with any of its Affiliates which is not otherwise terminable
at will or on less than ninety (90) days' notice without liability; (f)
collective bargaining agreement; or (g) other contract, agreement,
understanding, or arrangement which, as to subsections (a) through (g), above,
if violated, breached, or terminated for any reason, would have or would be
reasonably expected to have a material adverse effect on the business, operation
or condition (financial or otherwise) of any Company.
SECTION 6.16. INTELLECTUAL PROPERTY. Each Company owns, possesses, or has
the right to use all the patents, patent applications, trademarks, service
marks, copyrights, licenses, and rights with respect to the foregoing necessary
for the conduct of its business without any known conflict with the rights of
others, except as would not have or would not be reasonably expected to have a
material adverse effect on the business, property or operations (financial or
otherwise) of such Company.
SECTION 6.17. INSURANCE. Each Company maintains with financially sound and
reputable insurers insurance with coverage and limits as required by law and as
is customary with persons engaged in the same businesses as such Company.
SECTION 6.18. ACCURATE AND COMPLETE STATEMENTS. The Loan Documents do not
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein not misleading. Any other
written statement made by any Company in connection with any of the Loan
Documents does not, when put in the context of the other disclosures made by
Borrower, contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein not misleading. After
due inquiry by Borrower, there is no known fact which Borrower has not disclosed
to Agent and the Banks which has a material adverse effect on the business,
operations or condition (financial or otherwise) of any Company.
SECTION 6.19. DEFAULTS. No Unmatured Event of Default or Event of Default
exists hereunder, nor will any begin to exist immediately after the execution
and delivery hereof.
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ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default hereunder:
SECTION 7.1. PAYMENTS. If the interest on any Note, any commitment or other
fee or any other amount (other than principal) payable hereunder shall not be
paid in full punctually when due and payable, or within five (5) days
thereafter; or if the principal of any Note shall not be paid in full punctually
when due and payable.
SECTION 7.2. SPECIAL COVENANTS. If any Company or any Obligor shall fail or
omit to perform and observe Sections 5.7, 5.9, 5.16 or 5.18 hereof.
SECTION 7.3. OTHER COVENANTS. If any Company or any Obligor shall fail or
omit to perform and observe any agreement or other provision (other than those
referred to in Sections 7.1 or 7.2 hereof) contained or referred to in this
Agreement or any Related Writing that is on such Company's or Obligor's part, as
the case may be, to be complied with, and that Unmatured Event of Default shall
not have been fully corrected within thirty (30) days after the giving of
written notice thereof to Borrower by Agent or any Bank that the specified
Unmatured Event of Default is to be remedied.
SECTION 7.4. REPRESENTATIONS AND WARRANTIES. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company or any
Obligor to the Banks or any thereof or any other holder of any Note, shall be
false or erroneous when made, deemed to be made under Section 2.2 hereof or at
the time furnished.
SECTION 7.5. CROSS DEFAULT. If any Company or any Obligor shall default in
the payment of principal or interest due and owing upon any other obligation for
borrowed money in excess of the aggregate, for all such obligations, of Five
Million Dollars ($5,000,000) beyond any period of grace provided with respect
thereto or in the performance or observance of any other agreement, term or
condition contained in any agreement under which such obligation is created, if
the effect of such default is to accelerate the maturity of such indebtedness or
to permit the holder thereof to cause such indebtedness to become due prior to
its stated maturity.
SECTION 7.6. ERISA DEFAULT. The occurrence of one or more ERISA Events
which (a) is likely to have a material adverse effect on the financial condition
of the Companies when taken as a whole, or (b) results in a Lien on the assets
of Borrower or any Guarantor of Payment.
SECTION 7.7. CHANGE IN OWNERSHIP. If Borrower shall cease to own, directly
or indirectly, one hundred percent (100%) of the outstanding stock of Speedline
and its Subsidiaries.
SECTION 7.8. MONEY JUDGMENT. a final judgment or order for the payment of
money shall be rendered against any Company or any Obligor by a court of
competent jurisdiction, which remains unpaid or unstayed and undischarged for a
period (during which execution shall not
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be effectively stayed) of thirty (30) days after the date on which the right to
appeal has expired, provided that the aggregate of all such judgments shall
exceed Five Million Dollars ($5,000,000).
SECTION 7.9. MATERIAL ADVERSE CHANGE. There shall have occurred any
condition or event which has or is reasonably likely to have a material and
adverse effect on the financial condition of Borrower and its Subsidiaries, when
taken as a whole, or on the rights and remedies of Agent or the Banks under the
Loan Documents or the ability of Borrower or any of its Subsidiaries to perform
their respective obligations under the Loan Documents. Failure of the Principal
Mutual Life Insurance Company and Northwestern Mutual Life Insurance Company
pursuant to the Insurance Company Loans to have executed permanent waivers of
any default or event of default that occurs under the loan documents relating to
the Insurance Company Loans by virtue of Borrower's execution of the Loan
Documents on or before September 15, 1997, (unless the Insurance Company Loans
are no longer outstanding at September 15, 1997) shall be deemed to be a
material adverse change hereunder and shall be deemed to be an Event of Default.
SECTION 7.10. GUARANTY OF PAYMENT. If any Guaranty of Payment or any
provision thereof shall be deemed to be or be found invalid or unenforceably by
a court competent jurisdiction or shall have ceased to be effective or any
Guarantor of Payment shall have repudiated it obligations under a Guaranty of
Payment.
SECTION 7.11. SOLVENCY. If any Company or any Obligor shall (a) discontinue
business, or (b) generally not pay its debts as such debts become due, or (c)
make a general assignment for the benefit of creditors, or (d) apply for or
consent to the appointment of a receiver, a custodian, a trustee, an interim
trustee or liquidator of all or a substantial part of its assets, or (e) be
adjudicated a debtor or have entered against it an order for relief under Title
11 of the United States Code, as the same may be amended from time to time, or
(f) file a voluntary petition in bankruptcy or file a petition or an answer
seeking reorganization or an arrangement with creditors or seeking to take
advantage of any other law (whether federal or state) relating to relief of
debtors, or admit (by answer, by default or otherwise) the material allegations
of a petition filed against it in any bankruptcy, reorganization, insolvency or
other proceeding (whether federal or state) relating to relief of debtors, or
(g) suffer or permit to continue unstayed and in effect for thirty (30)
consecutive days any judgment, decree or order entered by a court of competent
jurisdiction, which approves a petition seeking its reorganization or appoints a
receiver, custodian, trustee, interim trustee or liquidator of all or a
substantial part of its assets, or (h) take, or omit to take, any action in
order thereby to effect any of the foregoing.
ARTICLE VIII. REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere,
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SECTION 8.1. OPTIONAL DEFAULTS. If any Event of Default referred to in
Section 7.1, 7.2., 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 or 7.10 hereof shall occur,
the Majority Banks shall have the right in their discretion, by directing Agent,
on behalf of the Banks, to give written notice to Borrower, to:
(a) terminate the Commitment and the credits hereby established, if not
theretofore terminated, and, immediately upon such election, the obligations of
Banks, and each thereof, to make any further Loan or Loans and the obligation of
Agent to issue any Letter of Credit hereunder immediately shall be terminated,
and/or
(b) accelerate the maturity of all of the Debt (if it be not already
due and payable), whereupon all of the Debt shall become and thereafter be
immediately due and payable in full without any presentment or demand and
without any further or other notice of any kind, all of which are hereby waived
by Borrower.
SECTION 8.2. AUTOMATIC DEFAULTS. If any Event of Default referred to in
Section 7.11 hereof shall occur:
(a) all of the Commitment and the credits hereby established shall
automatically and immediately terminate, if not theretofore terminated, and no
Bank thereafter shall be under any obligation to grant any further Loan or Loans
hereunder, nor shall Agent be obligated to issue any Letter of Credit hereunder,
and
(b) the principal of and interest on any Notes then outstanding, and
all of the Debt shall thereupon become and thereafter be immediately due and
payable in full (if it be not already due and payable), all without any
presentment, demand or notice of any kind, which are hereby waived by Borrower.
SECTION 8.3. LETTERS OF CREDIT. If the maturity of the Notes is accelerated
pursuant to Sections 8.1 or 8.2 hereof, Borrower shall immediately deposit and
maintain with Agent, as security for Borrower's obligations to reimburse Agent
and the Banks for any then outstanding Letters of Credit, cash equal to the sum
of the aggregate undrawn balance of any then outstanding Letters of Credit.
Agent and the Banks are hereby authorized, at their option, to deduct any and
all such amounts from any deposit balances then owing by any Bank to or for the
credit or account of any Company, as security for Borrower's obligations to
reimburse Agent and the Banks for any then outstanding Letters of Credit.
SECTION 8.4. OFFSETS. If there shall occur or exist any Event of Default
referred to in Section 7.11 hereof or if the maturity of the Notes is
accelerated pursuant to Section 8.1 or 8.2 hereof, each Bank shall have the
right at any time to set off against, and to appropriate and apply toward the
payment of, any and all Debt then owing by Borrower to that Bank (including,
without limitation, any participation purchased or to be purchased pursuant to
Section 8.5 hereof), whether or not the same shall then have matured, any and
all deposit balances and all other indebtedness then held or owing by that Bank
to or for the credit or account of Borrower, all without notice to or
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demand upon Borrower or any other person, all such notices and demands being
hereby expressly waived by Borrower.
SECTION 8.5. EQUALIZATION PROVISION. Each Bank agrees with the other Banks
that if it, at any time, shall obtain any Advantage over the other Banks or any
thereof in respect of the Debt (except under Article III hereof and except as to
Competitive Bid Loans), it shall purchase from the other Banks, for cash and at
par, such additional participation in the Debt as shall be necessary to nullify
the Advantage. If any such Advantage resulting in the purchase of an additional
participation as aforesaid shall be recovered in whole or in part from the Bank
receiving the Advantage, each such purchase shall be rescinded, and the purchase
price restored (but without interest unless the Bank receiving the Advantage is
required to pay interest on the Advantage to the person recovering the Advantage
from such Bank) ratably to the extent of the recovery. Each Bank further agrees
with the other Banks that if it at any time shall receive any payment for or on
behalf of Borrower on any indebtedness owing by Borrower to that Bank by reason
of offset of any deposit or other indebtedness, it will apply such payment first
to any and all indebtedness owing by Borrower to that Bank pursuant to this
Agreement (including, without limitation, any participation purchased or to be
purchased pursuant to this Section or any other Section of this Agreement).
Borrower agrees that any Bank so purchasing a participation from the other Banks
or any thereof pursuant to this Section may exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank was a direct creditor of Borrower in the amount of such
participation.
ARTICLE IX. THE AGENT
The Banks authorize KeyBank National Association and KeyBank National
Association hereby agrees to act as agent for the Banks in respect of this
Agreement upon the terms and conditions set forth elsewhere in this Agreement,
and upon the following terms and conditions:
SECTION 9.1. APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints and authorizes Agent to take such action as agent on its behalf and to
exercise such powers hereunder as are delegated to Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. Neither Agent
nor any of its directors, officers, attorneys or employees shall be liable for
any action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
SECTION 9.2. NOTE HOLDERS. Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with it,
signed by such payee and in form satisfactory to Agent.
SECTION 9.3. CONSULTATION WITH COUNSEL. Agent may consult with legal
counsel selected by it and shall not be liable for any action taken or suffered
in good faith by it in accordance with the opinion of such counsel.
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<PAGE> 45
SECTION 9.4. DOCUMENTS. Agent shall not be under any duty to examine into
or pass upon the validity, effectiveness, genuineness or value of any Loan
Documents or any other Related Writing furnished pursuant hereto or in
connection herewith or the value of any collateral obtained hereunder, and Agent
shall be entitled to assume that the same are valid, effective and genuine and
what they purport to be.
SECTION 9.5. AGENT AND AFFILIATES. With respect to the Loans, Agent shall
have the same rights and powers hereunder as any other Bank and may exercise the
same as though it were not the agent, and Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Company or any affiliate thereof.
SECTION 9.6. KNOWLEDGE OF DEFAULT. It is expressly understood and agreed
that Agent shall be entitled to assume that no Unmatured Event of Default or
Event of Default has occurred and is continuing, unless Agent has been notified
by a Bank in writing that such Bank believes that an Unmatured Event of Default
or Event of Default has occurred and is continuing and specifying the nature
thereof.
SECTION 9.7. ACTION BY AGENT. So long as Agent shall be entitled, pursuant
to Section 9.6 hereof, to assume that no Unmatured Event of Default or Event of
Default shall have occurred and be continuing, Agent shall be entitled to use
its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, or with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement. Agent shall incur no liability under or in respect
of this Agreement by acting upon any notice, certificate, warranty or other
paper or instrument believed by it to be genuine or authentic or to be signed by
the proper party or parties, or with respect to anything which it may do or
refrain from doing in the reasonable exercise of its judgment, or which may seem
to it to be necessary or desirable in the premises.
SECTION 9.8. NOTICES, DEFAULT, ETC. In the event that Agent shall have
acquired actual knowledge of any Unmatured Event of Default or Event of Default,
Agent shall promptly notify the Banks and shall take such action and assert such
rights under this Agreement as the Majority Banks shall direct and Agent shall
inform the other Banks in writing of the action taken. Agent may take such
action and assert such rights as it deems to be advisable, in its discretion,
for the protection of the interests of the holders of the Notes.
SECTION 9.9. INDEMNIFICATION OF AGENT. The Banks agree to indemnify Agent
(to the extent not reimbursed by Borrower), ratably according to their
respective Commitment Percentages from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against Agent in its capacity as agent in any way
relating to or arising out of this Agreement or any Loan Document or any action
taken or omitted by Agent with respect to this Agreement or any Loan Document,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorney fees) or disbursements resulting from Agent's gross
negligence, willful
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<PAGE> 46
misconduct or from any action taken or omitted by Agent in any capacity other
than as agent under this Agreement.
SECTION 9.10. SUCCESSOR AGENT. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days' prior written notice to Borrower and the
Banks. If Agent shall resign under this Agreement, then either (a) the Majority
Banks shall appoint from among the Banks a successor agent for the Banks (with
the consent of Borrower so long as an Event of Default has not occurred and
which consent shall not be unreasonably withheld or delayed), or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following Agent's notice to the Banks of its resignation, then Agent
shall appoint a successor agent who shall serve as agent until such time as the
Majority Banks appoint a successor agent, which shall be a financial institution
organized under the laws of the United States and having a combined capital and
surplus of at least Two Hundred Fifty Million Dollars ($250,000,000). Upon its
appointment, such successor agent shall succeed to the rights, powers and duties
as agent, and the term "Agent" shall mean such successor effective upon its
appointment, and the former agent's rights, powers and duties as agent shall be
terminated without any other or further act or deed on the part of such former
agent or any of the parties to this Agreement, provided, however, that the
provisions of this Article IX shall inure to the benefit of the former agent as
to any actions taken or omitted to be taken by it while it was agent under this
Agreement.
ARTICLE X. MISCELLANEOUS
SECTION 10.1. BANKS' INDEPENDENT INVESTIGATION. Each Bank, by its signature
to this Agreement, acknowledges and agrees that Agent has made no representation
or warranty, express or implied, with respect to the creditworthiness, financial
condition, or any other condition of any Company or with respect to the
statements contained in any information memorandum furnished in connection
herewith or in any other oral or written communication between Agent and such
Bank. Each Bank represents that it has made and shall continue to make its own
independent investigation of the creditworthiness, financial condition and
affairs of the Companies in connection with the extension of credit hereunder,
and agrees that Agent has no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information with
respect thereto (other than such notices as may be expressly required to be
given by Agent to the Banks hereunder), whether coming into its possession
before the granting of the first Loans hereunder or at any time or times
thereafter.
SECTION 10.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of
dealing on the part of Agent, any Bank or the holder of any Note in exercising
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy hereunder. The remedies herein provided are cumulative and in addition
to any other rights, powers or privileges held by operation of law, by contract
or otherwise.
SECTION 10.3. AMENDMENTS, CONSENTS. No amendment, modification,
termination, or waiver of any provision of any Loan Document nor consent to any
variance therefrom,
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<PAGE> 47
shall be effective unless the same shall be in writing and signed by the
Majority Banks and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. Anything herein
to the contrary notwithstanding, unanimous consent of the Banks shall be
required with respect to (a) any increase in the Commitment hereunder, (b) the
extension of maturity of the Notes, the payment date of interest thereunder, or
the payment of commitment or other fees or amounts payable hereunder, (c) any
reduction in the rate of interest on the Notes, or in any amount of principal or
interest due on any Note, or the payment of commitment or other fees hereunder
or any change in the manner of pro rata application of any payments made by
Borrower to the Banks hereunder, (d) any change in any percentage voting
requirement, voting rights, or the Majority Banks definition in this Agreement,
(e) the release of any Guarantor of Payment, or (f) any amendment to this
Section 10.3 or Section 8.5 hereof. Notice of amendments or consents ratified by
the Banks hereunder shall immediately be forwarded by Borrower to all Banks.
Each Bank or other holder of a Note shall be bound by any amendment, waiver or
consent obtained as authorized by this Section, regardless of its failure to
agree thereto.
SECTION 10.4. NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, or sent by facsimile with telephonic
confirmation of receipt, if to a Bank, mailed or delivered to it, addressed to
the address of such Bank specified on the signature pages of this Agreement, or
sent by facsimile with telephonic confirmation of receipt, or, as to each party,
at such other address as shall be designated by such party in a written notice
to each of the other parties. All notices, statements, requests, demands and
other communications provided for hereunder shall be deemed to be given or made
when received by the Agent, the Banks or the Borrower, as the case may be.
SECTION 10.5. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all reasonable costs and expenses of Agent, including, but not limited to, (a)
administration and out-of-pocket expenses of Agent in connection with the
administration of the Loan Documents, the syndication of the Commitment and the
Loans, the collection and disbursement of all funds hereunder and the other
instruments and documents to be delivered hereunder, (b) extraordinary expenses
of Agent in connection with the administration of the Loan Documents and the
other instruments and documents to be delivered hereunder, (c) any expenses of
Agent incurred in connection with the preparation of the Loan Documents and any
Related Writings, and (d) the reasonable fees and out-of-pocket expenses of
special counsel for the Agent, with respect thereto and of local counsel, if
any, who may be retained by said special counsel with respect thereto. Borrower
shall also pay all reasonable costs and expenses of Agent and the Banks,
including reasonable attorneys' fees, in connection with the restructuring or
enforcement of the Loan Documents or any Related Writing. In addition, Borrower
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery of the Loan Documents, and
the other instruments and documents to be delivered hereunder, and agrees to
save Agent and each Bank harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
or fees.
SECTION 10.6. INDEMNIFICATION. Borrower agrees to defend, indemnify and
hold harmless Agent and the Banks from and against any and all liabilities,
obligations, losses, damages,
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penalties, actions, judgments, suits, costs, expenses (including attorney fees)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Agent or any Bank in connection with any
investigative, administrative or judicial proceeding (whether or not such Bank
or Agent shall be designated a party thereto) or any other claim by any person
or entity relating to or arising out of this Agreement or the Loan Documents or
any actual or proposed use of proceeds of the Loans hereunder or any activities
of any Company or any Obligor or any of their affiliates; provided that no Bank
nor Agent shall have the right to be indemnified under this Section for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. All obligations provided for in this Section 10.6 shall survive
any termination of this Agreement.
SECTION 10.7. CAPITAL ADEQUACY. To the extent not covered by Article III
hereof, if any Bank shall have determined, after the date hereof, that the
adoption of any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its lending office) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital (or the capital of its holding company) as
a consequence of its obligations hereunder to a level below that which such Bank
(or its holding company) could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies or the policies of
its holding company with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within fifteen (15) days after
demand by such Bank (with a copy to Agent), Borrower shall pay to such Bank such
additional amount or amounts as shall compensate such Bank (or its holding
company) for such reduction. Each Bank shall designate a different lending
office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. Failure on the part of any Bank to demand compensation for
any reduction in return on capital with respect to any period shall not
constitute a waiver of such Bank's rights to demand compensation for any
reduction in return on capital in such period or in any other period. The
protection of this Section shall be available to each Bank regardless of any
possible contention of the invalidity or inapplicability of the law, regulation
or other condition which shall have been imposed.
SECTION 10.8. OBLIGATIONS SEVERAL; NO FIDUCIARY OBLIGATIONS. The
obligations of the Banks hereunder are several and not joint. Nothing contained
in this Agreement and no action taken by Agent or the Banks pursuant hereto
shall be deemed to constitute the Banks a partnership, association, joint
venture or other entity. No default by any Bank hereunder shall excuse the other
Banks from any obligation under this Agreement; but no Bank shall have or
acquire any additional obligation of any kind by reason of such default. The
relationship between Borrower and the Banks with respect to the Loan Documents
and the Related Writings is and shall be solely that of debtors and creditors,
respectively, and neither Agent nor any Bank has any fiduciary
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obligation toward Borrower with respect to any such documents or the
transactions contemplated thereby.
SECTION 10.9. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, including facsimiles, and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
SECTION 10.10. BINDING EFFECT, BORROWER'S ASSIGNMENT. This Agreement shall
become effective when it shall have been executed by Borrower, Agent and each
Bank and thereafter shall be binding upon and inure to the benefit of Borrower,
Agent and each of the Banks and their respective successors and assigns, except
that no Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of Agent and all of the Banks.
SECTION 10.11. BANK ASSIGNMENTS/PARTICIPATIONS
A. Assignment/Transfer of Commitments
Each Bank shall have the right at any time or times to assign or
transfer to another financial institution, without recourse, all or a percentage
of all of the following (a) that Bank's Commitment, (b) all Loans made by that
Bank, (c) that Bank's Note, and (d) that Bank's participations in Letters of
Credit and any participation purchased pursuant to Section 8.5; provided,
however, in each such case, that the transferor and the transferee shall have
complied with the following requirements:
(i) Prior Consent. No transfer may be consummated pursuant to this
Section 10.11 without the prior written consent of Borrower and Agent (other
than a transfer by any Bank to any affiliate of such Bank), which consent of
Borrower and Agent shall not be unreasonably withheld; provided, however, that,
no Borrower's consent shall be required if, at the time of the proposed
transfer, (A) any Unmatured Event of Default or Event of Default shall have
occurred, or (B) Borrower is the subject of a proceeding referenced in Section
7.11. Anything herein to the contrary notwithstanding, any Bank may at any time
assign all or any portion of its rights under the Loan Documents to a Federal
Reserve Bank, and no such assignment shall release such assigning Bank from its
obligations hereunder.
(ii) Minimum Amount. Each such assignment shall be in a minimum amount
of the lesser of Ten Million Dollars ($10,000,000) or the entire amount of a
Bank's interest.
(iii) Agreement; Transfer Fee. Unless the transfer shall be to an
affiliate of the transferor or the transfer shall be due to merger of the
transferor or for regulatory purposes, the transferor (A) shall remit to Agent,
for its own account, an administrative fee of Two Thousand Five Hundred Dollars
($2,500) and (B) shall cause the transferee to execute and deliver to
Borrower, Agent and each Bank (1) an Assignment Agreement, in the form of
Exhibit F hereto (an "Assignment Agreement") together with the consents and
releases and the Administrative Questionnaire referenced
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therein and (2) such additional amendments, assurances and other writings as
Agent may reasonably require.
(iv) Notes. Borrower shall execute and deliver (A) to Agent, the transferor
and the transferee, any consent or release (of all or a portion of the
obligations of the transferor) to be delivered in connection with the Assignment
Agreement, and (B) to the transferee, an appropriate Note. After delivery of the
new Note, the transferor's Note shall be returned to Borrower marked "replaced".
(v) Parties. Upon satisfaction of the requirements of this Section 10.11A,
including the payment of the fee and the delivery of the documents set forth in
Section 10.11A (ii), (A) the transferee shall become and thereafter be deemed to
be a "Bank" for the purposes of this Agreement, and (B) the transferor shall
cease to be and thereafter shall no longer be deemed to be a "Bank" and (3) the
signature pages hereto and Schedule 1 hereto shall be automatically amended,
without further action, to reflect the result of any such transfer.
(vi) The Register. Agent shall maintain at its address referred to in
Section 10.5 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Banks and the Commitment of, and principal amount of the Loans owing to, each
Bank from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and Borrower, Agent and the Banks may treat each
financial institution whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by Borrower or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
(vii) Non-U.S. Transferee. If, pursuant to this Section, any interest in
this Agreement or any Note is transferred to any transferee which is organized
under the laws of any jurisdiction other than the United States or any state
thereof, the transferor Bank shall cause such transferee, at least five (5)
Business Days prior to the effective date of such transfer, (A) to represent to
the transferor Bank (for the benefit of the transferor Bank, Agent and Borrower)
that under applicable law and treaties no taxes will be required to be withheld
by Agent, Borrower or the transferor Bank with respect to any payments to be
made to such transferee in respect of the Loans hereunder, (B) to furnish to the
transferor Bank (and, in the case of any transferee registered in the Register,
Agent and Borrower) either (1) U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 or (2) United States Internal Revenue Service
Form W-8 or W-9, as applicable (wherein such transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder), and (C) to agree (for the benefit of the transferor Bank, Agent and
Borrower) to provide the transferor Bank (and, in the case of any transferee
registered in the Register, Agent and Borrower) a new Form 4224 or Form 1001 or
Form W-8 or W-9, as applicable, upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
B. Sale of Participations
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Each Bank shall have the right at any time or times, without the
consent of Agent or Borrower, to sell one or more participations or
sub-participations to a financial institution, as the case may be, in all or any
part of (a) that Bank's Commitment, (b) that Bank's Commitment Percentage, (c)
any Loan made by that Bank, (d) any Note delivered to that Bank pursuant to this
Agreement, and (e) that Bank's participations, if any, purchased pursuant to
Section 8.4 or this Section 10.11B.
(i) Benefits of Participation. The provisions of Article III and
Section 10.8 shall inure to the benefit of each purchaser of a participation or
sub-participation and Agent shall continue to distribute payments pursuant to
this Agreement as if no participation has been sold.
(ii) Rights Reserved. In the event any Bank shall sell any
participation or sub-participation, that Bank shall, as between itself and the
purchaser, retain all of its rights (including, without limitation, rights to
enforce against Borrower the Loan Documents and the Related Writings) and
duties pursuant to the Loan Documents and the Related Writings, including,
without limitation, that Bank's right to approve any waiver, consent or
amendment pursuant to Section 10.3, except if and to the extent that any such
waiver, consent or amendment would:
(A) reduce any fee or commission allocated to the
participation or sub-participation, as the case may be,
(B) reduce the amount of any principal payment on any Loan
allocated to the participation or sub-participation, as
the case may be, or reduce the principal amount of any
Loan so allocated or the rate of interest payable thereon,
or
(C) extend the time for payment of any amount allocated to the
participation or sub-participation, as the case may be.
(iii) No Delegation. No participation or sub-participation shall
operate as a delegation of any duty of the seller thereof. Under no
circumstance shall any participation or sub-participation be deemed a novation
in respect of all or any part of the seller's obligations pursuant to this
Agreement.
SECTION 10.12. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to Sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement.
SECTION 10.13. ENTIRE AGREEMENT. This Agreement, the Notes and any other
agreement, document or instrument attached hereto or referred to herein or
executed on or as of the date hereof integrate all the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
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SECTION 10.14. JUDGMENT CURRENCY. If Agent, on behalf of the Banks, obtains
a judgment or judgments against Borrower in a Eurocurrency (other than
Eurodollars), the obligations of Borrower in respect of any sum adjudged to be
due to Agent or the Banks hereunder or under the Notes (the "Judgment Amount")
shall be discharged only to the extent that, on the Business Day following
receipt by Agent of the Judgment Amount in the Eurocurrency, Agent, in
accordance with normal banking procedures, purchases Dollars with the Judgment
Amount in such Eurocurrency. If the amount of Dollars so purchased is less than
the amount of Dollars that could have been purchased with the Judgment Amount on
the date or dates the Judgment Amount (excluding the portion of the Judgment
Amount which has accrued as a result of the failure of Borrower to pay the sum
originally due hereunder or under the Notes when it was originally due hereunder
or under the Notes) was originally due and owing to Agent or the Banks hereunder
or under the Notes (the "Original Due Date") (the "Loss"), Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify Agent or
such Bank, as the case may be, against the Loss, and if the amount of Dollars so
purchased exceeds the amount of Dollars that could have been purchased with the
Judgment Amount on the Original Due Date, Agent or such Bank agrees to remit
such excess to Borrower.
SECTION 10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement, each of the Notes and any Related Writing shall be governed by and
construed in accordance with the laws of the State of Ohio and the respective
rights and obligations of Borrower and the Banks shall be governed by Ohio law,
without regard to principles of conflict of laws. Borrower hereby irrevocably
submits to the non-exclusive jurisdiction of any Ohio state or federal court
sitting in Cleveland, Ohio, over any action or proceeding arising out of or
relating to this Agreement, any Loan Document or any Related Writing, and
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Ohio state or federal court.
Borrower hereby irrevocably waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the laying of venue in any action or
proceeding in any such court as well as any right it may now or hereafter have
to remove such action or proceeding, once commenced, to another court on the
grounds of FORUM NON CONVENIENS or otherwise. Borrower agrees that a final,
nonappealable judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
SECTION 10.16. LEGAL REPRESENTATION OF PARTIES. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
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SECTION 10.17. JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS
WAIVE ANY RIGHT TO HAVE a JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR
ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY BANK'S ABILITY
TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT AMONG BORROWER,
AGENT AND THE BANKS, OR ANY THEREOF.
Address: 7887 Washington Village Drive AMCAST INDUSTRIAL CORPORATION
------------------------------
Dayton, OH 45459 By /s/ John H. Shuey
------------------------------ ------------------------------
John H. Shuey, President and
Chief Executive Officer
and
-------------------------------
-------------------------------
Address: Key Center KEYBANK NATIONAL ASSOCIATION,
127 Public Square as Agent and as a Bank
Cleveland, Ohio 44114-1306
Attention: Large Corporate By: /s/ Michael J. Landini
Banking Division -------------------------------
Michael J. Landini, Assistant
Vice President
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LIST OF EXHIBITS TO CREDIT AGREEMENT
------------------------------------
The following exhibits to the Credit Agreement are filed herewith, any other
enclosures or exhibits the Commission requests will be filed upon request.
Exhibit A Revolving Credit Note
Exhibit B Competitive Bid Rate Note
Exhibit F Form of Assignment Agreement
<PAGE> 55
EXHIBIT A
REVOLVING CREDIT NOTE
$ Cleveland, Ohio
- ------------------- August 14, 1997
FOR VALUE RECEIVED, the undersigned AMCAST INDUSTRIAL CORPORATION
("Borrower"), promises to pay on August 14, 2002, to the order of ____________
_______________ (the "Bank") at the Main Office of KEYBANK NATIONAL ASSOCIATION,
as Agent, 127 Public Square, Cleveland, Ohio 44114-1306 the principal sum of
.................................................................... DOLLARS
or the aggregate unpaid principal amount of all Revolving Loans made by Bank to
Borrower pursuant to Section 2.1A of the Credit Agreement, as hereinafter
defined, whichever is less, in lawful money of the United States of America;
provided that Loans which are Eurocurrency Loans, as defined in the Credit
Agreement, (other than Eurodollar Loans, as defined in the Credit Agreement)
shall be payable in the applicable Eurocurrency, as defined in the Credit
Agreement, at the place or places designated in the Credit Agreement. Borrower
also agrees to pay any additional amount that is required to be paid pursuant to
Section 10.14 of the Credit Agreement. As used herein, "Credit Agreement" means
the Credit Agreement dated as of August 14, 1997, among Borrower, the banks
named therein and KeyBank National Association, as Agent, as the same may from
time to time be restated, amended or otherwise modified. Capitalized terms used
herein shall have the meanings ascribed to them in the Credit Agreement.
Borrower also promises to pay interest on the unpaid principal amount
of each Revolving Loan from time to time outstanding, from the date of such
Revolving Loan until the payment in full thereof, at the rates per annum which
shall be determined in accordance with the provisions of Section 2.1A of the
Credit Agreement. Such interest shall be payable on each date provided for in
such Section 2.1A; provided, however, that interest on any principal portion
which is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Prime Rate Loans and LIBOR Loans, and payments of principal of any thereof, will
be shown on the records of Bank by such method as Bank may generally employ;
provided, however, that failure to make any such entry shall in no way detract
from Borrower's obligations under this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be the Default Rate. All payments of principal of and interest
on this Note shall be made in immediately available funds. In the event of a
failure to pay interest or principal, when the same becomes due, Bank may
collect and Borrower agrees to pay a late charge of an amount equal to one -half
of one percent (1/2%) of the amount of such late payment.
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This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement. Reference is made to the Credit Agreement for a description of
the right of the undersigned to anticipate payments hereof, the right of the
holder hereof to declare this Note due prior to its stated maturity, and other
terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, Borrower
expressly waives presentment, demand, protest and notice of any kind.
JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THE TRANSACTIONS RELATED THERETO.
AMCAST INDUSTRIAL CORPORATION
By:
------------------------------
Title:
----------------------
and
------------------------------
Title
-----------------------
2
<PAGE> 57
EXHIBIT B
COMPETITIVE BID RATE NOTE
$200,000,000.00 Cleveland, Ohio
August 14, 1997
FOR VALUE RECEIVED, the undersigned AMCAST INDUSTRIAL CORPORATION
("Borrower"), promises to pay on August 14, 2002, to the order of ___________
__________________ (the "Bank") at the Main Office of KEYBANK NATIONAL
ASSOCIATION, as Agent, 127 Public Square, Cleveland, Ohio 44114-1306 the
principal sum of
TWO HUNDRED MILLION AND 00/100..................................... DOLLARS
or the aggregate unpaid principal amount of all Competitive Bid Loans made by
Bank to Borrower pursuant to Section 2.1C of the Credit Agreement, as
hereinafter defined, whichever is less, in lawful money of the United States of
America. As used herein, "Credit Agreement" means the Credit Agreement dated as
of August 14, 1997, among Borrower, the banks named therein and KeyBank National
Association, as Agent, as the same may from time to time be restated, amended or
otherwise modified. Capitalized terms used herein shall have the meanings
ascribed to them in the Credit Agreement.
Borrower also promises to pay interest on the unpaid principal amount
of each Competitive Bid Loan from time to time outstanding, from the date of
such Competitive Bid Loan until the payment in full thereof, at the rates per
annum which shall be determined in accordance with the provisions of Section
2.1C of the Credit Agreement. Such interest shall be payable on each date
provided for in such Section 2.1C; provided, however, that interest on any
principal portion which is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Competitive Bid Absolute Rate Loans and Competitive Bid LIBOR Loans, and
payments of principal of any thereof, will be shown on the records of Bank by
such method as Bank may generally employ; provided, however, that failure to
make any such entry shall in no way detract from Borrower's obligations under
this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be the Default Rate. All payments of principal of and interest
on this Note shall be made in immediately available funds. In the event of a
failure to pay interest or principal, when the same becomes due, Bank may
collect and Borrower agrees to pay a late charge of an amount equal to one-half
of one percent (1/2%) of the amount of such late payment.
This Note is one of the Competitive Bid Rate Notes referred to in
the Credit Agreement. Reference is made to the Credit Agreement for a
description of the right of the undersigned to
1
<PAGE> 58
anticipate payments hereof, the right of the holder hereof to declare this Note
due prior to its stated maturity, and other terms and conditions upon which this
Note is issued.
Except as expressly provided in the Credit Agreement, Borrower
expressly waives presentment, demand, protest and notice of any kind.
JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THE TRANSACTIONS RELATED THERETO.
AMCAST INDUSTRIAL CORPORATION
By:
------------------------------
Title:
----------------------
and
------------------------------
Title
-----------------------
2
<PAGE> 59
EXHIBIT F
FORM OF
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
____________________________________________________________ (the "Assignor")
and ______________________________________________________________ (the
"Assignee") is dated as of ___________________, 199_. The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement, dated as of August 14, 1997 (which, as it may from time to time be
amended, restated or otherwise modified is herein called the "Credit
Agreement"), among AMCAST INDUSTRIAL CORPORATION ("Borrower"), certain banks
listed on the signature pages thereof (collectively, "Banks" and, individually,
"Bank"), and KEYBANK NATIONAL ASSOCIATION, as agent for the Banks ("Agent").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement. The Assignor desires to
assign to the Assignee, and the Assignee desires to assume from the Assignor,
one hundred percent (100%) of the Commitment of the Assignor.
2. ASSIGNMENT. For and in consideration of the assumption of
obligations by the Assignee set forth in Section 3 hereof and other
consideration set forth herein, and effective as of the Assignment Effective
Date (as hereinafter defined), the Assignor does hereby sell, assign, transfer
and convey all of its right, title and interest in and to (a) the Commitment of
the Assignor (as in effect on the Assignment Effective Date), (b) any Loan made
by the Assignor which is outstanding on the Assignment Effective Date, (c) any
Note delivered to the Assignor pursuant to the Credit Agreement, and (d) the
Credit Agreement and the other Related Writings. Pursuant to Section 10.11A of
the Credit Agreement, on and after the Assignment Effective Date the Assignee
shall have the same rights, benefits and obligations as the Assignor had under
the Credit Agreement and the Related Writings, all determined as if the Assignee
were a "Bank" under the Credit Agreement with a Commitment of
_____________________________________________________ Dollars ($______________),
equaling __________________ percent (_______%) of the Total Commitment Amount.
The Assignment Effective Date (the "Assignment Effective Date") shall be two (2)
Business Days (or such shorter period agreed to by Agent) after a Notice of
Assignment substantially in the form of Attachment I hereto and any consents
substantially in the form of Attachment II hereto required to be delivered to
Agent, together with a fee of $2,500, in accordance with Section 10.11A of the
Credit Agreement, have been delivered to Agent; provided, however, that, in the
event that Borrower shall appropriately deliver a Notice of Borrowing prior to
the time at which all of conditions to the effectiveness of this Assignment
shall have been met, the Assignment Effective Date shall be the Business Day
immediately following the day upon which the Loans by the Banks are to be made
under such Notice of Borrowing. In no event shall the Assignment Effective Date
occur if the payments required to be made by the Assignee to the Assignor on the
Assignment Effective Date under Section 4 are not made on or prior to the
proposed Assignment Effective Date. The Assignor shall notify the Assignee of
the proposed Assignment Effective Date on the Business Day prior to the
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<PAGE> 60
proposed Assignment Effective Date and shall notify the Assignee of any pending
Notice of Borrowing which would delay such proposed Assignment Effective Date.
3. ASSUMPTION. For and in consideration of the assignment of rights by
the Assignor set forth in Section 2 hereof and the other consideration set forth
herein, and effective as of the Assignment Effective Date, the Assignee does
hereby accept that assignment, and assume and covenant and agree fully,
completely and timely to perform, comply with and discharge, each and all of the
obligations, duties and liabilities of the Assignor under the Credit Agreement
and the Related Writings which are assigned to the Assignee hereunder, which
assumption includes, without limitation, the obligation to fund the unfunded
portion of the Total Commitment Amount in accordance with the provisions set
forth in the Credit Agreement as if the Assignee were a "Bank" under the Credit
Agreement with ______________________________________________ Dollars
($____________) equaling _____________________ percent (_____%) of the Total
Commitment Amount. The Assignee agrees to be bound by all provisions relating to
"Banks" under and as defined in the Credit Agreement and the Related Writings,
including, without limitation, provisions relating to the payment of
indemnification. The Assignee agrees further to deliver to Agent, concurrently
herewith, a completed Administrative Questionnaire, substantially in the form
attached hereto as Attachment III.
4. PAYMENT OBLIGATIONS. On and after the Assignment Effective
Date, the Assignee shall be entitled to receive from Agent all payments of
principal, interest and fees with respect to Assignor's Commitment and
Commitment Percentage of the Loans. The Assignee shall advance funds directly to
Agent with respect to all Loans and reimbursement payments made on or after the
Assignment Effective Date. In consideration for the sale and assignment of Loans
hereunder, (a) with respect to all Prime Rate Loans outstanding on the
Assignment Effective Date, the Assignee shall pay the Assignor, on the
Assignment Effective Date, an amount in Dollars equal to the Assignor's
Commitment Percentage of all such Prime Rate Loans, and (b) with respect to each
LIBOR Loan outstanding on the Assignment Effective Date, (i) on the last day of
the Interest Period or Competitive Bid Interest Period, as applicable, therefor
or (ii) on such earlier date agreed to by the Assignor and the Assignee or (iii)
on the date on which any such LIBOR Loan either becomes due (by acceleration or
otherwise) or is prepaid (the date as described in the foregoing clauses (i),
(ii) or (iii) being hereinafter referred to as the "Payment Date"), the Assignee
shall pay the Assignor an amount in Dollars or the applicable Eurocurrency, as
the case may be, equal to such Assignor's Commitment Percentage of such LIBOR
Loan. On and after the Assignment Effective Date, the Assignee shall also remit
to the Assignor any amounts of interest on Loans and fees received from Agent
which relate to Assignor's Commitment Percentage of Loans accrued for periods
prior to the Assignment Effective Date, in the case of Prime Rate Loans, or the
Payment Date, in the case of LIBOR Loans, and not heretofore paid by the
Assignee to the Assignor. In the event interest for the period from the
Assignment Effective Date to but not including the Payment Date is not paid by
Borrower with respect to any LIBOR Loan sold by the Assignor to the Assignee
hereunder, the Assignee shall pay to the Assignor interest for such period on
such LIBOR Loan at the applicable rate provided by the Credit Agreement. In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
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<PAGE> 61
5. CREDIT DETERMINATION; LIMITATIONS ON ASSIGNOR'S LIABILITY. The
Assignee represents and warrants to the Assignor, Borrower, Agent and the other
Banks (a) that it is capable of making and has made and shall continue to make
its own credit determinations and analysis based upon such information as the
Assignee deemed sufficient to enter into the transaction contemplated hereby and
not based on any statements or representations by the Assignor, (b) the Assignee
confirms that it meets the requirements to be an assignee as set forth in
Section 10.11 of the Credit Agreement; (c) the Assignee confirms that it is able
to fund the Loans as required by the Credit Agreement; and (d) the Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement and the Related Writings
are required to be performed by it as a Bank thereunder. It is understood and
agreed that the assignment and assumption hereunder are made without recourse to
the Assignor and that the Assignor makes no representation or warranty of any
kind to the Assignee and shall not be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of the Credit Agreement or any Related Writings, (ii) any representation,
warranty or statement made in or in connection with the Credit Agreement or any
of the Related Writings, (iii) the financial condition or creditworthiness of
Borrower or any Guarantor, (iv) the performance of or compliance with any of the
terms or provisions of the Credit Agreement or any of the Related Writings, (v)
inspecting any of the property, books or records of Borrower or (vi) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be liable for any mistake, error of judgment, or action taken or omitted
to be taken in connection with the Loans, the Credit Agreement or the Related
Writings, except for its or their own bad faith or willful misconduct. The
Assignee appoints Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to Agent by the
terms thereof.
6. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, cost and expenses (including, without
limitation, attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's performance or
non-performance of obligations assumed under this Assignment Agreement.
7. SUBSEQUENT ASSIGNMENTS. After the Assignment Effective Date, the
Assignee shall have the right pursuant to Section 10.11 of the Credit Agreement
to assign the rights which are assigned to the Assignee hereunder to any entity
or person, provided that (a) any such subsequent assignment does not violate any
of the terms and conditions of the Credit Agreement, any of the Related
Writings, or any law, rule, regulation, order, writ, judgment, injunction or
decree and that any consent required under the terms of the Credit Agreement or
any of the Related Writings has been obtained, (b) the assignee under such
assignment from the Assignee shall agree to assume all of the Assignee's
obligations hereunder in a manner satisfactory to the Assignor and (c) the
Assignee is not thereby released from any of its obligations to the Assignor
hereunder.
8. REDUCTIONS OF AGGREGATE AMOUNT OF COMMITMENTS. If any reduction in
the Total Commitment Amount occurs between the date of this Assignment Agreement
and the Assignment Effective Date, the percentage of the Total Commitment Amount
assigned to the Assignee shall remain the percentage specified in Section 1
hereof and the dollar amount of the Commitment of the Assignee shall be
recalculated based on the reduced Total Commitment Amount.
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9. ENTIRE AGREEMENT. This Assignment Agreement and the attached consent
embody the entire agreement and understanding between the parties hereto and
supersede all prior agreements and understandings between the parties hereto
relating to the subject matter hereof.
10. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Ohio.
11. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth under each party's name on the signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[ADDRESS] [NAME OF ASSIGNEE]
By:
---------------------------------
Title:
------------------------------
[ADDRESS] [NAME OF ASSIGNOR]
By:
----------------------------------
Title:
-------------------------------
4
<PAGE> 63
GUARANTY OF PAYMENT OF DEBT
---------------------------
1. RECITALS.
Concurrently herewith, the Banks and Agent are entering into the Credit
Agreement, as hereinafter defined, with AMCAST INDUSTRIAL CORPORATION
("Borrower"). ___________ ________________________________________________, an
Indiana corporation, ("Guarantor") desires that the Banks grant the financial
accommodations to Borrower as described therein and other financial
accommodations.
Guarantor deems it to be in the direct pecuniary and business interests
of Guarantor that Borrower obtain from the Banks the Commitment, as defined in
the Credit Agreement, and the Loans and Letters of Credit, as hereinafter
defined, provided for in the Credit Agreement.
Guarantor understands that the Banks are willing to grant such
financial accommodations to Borrower only upon certain terms and conditions, one
of which is that the Guarantor guarantee the payment of the Debt, and this
instrument is being executed and delivered in consideration of each financial
accommodation, if any, granted to Borrower by the Banks and for other valuable
considerations.
2. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
2.1. "Agent" means KEYBANK NATIONAL ASSOCIATION, as Agent for the Banks
under the Credit Agreement, and its successors and assigns.
2.2. "Bank" or "Banks" means the banking institutions listed on Exhibit A
hereto, and each thereof, and their respective successors and assigns.
2.3. "Collateral" means, collectively, all property, if any, securing the
Debt or any part thereof at the time in question.
2.4. "Credit Agreement" means the Credit Agreement executed by and among
the Borrower, Agent and the Banks and dated as of the 14th day of August, 1997,
as it may be from time to time amended, restated or otherwise modified.
2.5. "Debt" means, collectively, (a) all Loans and all Letters of Credit;
(b) all other indebtedness now owing or hereafter incurred by Borrower to the
Banks pursuant to the Credit Agreement and the Notes executed in connection
therewith; (c) each renewal, extension, consolidation or refinancing of any of
the foregoing, in whole or in part; (d) all interest from time to time accruing
on any of the foregoing, and all commitment and other fees pursuant to the
Credit Agreement; (e) all other amounts payable by Borrower to Agent or any of
the Banks pursuant to the Credit Agreement or any Related Writing; and (f) all
costs and expenses, including attorney fees,
<PAGE> 64
incurred by Agent or the Banks in connection with the Credit Agreement or in
connection with the collection of any portion of the indebtedness described in
(a), (b), (c), (d) or (e) hereof.
2.6. "Letter of Credit" means any Letter of Credit, as defined in the
Credit Agreement.
2.7. "Loan" means any Loan, as defined in the Credit Agreement granted
pursuant to the Credit Agreement.
2.8. "Obligor" means any person or entity who, or any of whose
property, is or shall be obligated on the Debt or any part thereof in any manner
and includes, without limiting the generality of the foregoing, Borrower, any
Guarantor and any other co-maker, endorser, guarantor of payment, subordinating
creditor, assignor, grantor of a security interest, pledgor, mortgagor or any
hypothecator of property, if any.
Except as specifically defined herein, all terms shall have the meanings
ascribed to them in the Credit Agreement.
3. GUARANTY OF DEBT. Guarantor hereby absolutely and unconditionally guarantees
the prompt payment in full of all of the Debt as and when the respective parts
thereof become due and payable. If the Debt or any part thereof shall not be
paid in full when due and payable, Agent and the Banks, in each case, shall have
the right to proceed directly against Guarantor under this instrument to collect
the payment in full of the Debt, regardless of whether or not Agent or the Banks
shall have theretofore proceeded or shall then be proceeding against Borrower or
any other Obligor or Collateral, if any, or any of the foregoing, it being
understood that Agent and the Banks, in their sole discretion may proceed
against any Obligor and any Collateral, and may exercise each right, power or
privilege that Agent or the Banks may then have, either simultaneously or
separately, and, in any event, at such time or times and as often and in such
order as Agent or the Banks in their sole discretion may from time to time deem
expedient to collect the payment in full of the Debt.
4. PAYMENTS CONDITIONAL. Whenever Agent or any Bank shall credit any payment to
the Debt or any part thereof, whatever the source or form of payment, the credit
shall be conditional as to Guarantor unless and until the payment shall be final
and valid as to all the world. Without limiting the generality of the foregoing,
Guarantor agrees that if any check or other instrument so applied shall be
dishonored by the drawer or any party thereto, or if any proceeds of Collateral
or payment so applied shall thereafter be recovered by any trustee in bankruptcy
or anyone else, each Bank, in each case, may reverse any entry relating thereto
in its books and Guarantor shall remain liable therefor even if such Bank may no
longer have in its possession any evidence of the Debt to which the payment in
question was applied.
<PAGE> 65
5. GUARANTOR'S OBLIGATIONS ABSOLUTE AND UNCONDITIONAL. Regardless of the
duration of time, regardless of whether Borrower may from time to time cease to
be indebted to the Banks and irrespective of any act, omission or course of
dealing whatever on the part of Agent or any of the Banks, Guarantor's
liabilities and other obligations under this instrument shall remain in full
effect until the payment in full of the Debt. Without limiting the generality of
the foregoing:
5.1. BANKS HAVE NO DUTY TO MAKE ADVANCES. No Bank shall at any time be
under any duty to Guarantor to grant any financial accommodation to Borrower,
irrespective of any duty or commitment of any of the Banks to Borrower, or to
follow or direct the application of the proceeds of any such financial
accommodation;
5.2. GUARANTOR'S WAIVER OF NOTICE, PRESENTMENT, ETC. Guarantor waives
(a) notice of the granting of any Loan to Borrower or the incurring of any other
indebtedness by Borrower or the terms and conditions thereof, (b) presentment,
demand for payment and notice of dishonor of the Debt or any part thereof, or
any other indebtedness incurred by Borrower to any of the Banks, (c) notice of
any indulgence granted to any Obligor and (d) any other notice to which
Guarantor might, but for this waiver, be entitled;
5.3. BANKS' RIGHTS NOT PREJUDICED BY ACTION OR OMISSION. Agent and the
Banks in their sole discretion may, without any prejudice to their rights under
this instrument, at any time or times, without notice to or the consent of
Guarantor, (a) grant Borrower whatever financial accommodations that such Bank
may from time to time deem advisable, even if Borrower might be in default in
any respect and even if those financial accommodations might not constitute
indebtedness the payment of which is guaranteed hereunder, (b) assent to any
renewal, extension, consolidation or refinancing of the Debt or any part
thereof, (c) forbear from demanding security, if such Bank shall have the right
to do so, (d) release any Obligor or Collateral or assent to any exchange of
Collateral, if any, irrespective of the consideration, if any, received
therefor, (e) grant any waiver or consent or forbear from exercising any right,
power or privilege that such Bank may have or acquire, (f) assent to any
amendment, deletion, addition, supplement or other modification in, to or of any
writing evidencing or securing any Debt or pursuant to which any Debt is
created, (g) grant any other indulgence to any Obligor, (h) accept any
Collateral for, or any other Obligor upon, the Debt or any part thereof, and (i)
fail, neglect or omit in any way to realize upon any Collateral or to protect
the Debt or any part thereof or any Collateral therefor;
5.4. LIABILITIES SURVIVE GUARANTOR'S DISSOLUTION. Guarantor's
liabilities and other obligations under this instrument shall survive any
dissolution of Guarantor; and
5.5. LIABILITIES ABSOLUTE AND UNCONDITIONAL. Guarantor's liabilities
and other obligations under this instrument shall be absolute and unconditional
irrespective of any lack of validity or enforceability of the Credit Agreement,
the Notes, or any other agreement, instrument or document evidencing the Loans
or the Letters of Credit or related thereto, or any other defense available to
Guarantor in respect of this instrument.
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<PAGE> 66
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that (a)
Guarantor is a duly organized and validly existing corporation, in good standing
under the laws of the state of its incorporation (as referenced in the first
paragraph of this instrument), and is qualified to do business in Ohio and in
each other state where it is required to so qualify; (b) Guarantor has legal
power and right to execute and deliver this instrument and to perform and
observe the provisions hereof; (c) the officers executing and delivering this
instrument on behalf of Guarantor have been duly authorized to do so, and this
instrument, when executed, is legal and binding upon Guarantor in every respect;
(d) no litigation or proceeding is pending or threatened against Guarantor
before any court or any administrative agency which, in the opinion of
Guarantor's counsel, is reasonably expected to have a material adverse effect on
Guarantor; (e) Guarantor has received consideration which is the reasonable
equivalent value of the obligations and liabilities that Guarantor has incurred
to Agent and the Banks; (f) Guarantor is not insolvent as defined in any
applicable state or federal statute, nor will Guarantor be rendered insolvent by
the execution and delivery of this instrument to Agent and the Banks; (g)
Guarantor is not engaged or about to engage in any business or transaction for
which the assets retained by Guarantor shall be an unreasonably small capital,
taking into consideration the obligations to the Banks incurred hereunder; and
(h) Guarantor does not intend to, nor does Guarantor believe that Guarantor
will, incur debts beyond Guarantor's ability to pay them as they mature.
7. DISABILITY OF OBLIGOR. Without limiting the generality of any of the other
provisions hereof, Guarantor specifically agrees that upon the dissolution of
any Obligor and/or the filing or other commencement of any bankruptcy or
insolvency proceedings by, for or against any Obligor, including without
limitation, any assignment for the benefit of creditors or other proceedings
intended to liquidate or rehabilitate any Obligor, Agent and the Majority Banks,
in their sole discretion, may declare the unpaid principal balance of and
accrued interest on the Debt to be forthwith due and payable in full without
notice. Upon the occurrence of any of the events enumerated in the immediate
preceding sentence, Guarantor shall, upon Agent's or the Banks' demand whenever
made, purchase from the Banks (without recourse upon any Bank and without
warranties either express or implied) the Notes or any other evidence of the
Debt for an amount equal to the then unpaid principal balance of and accrued
interest on the Debt.
8. WAIVER OF GUARANTOR'S RIGHTS AGAINST BORROWER AND COLLATERAL. To the extent
permitted by law, Guarantor waives any claim or other right which Guarantor
might now have or hereafter acquire against Borrower or any other Obligor which
arises from the existence or performance of Guarantor's liabilities or other
obligations under this instrument, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any
right to participate in any claim or remedy of Agent or any Bank against
Borrower or any Collateral which Agent or any Bank now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law.
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<PAGE> 67
9. MAXIMUM LIABILITY OF GUARANTOR.
9.1. GUARANTOR'S LIABILITY LIMITED IN AMOUNT. Subject to Section 9.5
hereof, but otherwise notwithstanding anything to the contrary contained in this
instrument, the maximum liability of Guarantor under this instrument shall not
exceed the sum of (a) that portion of the Loans or the Letters of Credit the
proceeds of which are used by Borrower to make Valuable Transfers (as
hereinafter defined) to Guarantor, plus (b) ninety-five percent (95%) of the
Adjusted Net Worth (as hereinafter defined), but only to the extent that the
Adjusted Net Worth is a positive number, of Guarantor at the date of this
instrument.
9.2. DEFINITION OF TERMS USED IN SECTION 9. For purposes of this
section 9:
"Adjusted Net Worth" shall mean, as of any date of
determination thereof, the excess of (a) the amount of the fair saleable value
of the assets of Guarantor as of the date of such determination, determined in
accordance with applicable federal and state laws governing determinations of
insolvency of debtors, over (b) the amount of all liabilities of Guarantor,
contingent or otherwise, as of the date of such determination, determined on the
basis provided in the preceding clause (a), and in all events prior to giving
effect to Valuable Transfers.
"Valuable Transfer" shall mean (a) all loans, advances or
capital contributions made to the Guarantor with proceeds of the Loans or the
Letters of Credit, (b) the fair market value of all property acquired with
proceeds of the Loans or the Letters of Credit and transferred to Guarantor, (c)
the interest on and the fees in respect of the Loans or the Letters of Credit,
the proceeds of which are used to make such a Valuable Transfer, and (d) the
value of any quantifiable economic benefits not included in clauses (a) through
(c) above, but includable in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, accruing to Guarantor as
a result of the Loans or the Letters of Credit.
9.3. DEBT MAY EXCEED GUARANTOR'S MAXIMUM LIABILITY. Guarantor agrees
that the Debt may at any time and from time to time exceed the maximum liability
of Guarantor hereunder without impairing this instrument or affecting the rights
and remedies of Agent or of the Banks hereunder.
9.4. GUARANTOR'S LIABILITY NOT REDUCED BY PAYMENTS BY OTHERS. No
payment or payments made by Borrower, Guarantor or any other person or received
or collected by Agent or the Banks from Borrower, Guarantor or any other person
by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Debt shall be deemed to modify, reduce, release or otherwise affect the
liability of Guarantor under this instrument and Guarantor shall,
notwithstanding any such payment or payments (other than payments made to Agent
or the Banks by Guarantor or payments received or collected by Agent or the
Banks from Guarantor), remain liable for the Debt up to the maximum liability
amount of Guarantor set forth above until the Debt is indefeasibly paid in full
in cash.
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9.5. ADJUSTMENTS TO MAXIMUM LIABILITY. Anything in this Section 9 to
the contrary notwithstanding, in no event shall Guarantor's liability set forth
above exceed the maximum amount that, after giving effect to the incurring of
the obligations hereunder and to any rights to contribution of such Guarantor
from other affiliates of Borrower, would not render Agent's or the Banks' rights
to payment hereunder void, voidable or avoidable under any applicable fraudulent
transfer law; and further provided that if a greater amount of the Debt than the
maximum liability set forth in this Section 9 could be repaid by Guarantor as a
result of an increase in Guarantor's Adjusted Net Worth subsequent to the date
hereof, without rendering Agent's or the Banks' rights to payment hereunder
void, voidable or avoidable under any applicable fraudulent transfer law, then
the amount of Guarantor's maximum liability calculated in Subsection 9.1 hereof
shall be calculated based upon Guarantor's Adjusted Net Worth on such later
date, rather than the date of execution of this instrument.
10. NOTICE. All notices, requests, demands and other communications provided for
hereunder shall be in writing and, if to Guarantor, mailed or delivered to it,
addressed to it at the address specified on the signature page of this
instrument, if to Agent or a Bank, mailed or delivered to it, addressed to the
address of Agent or such Bank specified on the signature pages of the Credit
Agreement. All notices, statements, requests, demands and other communications
provided for hereunder shall be deemed to be given or made when delivered or
forty-eight (48) hours after being deposited in the mails with postage prepaid
by registered or certified mail, addressed as aforesaid, or sent by facsimile
with telephonic confirmation of receipt, except that notices from Guarantor to
Agent or the Banks pursuant to any of the provisions hereof shall not be
effective until received by Agent or the Banks.
11. MISCELLANEOUS. This instrument shall bind Guarantor and Guarantor's
successors and assigns and shall inure to the benefit of Agent and each Bank and
their respective successors and assigns, including (without limitation) each
holder of any Note evidencing any Debt. If at any time one or more provisions of
this instrument is or becomes invalid, illegal or unenforceable in whole or in
part, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. This instrument
constitutes a final written expression of all of the terms of this instrument,
is a complete and exclusive statement of those terms and supersedes all oral
representations, negotiations and prior writings, if any, with respect to the
subject matter hereof. The relationship among (a) Guarantor and (b) Agent and
the Banks with respect to this instrument is and shall be solely that of debtor
and creditors, respectively, and Agent and the Banks shall have no fiduciary
obligation toward Guarantor with respect to this instrument or the transactions
contemplated thereby. The captions herein are for convenience of reference only
and shall be ignored in interpreting the provisions of this instrument.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION. The provisions of this instrument
and the respective rights and duties of Guarantor, Agent, and the Banks
hereunder shall
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be governed by and construed in accordance with Ohio law, without regard to
principles of conflict of laws. Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of any Ohio state or federal court sitting in
Cleveland, Ohio, over any action or proceeding arising out of or relating to
this instrument, any Loan Document or any Related Writing, and Guarantor hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Ohio state or federal court. Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, any objection it may
now or hereafter have to the laying of venue in any action or proceeding in any
such court as well as any right it may now or hereafter have to remove such
action or proceeding, once commenced, to another court on the grounds of FORUM
NON CONVENIENS or otherwise. Guarantor agrees that a final, nonappealable
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
13. JURY TRIAL WAIVER. GUARANTOR, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, ANY OF THE BANKS, BORROWER AND/OR
GUARANTOR ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN EACH OF THEM AND GUARANTOR IN CONNECTION WITH
THIS INSTRUMENT OR ANY NOTE OR OTHER AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED
OR DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS
WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR THE
BANKS' ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN THIS INSTRUMENT, ANY NOTE OR ANY OTHER GUARANTY
OF PAYMENT, AGREEMENT, INSTRUMENT OR DOCUMENT RELATED THERETO.
Signed as of the 14th day of August, 1997, at Dayton, Ohio.
Address: ____________________ ___________________________________
____________________
Attn: _______________ By: ________________________________
and:
_________________________________
Title:
______________________________
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EXHIBIT A
KEYBANK NATIONAL ASSOCIATION
8
