<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the period ended October 1, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____ to ____
Commission File Number 0-13787
INTERMET CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Georgia 58-1563873
- ---------------------------- ----------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
5445 Corporate Drive, Suite 200, Troy, Michigan 48098
-----------------------------------------------------
(Address of principal executive offices and zip code)
(810) 641-1900
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
----- ----
Shares outstanding of each of the issuer's classes of common stock at
November 10, 1995: 24,738,374 shares of Common Stock, $0.10 par value
share.
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<PAGE>
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
<TABLE>
<CAPTION>
Intermet Corporation
Interim Condensed Consolidated Balance Sheets
December 31, October 1,
1994 1995
-------------------------------
(In thousands of dollars)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 13,718 $ 14,647
Accounts receivable:
Trade, less allowance for doubtful accounts of
$687 in 1994 and $901 in 1995 65,851 64,435
Other 7,176 10,058
------------------------------
73,027 74,493
Inventories 32,626 29,076
Other current assets 3,246 3,058
------------------------------
Total current assets 122,617 121,274
Property, plant and equipment, at cost 349,097 368,218
Less:
Foreign industrial development grants, net of
amortization (5,280) (5,632)
Accumulated depreciation and amortization (177,934) (202,796)
------------------------------
Net property, plant and equipment 165,883 159,790
Other noncurrent assets 17,764 15,093
------------------------------
$ 306,264 $ 296,157
==============================
</TABLE>
See accompanying notes
1
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
December 31, October 1,
1994 1995
-------------------------------
(In thousands of dollars)
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 39,034 $ 31,928
Income taxes 3,257 15,825
Accrued liabilities 31,553 35,027
Notes payable 7,670 1,565
Long-term debt due within one year 12,017 2,646
-------------------------------
Total current liabilities 93,531 86,991
Noncurrent liabilities:
Long-term debt due after one year 87,698 61,098
Retirement benefits 43,906 44,936
Other noncurrent liabilities 10,321 10,870
-------------------------------
Total noncurrent liabilities 141,925 116,904
Minority interest 2,837 2,837
Shareholders' equity:
Common stock 2,464 2,473
Capital in excess of par value 52,150 52,648
Retained earnings 11,730 31,164
Accumulated translation adjustments 2,959 4,429
Minimum pension liability adjustment (1,164) (1,164)
Unearned restricted stock (168) (125)
-------------------------------
Total shareholders' equity 67,971 89,425
-------------------------------
$306,264 $296,157
===============================
</TABLE>
See accompanying notes.
2
<PAGE>
Intermet Corporation
Interim Condensed Consolidated Statements of Income
<TABLE>
<CAPTION>
Three months ended Nine months ended
------------------------ -------------------------
October 2, October 1, October 2, October 1,
1994 1995 1994 1995
--------------------------------------------------------
(In thousands of dollars, except per share data)
<S> <C> <C> <C> <C>
Net sales $120,990 $117,331 $364,461 $419,644
Cost of sales 110,248 104,604 324,958 357,807
-------------------------- --------------------------
Gross profit 10,742 12,727 39,503 61,837
Operating expenses:
Selling 1,356 1,047 4,246 3,418
General and administrative 6,598 4,263 20,427 17,615
-------------------------- --------------------------
7,954 5,310 24,673 21,033
-------------------------- --------------------------
Operating profit 2,788 7,417 14,830 40,804
Other income and expenses:
Interest income 38 117 125 181
Interest expense (1,962) (1,399) (4,926) (5,399)
Other, net 26 105 152 (5)
-------------------------- --------------------------
(1,898) (1,177) (4,649) (5,223)
Income before income taxes 890 6,240 10,181 35,581
Provision for income taxes 517 2,863 5,659 16,147
------------------------- --------------------------
Net income $ 373 $ 3,377 $4,522 $19,434
========================= ==========================
Earnings per share $ .02 $ .14 $ .18 $ .78
======================== ==========================
</TABLE>
See accompanying notes.
3
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<PAGE>
Intermet Corporation
Interim Condensed Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Nine months ended
October 2, October 1,
1994 1995
--------------------------
(In thousands of dollars)
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 4,522 $ 19,434
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 21,167 25,075
Deferred income taxes (1,300) (147)
Other 159 (167)
Changes in assets and liabilities:
Accounts receivable (24,943) (63)
Inventories 1,419 4,025
Accounts payable and accrued liabilities (341) 6,943
Other assets and liabilities 2,696 810
--------------------------
Net cash provided by operating activities 3,379 55,910
INVESTMENT ACTIVITIES
Additions to property, plant and equipment (17,948) (16,720)
Proceeds sale of property, plant and equipment 491 4,496
Other (403) (176)
----------------------------
Net cash used in investing activities (17,860) (12,400)
FINANCIAL ACTIVITIES
Increase in borrowings 6,397 15,000
Reduction in borrowings (1,901) (58,789)
Issuance of common stock 128 507
Other (30) (316)
-----------------------------
Net cash provided by (used in) financing activities 4,594 (43,598)
Effect of exchange rate changes on cash and cash
equivalents 8 1,017
-----------------------------
Net increase (decrease) in cash and cash equivalents (9,879) 929
Cash and cash equivalents at beginning of period 11,240 13,718
-----------------------------
Cash and cash equivalents at end of period $ 1,361 $ 14,647
==============================
</TABLE>
See accompanying notes.
4
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Intermet Corporation
Notes to Interim Condensed Consolidated Financial Statements
October 1, 1995
1. The condensed consolidated balance sheet at December 31,
1994 has been derived from audited consolidated financial
statements. The interim condensed consolidated financial
statements at October 1, 1995 and for the three and nine
month periods ended October 2, 1994 and October 1, 1995
are unaudited; however, in the opinion of management,
all adjustments, consisting only of normal recurring
accruals, necessary for a fair presentation have been
included. The results of operations for the nine month
period ended October 1, 1995 are not necessarily indicative
of the results to be expected for the full year.
2. Inventories consist of the following (in thousands of
dollars):
<TABLE>
<CAPTION>
December 31, October 1,
1994 1995
--------------------------
<S> <C> <C>
Finished goods $ 4,350 $ 4,583
Work in process 4,032 3,816
Raw materials 6,566 4,941
Supplies and patterns 17,678 15,736
---------------------------
$32,626 $29,076
===========================
</TABLE>
3. Property, plant and equipment consist of the following (in
thousands of dollars):
<TABLE>
<CAPTION>
December 31, October 1,
1994 1995
--------------------------
<S> <C> <C>
Land $ 3,699 $ 3,712
Buildings and improvements 77,514 79,766
Machinery and equipment 253,518 265,537
Construction in progress 14,366 19,203
--------------------------
$ 349,097 $368,218
==========================
</TABLE>
5
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Notes to Interim Condensed Consolidated Financial Statements
(continued)
4. Long-term debt consists of the following (in thousands of
dollars):
<TABLE>
<CAPTION>
December 31, October 1,
1994 1995
--------------------------
<S> <C> <C>
Intermet $ 85,162 $ 52,634
Subsidiaries 14,553 11,110
--------------------------
Total long-term debt 99,715 63,744
Less amounts due within one year 12,017 2,646
--------------------------
$ 87,698 $ 61,098
===========================
</TABLE>
5. On October 6, 1995, the Company's wholly-owned
subsidiary, PBM Industries, Inc. (PBM), sold
substantially all of its assets to PBM Acquisition
Limited. A loss of $1.4 million resulted from the sale.
In exchange therefore, the Company received
$5.3 million in cash plus a $2.5 million subordinated
promissory note of PBM Acquisition Limited. Neither
PBM nor the Company nor any of their affiliates,
directors or officers has any material relationship
with PBM Acquisition Limited. PBM had sales of $35
million in 1994. The Company filed Form 8-K on the
sale on dated October 6, 1995.
On October 18, 1995, the Company's wholly-owned
subsidiary, InterMotive Technologies, Inc.
(InterMotive), sold its property, plant and equipment
to Ricardo - North America Detroit, Inc. and Ricardo
Group, plc. In exchange therefor, the Company received
$4.4 million in cash, which covered the net book value of
the property, plant and equipment. Neither InterMotive
nor the Company nor any of their affiliates, directors or
officers has any material relationship with Ricardo -
North America Detroit, Inc. InterMotive had sales of
$5 million in 1994. The Company filed Form 8-K on the
sale dated October 18, 1995.
6
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<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Materials Changes in Financial Condition
- ----------------------------------------
The Company's financial position continues to improve. Sales are
up $55.2 million for nine months versus the comparable period for
1994. Earnings for nine months are $19.4 million versus $4.5
million for 1994. Funded debt has been reduced over $42 million
and the debt-to-capital ratio dropped to 42% compared to 61% on
December 31, 1994.
During the nine months ended October 1, 1995 the Company charged a
total of $3.8 million against reserves established in 1993 and 1994 for
restructuring, severance and retirement pay and related benefit
costs. This activity will continue throughout the balance of the
year.
Material Changes in Results of Operations
- -----------------------------------------
Sales for the third quarter were down slightly ($3.6 million)
from the year-a-ago quarter. However, as mentioned above year-
to-date sales are up $55.2 million or (15%). Sales were higher
both in the U.S. and Europe as the Company's principal market,
automobiles and light trucks, remained relatively strong. Over
$28 million of the year-to-date growth resulted from the new
production line added at the Company's New River Foundry in
Virginia. This line was not operating in the comparable nine
months of 1994. In addition, a stronger German mark contributed
over $7 million to the year-to-date sales figure. As expected
the sales growth in the second half of 1995 has slowed relative
to sales in the first half. Sales are somewhat parallel to
automotive and truck sales. The introduction of new automotive
casting components, such as those introduced at New River
Foundry, allows for continued sales growth.
Gross profit was up for the third quarter and is up significantly
for nine months. The nine month results over 1994 are largely
due to the higher results in the first half of 1995. Overall
margins for nine months of 1995 are 14.7% compared to 10.8% for
the comparable period in 1994. Most plants have contributed
to the improved results for 1995.
Improved margins combined with higher sales led to operating
profit more than doubling for the third quarter as well as nine
months of 1995 as compared to the comparable period in 1994.
Management expects the sales and profit momentum to continue
for the balance of 1995.
Interest expense for the third quarter was down $.5 million from
the second quarter of 1995 and $600,000 from the same
period last year. Most of this decrease is attributable to the
reduction in debt. Interest expense on a year-to-date basis is
$500,000 higher than for the same period a year ago. Higher
interest rates in 1995 as well as the increase in business
activity resulted in higher interest expense over the nine months
ended October 2, 1994.
7
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<PAGE>
The Company's effective income tax rate was 46% in the third
quarter and 45% for nine months of 1995. In 1994 the effective
rate was approximately 58% for the third quarter and 56% for the
nine month period ended October 2, 1994. A greater portion of
consolidated pretax income was earned in the U.S. in 1995. This
reduced the effect of higher foreign tax rates on the overall effective
income tax rate. Higher pretax income also mitigated the effect
on the overall tax rate of nondeductible charges and differences
in state income tax rates among the U.S. subsidiaries.
8
<PAGE>
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
-----------------
In August 1991 Lynchburg Foundry Company ("Lynchburg"),
a wholly-owned subsidiary of the Registrant, was served
with a complaint (the "Complaint") by the United States
Environmental Protection Agency (the "EPA"). The
Complaint alleged certain violations by Lynchburg of
the Resource Conservation and Recovery Act, the most
significant of which related to the treatment of
certain hazardous waste at two of Lynchburg's
foundries. In November 1994 Lynchburg signed a consent
order agreeing to pay a penalty of $330,000. Payment
of this amount was made in September 1995.
The Registrant has entered into negotiations with the
Office of the Ohio Attorney General with respect to
certain past violations by the Registrant's Ironton,
Ohio foundry of Ohio water pollution laws and
regulations. The Attorney General's office has advised
the Registrant that it could avoid litigation with
respect to such violations by entering into a consent
order. The parties have tentatively agreed to a
penalty of $285,000 and documentation to effectuate the
settlement is being prepared.
A complaint was filed on October 6, 1995 in the
Superior Court of Fulton County, Georgia by Brickell
Partners, a Florida partnership, against the Registrant
and each director of the Registrant except George W.
Mathews, Jr. This complaint was brought on behalf of
the plaintiff and, purportedly, public stockholders of
the Registrant, as a class. The complaint alleges that
the named directors breached their fiduciary duties by
failing to properly consider an offer for Registrant by
GWM Inc. and Kelso & Company. The complaint alleges
the named directors deprived the plaintiff and the
class of the receipt of maximum value for their shares.
The plaintiff demands that the named directors be
ordered to carry out their fiduciary duties, that
damages in an unspecified amount be awarded to the
plaintiff and the class and that attorney's fees and
costs be granted to the plaintiff. The Registrant's
response to the complaint is due December 22, 1995.
9
<PAGE>
<PAGE>
Item 2. Changes in Securities
---------------------
On October 6, 1995, the Registrant's Board of Directors
declared a dividend of one right ("Right") for each
share of common stock of the Registrant, held as of the
close of business on October 17, 1995. Each Right will
be issued pursuant to a Shareholder Protection Right
Agreement between the Registrant and Trust Company Bank
as Rights Agent. The terms of the Rights are
summarized in a Form 8-K filed by the Registrant on
October 11, 1995.
On October 6, 1995, the Registrant's Board of Directors
amended the Registrant's Bylaws to add Article I,
Section 9 regarding advance notice of shareholder
proposals.
Item 3. Defaults Upon Senior Securities
-------------------------------
None
Item 4. Submission of Matters to a Vote of Securities Holders
-----------------------------------------------------
None
Item 5. Other Information
-----------------
On August 21, 1995, the Company amended and restated
its revolving credit agreement with its bank
lending group. The agreement continues to provide
loans up to $75 million and DM 8 million (approximately
$5.6 million). The borrowing limit is reduced by
certain standby letters of credit issued by the
Company. The Company's uncommitted line of credit
agreement has been revised to provide for loans up to
$15 million which is up from a $12 million limit. The
Company's term loan agreement with Prudential Insurance
Company of America remains at $25 million.
The Company's German subsidiary revolving credit
agreement remains in place which permits borrowings up
to DM 24 million (approximately $16.8 million).
10
<PAGE>
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
---------------------------------
(a) The following Exhibits are filed as of part of this
report:
Exhibit
Number Description
--------- ----------------------------
3.1 and 4.1 Bylaws of the Registrant, as amended
4.2 Shareholder Protection Rights Agreement
("Rights Agreement"), dated as of October 6,
1995 between Intermet Corporation and Trust
Company Bank, as Rights Agent (previously
filed with the Commission on the Registrant's
Form 8-K related to the Rights Agreement, dated
October 6, 1995, and incorporated herein by
reference).
10.1 Asset Purchase Agreement ("Asset Purchase Agreement")
among the Registrant, Intermet Machining, Inc., PBM
Industries, Inc. and PBM Acquisition Limited,
dated September 6, 1995, (previously filed
with the Commission on the Registrant's Form
8-K related to the Asset Purchase Agreement, dated
October 6, 1995, and incorporated herein by reference).
10.2 Amended and Restated Credit Agreement, dated
August 21, 1995, by and among the Registrant,
Trust Company Bank as lender and agent and
the various lenders named therein.
10.3 Amendment dated August 21, 1995 to Note
Purchase Agreement, dated December 11, 1992
by and between the Registrant and The
Prudential Insurance Company of America.
11.1 Computation of Earnings per Common Share
27.1 Financial Data Schedule
(b) None
11
<PAGE>
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
INTERMET CORPORATION
--------------------
By:/s/Doretha J. Christoph
Doretha J. Christoph
Vice-President Finance
(Principal Financial Officer)
DATE: November 15, 1995
13
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
--------- ---------------------------
3.1 and 4.1 Bylaws of the Registrant, as amended
10.2 Amended and Restated Credit Agreement, dated
August 21, 1995, by and among the Registrant,
Trust Company Bank as lender and agent and
the various lenders named therein.
10.3 Amendment dated August 21, 1995 to Note
Purchase Agreement, dated December 11, 1992
by and between the Registrant and The
Prudential Insurance Company of America.
11.1 Computation of Earnings per Common Share
27.1 Financial Data Schedule
<PAGE>
BY-LAWS
OF
INTERMET CORPORATION
(As Amended through October 6, 1995)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be
in the State of Georgia, County of Cobb.
Section 2. Other Offices. The corporation may also have
offices at such other places both within and without the State of Georgia
as the board of directors may from time to time determine and the business
of the corporation may require or make desirable.
ARTICLE II
SHAREHOLDERS MEETINGS
Section 1. Annual Meetings. The annual meeting of the
shareholders of the corporation shall be held at the principal office of
the corporation or at such other place within or without the United States
as may be determined by the board of directors, at 10:00 a.m. on the last
business day of the fifth month following the close of each fiscal year or
at such other time and date prior thereto and following the close of the
fiscal year as such is determined by the board of directors, for the
purpose of electing directors and transacting such other business as may be
properly brought before the meeting.
Section 2. Special Meetings. Special meetings of the
shareholders shall be held at the principal office of the corporation or at
such other place within or without the United States as may be designated
in the notice of said meetings, upon call of the chairman of the board of
directors or the president and shall be called by the president or the
secretary when so directed by the board of directors or at the request
in writing of shareholders owning at least 50% of the issued and
outstanding capital stock of the corporation entitled to vote thereat.
Any such request shall state the purposes for which the meeting is
to be called.
Section 3. Notice of Meetings. Written notice of every
meeting of shareholders, stating the place, date and hour of the meetings,
shall be given personally or by mail to each shareholder of record entitled
to vote at such meeting not less than 10 nor more than 50 days before the date
of the meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with first class postage (air mail postage
if the address is outside of the United States) thereon prepaid addressed to
the shareholder at his address as it appears on the corporation's record
of shareholders. Attendance of a shareholder at a meeting of shareholders
shall constitute a waiver of notice of such meeting and of all objections
to the place or time of meeting, or the manner in which it has been called
or convened, except when a shareholder attends a meeting solely for the
purpose of stating, at the beginning of the meeting, any such objection
to the transaction of any business. Notice need not be given to any
shareholder who signs a waiver of notice, in person or by proxy, either
before or after the meeting.
Section 4. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of the shareholders except as otherwise provided
by statute, by the articles of incorporation, or by these by-laws. If a
quorum is not present or represented at any meeting of the shareholders, a
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majority of the shareholders entitled to vote thereat, present in person or
represented by proxy, may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified. If the adjournment
is for more than 30 days, or it after the adjournment a new record is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at the meeting.
Section 5. Order of Business. At the annual meeting of
shareholders the order of business shall be as follows:
1. Calling meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last
previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 6. Voting. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power,
present in person or represented by proxy, shall decide any question
brought before such meeting, unless the question is open upon which by
express provision of law or of the articles of incorporation, a different
vote is required, in which case such express provision shall govern and
control the decision of the question. Each shareholder shall at every
meeting of the shareholders be entitled to one vote, in person or by
proxy, for each share of the capital stock having voting power registered
in his name on the books of the corporation, but no proxy shall be voted
or acted upon after 11 months from its date, unless otherwise provided
in the proxy.
Section 7. Consent of Shareholders. Any action required or
permitted to be taken at any meeting of the shareholders may be taken
without a meeting if all of the shareholders consent thereto in writing,
setting forth the action so taken. Such consent shall have the same force
and effect as a unanimous vote of shareholders.
Section 8. List of Shareholders. The corporation shall keep
at its registered office or principal place of business, or at the office
of its transfer agent or registrar, a record of its shareholders, giving
their names and addresses and the number, class and series, if any, of the
shares held by each. The officer who has charge of the stock transfer
books of the corporation shall prepare and make, before every meeting of
shareholders or any adjournment thereof, a complete list of the
shareholders entitled to vote at the meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number and
class and series, if any, of shares held by each. The list shall be
produced and kept open at the time and place of the meeting and shall be
subject to inspection by any shareholder during the whole time of the
meeting for the purposes thereof. The said list may be the corporation's
regular record of shareholders if it is arranged in alphabetical order or
contains an alphabetical index.
Section 9. Advance Notice of Shareholder Proposals. At
any annual or special meeting of shareholders, proposals by shareholders
and persons nominated for election as directors by shareholders shall
be considered only if advance notice thereof has been timely given as
provided herein and such proposals or nominations are otherwise
proper for consideration under applicable law and the articles of
incorporation and by-laws of the corporation. Notice of any proposal
-2-
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<PAGE>
to be presented by any shareholder or of the name of any person to be
nominated by any shareholder for election as a director of the
corporation at any meeting of shareholders shall be delivered to the
secretary of the corporation at its principal executive office not
less than 60 nor more than 90 days prior to the date of the meeting;
provided, however, that if the date of the meeting is first publicly
announced or disclosed (in a public filing or otherwise) less than 70
days prior to the date of the meeting, such advance notice shall be
given not more than ten days after such date is first so announced or
disclosed. Public notice shall be deemed to have been given more
than 70 days in advance of the annual meeting if the corporation
shall have previously disclosed, in these by-laws or otherwise, that
the annual meeting in each year is to be held on a determinable date,
unless and until the Board determines to hold the meeting on a
different date. Any shareholder who gives notice of any such
proposal shall deliver herewith the text of the proposal to be
presented and a brief written statement of the reasons why such
shareholder favors the proposal and setting forth such shareholder's
name and address, the number and class of all shares of each class of
stock of the corporation beneficially owned by such shareholder and
any material interest of such shareholder in the proposal (other than
as a shareholder). Any shareholder desiring to nominate any person
for election as a director of the corporation shall deliver with such
notice a statement in writing setting forth the name of the person to
be nominated, the number and class of all shares of each class of
stock of the corporation beneficially owned by such person, the
information regarding such person required by paragraphs (a), (e) and
(f) of Item 401 of Regulation S-K adopted by the Securities and
Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange
Commission applicable to the corporation), such person's signed
consent to serve as a director of the corporation if elected, such
shareholder's name and address and the number and class of all shares
of each class of stock of the corporation beneficially owned by such
shareholder. As used herein, shares "beneficially owned" shall mean
all shares as to which such person, together with such person's
affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, may be deemed to beneficially own
pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, as well as all shares as to which such person, together with
such person's affiliates and associates, has the right to become the
beneficial owner pursuant to any agreement or understanding, or upon
the exercise of warrants, options or rights to convert or exchange
(whether such rights are exercisable immediately or only after the
passage of time or the occurrence of conditions). The person
presiding at the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the meeting,
shall determine whether such notice has been duly given and shall
direct that proposals and nominees not be considered if such notice
has not been given.
ARTICLE III
DIRECTORS
Section 1. Powers. Except as otherwise provided by any legal
agreement among shareholders, the property, affairs and business of the
corporation shall be managed and directed by its board of directors, which
may exercise all powers of the corporation and do all lawful acts and
things which are not by law, by any legal agreement among shareholders, by
the articles of incorporation or by these by-laws directed or required to
be exercised or done by the shareholders.
Section 2. Number, Election and Term. The number of directors
which shall constitute the whole board shall be twelve (12). Provided,
however, the number of directors may be increased or decreased from time to
time by the board of directors by amendment of this by-law, but no decrease
shall have the effect of shortening the term of an incumbent director.
-3-
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<PAGE>
Except as hereinafter provided, the directors shall be elected by
plurality vote at the annual meeting of shareholders, and each director
elected shall hold office until his successor is elected and qualified or
until his earlier resignation, removal from office or death. Directors
shall be natural persons who have attained the age of 18 years, but need
not be residents of the State of Georgia or shareholders of the corporation.
Section 3. Vacancies. Vacancies, including vacancies
resulting from any increase in the number of directors, but not including
vacancies resulting from removal from office by the shareholders, may be
filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and a director so chosen shall
hold office until the next annual election and until his successor is duly
elected and qualified unless sooner displaced. If there are no directors
in office, then vacancies shall be filled through election by the
shareholders.
Section 4. Meetings and Notice. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Georgia. Regular meetings of the board of directors
may be held without notice at such time and place as shall from time to
time be determined by resolution of the board. Special meetings of the
board may be called by the chairman of the board or president or by any two
directors on one day's oral, telegraphic or written notice duly given or
served on each director personally, or three days' notice deposited, first
class postage (air mail postage if the address is outside of the United
States) prepaid, in the United States mail. Such notice shall state a
reasonable time, date and place of meeting, but the purpose need not be
stated therein. Notice need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a
director at a meeting shall constitute a waiver of notice of such meeting
and waiver of all objections to the place and time of the meeting, or the
manner in which it has been called or convened except when the director
states, at the beginning of the meeting, any such objection or objections
to the transaction of business.
Section 5. Quorum. At all meetings of the board a majority of
directors shall constitute a quorum for the transaction of business, and
the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the board, except as may be otherwise
specifically provided by law, by the articles of incorporation, or by these
by-laws. If a quorum shall not be present at any meeting of the board, the
directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
Section 6. Conference Telephone Meeting. Unless the articles of
incorporation or these by-laws otherwise provide, members of the board of
directors, or any committee designated by the board, may participate in a
meeting of the board or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other. Participation in the meeting shall constitute presence in
person.
Section 7. Consent of Directors. Unless otherwise restricted by
the articles of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board
or committee, as the case may be, consent thereto in writing, setting forth the
action so taken, and the writing or writings are filed with the minutes of the
proceedings of the board or committee. Such consent shall have the same force
and effect as a unanimous vote of the board.
Section 8. Committees. The board of directors may, by resolution
passed by a majority of the whole board, designate from among its members one
or more committees, each committee to consist of two or more directors. The
board may designate one or more directors as alternate members of any
committee, who may replace any absent member at any meeting of such committee.
Any such committee, to the extent provided in the resolution, shall have and
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may exercise all of the authority of the board of directors in the management
of the business and affairs of the corporation except that it shall have no
authority with respect to (1) amending the articles of incorporation or these
by-laws; (2) adopting a plan of merger or consolidation; (3) the sale, lease,
or exchange or other disposition of all or substantially all of the property
and assets of the corporation; and (4) a voluntary dissolution of the
corporation or a revocation thereof. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the board of directors. A majority of each committee may determine its
action and may fix the time and places of its meetings, unless otherwise
provided by the board of directors. Each committee shall keep regular minutes
of its meetings and report the same to the board of directors when required.
Section 9. Removal of Directors. At any shareholders' meeting
with respect to which notice of such purpose has been given, any director may
be removed from office, with or without cause, by the vote of shareholders
representing a majority of the issued and outstanding capital stock entitled to
vote for the election of directors, and his successor may be elected at the
same or any subsequent meeting of shareholders; provided that to the extent any
vacancy created by such removal is not filled by such an election within 60
days after such removal, the remaining directors shall, by majority vote,
fill any such vacancy.
Section 10. Compensation of Directors. Directors shall be
entitled to such reasonable compensation for their services as directors or
members of any committee of the board as shall be fixed from time to time by
resolution adopted by the board, and shall also be entitled to reimbursement
for any reasonable expenses incurred in attending any meeting of the board or
any such committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be
chosen by the board of directors and shall be a chairman of the board, a
president, a secretary and a treasurer. The board of directors may also choose
one or more vice-presidents, assistant secretaries and assistant treasurers.
Any number of offices, except the offices of president and secretary may be
held by the same person. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 2. Compensation. The salaries of all officers and agents
of the corporation shall be fixed by the board of directors or a committee or
officer appointed by the board.
Section 3. Term of Office. Unless otherwise provided by
resolution of the board of directors, the principal officers shall be chosen
annually by the board at the first meeting of the board following the annual
meeting of shareholders of the corporation, or as soon thereafter as is
conveniently possible. Subordinate officers may be elected from time to time.
Each officer shall serve until his successor shall have been chosen and
qualified, or until his death, resignation or removal.
Section 4. Removal. Any officer may be removed from office at any
time, with or without cause, by the board of directors whenever in its judgment
the best interest of the corporation will be served thereby.
Section 5. Vacancies. Any vacancy in an office resulting from any
cause may be filled by the board of directors.
Section 6. Powers and Duties. Except as hereinafter provided, the
officers of the corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as
from time to time may be conferred by the board of directors.
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(a) Chairman of the Board. The chairman of the
board shall be the chief executive officer of the corporation and
shall preside at all meetings of the shareholders and the board of
directors. Except where by law the signature of the president is
required, the chairman shall possess the same power as the
president to sign all certificates representing shares of the
capital stock of the corporation and all bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation.
(b) Vice Chairman of the Board. The vice
chairman of the board shall in the absence of the chairman of the
board preside at all meetings of the shareholders and the board of
directors, and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
(c) President. The president shall be the chief
operations officer of the corporation, and in the absence of the
chairman of the board shall preside at all meetings of the
shareholders and the board of directors. The president shall have
general and active management of the business of the corporation
and shall see that all orders and resolutions of the board of
directors are carried into effect. He shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of
the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
(d) Vice-President. In the absence of the
president or in the event of his inability or refusal to act, the
vice-president (or in the event there be more than one
vice-president, the vice presidents in the order designated, or in
the absence of any designation, then in order of their election)
shall perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the restrictions
upon the president. The vice-presidents shall perform such other
duties and have such other powers as the board of directors may
from time to time prescribe.
(e) Secretary. The secretary shall attend all
meetings of the board of directors and all meetings of the
shareholders and record of all the proceedings of the meetings of
the corporation and of the board of directors in a book to be kept
for that purpose and shall perform
like duties for the standing committees when required. He shall
give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the board of directors, and
shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he,
or an assistant secretary, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
(f) Assistant Secretary. The assistant secretary
or if there be more than one, the assistant secretaries in the
order determined by the board of directors (or if there be no such
determination, then in the order of their election), shall, in the
absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
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(g) Treasurer. The treasurer shall have the
custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the corporation
in such depositories as may be designated by the board of
directors. He shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for
such disbursements, and shall render to the chairman of the board,
the president and the board of directors, at its regular meetings,
or when the board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the
corporation. If required by the board of directors, he shall give
the corporation a bond (which shall be renewed every six years) in
such sum and with such surety or sureties as shall be satisfactory
to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in
case of his death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to
the corporation.
(h) Assistant Treasurer. The assistant
treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the board of directors (or if
there be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the event of
his inability or refusal to act, perform the duties and exercise
the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to
time prescribe.
Section 7. Voting Securities of the Corporation. Unless otherwise
ordered by the board of directors, the chairman of the board and the president
shall each have full power and authority on behalf of the corporation to attend
and to act and vote at any meetings of security holders of corporations in
which the corporation may hold securities, and at such meetings shall possess
and may exercise any and all rights and powers incident to the ownership of
such securities which the corporation might have possessed and exercised if it
had been present. The board of directors by resolution from time to time may
confer like powers upon any other person or persons.
ARTICLE V
CERTIFICATE
Section 1. Form of Certificate. Every holder of fully-paid stock
in the corporation shall be entitled to have a certificate in such form as the
board of directors may from time to time prescribe.
Section 2. Lost Certificates. The board of directors may direct
that a new certificate be issued in place of any certificate theretofore issued
by the corporation and alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the same in
such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against
the corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
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Section 3. Transfers. (a) Transfers of shares of the capital
stock of the corporation shall be made only on the books of the corporation by
the registered holder thereof, or by his duly authorized attorney, or with a
transfer clerk or transfer agent appointed as provided in Section 5 of this
Article, and on surrender of the certificates for such shares properly endorsed
and the payment of all taxes thereon.
(b) The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and for all other purposes, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
(c) Shares of capital stock may be transferred by
delivery of the certificates therefor, accompanied either by an assignment in
writing on the back of the certificates or by separate written power of
attorney to sell, assign and transfer the same, signed by the record holder
thereof, or by his duly authorized attorney-in-fact, but no transfer shall
affect the right of the corporation to pay any dividend upon the stock to the
holder of record as the holder in fact thereof for all purposes, and no
transfer shall be valid, except between the parties thereto, until such
transfer shall have been made upon the books of the corporation as herein
provided.
(d) The board may, from time to time, make such
additional rules and regulations as it may deem expedient, not inconsistent
with these by-laws or the articles of incorporation, concerning the issue,
transfer and registration of certificates for shares of the capital stock of
the corporation.
Section 4. Record Date. In order that the corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the board of directors may fix,
in advance, a record date, which shall not be more than 50 days and, in case of
a meeting of shareholders, not less than 10 days prior to the date on which the
particular action requiring such determination of stockholders is to be taken.
If no record date is fixed for the determination of shareholders entitled to
notice of and to vote at any meeting of shareholders, the record date shall be
at the close of business on the day next preceding the day on which the notice
is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. If no record date is fixed for
other purposes, the record date shall be at the close of business on the day
next preceding the day on which the board of directors adopts the resolution
relating thereto. A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any adjournment of
the meeting unless the board of directors shall fix a new record date for the
adjourned meeting.
Section 5. Transfer Agent and Registrar. The board of directors
may appoint one or more transfer agents or one or more transfer clerks and one
or more registrars, and may require all certificates of stock to bear the
signature or signatures of any of them.
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ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the articles of incorporation, if
any, may be declared by the board of directors at any regular or special
meetings, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the corporation's capital stock, subject to the provisions of the
articles of incorporation. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest
of the corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 2. Fiscal Year. The fiscal year of the corporation shall
be fixed by resolution of the board of directors.
Section 3. Seal. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its organization and the words
"Corporate Seal" and "Georgia". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise. In
the event it is inconvenient to use such a seal at any time, the signature of
the corporation followed by the word "Seal" enclosed in parentheses shall be
deemed the seal of the corporation.
Section 4. Annual Statements. Not later than four months after
the close of each fiscal year, and in any case prior to the next annual meeting
of shareholders, the corporation shall prepare:
(1) A balance sheet showing in a reasonable
detail the financial condition of the corporation as of the close
of its fiscal year, and
(2) A profit and loss statement showing the
results of its operations during its fiscal year.
Upon written request, the corporation promptly shall mail to any shareholder of
record a copy of the most recent such balance sheet and profit and loss
statement.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right of Indemnification and Standards of Conduct.
Every person (and the heirs and legal representatives of such person) who is or
was a director or officer of this corporation or any other corporation of which
he served as such at the request of this corporation and of which this
corporation directly or indirectly is a shareholder or creditor, or in which,
or in the stocks, bonds, securities or other obligations of which it is in any
way interested, may in accordance with Section 2 hereof be indemnified for any
liability and expense that may be incurred by him in connection with or
resulting from any threatened, pending or completed action, suit or
proceedings, whether civil, criminal, administrative or investigative (whether
brought by or in the right of this corporation or otherwise), or in connection
with any appeal relating thereto, in which he may become involved, as a party
or prospective party or otherwise, by reason of his being or having been a
director of officer of this corporation or such other corporation, or by reason
of any action taken or not taken in his capacity as such director of officer or
as a member of any committee appointed by the board of directors of this
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corporation to act for, in the interest of, or on behalf of this corporation,
whether or not he continues to be such at the time such liability or expense
shall have been incurred; provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
this corporation and, in addition, with respect to any criminal action or
proceeding, did not have reasonable cause to believe that his conduct was
unlawful. As used in this Article, the terms "liability" and "expense" shall
include, but shall not be limited to, counsel fees and disbursements and
amounts of judgments, fines or penalties, and amounts paid in compromise or
settlement by a director of officer. The termination of any claim, action,
suit or proceeding, by judgment, order, compromise, settlement (with or without
court approval) or conviction or upon a plea of guilty or of nolo contendere,
or its equivalent, shall not create a presumption that a director or officer
did not meet the standards of conduct set forth in this Section.
Section 2. Determination of Right of Indemnification. Every
person (and the heirs and legal representatives of such person) referred to in
Section 1 hereof who has been wholly successful, on the merits or otherwise,
with respect to any claim, action, suit or proceeding of the character
described in Section 1 hereof shall be entitled to indemnification as of right
without any further action or approval by the board of directors. Except as
provided in the immediately preceding sentence, any indemnification under
Section 1 next above shall be made at the discretion of this corporation, but
only if (a) the board of directors, acting by majority vote of a quorum
consisting of directors who were not parties to such claim, action, suit or
proceeding, present or voting, shall find that the director or officer has met
the standard of conduct set forth in Section 1 hereof, or (b) if no such quorum
of the board exists, independent legal counsel selected by any Judge of the
United States District Court for the Northern District of Georgia, at the
request of either the corporation or the person seeking indemnification, shall
deliver to the corporation their written opinion that such director or officer
has met such standards, or (c) the holders of a majority of stock then entitled
to vote for the election of directors shall determine by affirmative vote that
such director or officer has met such standards.
Notwithstanding the foregoing, no officer or director who was or is
a party to any action or suit by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that he is or was an officer or
director of this or such other corporation shall be determined in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to this
corporation unless and except to the extent that the Court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability and in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the Court shall deem proper.
Section 3. Advance of Expenses. Expenses incurred with respect to
any claim, action, suit or proceeding of the character described in Section 1
of this Article VII may be advanced by the corporation prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless it shall ultimately be determined that he
is entitled to indemnification under this Article.
Section 4. Rights of Indemnification Cumulative. The rights of
indemnification provided in this Article VII shall be in addition to any rights
to which any such director or officer or other person may otherwise be entitled
under any by-law, agreement, vote of shareholders, or otherwise, and shall be
in addition to the power of the corporation to purchase and maintain insurance
on behalf of any such director or officer or other person against any liability
asserted against him and incurred by him in such capacity, or arising out of
his status as such, regardless of whether the corporation would have the power
to indemnify him against such liability under this Article or otherwise.
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Section 5. Statement to Stockholders. If any expenses or other
amounts are paid by way of indemnification, otherwise than by court order or
action by the shareholders or by an insurance carrier pursuant to insurance
maintained by the corporation, the corporation shall, not later than the next
annual meeting of shareholders unless such meeting is held within three months
from the date of such payment, and, in any event, within 15 months from the
date of such payment, send by first class mail to its shareholders of record at
the time entitled to vote for the election of directors a statement specifying
the person paid, the amounts paid, and the nature and status at the time of
such payment of the litigation or threatened litigation.
ARTICLE VIII
AMENDMENTS
The board of directors shall have power to alter, amend or repeal
the by-laws or adopt new by-laws by majority vote of all of the directors, but
any by-laws adopted by the board of directors may be altered, amended or
repealed and new by-laws adopted, by the shareholders by majority vote of all
of the shares having voting power.
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=================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of August 21, 1995
among
INTERMET CORPORATION,
THE LENDERS LISTED HEREIN,
and
TRUST COMPANY BANK
as Agent
=================================================================<PAGE>
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS; CONSTRUCTION . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . 2
Section 1.02. Accounting Terms and Determination . . . . . . 22
Section 1.03. Other Definitional Terms . . . . . . . . . . . 22
Section 1.04. Exhibits and Schedules . . . . . . . . . . . . 22
ARTICLE II. REVOLVING LOANS AND ENVIRONMENTAL
LETTERS OF CREDIT . . . . . . . . . . . . . . 22
Section 2.01. Revolving Loan Commitment; Use of Proceeds . . 22
Section 2.02. Notes; Repayment of Principal . . . . . . . . 23
Section 2.03. Voluntary Reduction of Revolving
Loan Commitments . . . . . . . . . . . . . . 23
Section 2.04. Mandatory Reduction of Revolving
Loan Commitments . . . . . . . . . . . . . . 24
Section 2.05 Environmental Letter of Credit
Subfacility; Deemed Issuance of
Environmental Letters of Credit . . . . . . . 25
Section 2.06 Responsibilities of Agent; Purchase of
Participation Interests in Environmental
Letter of Credit . . . . . . . . . . . . . . 25
Section 2.07 Payment of Amounts Drawn Under Environmental
Letter of Credit . . . . . . . . . . . . . . 25
Section 2.08 Payment by Domestic Lenders . . . . . . . . . 27
ARTICLE III. CURRENCY LOANS . . . . . . . . . . . . . . . . 27
Section 3.01. Currency Loan Commitment; Use
of Proceeds . . . . . . . . . . . . . . . . 27
Section 3.02. Notes; Repayment of Principal . . . . . . . . 28
Section 3.03. Voluntary Reduction of Currency
Loan Commitments . . . . . . . . . . . . . . 28
ARTICLE IV. LETTER OF CREDIT FACILITY . . . . . . . . . . 28
Section 4.01. Letter of Credit Facility . . . . . . . . . . 28
Section 4.02. Notice of Issuance of Workers Compensation
Letter of Credit; Agreement to Issue . . . . 29
Section 4.03. Payment of Amounts Drawn Under Letter
of Credit Facility . . . . . . . . . . . . . 30
Section 4.04 Payment by Domestic Lenders . . . . . . . . . 31
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ARTICLE V. GENERAL LOAN AND LETTER OF CREDIT TERMS . . . 31
Section 5.01. Funding Notices . . . . . . . . . . . . . . . 31
Section 5.02. Disbursement of Funds . . . . . . . . . . . . 33
Section 5.03. Interest . . . . . . . . . . . . . . . . . . . 35
Section 5.04. Interest Periods . . . . . . . . . . . . . . . 36
Section 5.05. Fees . . . . . . . . . . . . . . . . . . . . . 37
Section 5.06. Voluntary Prepayments of Borrowings . . . . . 38
Section 5.07. Payments, etc. . . . . . . . . . . . . . . . . 39
Section 5.08. Interest Rate Not Ascertainable, etc. . . . . 41
Section 5.09. Illegality . . . . . . . . . . . . . . . . . . 42
Section 5.10. Increased Costs . . . . . . . . . . . . . . . 43
Section 5.11. Lending Offices . . . . . . . . . . . . . . . 44
Section 5.12. Funding Losses . . . . . . . . . . . . . . . . 45
Section 5.13. Failure to Pay in Appropriate Currency . . . . 45
Section 5.14. Assumptions Concerning Funding of
Euro Advances . . . . . . . . . . . . . . . 46
Section 5.15. Apportionment of Payments . . . . . . . . . . 46
Section 5.16. Sharing of Payments, Etc. . . . . . . . . . . 46
Section 5.17. Capital Adequacy . . . . . . . . . . . . . . . 47
Section 5.18. Benefits to Guarantors . . . . . . . . . . . . 47
Section 5.19. Limitation on Certain Payment
Obligations . . . . . . . . . . . . . . . . 47
Section 5.20 Letter of Credit Obligations Absolute . . . . 48
Section 5.21 Indemnification; Nature of Agent's Duties
With Respect to Letters of Credit . . . . . 49
Section 5.22 Additional Payments With Respect to
Letter of Credit; Illegality . . . . . . . . 50
Section 5.23 Failure to Maintain Minimum
Required Rating . . . . . . . . . . . . . . 51
ARTICLE VI. CONDITIONS TO BORROWINGS . . . . . . . . . . . 52
Section 6.01. Conditions Precedent to Initial Loans
and Letter of Credit . . . . . . . . . . . . 52
Section 6.02. Conditions to All Loans and Letters of
Credit . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII. REPRESENTATIONS AND WARRANTIES . . . . . . . . 56
Section 7.01. Corporate Existence; Compliance with
Law . . . . . . . . . . . . . . . . . . . . 56
Section 7.02. Corporate Power; Authorization . . . . . . . . 57
Section 7.03. Enforceable Obligations . . . . . . . . . . . 57
Section 7.04. No Legal Bar . . . . . . . . . . . . . . . . . 58
Section 7.05. No Material Litigation or Investigations . . . 58
Section 7.06. Investment Company Act, Etc. . . . . . . . . . 58
Section 7.07. Margin Regulations . . . . . . . . . . . . . . 58
Section 7.08. Compliance with Environmental Laws . . . . . . 58
Section 7.09. Insurance . . . . . . . . . . . . . . . . . . 59
Section 7.10. No Default . . . . . . . . . . . . . . . . . . 59
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Section 7.11. No Burdensome Restrictions . . . . . . . . . . 60
Section 7.12. Taxes . . . . . . . . . . . . . . . . . . . . 60
Section 7.13. Subsidiaries . . . . . . . . . . . . . . . . . 60
Section 7.14. Financial Statements . . . . . . . . . . . . . 60
Section 7.15. ERISA . . . . . . . . . . . . . . . . . . . . 61
Section 7.16. Patents, Trademarks, Licenses, Etc. . . . . . 62
Section 7.17. Ownership of Property . . . . . . . . . . . . 63
Section 7.18. Indebtedness . . . . . . . . . . . . . . . . . 63
Section 7.19. Financial Condition . . . . . . . . . . . . . 63
Section 7.20. Intercompany Loans . . . . . . . . . . . . . . 64
Section 7.21. Labor Matters . . . . . . . . . . . . . . . . 64
Section 7.22. Payment or Dividend Restrictions . . . . . . . 64
Section 7.23. Disclosure . . . . . . . . . . . . . . . . . . 64
ARTICLE VIII. AFFIRMATIVE COVENANTS . . . . . . . . . . . . 65
Section 8.01. Corporate Existence, Etc. . . . . . . . . . . 65
Section 8.02. Compliance with Laws, Etc. . . . . . . . . . . 65
Section 8.03. Payment of Taxes and Claims, Etc. . . . . . . 66
Section 8.04. Keeping of Books . . . . . . . . . . . . . . . 66
Section 8.05. Visitation, Inspection, Etc. . . . . . . . . . 66
Section 8.06. Insurance; Maintenance of Properties . . . . . 66
Section 8.07. Reporting Covenants . . . . . . . . . . . . . 67
Section 8.08. Financial Covenants . . . . . . . . . . . . . 71
Section 8.09. Notices Under Certain Other Indebtedness . . . 72
Section 8.10. Additional Credit Parties and Collateral . . . 72
Section 8.11. Delivery of Modifications to Prudential
Documents; Opinion of German Counsel . . . 73
ARTICLE IX. NEGATIVE COVENANTS . . . . . . . . . . . . . . 73
Section 9.01. Indebtedness . . . . . . . . . . . . . . . . . 73
Section 9.02. Liens . . . . . . . . . . . . . . . . . . . . 74
Section 9.03. Mergers, Acquisitions, Divestitures. . . . . . 75
Section 9.04. Asset Sales. . . . . . . . . . . . . . . . . . 76
Section 9.05. Dividends, Etc. . . . . . . . . . . . . . . . 77
Section 9.06. Investments, Loans, Etc. . . . . . . . . . . . 78
Section 9.07. Sale and Leaseback Transactions . . . . . . . 79
Section 9.08. Transactions with Affiliates . . . . . . . . . 79
Section 9.09. Prepayments of Subordinated Debt
in Violation Thereof . . . . . . . . . . . . 79
Section 9.10. Changes in Business . . . . . . . . . . . . . 79
Section 9.11. ERISA . . . . . . . . . . . . . . . . . . . . 80
Section 9.12. Additional Negative Pledges . . . . . . . . . 80
Section 9.13. Limitation on Payment Restrictions
Affecting Consolidated Companies . . . . . . 80
Section 9.14. Actions Under Certain Documents . . . . . . . 81
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<PAGE>
ARTICLE X. EVENTS OF DEFAULT . . . . . . . . . . . . . . 81
Section 10.01. Payments . . . . . . . . . . . . . . . . . . . 81
Section 10.02. Covenants Without Notice . . . . . . . . . . . 81
Section 10.03. Other Covenants . . . . . . . . . . . . . . . 81
Section 10.04. Representations . . . . . . . . . . . . . . . 82
Section 10.05. Non-Payments of Other Indebtedness . . . . . . 82
Section 10.06. Defaults Under Other Agreements . . . . . . . 82
Section 10.07. Bankruptcy . . . . . . . . . . . . . . . . . . 82
Section 10.08. ERISA . . . . . . . . . . . . . . . . . . . . 83
Section 10.09. Money Judgment . . . . . . . . . . . . . . . . 83
Section 10.10. Ownership of Credit Parties
and Pledged Entities . . . . . . . . . . . . 84
Section 10.11. Change in Control of Intermet . . . . . . . . 84
Section 10.12. Default Under Other Credit Documents . . . . . 84
Section 10.13. Attachments . . . . . . . . . . . . . . . . . 85
ARTICLE XI. THE AGENT . . . . . . . . . . . . . . . . . . 86
Section 11.01. Appointment of Agent . . . . . . . . . . . . . 86
Section 11.02. Authorization of Agent with Respect
to the Security Documents . . . . . . . . . 86
Section 11.03. Nature of Duties of Agent . . . . . . . . . . 87
Section 11.04. Lack of Reliance on the Agent . . . . . . . . 87
Section 11.05. Certain Rights of the Agent . . . . . . . . . 88
Section 11.06. Reliance by Agent . . . . . . . . . . . . . . 88
Section 11.07. Indemnification of Agent . . . . . . . . . . . 88
Section 11.08. The Agent in its Individual
Capacity . . . . . . . . . . . . . . . . . . 89
Section 11.09. Holders of Notes . . . . . . . . . . . . . . . 89
Section 11.10. Successor Agent . . . . . . . . . . . . . . . 89
ARTICLE XII. MISCELLANEOUS . . . . . . . . . . . . . . . . 90
Section 12.01. Notices . . . . . . . . . . . . . . . . . . . 90
Section 12.02. Amendments, Etc. . . . . . . . . . . . . . . . 90
Section 12.03. No Waiver; Remedies Cumulative . . . . . . . . 91
Section 12.04. Payment of Expenses, Etc. . . . . . . . . . . 91
Section 12.05. Right of Setoff . . . . . . . . . . . . . . . 93
Section 12.06. Benefit of Agreement . . . . . . . . . . . . . 93
Section 12.07. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial . . . . . 97
Section 12.08. Independent Nature of Lenders' Rights . . . . 97
Section 12.09. Counterparts . . . . . . . . . . . . . . . . . 98
Section 12.10. Effectiveness; Survival . . . . . . . . . . . 98
Section 12.11. Severability . . . . . . . . . . . . . . . . . 98
Section 12.12. Independence of Covenants . . . . . . . . . . 98
Section 12.13. Change in Accounting Principles,
Fiscal Year or Tax Laws . . . . . . . . . . 98
Section 12.14. Headings Descriptive; Entire Agreement . . . . 99
Section 12.15. Judgment Currency . . . . . . . . . . . . . . 99
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<PAGE>
Section 12.16. Dollar Equivalent Computations . . . . . . . . 100
Section 12.17. Pledge of Stock of Columbus
Neunkirchen . . . . . . . . . . . . . . . . . 100
Section 12.18. Sale of PBM . . . . . . . . . . . . . . . . . 100
SCHEDULES
Schedule 6.01(i) UCC Search Locations
Schedule 7.01 Organization and Ownership of
Subsidiaries
Schedule 7.05 Certain Pending and Threatened
Litigation
Schedule 7.08(A) Environmental Compliance
Schedule 7.08(B) Environmental Notices
Schedule 7.08(C) Environmental Permits
Schedule 7.11 Burdensome Restrictions
Schedule 7.12 Tax Filings and Payments
Schedule 7.13 Material Subsidiaries
Schedule 7.15 Employee Benefit Matters
Schedule 7.16 Patent, Trademark, License, and
Other Intellectual Property
Matters
Schedule 7.17 Ownership of Properties
Schedule 7.21 Labor and Employment Matters
Schedule 7.22 Dividend Restrictions
Schedule 8.08 Financial Covenant Calculations
Second Quarter 1995
Schedule 9.01(B) Existing Indebtedness
Schedule 9.02 Existing Liens
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<PAGE>
EXHIBITS
Exhibit A - Form of Revolving Note
Exhibit B - Form of Currency Note
Exhibit C - Form of Environmental Letter of Credit
Exhibit D - Form of Workers Compensation Letter of
Credit Application
Exhibit E - Form of Amended and Restated Subsidiary
Guaranty
Exhibit F - Form of Pledge Agreement
Exhibit G - Form of Closing Certificate
Exhibit H-1 - Form of Opinion of Kilpatrick & Cody
Exhibit H-2 - Form of Opinion of German counsel
Exhibit I - Form of Assignment and Acceptance
Exhibit J - Form of Amended and Restated
Contribution Agreement
Exhibit K - Form of Escrow Letter and Security
Agreement
Exhibit L Form of Compliance Certificate
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<PAGE>
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT made and en-
tered into as of August 21, 1995, by and among INTERMET
CORPORATION, a Georgia corporation ("Intermet"), TRUST COMPANY
BANK, a banking corporation organized under the laws of the State
of Georgia ("TCB"), the other banks and lending institutions
listed on the signature pages hereof, and any assignees of TCB,
or such other banks and lending institutions which become
"Lenders" as provided herein (TCB, and such other banks, lending
institutions, and assignees referred to collectively herein as
the "Lenders"), TRUST COMPANY BANK, in its capacity as agent for
the Lenders and each successor agent for such Lenders as may be
appointed from time to time pursuant to Article XI hereof (the
"Agent");
W I T N E S S E T H:
WHEREAS, Intermet, the Agent, the Lenders and certain
other financial institutions entered into that certain Credit
Agreement dated as of August 31, 1992 (as amended through the
date hereof, the "Prior Credit Agreement") providing certain
credit facilities to Intermet;
WHEREAS, Intermet has requested, and the Agent and
Lenders have agreed, to extend certain of the credit facilities
provided in the Prior Credit Agreement, to amend the interest
rate and certain other provisions thereof and to reduce the
lending group thereunder;
WHEREAS, the parties wish to amend and restate the
Prior Credit Agreement on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, Intermet, the Lenders, and
the Agent agree, upon the terms and subject to the conditions set
forth herein as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
Section 1.01. Definitions. In addition to the other
terms defined herein, the following terms used herein shall have
the meanings herein specified (to be equally applicable to both
the singular and plural forms of the terms defined):
"Acquisition" shall mean any transaction, or any series
of related transactions, by which Intermet and/or any of its
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Subsidiaries directly or indirectly (a) acquires any ongoing
business or all or substantially all of the assets of any Person
or division thereof, whether through purchase of assets, merger
or otherwise, (b) acquires (in one transaction or as the most
recent transaction in a series of transactions) control of at
least a majority in ordinary voting power of the securities of a
Person which have ordinary voting power for the election of
directors or (c) otherwise acquires control of a 50% or more
ownership interest in any such Person.
"Adjusted FIBO Rate" shall mean, with respect to each
Interest Period for a Eurocurrency Advance, the rate obtained by
dividing (A) FIBOR for such Interest Period by (B) a percentage
equal to 1 MINUS the then stated maximum rate (stated as a
decimal) of all reserves requirements, if any, applicable to the
Currency Lender in respect of such liabilities.
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Advance, the rate obtained by
dividing (A) LIBOR for such Interest Period by (B) a percentage
equal to 1 MINUS the then stated maximum rate (stated as a
decimal) of all reserves requirements (including, without
limitation, any marginal, emergency, supplemental, special or
other reserves) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency liabilities as defined
in Regulation D (or against any successor category of liabilities
as defined in Regulation D).
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time under (i) the Revolving Credit
Loans, which Advance shall be made or outstanding as a Base Rate
Advance or Eurodollar Advance, as the case may be, and (ii) the
Currency Loans, which Advance shall be made or outstanding as a
Base Rate Advance or a Eurocurrency Advance.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under
common control with, such Person, whether through the ownership
of voting securities, by contract or otherwise. For purposes of
this definition, "control" (including with correlative meanings,
the terms "controlling", "controlled by", and "under common
control with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person.
"Agent" shall mean Trust Company Bank, a Georgia
banking corporation and any successor agent appointed pursuant to
Section 11.10 hereof.
"Agreement" shall mean this Amended and Restated Credit
Agreement, as amended, modified, restated, or supplemented from
time to time.
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<PAGE>
"Applicable Margin" shall mean, with respect to all
outstanding Borrowings and Letter of Credit Obligations through
September 30, 1995, one and one quarter of one percent (1.25%)
per annum, and with respect to all outstanding Borrowings and
Letter of Credit Obligations during each fiscal quarter
thereafter, the percentage determined for such fiscal quarter
from the chart set forth below based on Intermet's Fixed Charge
Coverage Ratio and Leverage Ratio determined as of the last day
of the second fiscal quarter immediately preceding such fiscal
quarter:
<TABLE>
LEVERAGE RATIO
<CAPTION>
Greater Equal to or Greater
Fixed Charge Than Than 40% and Less Less Than
Coverage Ratio 45% Than or Equal to 45% 40%
- --------------- ------- -------------------- --------
<S> <C> <C> <C>
Less than
2.5:1.0 1.25% 1.0% 0.75%
Equal to or
Greater than 2.5:1.0
and less than or
Equal to 3.0:1.0 1.0% 0.75% 0.50%
Greater than
3.0:1.0 0.75% 0.50% 0.50%
</TABLE>
provided, however, if Intermet fails to deliver its financial
statements for such second preceding fiscal quarter pursuant to
Section 8.07 prior to the first day of the then-current fiscal
quarter, the Applicable Margin with respect to Borrowings and
Letter of Credit Obligations during such current fiscal quarter
shall be 1.25%. By way of example, as of the first day of the
fourth fiscal quarter of Intermet, the Applicable Margin with
respect to the Borrowings and Letter of Credit Obligations
outstanding hereunder shall be calculated based upon the Fixed
Charge Coverage Ratio and Leverage Ratio of Intermet reported for
the second fiscal quarter of such fiscal year of Intermet.
"Asset Sale" shall mean any sale or other disposition
(or a series of related sales or other dispositions), including
without limitation, loss, damage, destruction or taking, by any
Consolidated Company to any Person other than a Consolidated
Company, of any property or asset (including capital stock but
excluding the issuance and sale by Intermet of its own capital
stock) having an aggregate Asset Value in excess of $500,000,
other than sales or other dispositions made in the ordinary
course of business of any Consolidated Company.
"Asset Value" shall mean, with respect to any property
or asset of any Consolidated Company as of any particular date,
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<PAGE>
an amount equal to the greater of (i) the then book value of such
property or asset as established in accordance with GAAP, and
(ii) the then fair market value of such property or asset as
determined in good faith by the board of directors (or equivalent
governing body in the case of any Foreign Subsidiary) of such
Consolidated Company.
"Assignment and Acceptance" shall mean an assignment
and acceptance entered into by a Lender and an Eligible Assignee
in accordance with the terms of this Agreement and substantially
in the form of Exhibit I.
"Bankruptcy Code" shall mean The Bankruptcy Code of
1978, as amended and in effect from time to time (11 U.S.C.
Section 101 et seq.).
"Base Rate" shall mean (with any change in the Base
Rate to be effective as of the date of change of either of the
following rates):
(i) with respect to the Revolving Loans, the higher of
(a) the rate which the Agent publicly announces from time to
time to be its prime lending rate, as in effect from time to
time, and (b) the Federal Funds Rate, as in effect from time
to time, PLUS one-half of one percent (0.50%) per annum.
The Agent's prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate charged to
customers; the Agent may make commercial loans or other
loans at rates of interest at, above or below the Agent's
prime lending rate; and
(ii) with respect to the Currency Loans, the rate which
the Currency Lender applies from time to time as its
corporate base rate, as in effect from time to time.
"Base Rate Advance" shall mean an Advance made or
outstanding as (i) a Revolving Loan bearing interest based on the
Base Rate, (ii) a Currency Loan bearing interest based on the
Base Rate, or (iii) an Advance bearing interest at the rate
agreed upon between Intermet and the Lenders pursuant to Section
5.08, Section 5.09 or Section 5.10.
"Bowwowing" shall mean the incurrence by Intermet under
any Facility of Advances of one Type concurrently having the same
Interest Period or the continuation or conversion of an existing
Borrowing or Borrowings in whole or in part.
"Business Day" shall mean any day excluding Saturday,
Sunday and any other day on which banks are required or
authorized to close in Atlanta, Georgia or New York, New York
AND, if the applicable Business Day relates to Euro Advances, on
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<PAGE>
which trading is not carried on by and between banks in deposits
of the applicable currency in the applicable interbank
Eurocurrency market.
"Change in Control Provision" shall mean any term or
provision contained in any indenture, debenture, note, or other
agreement or document evidencing or governing Indebtedness of
Intermet evidencing debt or a commitment to extend loans in
excess of $5,000,000 which requires, or permits the holder(s) of
such Indebtedness of Intermet to require that such Indebtedness
of Intermet be redeemed, repurchased, defeased, prepaid or
repaid, either in whole or in part, or the maturity of such
Indebtedness of Intermet to be accelerated in any respect, as a
result of a change in ownership of the capital stock of Intermet
or voting rights with respect thereto.
"Closing Date" shall mean the date on or before August
31, 1995 on which the initial Loans are made or deemed to have
been made hereunder and the conditions set forth in Section 6.01
are satisfied or waived in accordance with Section 12.02.
"Columbus Neunkirchen" shall mean Columbus Neunkirchen
Foundry, GmbH, a German company with limited liability and an
indirect, wholly-owned subsidiary of Intermet.
"Commitment" shall mean, for any Lender at any time,
any of its Revolving Loan Commitment, Letter of Credit Commitment
or Currency Loan Commitment, as the case may be.
"Consolidated Capitalized Interest" shall mean, for any
fiscal period of Intermet, the capitalized interest of the
Consolidated Companies, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Companies" shall mean, collectively,
Intermet and all of its Subsidiaries.
"Consolidated Ebit" shall mean, for any fiscal period
of Intermet, an amount equal to (A) the sum for such fiscal pe-
riod of Consolidated Net Income (Loss) and, to the extent sub-
tracted in determining such Consolidated Net Income (Loss), pro-
visions for (i) taxes based on income and (ii) Consolidated
Interest Expense, MINUS (B) any items of gain (or PLUS any items
of loss) which were included in determining such Consolidated Net
Income (Loss) and were (x) not realized in the ordinary course of
business (whether or not classified as "ordinary" by GAAP), (y)
the result of any sale of assets, or (z) resulting from minority
investments, together in the case of (x), (y) or (z), any related
provision for taxes included in Consolidated Net Income (Loss)
with respect thereto.
"Consolidated EBITDA" shall mean for any fiscal period
of Intermet, an amount equal to the sum of Consolidated EBIT PLUS
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<PAGE>
depreciation and amortization expense to the extent deducted in
determining Consolidated Net Income (Loss), determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITR" shall mean, for any fiscal period
of Intermet, an amount equal to the sum of Consolidated EBIT PLUS
Consolidated Rental Expense for such period.
"Consolidated Interest Expense" shall mean, for any
fiscal period of Intermet, total interest expense of the
Consolidated Companies (including without limitation, interest
expense attributable to capitalized leases in accordance with
GAAP, all commissions, discounts and other fees and charges owed
with respect to bankers acceptance financing, and total interest
expense (whether shown as interest expense or as loss and
expenses on sale of receivables) under a receivables purchase
facility) determined on a consolidated basis in accordance with
GAAP, but specifically excluding Consolidated Capitalized
Interest for such period.
"Consolidated Net Income (Loss)" shall mean, for any
fiscal period of Intermet, the net income (or loss) of the
Consolidated Companies on a consolidated basis for such period
(taken as a single accounting period) determined in conformity
with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any income or loss of any Person accrued
prior to the date such Person becomes a Subsidiary of Intermet or
is merged into or consolidated with any Consolidated Company or
all or substantially all of such Person's assets are acquired by
any Consolidated Company, and (ii) the income of any Consolidated
Company to the extent that the declaration or payment of
dividends or similar distributions by such Consolidated Company
of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation.
"Consolidated Net Worth" shall mean, as of any date of
determination, Shareholders' Equity of Intermet.
"Consolidated Rental Expense" shall mean, for any
fiscal period of Intermet, the operating lease expense of the
Consolidated Companies determined in accordance with GAAP for
leases with a term greater than one year, as disclosed in the
notes to Intermet's consolidated financial statements of the
Consolidated Companies, determined on a consolidated basis in
accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any
agreement, instrument or undertaking under which such Person is
obligated or by which it or any of the property owned by it is
bound.
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<PAGE>
"Contribution Agreement" shall mean the Contribution
Agreement executed by each of the Guarantors, substantially in
the form of Exhibit J attached hereto, as the same may be
amended, restated or supplemented from time to time.
"Credit Documents" shall mean, collectively, this
Agreement, the Notes, the Letters of Credit, the Guaranty
Agreements, the Pledge Agreements, and all other Security
Documents, if any.
"Credit Parties" shall mean, collectively, each of
Intermet, the Guarantors, and every other Person who from time to
time executes a Security Document with respect to all or any
portion of the Obligations.
"Currency" shall mean, with respect to the Currency
Loans, German marks.
"Currency Lender" shall mean, Landesbank Saar
Girozentrale, a German banking corporation, the Lender extending
the Currency Loans to Intermet.
"Currency Loan Commitment" shall mean, at any time for
the Currency Lender, the amount of such commitment set forth
opposite such Currency Lender's name on the signature pages
hereof, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section
3.03, any assignment thereof pursuant to Section 12.06, or any
amendment thereof pursuant to Section 12.02.
"Currency Loans" shall mean, collectively, the
revolving credit loans made by the Currency Lender to Intermet
pursuant to Section 3.01.
"Currenty Note" shall mean the promissory note payable
to the order of the Currency Lender evidencing the Currency Loans
in the form attached hereto as Exhibit B, either as originally
executed or as hereafter amended, modified or substituted.
"Current Debt" shall mean, with respect to any Person,
all Indebtedness of such Person for borrowed money which by its
terms or by the terms of any instrument or agreement relating
thereto matures on demand or within one year from the date of the
creation thereof and is not directly or indirectly renewable or
extendible at the option of the debtor to a date more than one
year from the date of calculation, other than, with respect to
the Consolidated Companies, the indebtedness pursuant to German
lines of credit described on Schedule 9.01(b).
"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of
Default.
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<PAGE>
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Dollar Equivalent" shall mean, with respect to any
monetary amount in a currency other than U.S. Dollars, at any
time for the determination thereof, the amount of U.S. Dollars
obtained by converting such currency involved in such computation
into U.S. Dollars at the spot rate for the purchase of U.S.
Dollars with the applicable currency as quoted by the Agent as of
the close of business on the date of determination thereof
specified herein or, if the date of determination thereof is not
otherwise specified herein, on the date two applicable Business
Days prior to such determination.
"Domestic Lenders" shall mean all Lenders participating
in the Revolving Loans and the Letter of Credit Facility.
"Eligible Assignee" shall mean (i) a commercial bank
organized under the laws of the United States, or any state
thereof, having total assets in excess of $1,000,000,000 or any
commercial finance or asset based lending Affiliate of any such
commercial bank and (ii) any Lender, in each case, which has the
Minimum Required Rating, unless otherwise agreed by the Agent.
"Environmental Laws" shall mean all federal, state,
local and foreign statutes and codes or regulations, rules or
ordinances issued, promulgated, or approved thereunder, now or
hereafter in effect (including, without limitation, those with
respect to asbestos or asbestos containing material or exposure
to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public
health and safety, relating to (i) emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof,
any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment
(including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the
manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals
or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions,
discharges and releases or threatened releases therefrom, such
Environmental Laws to include, without limitation (i) the Clean
Air Act (42 U.S.C. Section 7401 et seq.), (ii) the Clean Water
Act (33 U.S.C. Section 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.),
(iv) the Toxic Substances Control Act (15 U.S.C. Section 2601 et
seq.), (v) the Comprehensive Environmental Response Compensation
and Liability Act, as amended by the Superfund Amendments and
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<PAGE>
Reauthorization Act (42 U.S.C. Section 9601 et seq.), and (vi)
all applicable national and local laws or regulations with
respect to environmental control (including applicable laws of
the Federal Republic of Germany or any applicable international
agreements).
"Environmental Letter of Credit" shall mean the letters
of credit attached hereto as Exhibit C-1 - C-3 issued by the
Agent pursuant to the Prior Credit Agreement and deemed to have
been issued pursuant to Article II hereof, which secure certain
environmental closure, post-closure and third party liability
obligations of Intermet and its Subsidiaries, provided that the
stated amount of such Letters of Credit shall not exceed, at any
time outstanding, the amount of the Environmental Letter of
Credit Subfacility.
"Environmental Letter of Credit Exposure" shall mean,
with respect to each Domestic Lender, its Pro Rata Share of the
aggregate Environmental Letter of Credit Obligations.
"Environmental Letter of Credit Obligations" shall
mean, with respect to Environmental Letters of Credit, as at any
date of determination, the sum of (a) the maximum aggregate
amount which at such date of determination is available to be
drawn by the beneficiaries thereof (assuming the conditions for
drawing thereunder have been met) under all Environmental Letters
of Credit then outstanding, plus (b) the aggregate amount of all
drawings under Environmental Letters of Credit honored by the
Agent not theretofore reimbursed by Intermet (it being understood
that for purposes of any request for a Revolving Loan pursuant to
Section 2.07, there shall be excluded from the amount determined
in accordance with the preceding clause (b) an amount equal to
the proceeds of such Revolving Loan).
"Environmental Letter of Credit Subfacility" shall
mean, the portion of the Revolving Loan Commitment which may be
utilized either for Revolving Loans or Environmental Letter of
Credit Obligations which amount shall equal the lesser of (i) the
face amount of the outstanding Environmental Letters of Credit
issued to the Department of Environmental Quality - Waste
Division and the Department of Waste Management of the
Commonwealth of Virginia on August 11, 1994, and (ii)
$6,000,000.00, at any time outstanding.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any
Person, each trade or business (whether or not incorporated)
which is a member of a group of which that Person is a member and
which is under common control within the meaning of the
regulations promulgated under Section 414 of the Tax Code.
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"Escrow Letter" shall mean a letter agreement between
Intermet and the Agent substantially in the form of Exhibit K
hereto.
"Euro Advance" shall mean (i) a Eurodollar Advance, or
(ii) a Eurocurrency Advance.
"Eurocurrency Advance" shall mean an Advance made or
outstanding as a Currency Loan bearing interest based on the
Adjusted FIBO Rate.
"Eurodollar Advance" shall mean an Advance made or
outstanding as a Revolving Loan bearing interest based on the Ad-
justed LIBO Rate.
"Event of Default" shall have the meaning provided in
Article X.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time, and any successor statute
thereto.
"Executive Officer" shall mean with respect to any
Person, the President, Chief Executive Officer, Vice Presidents,
Chief Financial Officer, Treasurer, Secretary and any Person
holding comparable offices or duties.
"Facility" or "Facilities" shall mean the Revolving
Loan Commitments, the Currency Loan Commitment, or the Letter of
Credit Commitment, as the context may indicate.
"Facility Fee" has the meaning ascribed to it in
Section 5.05(a).
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent.
"FIBOR" shall mean, for any Interest Period, with
respect to Eurocurrency Advances under the Currency Loans, the
Frankfurt Inter-Bank Offer Rate for a period comparable to the
Interest Period and in an amount comparable to the Currency
Lender's portion of such Advances as publicly quoted as of 11:00
AM (Frankfurt, Germany time) on the day that is two Business Days
prior to the first day of the Interest Period.
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"Final Maturity Date" shall mean the earlier of
(i) August 31, 1998, and (ii) the date on which all amounts
outstanding under this Agreement have been declared or have
automatically become due and payable pursuant to the provisions
of Article X.
"Fixed Charge Coverage Ratio" shall mean, as of the
last day of any fiscal quarter of Intermet, the ratio of
(A) Consolidated EBITR to (B) the sum of the amounts of
(i) Consolidated Interest Expense, (ii) Consolidated Rental
Expense, and (iii) Consolidated Capitalized Interest, in each
case, calculated with respect to the immediately preceding four
fiscal quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing,
deferred compensation, or other employee benefit plan, program or
arrangement maintained by any Foreign Subsidiary which, under
applicable local law, is required to be funded through a trust or
other funding vehicle, but shall not include any benefit provided
by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated
Company that is organized under the laws of a jurisdiction other
than the United States of America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money
borrowed, Indebtedness evidenced or secured by purchase money
Liens, capitalized leases, conditional sales contracts and
similar title retention debt instruments, including any current
maturities of such Indebtedness, which by its terms matures more
than one year from the date of creation thereof or which is
renewable or extendible at the option of the obligor to a date
beyond one year from the date of determination. The calculation
of Funded Debt shall include (i) all Funded Debt of the
Consolidated Companies, plus (ii) all Funded Debt of other
Persons to the extent guaranteed by a Consolidated Company, to
the extent supported by a letter of credit issued for the account
of a Consolidated Company, or as to which and to the extent which
a Consolidated Company or its assets otherwise have become liable
for payment thereof, plus (iii) the redemption amount with
respect to the stock of any Consolidated Company required to be
redeemed during the next succeeding twelve months, plus (iv) the
lowest average amount of Current Debt outstanding for any period
of sixty (60) consecutive days during the preceding twelve month
period ending on any date of determination, plus (v) the amount
outstanding pursuant to the lines of credit described on Schedule
9.01(b) on the date of determination.
"GAAP" shall mean generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
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the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"Guarantors" shall mean, collectively, Intermet
Foundries, Inc., Columbus Foundries, Inc., Lynchburg Foundry
Company, Ironton Iron, Inc., Northern Castings Corporation,
Intermet International, Inc., Intermet Machining, Inc.,
Commercial and Precision Machining, Inc., PBM, New River Castings
Company, Intermotive Technologies, Inc. and all other Material
Subsidiaries that are not Foreign Subsidiaries, and their
respective successors and permitted assigns; provided, however,
PBM shall be released from its obligations pursuant to the
Guaranty Agreement upon the terms and conditions set forth in
Section 12.18 hereof and shall thereafter cease to be a Guarantor
unless and until PBM shall again become a Material Subsidiary.
"Guaranty" shall mean any contractual obligation,
contingent or otherwise, of a Person with respect to any
Indebtedness or other obligation or liability of another Person,
including without limitation, any such Indebtedness, obligation
or liability directly or indirectly guaranteed, endorsed, co-made
or discounted or sold with recourse by that Person, or in respect
of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise)
arising through any agreement to purchase, repurchase, or
otherwise acquire such Indebtedness, obligation or liability or
any security therefor, or any agreement to provide funds for the
payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise),
or to maintain solvency, assets, level of income, or other
financial condition, or to make any payment other than for value
received. The amount of any Guaranty shall be deemed to be an
amount equal to the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so
stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Guaranty Agreements" shall mean, collectively, the
Amended and Restated Guaranty Agreement, dated as of even date
herewith, executed by each of the Guarantors in favor of the
Lenders and the Agent, substantially in the form of Exhibit E as
the same may be amended, restated or supplemented from time to
time.
"Hazardous Substances" shall have the meaning assigned
to that term in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Acts of 1986.
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"Indebtedness" of any Person shall mean, without
duplication (i) all obligations of such Person which in
accordance with GAAP would be shown on the balance sheet of such
Person as a liability (including, without limitation, obligations
for borrowed money and for the deferred purchase price of
property or services, and obligations evidenced by bonds,
debentures, notes or other similar instruments); (ii) all rental
obligations under leases required to be capitalized under GAAP;
(iii) all Guaranties of such Person (including contingent
reimbursement obligations under undrawn letters of credit);
(iv) Indebtedness of others secured by any Lien upon property
owned by such Person, whether or not assumed; and (v) obligations
or other liabilities under currency contracts, interest rate
hedging contracts, or similar agreements or combinations thereof
to the extent required to be disclosed in accordance with GAAP.
"Intercompany Loans" shall mean those loans or other
extensions of credit made by any Consolidated Company to another
Consolidated Company as allowed by Section 9.01(g) or as may
otherwise be approved in writing by the Agent and the Required
Lenders, if any.
"Intercreditor Agreement" shall mean that certain
Intercreditor Agreement dated as of December 11, 1992 by and
among the Lenders and The Prudential Insurance Company of
America, as amended by that certain First Amendment to
Intercreditor Agreement dated as of even date herewith, as
hereafter further amended, modified or supplemented.
"Interest Period" shall have the meaning set forth in
Section 5.04.
"Intermet" shall mean Intermet Corporation, a Georgia
corporation, its successors and permitted assigns.
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance, loan or other extension
of credit (other than the creation of receivables in the ordinary
course of business) or capital contribution by such Person (by
means of transfers of property to others or payments for property
or services for the account or use of others, or otherwise) to
any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in,
capital stock, partnership interests, bonds, notes, debentures or
other securities issued by any other Person, in each case, other
than an Acquisition. Each Investment shall be valued as of the
date made; provided that any Investment or portion of an
Investment consisting of Debt shall be valued at the outstanding
principal balance thereof as of the date of determination.
"Lender" or "Lenders" shall mean TCB, the other banks
and lending institutions listed on the signature pages hereof,
and each assignee thereof, if any, pursuant to Section 12.06(c).
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"Lending Office" shall mean for each Lender the office
such Lender may designate in writing from time to time to
Intermet and the Agent with respect to each Type of Loan.
"Letter of Credit Commitment" shall mean, at any time
for any Domestic Lender, the amount of such commitment set forth
opposite such Domestic Lender's name on the signature pages
hereof, as the same may be increased or decreased from time to
time as a result of any assignment thereof pursuant to
Section 12.06 or any amendment thereof pursuant to Section 12.02.
"Letter of Credit Facility" shall mean the Letter of
Credit Commitments established pursuant to Section 4.01 hereof.
"Letter of Credit Fee" shall have the meaning set forth
in Section 5.05(d).
"Letter of Credit Obligations" shall mean,
collectively, the Environmental Letter of Credit Obligations and
the Workers Compensation Letter of Credit Obligations.
"Letters of Credit" shall mean collectively, the
Environmental Letters of Credit and the Workers Compensation
Letters of Credit.
"Leverage Ratio" shall mean, as of any date of
determination, the ratio, expressed as a percentage, of Funded
Debt to Total Capitalization for the Consolidated Companies.
"LIBOR" shall mean, for any Interest Period, with
respect to Eurodollar Advances under the Revolving Loan
Commitments, the offered rate for deposits in Dollars, for a
period comparable to the Interest Period and in an amount
comparable to the Agent's portion of such Advances, appearing on
the Reuters Screen LIBO Page as of 11:00 AM (London, England
time) on the day that is two Business Days prior to the first day
of the Interest Period. If two or more of such rates appear on
the Reuters Screen LIBO Page, the rate shall be the arithmetic
mean of such rates. If the foregoing rate is unavailable from
the Reuters Screen for any reason, then such rate shall be
determined by the Agent from Telerate Page 3750 or, if such rate
is also unavailable on such service, then on any other interest
rate reporting service of recognized standing designated in
writing by the Agent to Intermet and the other Domestic Lenders;
in any such case rounded, if necessary, to the next higher 1/16
of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security
interest, lien, charge, hypothecation, assignment, deposit
arrangement, title retention, preferential property right, trust
or other arrangement having the practical effect of the foregoing
and shall include the interest of a vendor or lessor under any
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conditional sale agreement, capitalized lease or other title
retention agreement.
"Loans" shall mean, collectively, the Revolving Loans
and the Currency Loans.
"Mandatory Reduction Date" shall have the meaning set
forth in Section 2.04 hereof.
"Margin Regulations" shall mean Regulation G,
Regulation T, Regulation U and Regulation X of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time.
"Material Subsidiary" shall mean (i) each Credit Party
other than Intermet, (ii) Columbus Neunkirchen, and (iii) each
other Subsidiary of Intermet, now existing or hereinafter
established or acquired, that at any time prior to the Final
Maturity Date, has or acquires gross assets equal to or in excess
of 5% of Total Assets of the Consolidated Companies, or that
accounted for or produced more than 5% of the Consolidated EBIT
of Intermet on a consolidated basis during any of the three most
recently completed fiscal years of Intermet, or that (x) holds
any fixed assets material to the operations or business of
Intermet or another Material Subsidiary, or (y) is otherwise
material to the operations or business of Intermet or another
Material Subsidiary.
"Materially Adverse Effect" shall mean any materially
adverse change in (i) the business, results of operations,
financial condition, assets or prospects of the Consolidated
Companies, taken as a whole, (ii) the ability of Intermet to
perform its obligations under this Agreement, (iii) the ability
of the other Credit Parties (taken as a whole) to perform their
respective obligations under the Credit Documents, or (iv) the
perfection or priority of the Liens granted in favor of the Agent
pursuant to the Security Documents.
"Minimum Required Rating" shall mean (i) from Moody's,
a long-term deposit rating of A1 or higher (or comparable rating
in the event Moody's hereafter modifies its rating system for
long-term deposits of commercial banks), and (ii) from S&P, a
long-term deposit rating of A+ or higher (or comparable rating in
the event S&P hereafter modifies its rating system for long-term
deposits of commercial banks).
"Moody's" shall mean Moody's Investors Service, Inc.,
and its successors and assigns.
"Multiemployer Plan" shall have the meaning set forth
in Section 4001(a)(3) of ERISA.
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"Net Fixed Assets" shall mean, as of any date of
determination, the net property, plant and equipment of the
Consolidated Companies determined in accordance with GAAP and as
reflected on the balance sheet of Intermet.
"Note Purchase Agreement" shall mean that certain Note
Purchase Agreement dated as of December 11, 1992 by and between
the Borrower and The Prudential Insurance Company of America, as
amended, modified or supplemented.
"Notes" shall mean, collectively, the Revolving Credit
Notes and the Currency Note.
"Notice of Borrowing" shall have the meaning provided
in Section 5.01(a)(i).
"Notice of Continuation/Conversion" shall have the
meaning provided in Section 5.01(b)(i).
"Notice of Currency Borrowing" shall have the meaning
provided in Section 5.01(a)(ii).
"Notice of Currency Continuation/Conversion" shall have
the meaning provided in Section 5.01(b)(ii).
"Obligations" shall mean all amounts owing to the Agent
or any Lender pursuant to the terms of this Agreement or any
other Credit Document, including without limitation, all Loans
(including all principal and interest payments due thereunder),
all Letter of Credit Obligations, fees, expenses, indemnification
and reimbursement payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute
or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof.
"Payment Office" shall mean (i) with respect to pay-
ments of all other principal, interest, fees or other amounts re-
lating to the Currency Loans, the office specified as the
"Payment Office" for the Currency Lender on the signature page of
the Currency Lender, or such other location as to which the
Currency Lender shall have given written notice to Intermet and
the Agent, and (ii) with respect to payments of principal,
interest, fees or other amounts relating to the Revolving Loans,
the Letter of Credit Obligations, and all other Obligations not
described in the preceding clause (i), the office specified as
the "Payment Office" for the Agent on the signature page of the
Agent, or such other location as to which the Agent shall have
given written notice to Intermet and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation, or any successor thereto.
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"PBM" shall mean PBM Industries, Inc.
"Permitted Liens" shall mean those Liens expressly
permitted by Section 9.02.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, trust or other entity,
or any government or political subdivision or agency, department
or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as
defined in Section 3(3) of ERISA), including, but not limited to,
any defined benefit pension plan, profit sharing plan, money
purchase pension plan, savings or thrift plan, stock bonus plan,
employee stock ownership plan, Multiemployer Plan, or any plan,
fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident,
sickness, disability, or life insurance benefits, but shall
exclude any Foreign Plan.
"Pledge Agreement" shall mean, collectively, that
certain Pledge and Security Agreement executed in favor of the
Agent, substantially in the form of Exhibit F, providing for the
grant of first-priority Liens on the Pledged Stock, as the same
may be amended, restated or supplemented from time to time.
"Pledged Stock" shall mean, collectively, 66% of the
issued and outstanding capital stock, together with all warrants,
stock options, and other purchase and conversion rights with
respect to such capital stock, of each of Columbus Neunkirchen
and all other Material Subsidiaries that are Foreign Subsidiaries
directly owned by Intermet and/or owned by one or more other
Subsidiaries organized in the United States.
"Prior Credit Agreement" shall have the meaning set
forth in the recitals hereof.
"Pro Rata Share" shall mean, (i) with respect to each
of the Revolving Loan Commitment and the Currency Loan Commitment
of each Lender and each Loan to be made by and each payment
(including, without limitation, any payment of principal,
interest or fees) to be made to each Lender, the percentage
designated as such Lender's Pro Rata Share of such Commitments,
such Loans or such payments, as applicable, set forth under the
name of such Lender on the respective signature page for such
Lender, and (ii) with respect to the Letter of Credit Commitments
of each Domestic Lender, and the outstanding Letters of Credit,
the Pro Rata Share of such Letter of Credit Commitments set forth
under the name of such Domestic Lender on the respective
signature page for such Lender, in each case as such Pro Rata
Share may change from time to time as a result of assignments or
amendments made pursuant to this Agreement.
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"Rating Agencies" shall mean, collectively, Moody's and
S&P.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time.
"Required Lenders" shall mean at any time prior to the
termination of the Commitments, Lenders holding at least 66-2/3%
of the then aggregate amount of the Revolving Loan Commitments,
the Currency Loan Commitment and the Letter of Credit
Commitments, or, following the termination of the Commitments
hereunder, Lenders holding at least 66-2/3% of the sum of the
aggregate outstanding Loans and Letter of Credit Obligations.
For purposes of determining the percentage pursuant to this
definition, the Dollar Equivalent of the Currency Loans or
Currency Loan Commitment on the date of any such determination
shall be utilized; provided, however, following the occurrence
of an Event of Default, the Dollar Equivalent of such Currency
Loans and Currency Loan Commitment shall be the Dollar Equivalent
on the date of the occurrence of such Event of Default.
"Requirement of Law" for any person shall mean the
articles or certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any
law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each
case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is
subject.
"Reuters Screen" shall mean, when used in connection
with any designated page and LIBOR, the display page so
designated on the Reuters Monitor Money Rates Service (or such
other page as may replace that page on that service for the
purpose of displaying rates comparable to LIBOR).
"Revolving Credit Notes" shall mean, collectively, the
promissory notes evidencing the Revolving Loans in the form
attached hereto as Exhibit A, either as originally executed or as
hereafter amended, modified or substituted.
"Revolving Loans" shall mean, collectively, the
revolving credit loans made to Intermet by the Domestic Lenders
pursuant to Section 2.01.
"Revolving Loan Commitment" shall mean, at any time for
any Domestic Lender, the amount of such commitment set forth
opposite such Domestic Lender's name on the signature pages
hereof, including the Environmental Letter of Credit Subfacility,
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as the same may be increased or decreased from time to time as a
result of any reduction thereof pursuant to Sections 2.03 or
2.04, any assignment thereof pursuant to Section 12.06, or any
amendment thereof pursuant to Section 12.02.
"Security Documents" shall mean, collectively, the
Guaranty Agreements, the Pledge Agreements, and each other
guaranty agreement, mortgage, deed of trust, security agreement,
pledge agreement, or other security or collateral document
guaranteeing or securing the Obligations, as the same may be
amended, restated, or supplemented from time to time.
"Shareholders' Equity" shall mean, with respect to any
Person as at any date of determination, shareholders' equity of
such Person determined on a consolidated basis in conformity with
GAAP.
"Subordinated Debt" shall mean other Indebtedness of
Intermet subordinated to all obligations of Intermet or any other
Credit Party arising under this Agreement, the Notes, and the
Guaranty Agreements on terms and conditions satisfactory in all
respects to the Agent and the Required Lenders, including without
limitation, with respect to interest rates, payment terms,
maturities, amortization schedules, covenants, defaults,
remedies, and subordination provisions, as evidenced by the
written approval of the Agent and Required Lenders.
"Subsidiary" shall mean, with respect to any Person,
any corporation or other entity (including, without limitation,
partnerships, joint ventures, and associations) regardless of its
jurisdiction of organization or formation, at least a majority of
the total combined voting power of all classes of voting stock or
other ownership interests of which shall, at the time as of which
any determination is being made, be owned by such Person, either
directly or indirectly through one or more other Subsidiaries.
"Tax Code" shall mean the Internal Revenue Code of
1986, as amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or
other charges of whatever nature, including without limitation,
income, receipts, excise, property, sales, transfer, license,
payroll, withholding, social security and franchise taxes now or
hereafter imposed or levied by the United States, or any state,
local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and
all interest, penalties, additions to tax and similar liabilities
with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the
Dow Jones Telerate Service (or such other page as may replace
that page on that service for the purpose of displaying rates
comparable to LIBOR).
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"Total Assets" shall mean the total assets of the
Consolidated Companies, determined in accordance with GAAP.
"Total Capitalization" shall mean the sum of Funded
Debt and Consolidated Net Worth of the Consolidated Companies.
"Total Commitment" shall mean, for any Lender, such
Lender's Revolving Loan Commitment or Currency Loan Commitment,
as the case may be, plus its Letter of Credit Commitment, and
"Total Commitments" shall mean, for all Lenders at any time, the
sum of the Total Commitment of all Lenders.
"Type" of Borrowing shall mean a Borrowing consisting
of Base Rate Advances or Euro Advances.
"Workers Compensation Letters of Credit" shall mean the
letters of credit issued pursuant to Article IV hereof by the
Agent for the account of Intermet for the sole purpose of
supporting certain obligations of Intermet with respect to
workers compensation insurance, provided that the stated amount
of such Workers Compensation Letters of Credit shall not exceed,
at any time outstanding, the amount of the Letter of Credit
Facility.
"Workers Compensation Letter of Credit Obligations"
shall mean, with respect to Workers Compensation Letters of
Credit, as at any date of determination, the sum of (a) the
maximum aggregate amount which at such date of determination is
available to be drawn by the beneficiaries thereof (assuming the
conditions for drawing thereunder have been met) under all
Workers Compensation Letters of Credit then outstanding, plus (b)
the aggregate amount of all drawings under Workers Compensation
Letters of Credit honored by the Agent not theretofore reimbursed
by Intermet.
Section 1.02. Accounting Terms and Determination.
Unless otherwise defined or specified herein, all accounting
terms shall be construed herein, all accounting determinations
hereunder shall be made, all financial statements required to be
delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP, except that
financial records of Foreign Subsidiaries may be maintained in
accordance with generally accepted accounting principles in
effect from time to time in the jurisdiction of organization of
such Foreign Subsidiary; provided, however, that compliance with
the financial covenants and calculations set forth in Section
8.08, Article IX, and elsewhere herein, and in the definitions
used in such covenants and calculations, shall be calculated,
made and applied in accordance with GAAP and such generally
accepted accounting principles in such foreign jurisdictions, as
the case may be, as in effect on the date of this Agreement
applied on a basis consistent with the preparation of the
financial statements referred to in Section 7.14 unless and until
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Intermet and the Required Lenders enter into an agreement with
respect thereto in accordance with Section 12.13.
Section 1.03. Other Definitional Terms. The words
"hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Article, Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified.
Section 1.04. Exhibits and Schedules. All Exhibits
and Schedules attached hereto are by reference made a part
hereof.
ARTICLE II.
REVOLVING LOANS AND ENVIRONMENTAL LETTERS OF CREDIT
Section 2.01. Revolving Loan Commitment; Use of
Proceeds.
(a) Subject to and upon the terms and conditions
herein set forth, each Domestic Lender severally agrees to make
to Intermet from time to time on and after the Closing Date, but
prior to the Final Maturity Date, Revolving Loans in an aggregate
amount outstanding at any time not to exceed such Lender's
Revolving Loan Commitment minus such Lender's Environmental
Letter of Credit Exposure. Intermet shall be entitled to repay
and reborrow Revolving Loans in accordance with the provisions
hereof.
(b) Each Revolving Loan shall, at the option of
Intermet, be made or continued as, or converted into, part of one
or more Borrowings that shall consist entirely of Base Rate
Advances or Eurodollar Advances. The aggregate principal amount
of each Borrowing of Revolving Loans shall be not less than
$1,000,000 or a greater integral multiple of $100,000, provided
that each Borrowing of Revolving Loans comprised of Base Rate Ad-
vances shall be not less than $250,000 or a greater integral mul-
tiple of $1000. At no time shall the number of Borrowings out-
standing under this Article II exceed nine; provided that, for
the purpose of determining the number of Borrowings outstanding
and the minimum amount for Borrowings resulting from conversions
or continuations, all Borrowings of Base Rate Advances under this
Facility shall be considered as one Borrowing.
(c) The proceeds of Revolving Loans shall be used
solely for the following purposes:
(i) On the Closing Date all amounts outstanding
pursuant to the Revolving Loan Commitments under the Prior
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Credit Agreement and the Environmental Letters of Credit
issued thereunder shall be deemed to be outstanding
hereunder and the Domestic Lenders shall make and receive
such payments as the Agent shall direct to pay out the
exiting lenders under the Prior Credit Agreement and to
adjust the Pro Rata Shares of the Lenders to reflect the
terms of this Agreement; and
(ii) All other amounts shall be used as working capital
and for other general corporate purposes, including
acquisitions, the repayment of Indebtedness and capital
expenditures of the Consolidated Companies.
Section 2.02. Notes; Repayment of Principal.
(a) Intermet's obligations to pay the principal of,
and interest on, the Revolving Loans to each Domestic Lender
shall be evidenced by the records of the Agent and such Domestic
Lender and by the Revolving Credit Note payable to such Domestic
Lender (or the assignor of such Lender) completed in conformity
with this Agreement.
(b) All outstanding principal amounts under the
Revolving Loans shall be due and payable in full on the Final
Maturity Date.
Section 2.03. Voluntary Reduction of Revolving Loan
Commitments. Upon at least three (3) Business Days' prior
telephonic notice (promptly confirmed in writing) to the Agent,
Intermet shall have the right, without premium or penalty, to
terminate the Revolving Loan Commitments, in part or in whole,
provided that (i) any such termination shall apply to
proportionately and permanently reduce the Revolving Loan
Commitments of each of the Domestic Lenders, (ii) any partial
termination pursuant to this Section 2.03 shall be in an amount
of at least $1,000,000 and integral multiples of $100,000, and
(iii) no such reduction shall be permitted which would require a
prepayment that is not permitted by Section 5.06. If the
aggregate outstanding amount of the Revolving Loans plus
Environmental Letter of Credit Obligations exceeds the amount of
the Revolving Loan Commitments as so reduced, Intermet shall
immediately repay the Revolving Loans by an amount equal to such
excess, together with all accrued but unpaid interest on such
excess amount and any amounts due under Section 5.12 hereof, and,
if the outstanding Environmental Letter of Credit Obligations
still exceed the reduced amount of the Revolving Loan
Commitments, Intermet shall cash-collateralize, to the extent of
such excess, the Environmental Letter of Credit Obligations on
terms and conditions satisfactory to the Agent.
Section 2.04. Mandatory Reduction of Revolving Loan
Commitments. In addition to the voluntary reductions of the
Revolving Loan Commitments permitted pursuant to Section 2.03
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hereof, the Revolving Loan Commitments shall automatically be
reduced, proportionately and permanently on each of the following
dates (the "Mandatory Reduction Dates"), by an aggregate amount
equal to the amount set forth opposite such date:
Mandatory Reduction Amount of
Date Reduction
___________________ ____________
August 31, 1996 $ 5,000,000
August 31, 1997 $10,000,000
provided, however, that if the Revolving Loan Commitments have
previously been reduced by such amount prior to the respective
Mandatory Reduction Date pursuant to Section 2.03 hereof, no
further reduction shall be required. To the extent that the sum
of the Borrowings outstanding under the Revolving Loan
Commitments plus the Environmental Letter of Credit Obligations
are in excess of the reduced amount of the Revolving Loan
Commitments on such Mandatory Reduction Date, Intermet shall
immediately repay any such excess Borrowings and, if the
outstanding Environmental Letter of Credit Obligations still
exceed the reduced amount of the Revolving Loan Commitments,
shall cash-collateralize, to the extent of such excess, the
Environmental Letter of Credit Obligations on terms and
conditions satisfactory to the Agent.
Section 2.05. Environmental Letter of Credit
Subfacility; Deemed Issuance of Environmental Letters of Credit.
On the Closing Date, the Environmental Letters of Credit shall be
deemed to have been issued hereunder and shall be subject to the
terms hereof. In no event shall any Environmental Letter of
Credit issued by the Agent have an expiration date (or be
extended so that it will expire) later than the Final Maturity
Date except for provisions that such Letter of Credit must stay
in place during any ongoing compliance procedures of the
Commonwealth of Virginia.
Section 2.06. Responsibilities of Agent; Purchase of
Participation Interests in Environmental Letter of Credit.
(a) In determining whether to pay under any
Environmental Letter of Credit, the Agent shall be responsible
only to determine that the documents and certificate required to
be delivered under its Letter of Credit have been delivered, and
that they comply on their face with the requirements of the
Letter of Credit.
(b) As of the Closing Date, each Domestic Lender shall
be deemed to, and hereby agrees to, have irrevocably purchased
from the Agent a participation in each Environmental Letter of
Credit and any drawing thereunder in an amount equal to such
Domestic Lender's Pro Rata Share of the Revolving Loan
Commitments multiplied by the face amount of each Environmental
Letter of Credit. Upon issuance and amendment or extension of
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any Environmental Letter of Credit, the Agent shall provide a
copy of each such Environmental Letter of Credit issued, amended
or extended hereunder to each of the Domestic Lenders.
Section 2.07. Payment of Amounts drawn under
Environmental Letter of Credit.
(a) In the event of any request for a drawing under
any Environmental Letter of Credit by the beneficiary thereof,
the Agent shall notify Intermet and the Domestic Lenders on or
before the date on which the Agent intends to honor such drawing,
and Intermet shall reimburse the Agent on the day on which such
drawing is honored in an amount, in same day funds, equal to the
amount of such drawing, provided that anything contained in this
Agreement to the contrary notwithstanding, unless Intermet shall
have notified the Agent prior to 11:00 AM (Atlanta, Georgia time)
on the Business Day immediately prior to the date on which such
drawing is honored, that Intermet intends to reimburse the Agent
for the amount of such drawing in funds other than the proceeds
of Revolving Loans, Intermet shall be deemed to have timely given
a Notice of Borrowing to the Agent requesting Revolving Loans
which are Base Rate Advances on the date on which such drawing is
honored in an amount equal to the amount of such drawing, and the
Domestic Lenders shall by 1:00 P.M. (Atlanta, Georgia time) on
the date of such drawing, make Revolving Loans which are Base
Rate Advances in the amount of such drawing, the proceeds of
which shall be applied directly by the Agent to reimburse itself
for the amount of such drawing, provided that for the purposes
solely of such borrowing, the conditions and precedents set forth
in Sections 6.01 and 6.02 shall not be applicable, and provided
further that if for any reason proceeds of the Revolving Loans
are not received by the Agent on such date in the amount equal to
the amount of such drawing, Intermet shall reimburse the Agent on
the Business Day immediately following the date of such drawing
in an amount, in Dollars and immediately available funds, equal
to the excess of the amount of such drawing over the amount of
such Revolving Loans, if any, which are so received, plus accrued
interest on the amount at the applicable rate of interest for
Base Rate Advances which are Revolving Loans. Any Revolving
Loans made as Base Rate Advances pursuant to this subsection (a)
may be converted into Advances of another Type at any time upon
compliance with Section 5.01(b).
(b) Notwithstanding any provision of this Agreement to
the contrary, to the extent that any Environmental Letter of
Credit or portion thereof remains outstanding on the Final
Maturity Date, for any reason whatsoever, the parties hereto
hereby agree that the beneficiary or beneficiaries thereof shall
be deemed to have made a drawing of all available amounts
pursuant to such Letters of Credit on the Final Maturity Date
which amount shall be held by the Agent as cash collateral for
its remaining obligations pursuant to such Environmental Letters
of Credit. In the event that Intermet is unable to provide the
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evidence of the termination of any Letter of Credit required by
subsection (d) below by the Final Maturity Date, such
Environmental Letter of Credit will be deemed to be outstanding
hereunder.
(c) To the extent permitted by the applicable
regulations of the Commonwealth of Virginia, Intermet agrees,
upon the request of the Agent, to seek a decrease in the face
amount of the outstanding Environmental Letters of Credit.
(d) Intermet agrees, upon the request of the Agent, to
use its best efforts to deliver to the Agent (i) a certificate or
other document from the applicable department or agency of the
Commonwealth of Virginia stating that there is no environmental
compliance proceeding against Intermet or its Subsidiaries which
would prevent the expiration or termination of any Environmental
Letter of Credit, or (ii) other evidence satisfactory to the
Agent that each of the Environmental Letters of Credit has been
terminated.
Section 2.08. Payment by Domestic Lenders. In the
event that Intermet shall fail to reimburse the Agent as provided
in Section 2.07 by borrowing Revolving Loans, or otherwise
providing an amount equal to the amount of any drawing honored by
the Agent pursuant to any Environmental Letter of Credit issued
by it, the Agent shall promptly notify each Domestic Lender of
the unreimbursed amount of such drawing and of such Domestic
Lender's respective participation therein. Each Domestic Lender
shall make available to the Agent an amount equal to its
respective participation, in Dollars and in immediately available
funds, at the office of the Agent specified in such notice not
later than 1:00 P.M. (Atlanta, Georgia time) on the Business Day
after the date notified by the Agent. In the event that any such
Domestic Lender fails to make available to the Agent the amount
of such Domestic Lender's participation in such Environmental
Letter of Credit, the Agent shall be entitled to recover such
amount on demand from such Domestic Lender together with interest
as provided for in Section 5.02(c). The Agent shall distribute
to each other Domestic Lender which has paid all amounts payable
under this Section with respect to any Environmental Letter of
Credit, such Domestic Lender's Pro Rata Share of all payments
received by the Agent from Intermet in reimbursement of drawings
honored by the Agent under such Environmental Letter of Credit
when such payments are received.
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ARTICLE III
CURRENCY LOANS
Section 3.01. Currency Loan Commitment; Use of
Proceeds.
(a) Subject to and upon the terms and conditions
herein set forth, the Currency Lender agrees to make to Intermet
from time to time on and after the Closing Date, but prior to the
Final Maturity Date, Currency Loans in an aggregate amount
outstanding at any time not to exceed the Currency Loan
Commitment. Intermet shall be entitled to repay and reborrow
Currency Loans in accordance with the provisions hereof.
(b) Each Currency Loan shall, at the option of
Intermet, be made or continued as, or converted into, part of one
or more Borrowings, that shall consist entirely of Base Rate
Advances or Eurocurrency Advances. The aggregate principal
amount of each Borrowing of Currency Loans shall be not less than
DM 1,000,000 or a greater integral multiple of DM 100,000.
(c) The proceeds of the Currency Loans shall be used
solely for the following purposes:
(i) On the Closing Date, all Currency Loans
outstanding pursuant to Prior Credit Agreement shall be
deemed to be outstanding hereunder; and
(ii) All other amounts shall be used as working
capital and other general corporate purposes of the
Foreign Subsidiaries.
Section 3.02 Notes; Repayment of Principal.
(a) Intermet's obligation to pay the principal of, and
interest on, the Currency Loans to the Currency Lender shall be
evidenced by the records of the Agent and the Currency Lender and
by the Currency Note payable to the Currency Lender completed in
conformity with this Agreement.
(b) All outstanding principal amounts under the
Currency Loans shall be due and payable in full on the Final
Maturity Date.
Section 3.03 Voluntary Reduction of Currency Loan
Commitments. Upon at least three (3) Business Days' prior
telephonic notice (promptly confirmed in writing) to the Currency
Lender and the Agent, Intermet shall have the right, without
premium or penalty, to terminate the Currency Loan Commitments,
in part or in whole, provided that any partial termination
pursuant to this Section 3.03 shall be in an amount of at least
DM 1,000,000 and integral multiples of DM 100,000, and (ii) no
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such reduction shall be permitted which would require a
prepayment that is not permitted by Section 5.06. If the
aggregate outstanding amount of the Currency Loans exceeds the
amount of the Currency Loan Commitment as so reduced, Intermet
shall immediately repay the Currency Loans by an amount equal to
such excess, together with all accrued but unpaid interest on
such excess amount.
ARTICLE IV
LETTER OF CREDIT FACILITY
Section 4.01. Letter of Credit Facility. Subject to,
and upon the terms and conditions, and in reliance upon the
representations and warranties of Intermet set forth in this
Agreement, each of the Domestic Lenders hereby establishes its
Letter of Credit Commitment in favor of Intermet whereby the
Domestic Lenders agree to purchase participation interests in an
amount not to exceed such Domestic Lender's Letter of Credit
Commitment in Workers Compensation Letters of Credit issued by
the Agent on behalf of Intermet pursuant hereto. Intermet may
request, in accordance with the provisions of this Section 4.01
and Section 4.02 and the other terms of this Agreement, that on
and after the Closing Date but prior to the Final Maturity Date,
the Agent issue a Workers Compensation Letter or Letters of
Credit for the account of Intermet in support of certain
contingent obligations of Intermet or its Subsidiaries relating
to worker's compensation insurance; provided that the application
for such Workers Compensation Letters of Credit issued by the
Agent shall be in the form substantially identical to Exhibit D
attached hereto, provided further that (i) no Workers
Compensation Letter of Credit shall have an expiration date that
is later than one year after the date of issuance thereof
(provided that a Workers Compensation Letter of Credit may
provide that it is extendible for consecutive one year periods);
(ii) in no event shall any Workers Compensation Letter of Credit
issued by the Agent have an expiration date (or be extended so
that it will expire) later than the Final Maturity Date; (iii) no
more than eight (8) Workers Compensation Letters of Credit issued
by the Agent shall be outstanding hereunder at any one time; and
(iv) Intermet shall not request that the Agent issue any Workers
Compensation Letter of Credit, if, after giving effect to such
issuance, the aggregate Workers Compensation Letter of Credit
Obligations would exceed the Letter of Credit Facility.
Section 4.02. Notice of Issuance of Workers
Compensation Letter of Credit; Agreement to Issue.
(a) Whenever Intermet desires the issuance of a
Workers Compensation Letter of Credit, it shall, in addition to
any application and documentation procedures required by the
Agent for the issuance of such Workers Compensation Letter of
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Credit, deliver to the Agent a written notice no later than 11:00
AM (Atlanta, Georgia time) at least five (5) days in advance of
the proposed date of issuance and the Agent shall promptly
forward a copy of such notice to each of the Domestic Lenders.
Each such notice shall specify (i) the proposed date of issuance
(which shall be a Business Day); (ii) the face amount of the
Workers Compensation Letter of Credit; (iii) the expiration date
of the Workers Compensation Letter of Credit; and (iv) the name
and address of the beneficiary with respect to such Workers
Compensation Letter of Credit and shall attach a precise
description of the documentation and a verbatim text of any
certificate to be presented by the beneficiary of such Workers
Compensation Letter of Credit which would require the Agent to
make payment under the Workers Compensation Letter of Credit,
provided that the Agent may require changes in any such documents
and certificates in accordance with its customary letter of
credit practices, and provided further, that no Workers
Compensation Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day
that such draft is presented if such presentation is made after
11:00 AM (Atlanta, Georgia time). In determining whether to pay
under any Workers Compensation Letter of Credit, the Agent shall
be responsible only to determine that the documents and
certificate required to be delivered under its Workers
Compensation Letter of Credit have been delivered, and that they
comply on their face with the requirements of the Workers
Compensation Letter of Credit. Promptly after receiving the
notice of issuance of a Workers Compensation Letter of Credit,
the Agent shall notify each Domestic Lender of such Domestic
Lender's respective participation therein, determined in
accordance with its respective Pro Rata Share of the Letter of
Credit Commitments.
(b) The Agent agrees, subject to the terms and
conditions set forth in this Agreement, to issue for the account
of Intermet a Workers Compensation Letter of Credit in a face
amount equal to the face amount requested under paragraph (a)
above, following its receipt of a notice required by Section
4.02(a). Immediately upon the issuance of each Workers
Compensation Letter of Credit, each Domestic Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased from
the Agent a participation in such Workers Compensation Letter of
Credit and any drawing thereunder in an amount equal to such
Domestic Lender's Pro Rata Share of the Letter of Credit
Commitments multiplied by the face amount of such Letter of
Credit. Upon issuance and amendment or extension of any Workers
Compensation Letter of Credit, the Agent shall provide a copy of
each such Workers Compensation Letter of Credit issued, amended
or extended hereunder to each of the Domestic Lenders.
(c) As of the Closing Date, each of the Workers
Compensation Letters of Credit set forth on Schedule 8.01(b)
shall be deemed to have been issued by the Agent in accordance
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with the terms hereof, each of the Domestic Lenders shall be
deemed to have purchased a participation in the such Workers
Compensation Letters of Credit in an amount equal to such
Domestic Lender's Pro Rata Share of the Letter of Credit
Commitments multiplied by the face amount thereof, and such
Letters of Credit shall be governed by the terms hereof.
Section 4.03. Payment of Amounts drawn under Letter of
Credit Facility.
(a) In the event of any request for a drawing under
any Workers Compensation Letter of Credit by the beneficiary
thereof, the Agent shall notify Intermet and the Domestic Lenders
on or before the date on which the Agent intends to honor such
drawing, and Intermet shall reimburse the Agent on the day on
which such drawing is honored in an amount, in same day funds,
equal to the amount of such drawing.
(b) Notwithstanding any provision of this Agreement to
the contrary, to the extent that any Workers Compensation Letter
of Credit or portion thereof remains outstanding on the Final
Maturity Date, for any reason whatsoever, the parties hereto
hereby agree that the beneficiary or beneficiaries thereof shall
be deemed to have made a drawing of all available amounts
pursuant to such Workers Compensation Letters of Credit on the
Final Maturity Date which amount shall be held by the Agent as
cash collateral for its remaining obligations pursuant to such
Workers Compensation Letters of Credit.
Section 4.04. Payment by Domestic Lenders. In the
event that Intermet shall fail to reimburse the Agent as provided
in Section 4.03, the Agent shall promptly notify each Domestic
Lender of the unreimbursed amount of such drawing and of such
Domestic Lender's respective participation therein. Each
Domestic Lender shall make available to the Agent an amount equal
to its respective participation, in Dollars and in immediately
available funds, at the office of the Agent specified in such
notice not later than 1:00 P.M. (Atlanta, Georgia time) on the
Business Day after the date notified by the Agent. In the event
that any such Domestic Lender fails to make available to the
Agent the amount of such Domestic Lender's participation in such
Workers Compensation Letter of Credit, the Agent shall be
entitled to recover such amount on demand from such Domestic
Lender together with interest as provided for in Section 5.02.
The Agent shall distribute to each other Domestic Lender which
has paid all amounts payable under this Section with respect to
any Workers Compensation Letter of Credit, such Domestic Lender's
Pro Rata Share of all payments received by the Agent from
Intermet in reimbursement of drawings honored by the Agent under
such Workers Compensation Letter of Credit when such payments are
received.
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ARTICLE V.
GENERAL LOAN AND LETTER OF CREDIT TERMS
Section 5.01. Funding Notices.
(a) (i) Whenever Intermet desires to make a Borrowing
with respect to the Revolving Loan Commitments (other than one
resulting from a conversion or continuation pursuant to Section
5.01(b)(i)), it shall give the Agent prior written notice (or
telephonic notice promptly confirmed in writing) of such
Borrowing (a "Notice of Borrowing"), such Notice of Borrowing to
be given prior to 11:00 AM (local time for the Agent) at its
Payment Office (x) one Business Day prior to the requested date
of such Borrowing in the case of Base Rate Advances, and (y)
three Business Days prior to the requested date of such Borrowing
in the case of Eurodollar Advances. Notices received after 11:00
AM shall be deemed received on the next Business Day. Each
Notice of Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date of
Borrowing (which shall be a Business Day), and whether the
Borrowing is to consist of Base Rate Advances or Eurodollar
Advances and (in the case of Eurodollar Advances) the Interest
Period to be applicable thereto.
(ii) Whenever Intermet desires to make a Borrowing
under the Currency Loan Commitment (other than one resulting from
a conversion or continuation pursuant to Section 5.01(b)(ii)), it
shall give the Currency Lender and the Agent prior written notice
(or telephonic notice promptly confirmed in writing) of such
Borrowing (a "Notice of Currency Borrowing"), such Notice of
Currency Borrowing to be given prior to 11:00 AM (local time for
the Currency Lender) at the respective Payment Offices of the
Currency Lender and the Agent, (x) one Business Day prior to the
date of such Borrowing in the case of Base Rate Advances, and
(y) three Business Days prior to the requested date of such
Borrowing in the case of Eurocurrency Advance. Notices received
after 11:00 AM shall be deemed received on the next Business Day.
Each Notice of Currency Borrowing shall be irrevocable and shall
specify the aggregate principal amount of the Borrowing, the date
of Borrowing (which shall be a Business Day), whether such
Borrowing is to consist of a Base Rate Advance or a Eurocurrency
Advance and (in the case of a Eurocurrency Advance) the Interest
Period applicable thereto.
(b) (i) Whenever Intermet desires to convert all or a
portion of an outstanding Borrowing under the Revolving Loan
Commitments, which Borrowing consists of Base Rate Advances or
Eurodollar Advances, into one or more Borrowings consisting of
Advances of another Type, or to continue outstanding a Borrowing
consisting of Eurodollar Advances for a new Interest Period, it
shall give the Agent at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of
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each such Borrowing to be converted into or continued as
Eurodollar Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 AM (local
time for the Agent) on the date specified at the Payment Office
of the Agent. Each such Notice of Conversion/Continuation shall
be irrevocable and shall specify the aggregate principal amount
of the Advances to be converted or continued, the date of such
conversion or continuation, whether the Advances are being
converted into or continued Eurodollar Advances and, if so, the
Interest Period applicable thereto. If, upon the expiration of
any Interest Period in respect of any Borrowing, Intermet shall
have failed to deliver the Notice of Conversion/Continuation,
Intermet shall be deemed to have elected to convert or continue
such Borrowing to a Borrowing consisting of Base Rate Advances.
So long as any Executive Officer of Intermet has knowledge that
any Default or Event of Default shall have occurred and be
continuing, no Borrowing may be converted into or continued as
(upon expiration of the current Interest Period) Eurodollar
Advances unless the Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any Borrowing
of Eurodollar Advances shall be permitted except on the last day
of the Interest Period in respect thereof.
(ii) Whenever Intermet desires to convert all or a
portion of an outstanding Borrowing under the Currency Loan
Commitment, which Borrowing consists of Base Rate Advances or
Eurocurrency Advances, into one or more Borrowings consisting of
another Type, or to continue outstanding a Borrowing consisting
of Eurocurrency Advances for a new Interest Period, it shall give
the Currency Lender and the Agent at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in
writing) of each such Borrowing which shall be converted into or
continued as Eurocurrency Advances. Such notice (a "Notice of
Currency Continuation/Conversion") shall be given prior to 11:00
AM (local time for the Currency Lender) at its Payment Office on
the date specified with a copy to the Agent at its Payment
Office. Each such Notice of Currency Continuation/Conversion
shall be irrevocable and shall specify the aggregate principal
amount of the Advances to be converted or continued, the date of
such conversion or continuation, and in the case of Eurocurrency
Advances, the Interest Period to be applicable thereto. If, upon
the expiration of any Interest Period in respect of any
Borrowing, Intermet shall have failed to deliver the Notice of
Currency Continuation/Conversion, Intermet shall be deemed to
have elected to convert or continue such Borrowing to a Borrowing
consisting of Base Rate Advances. So long as any Default or
Event of Default shall have occurred and be continuing, no
Borrowing may be converted into or continued as (upon expiration
of the current Interest Period) Eurocurrency Advances. No
conversion of any Borrowing into Eurocurrency Advances shall be
permitted except on the last day of the Interest Period in
respect thereof.
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(c) Without in any way limiting Intermet's obligation
to confirm in writing any telephonic notice, the Agent and the
Currency Lender may act without liability upon the basis of
telephonic notice believed by the Agent or the Currency Lender in
good faith to be from Intermet prior to receipt of written
confirmation. In each such case, Intermet hereby waives the
right to dispute the Agent's and the Currency Lender's record of
the terms of such telephonic notice.
(d) The Agent shall promptly give each Domestic Lender
notice by telephone (confirmed in writing) or by telex, telecopy
or facsimile transmission of the matters covered by the notices
given to the Agent pursuant to this Section 5.01 with respect to
the Revolving Loan Commitments.
Section 5.02. Disbursement of Funds.
(a) No later than 11:00 AM (local time for the Agent)
on the date of each Borrowing pursuant to the Revolving Loan
Commitments (other than one resulting from a conversion or
continuation pursuant to Section 5.01(b)(i)), each Domestic
Lender will make available its Pro Rata Share of the amount of
such Borrowing in immediately available funds at the Payment
Office of the Agent. The Agent will make available to Intermet
the aggregate of the amounts (if any) so made available by the
Domestic Lenders to the Agent in a timely manner by crediting
such amounts to Intermet's demand deposit account maintained with
the Agent or at Intermet's option, effecting a wire transfer of
such amounts to Intermet's account specified by the Agent, by the
close of business on such Business Day. In the event that the
Domestic Lenders do not make such amounts available to the Agent
by the time prescribed above, but such amount is received later
that day, such amount may be credited to Intermet in the manner
described in the preceding sentence on the next Business Day
(with interest on such amount to begin accruing hereunder on such
next Business Day).
(b) No later than 11:00 AM (local time for the
Currency Lender) on the date of each Borrowing with respect to
the Currency Loan Commitments (other than one resulting from a
conversion or continuation pursuant to Section 5.01(b)(ii)), the
Currency Lender will make available the amount of such Borrowing
in immediately available funds at its Payment Office no later
than 11:00 AM (local time for the Currency Lender), on the date
of each Borrowing pursuant to the Currency Loan Commitments
(other than one resulting from a conversion or continuation
pursuant to Section 5.01(b)(ii)).
(c) Unless the Agent shall have been notified by any
Domestic Lender prior to the date of a Borrowing that such
Domestic Lender does not intend to make available to the Agent
such Domestic Lender's portion of the Borrowing to be made on
such date, the Agent may assume that such Domestic Lender has
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made such amount available to the Agent on such date and the
Agent may make available to Intermet a corresponding amount. If
such corresponding amount is not in fact made available to the
Agent by such Domestic Lender on the date of Borrowing, the Agent
shall be entitled to recover such corresponding amount on demand
from such Domestic Lender together with interest at the Federal
Funds Rate. If such Domestic Lender does not pay such
corresponding amount forthwith upon the Agent's demand therefor,
the Agent shall promptly notify Intermet, and Intermet shall
immediately pay such corresponding amount to the Agent together
with interest at the rate specified for the Borrowing which
includes such amount paid and any amounts due under Section 5.12
hereof. Nothing in this subsection shall be deemed to relieve
any Domestic Lender from its obligation to fund its Commitments
hereunder or to prejudice any rights which Intermet may have
against any Domestic Lender as a result of any default by such
Domestic Lender hereunder.
(d) All Borrowings under the Revolving Loan
Commitments shall be loaned by the Domestic Lenders on the basis
of their Pro Rata Share of the Revolving Loan Commitments. All
Borrowings under the Currency Loan Commitments shall be loaned by
the Currency Lender. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and
each Lender shall be obligated to make the Loans provided to be
made by it hereunder, regardless of the failure of any other
Lender to fund its Commitments hereunder.
Section 5.03. Interest.
(a) Intermet agrees to pay interest in respect of all
unpaid principal amounts of the Revolving Loans from the
respective dates such principal amounts were advanced to maturity
(whether by acceleration, notice of prepayment or otherwise) at
rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect
from time to time; or
(ii) For Eurodollar Advances--The relevant Adjusted
LIBO Rate plus the Applicable Margin.
(b) Intermet agrees to pay interest in respect of all
unpaid principal amounts of the Currency Loans made to Intermet
from the respective dates such principal amounts were advanced to
maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum equal to the applicable rates
indicated below:
(i) For Base Rate Advances - The Base Rate in effect
from time to time; or
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(ii) For Eurocurrency Advances - The relevant Adjusted
FIBO Rate plus the Applicable Margin.
(c) Overdue principal and, to the extent not
prohibited by applicable law, overdue interest, in respect of the
Revolving Loans and Currency Loans, and all other overdue amounts
owing hereunder, shall bear interest from each date that such
amounts are overdue:
(i) in the case of overdue principal and interest with
respect to all Loans outstanding as Euro Advances, at the
rate otherwise applicable for the then-current Interest Pe-
riod plus an additional two percent (2.0%) per annum;
thereafter at the rate in effect for Base Rate Advances plus
an additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with
respect to all other Loans outstanding as Base Rate
Advances, and all other Obligations hereunder (other than
Loans), at a rate equal to the applicable Base Rate plus an
additional two percent (2.0%) per annum;
(d) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date of any
repayment thereof; provided that, if a Loan is repaid on the same
day made, one day's interest shall be paid on such Loan.
Interest on all outstanding Base Rate Advances shall be payable
quarterly in arrears on the last calendar day of each calendar
quarter of Intermet in each year. Interest on all outstanding
Euro Advances shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of Euro Advances
having an Interest Period in excess of three months (in the case
of Euro Advances), on each day which occurs every 3 months, as
the case may be, after the initial date of such Interest Period.
Interest on all Loans shall be payable on any conversion of any
Advances comprising such Loans into Advances of another Type,
prepayment (on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and, after
maturity, on demand.
(e) The Agent, upon determining the Adjusted LIBO Rate
for any Interest Period, shall promptly notify by telephone (con-
firmed in writing) or in writing Intermet and the other Domestic
Lenders. The Currency Lender, upon determining the Adjusted FIBO
Rate for any Interest Period, shall promptly notify by telephone
(confirmed in writing) or in writing Intermet and the Agent. Any
such determination shall, absent manifest error, be final,
conclusive and binding for all purposes.
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Section 5.04. Interest Periods. In connection with
the making or continuation of, or conversion into, each Borrowing
of Euro Advances, Intermet shall select an interest period (each
an "Interest Period") to be applicable to such Euro Advances,
which Interest Period shall in the case of (y) Eurodollar
Advances, be either a 1, 2, 3 or 6 month period, and (z) in the
case of Currency Advances, be either a 3 or 6 month period;
provided that:
(i) The initial Interest Period for any Borrowing of
Euro Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing
consisting of Advances of another Type) and each Interest
Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding
Interest Period expires;
(ii) If any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, provided that if
any Interest Period in respect of Euro Advances would
otherwise expire on a day that is not a Business Day but is
a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) Any Interest Period in respect of Euro
Advances which begins on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period shall, subject to part (iv)
below, expire on the last Business Day of such calendar
month;
(iv) No Interest Period shall extend beyond any
Commitment Reduction Date unless the aggregate principal
amount of Revolving Loans that are Base Rate Advances, or
that have Interest Periods which will expire on or before
such Mandatory Reduction Date, is equal to or in excess of
the amount of any principal payment to be made on such date;
(v) No Interest Period with respect to the Loans shall
extend beyond the Final Maturity Date.
Section 5.05. Fees.
(a) On the Closing Date, Intermet shall pay to the
Agent, for the benefit of each Lender a facility fee (the
"Facility Fee") in the amount of 0.15% of the Total Commitment of
each Lender.
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(b) Intermet shall pay to the Agent, for the account
of and distribution of the respective Pro Rata Share to each
Domestic Lender, a commitment fee for the period commencing on
the Closing Date to and including the Final Maturity Date, com-
puted at a rate equal to three-eighths of one percent (0.375%)
per annum on the average daily unused portion of the Total
Commitments of such Lenders, such fee being payable quarterly in
arrears on the date which is five days following the last day of
each fiscal quarter of Intermet and on the Final Maturity Date;
provided that, on any date that the Applicable Margin applicable
to the Revolving Loans is less than one percent (1.0%) per annum,
the commitment fee payable pursuant to this subsection (b) shall
be computed at a rate equal to one quarter of one percent (0.25%)
per annum.
(c) Intermet shall pay to the Currency Lender, a
commitment fee for the period commencing on the Closing Date to
and including the Final Maturity Date, computed at a rate equal
to three-eighths of one percent (0.375%) per annum on the average
daily unused portion of the Currency Loan Commitment of such
Currency Lender, such fee being payable quarterly in arrears on
the date which is five days following the last day of each fiscal
quarter of Intermet, and on the Final Maturity Date; provided
that, on any date that the Applicable Margin applicable to the
Currency Loans is less than one percent (1.0%) per annum, the
commitment fee payable pursuant to this subsection (c) shall be
computed at a rate equal to one quarter of one percent (0.25%)
per annum.
(d) Intermet agrees to pay to the Agent, for the
account of the Domestic Lenders, a letter of credit fee equal to
the Applicable Margin applicable to Revolving Loans multiplied by
the daily average amount of Letter of Credit Obligations (the
"Letter of Credit Fee"). The Letter of Credit Fee shall be
payable by Intermet quarterly, in arrears, on the date which is
five days following the last day of each fiscal quarter of
Intermet, and on the Final Maturity Date.
(e) Intermet shall pay to the Agent fees for its
administrative services in the respective amounts and on the
dates as previously agreed in writing by Intermet with the Agent.
Section 5.06. Voluntary Prepayments of Borrowings.
(a) Intermet may, at its option, prepay Borrowings
consisting of Base Rate Advances at any time in whole, or from
time to time in part, in amounts aggregating $250,000 or any
greater integral multiple of $1,000, by paying the principal
amount to be prepaid together with interest accrued and unpaid
thereon to the date of prepayment. Those Borrowings consisting
of Euro Advances may be prepaid, at Intermet's option, in whole,
or from time to time in part, in the respective minimum amounts
and multiples set forth in Section 2.01(b) with respect to the
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Revolving Loan Commitments and Section 3.01(b) with respect to
the Currency Loans, by paying the principal amount to be prepaid,
together with interest accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant to Section
5.12 if such prepayment is made on a date other than the last day
of an Interest Period applicable thereto. Each such optional
prepayment shall be applied in accordance with Section 5.06(c)
below.
(b) Intermet shall give written notice (or telephonic
notice confirmed in writing) to the Agent of any intended
prepayment of the Revolving Loans (i) not less than one Business
Day prior to any prepayment of Base Rate Advances, and (ii) not
less than three Business Days prior to any prepayment of
Eurodollar Advances. Intermet shall give written notice (or
telephonic notice confirmed in writing) to the Currency Lender
and the Agent of any intended prepayment of the Currency Loans
(i) not less than one Business Day prior to any prepayment of
Base Rate Advances, and (ii) not less than three Business Days
prior to any prepayment of Eurocurrency Advances. Such notice,
once given, shall be irrevocable. Upon receipt of such notice of
prepayment pursuant to the first sentence of this paragraph (b),
the Agent shall promptly notify each Domestic Lender of the
contents of such notice and of such Domestic Lender's share of
such prepayment.
(c) Intermet, when providing notice of prepayment
pursuant to Section 5.06(b) may designate the Types of Advances
and the specific Borrowing or Borrowings which are to be prepaid,
provided that (i) if any prepayment of Euro Advances made
pursuant to a single Borrowing of the Revolving Loans shall
reduce the outstanding Advances made pursuant to such Borrowing
to an amount less than $1,000,000, such Borrowing shall
immediately be converted into Base Rate Advances; and (ii) each
prepayment made pursuant to a single Borrowing shall be applied
pro rata among the Loans comprising such Borrowing. In the
absence of a designation by Intermet, the Agent or, with respect
to the Currency Loans, the Currency Lender, shall, subject to the
foregoing, make such designation in its sole discretion. All
voluntary prepayments shall be applied to the payment of interest
before application to principal and shall be applied against
scheduled amortization payments in the inverse order of maturity.
Section 5.07. Payments, etc.
(a) (i) Except as otherwise specifically provided
herein, all payments under this Agreement and the other Credit
Documents, other than the payments specified in clause (ii)
below, shall be made without defense, set-off or counterclaim to
the Agent not later than 11:00 AM (local time for the Agent) on
the date when due and shall be made in Dollars in immediately
available funds at its Payment Office.
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(ii) Except as otherwise specifically provided herein,
all payments under this Agreement with respect to the Currency
Loans and the Currency Notes shall be made without defense, set-
off or counterclaim to the Currency Lender at its Payment Office
not later than 11:00 AM (local time for such Currency Lender) on
the date when due and in immediately available funds in the
Currency, or at any other location of the Currency Lender as the
Currency Lender may specify in writing to Intermet not later than
Noon (local time for the Currency Lender) on the Business Day
prior to the Business Day such payment is due. All payments of
principal, interest and fees with respect to the Currency Loans
shall be made in the Currency.
(b) (i) All such payments shall be made free and
clear of and without deduction or withholding for any Taxes in
respect of this Agreement, the Notes or other Credit Documents,
or any payments of principal, interest, fees or other amounts
payable hereunder or thereunder (but excluding, except as
provided in paragraph (iii) hereof, any Taxes imposed on the
overall net income of the Lenders pursuant to the laws of the
jurisdiction in which the principal executive office or
appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Intermet agrees (A) to pay the
full amount of such Taxes, and such additional amounts as may be
necessary so that every net payment of all amounts due hereunder
and under the Notes and other Credit Documents, after withholding
or deduction for or on account of any such Taxes (including
additional sums payable under this Section 5.07), will not be
less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such
withholding or deduction and (C) to pay the full amount deducted
to the relevant authority in accordance with applicable law.
Intermet will furnish to the Agent and each Lender, within 30
days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such
payment by Intermet. Intermet will indemnify and hold harmless
the Agent and each Lender and reimburse the Agent and each Lender
upon written request for the amount of any Taxes so levied or
imposed and paid by the Agent or Lender and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes were correctly or
illegally asserted. A certificate as to the amount of such
payment by such Lender or the Agent, absent manifest error, shall
be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of
any jurisdiction other than the United States of America or any
State thereof (including the District of Columbia) agrees to
furnish to Intermet and the Agent, prior to the time it becomes a
Lender hereunder, two copies of either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or
any successor forms thereto (wherein such Lender claims
entitlement to complete exemption from or reduced rate of U.S.
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Federal withholding tax on interest paid by Intermet hereunder)
and to provide to Intermet and the Agent a new Form 4224 or Form
1001 or any successor forms thereto if any previously delivered
form is found to be incomplete or incorrect in any material
respect or upon the obsolescence of any previously delivered
form; provided, however, that no Lender shall be required to
furnish a form under this paragraph (ii) if it is not entitled to
claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an
exemption from or a reduced rate of withholding under applicable
law, promptly upon written request of Intermet, shall so inform
Intermet in writing.
(iii) Intermet shall also reimburse the Agent and each
Lender, upon written request, for any Taxes imposed (including,
without limitation, Taxes imposed on the overall net income of
the Agent or Lender or its applicable Lending Office pursuant to
the laws of the jurisdiction in which the principal executive
office or the applicable Lending Office of the Agent or Lender is
located) as the Agent or Lender shall determine are payable by
the Agent or Lender in respect of amounts paid by or on behalf
of Intermet to or on behalf of the Agent or Lender pursuant to
paragraph (i) hereof.
(c) Subject to Section 5.04(ii), whenever any payment
to be made hereunder or under any Note shall be stated to be due
on a day which is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day and, with respect
to payments of principal, interest thereon shall be payable at
the applicable rate during such extension.
(d) All computations of interest and fees shall be
made on the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are
payable (to the extent computed on the basis of days elapsed),
except that interest on Base Rate Advances shall be computed on
the basis of a year of 365 days for the actual number of days.
Interest on Base Rate Advances shall be calculated based on the
Base Rate from and including the date of such Loan to but
excluding the date of the repayment or conversion thereof.
Interest on Euro Advances shall be calculated as to each Interest
Period from and including the first day thereof to but excluding
the last day thereof. Each determination by the Agent or the
Currency Lender of an interest rate or fee hereunder shall be
made in good faith and, except for manifest error, shall be
final, conclusive and binding for all purposes.
(e) Payment by Intermet to the Agent in accordance
with the terms of this Agreement shall, as to Intermet,
constitute payment to the Domestic Lenders under this Agreement.
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Section 5.08. Interest Rate Not Ascertainable, etc.
In the event that the Agent, in the case of the Adjusted LIBO
Rate, and the Currency Lender in the case of the Adjusted FIBO
Rate, shall have determined (which determination shall be made in
good faith and, absent manifest error, shall be final, conclusive
and binding upon all parties) that on any date for determining
the Adjusted LIBO Rate or Adjusted FIBO Rate for any Interest
Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market or the Frankfurt
interbank market, as the case may be, or the Agent's or Currency
Lender's position in such markets, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted LIBO Rate or Adjusted
FIBO Rate, as the case may be, then, and in any such event, the
Agent shall forthwith give notice (by telephone confirmed in
writing) to Intermet and to the Domestic Lenders, or the Currency
Lender shall forthwith give notice (by telephone confirmed in
writing) to Intermet and the Agent, of such determination and a
summary of the basis for such determination. Until the Agent or
the Currency Lender, as the case may be, notifies Intermet that
the circumstances giving rise to the suspension described herein
no longer exist, the obligations of the Lenders to make or permit
portions of the Revolving Loans or Currency Loans to remain out-
standing past the last day of the then current Interest Periods
as Euro Advances shall be suspended, and such affected Advances
shall bear the same interest at the Base Rate (or at such other
rate of interest per annum as Intermet and each of the Agent and
the Lenders shall have agreed to in writing).
Section 5.09. Illegality.
(a) In the event that any Lender shall have determined
(which determination shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all
parties) at any time that the making or continuance of any Euro
Advance has become unlawful by compliance by such Lender in good
faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful),
then, in any such event, the Lender shall give prompt notice (by
telephone confirmed in writing) to Intermet and to the Agent of
such determination and a summary of the basis for such
determination (which notice the Agent shall promptly transmit to
the other Lenders).
(b) Upon the giving of the notice to Intermet referred
to in subsection (a) above, (i) Intermet's right to request and
such Lender's obligation to make Euro Advances shall be
immediately suspended, and such Lender shall make an Advance as
part of the requested Borrowing of Euro Advances, bearing
interest at the Base Rate (or at such other rate of interest per
annum as Intermet and each of the Agent and the Lenders shall
have agreed to in writing), which Base Rate Advance shall, for
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all other purposes, be considered part of such Borrowing, and
(ii) if the affected Euro Advance or Advances are then
outstanding, Intermet shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at
least one Business Day's written notice to the Agent and the
affected Lender, convert each such Advance into an Advance or
Advances of a different Type with an Interest Period ending on
the date on which the Interest Period applicable to the affected
Euro Advances expires, provided that if more than one Lender is
affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 5.09(b).
Section 5.10. Increased Costs.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements)
in or in the interpretation of any law or regulation, or (y) the
compliance with any guideline or request from any central bank or
other governmental authority or quasi-governmental authority
exercising control over banks or financial institutions generally
(whether or not having the force of law):
(i) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with
respect to its Euro Advances or its obligation to make Euro
Advances, or the basis of taxation of payments to any Lender
of the principal of or interest on its Euro Advances or its
obligation to make Euro Advances shall have changed (except
for changes in the tax on the overall net income of such
Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender's applicable Lending Office shall be
imposed or deemed applicable or any other condition
affecting its Euro Advances or its obligation to make Euro
Advances shall be imposed on any Lender or its applicable
Lending Office or the London interbank market or the
Frankfurt interbank market;
and as a result thereof there shall be any increase in the cost
to such Lender of agreeing to make or making, funding or
maintaining Euro Advances (except to the extent already included
in the determination of the applicable Adjusted LIBO Rate for
Eurodollar Advances, or the applicable Adjusted FIBO Rate for
Eurocurrency Advances), or there shall be a reduction in the
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amount received or receivable by such Lender or its applicable
Lending Office, then Intermet shall from time to time (subject,
in the case of certain Taxes, to the applicable provisions of
Section 5.07(b)), upon written notice from and demand by such
Lender on Intermet (with a copy of such notice and demand to the
Agent), pay to the Agent for the account of such Domestic Lender
or to the Currency Lender, if applicable, within five Business
Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost.
A certificate as to the amount of such increased cost, submitted
to Intermet and the Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in
reasonable detail the basis for and calculation of such increased
cost, shall, except for manifest error, be final, conclusive and
binding for all purposes.
(b) If any Domestic Lender shall advise the Agent that
at any time, because of the circumstances described in clauses
(x) or (y) in Section 5.10(a) or any other circumstances beyond
such Lender's reasonable control arising after the date of this
Agreement affecting such Lender or the London interbank market or
such Lender's position in such markets, the Adjusted LIBO Rate as
determined by the Agent, will not adequately and fairly reflect
the cost to such Lender of funding its Euro Advances, then, and
in any such event:
(i) the Agent shall forthwith give notice (by
telephone confirmed in writing) to Intermet and to the other
Domestic Lenders of such advice;
(ii) Intermet's right to request and such Domestic
Lender's obligation to make or permit portions of the Loans
to remain outstanding past the last day of the then current
Interest Periods Eurodollar Advances, as the case may be,
shall be immediately suspended; and
(iii) such Domestic Lender shall make an Advance as
part of the requested Borrowing of Eurodollar Advances, as
the case may be, bearing interest at the Base Rate (or at
such other rate of interest per annum as Intermet and each
of the Agent and the Lenders shall have agreed to in
writing), which Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
Section 5.11. Lending Offices.
(a) Each Lender agrees that, if requested by Intermet,
it will use reasonable efforts (subject to overall policy
considerations of such Lender) to designate an alternate Lending
Office with respect to any of its Euro Advances affected by the
matters or circumstances described in Sections 5.07(b), 5.08,
5.09 or 5.10 to reduce the liability of Intermet or avoid the
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results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender,
which determination if made in good faith, shall be conclusive
and binding on all parties hereto. Nothing in this Section 5.11
shall affect or postpone any of the obligations of Intermet or
any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of
any jurisdiction other than the United States of America or any
State thereof (including the District of Columbia) issues a
public announcement with respect to the closing of its lending
offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be
required to be made by Intermet thereafter pursuant to Section
5.07(b), such Lender shall use reasonable efforts to furnish
Intermet notice thereof as soon as practicable thereafter;
provided, however, that no delay or failure to furnish such
notice shall in any event release or discharge Intermet from its
obligations to such Lender pursuant to Section 5.07(b) or
otherwise result in any liability of such Lender.
Section 5.12. Funding Losses. Intermet shall
compensate each Lender, upon its written request to Intermet
(which request shall set forth the basis for requesting such
amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive
and binding upon all of the parties hereto), for all losses,
expenses and liabilities (including, without limitation, any
interest paid by such Lender to lenders of funds borrowed by it
to make or carry its Euro Advances, in either case to the extent
not recovered by such Lender in connection with the re-employment
of such funds and including loss of anticipated profits), which
the Lender may sustain: (i) if for any reason (other than a
default by such Lender) a borrowing of, or conversion to or
continuation of, Euro Advances to Intermet does not occur on the
date specified therefor in a Notice of Borrowing, Notice of
Currency Borrowing, Notice of Conversion/Continuation, or Notice
of Currency Continuation/Conversion (whether or not withdrawn),
(ii) if any repayment (including mandatory prepayments and any
conversions pursuant to Section 5.09(b)) of any Euro Advances to
Intermet occurs on a date which is not the last day of an
Interest Period applicable thereto, or (iii), if, for any reason,
Intermet defaults in its obligation to repay its Euro Advances
when required by the terms of this Agreement.
Section 5.13. Failure to Pay in Appropriate Currency.
If Intermet is unable for any reason to effect payment of a
Currency Loan or any other payment to be made to the Currency
Lender hereunder in the Currency as required by
Section 5.07(a)(ii) or if Intermet shall default in the payment
when due of any payment in German marks, the Currency Lender may,
at its option, require such payment to be made to the Currency
Lender in the Dollar Equivalent of the Currency at the Currency
Lender's Payment Office. In any such case, Intermet agrees to
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hold the Currency Lender harmless from any loss incurred by the
Currency Lender arising from any change in the value of Dollars
in relation to the Currency between the date such payment became
due and the date of payment thereof.
Section 5.14. Assumptions Concerning Funding of Euro
Advances. Calculation of all amounts payable to a Lender under
this Article V shall be made as though that Lender had actually
funded its relevant Euro Advances through the purchase of
deposits in the relevant market bearing interest at the rate
applicable to such Euro Advances in an amount equal to the amount
of the Euro Advances and having a maturity comparable to the
relevant Interest Period and, in the case of Eurodollar Advances,
through the transfer of such Eurodollar Advances from an offshore
office of that Lender to a domestic office of that Lender in the
United States of America; provided however, that each Lender may
fund each of its Euro Advances in any manner it sees fit and the
foregoing assumption shall be used only for calculation of
amounts payable under this Article V.
Section 5.15. Apportionment of Payments. Aggregate
principal and interest payments in respect of Loans and payments
in respect of facility fees and commitment fees shall be
apportioned among all outstanding Commitments and Loans to which
such payments relate, proportionately to the Lenders' respective
pro rata portions of such Commitments and outstanding Loans. The
Agent shall promptly distribute to each Lender at its payment
office set forth beside its name on the appropriate signature
page hereof or such other address as any Lender may request its
share of all such payments received by the Agent.
Section 5.16. Sharing of Payments, Etc. If any Lender
shall obtain any payment or reduction (including, without
limitation, any amounts received as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code) of
the Obligations (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its
pro rata portion of payments or reductions on account of such
obligations obtained by all the Lenders (other than, prior to the
termination of the Commitments following the occurrence of an
Event of Default, payments of principal, interest and fees with
respect to the Currency Loans which are payable solely to the
Currency Lender), such Lender shall forthwith (i) notify each of
the other Lenders and Agent of such receipt, and (ii) purchase
from the other Lenders such participations in the affected
obligations as shall be necessary to cause such purchasing Lender
to share the excess payment or reduction, net of costs incurred
in connection therewith, ratably with each of them, provided that
if all or any portion of such excess payment or reduction is
thereafter recovered from such purchasing Lender or additional
costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such
additional costs, but without interest unless the Lender
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obligated to return such funds is required to pay interest on
such funds. Intermet agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 5.16
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct
creditor of Intermet in the amount of such participation.
Section 5.17. Capital Adequacy. Without limiting any
other provision of this Agreement, in the event that any Lender
shall have determined that any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy not currently in effect or fully
applicable as of the Closing Date, or any change therein or in
the interpretation or application thereof after the Closing Date,
or compliance by such Lender with any request or directive
regarding capital adequacy not currently in effect or fully
applicable as of the Closing Date (whether or not having the
force of law and whether or not failure to comply therewith would
be unlawful) from a central bank or governmental authority or
body having jurisdiction, does or shall have the effect of
reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that
which such Lender could have achieved but for such law, treaty,
rule, regulation, guideline or order, or such change or
compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed by such Lender
to be material, then within ten (10) Business Days after written
notice and demand by such Lender (with copies thereof to the
Agent), Intermet shall from time to time pay to such Lender
additional amounts sufficient to compensate such Lender for such
reduction (but, in the case of outstanding Base Rate Advances,
without duplication of any amounts already recovered by such
Lender by reason of an adjustment in the applicable Base Rate).
Each certificate as to the amount payable under this Section 5.17
(which certificate shall set forth the basis for requesting such
amounts in reasonable detail), submitted to Intermet by any
Lender in good faith, shall, absent manifest error, be final,
conclusive and binding for all purposes.
Section 5.18. Benefits to Guarantors. In
consideration for the execution and delivery by the Guarantors of
their Guaranty Agreement, Intermet agrees to make the benefit of
extensions of credit hereunder available to the Guarantors.
Section 5.19. Limitation on Certain Payment Obliga-
tions.
(a) Each Lender or Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Section
5.07 no later than 90 days after the earlier of (i) the date on
which such Lender or Agent makes payment of such Taxes, and
(ii) the date on which the relevant taxing authority or other
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governmental authority makes written demand upon such Lender or
Agent for payment of such Taxes.
(b) Each Lender or Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Sections
5.12 and 5.13 no later than 90 days after the event giving rise
to the claim for indemnification or compensation occurs.
(c) Each Lender or Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Sections
5.09 and 5.17 no later than 90 days after such Lender or Agent
receives actual notice or obtains actual knowledge of the
promulgation of a law, rule, order or interpretation or
occurrence of another event giving rise to a claim pursuant to
such sections.
(d) In the event that the Lenders or Agent fail to
give Intermet notice within the time limitations prescribed in
(a) or (b) above, Intermet shall not have any obligation to pay
such claim for compensation or indemnification. In the event
that the Lender or Agent fail to give Intermet notice within the
time limitation prescribed in (c) above, Intermet shall not have
any obligation to pay any amount with respect to claims accruing
prior to the ninetieth day preceding such written demand.
Section 5.20. Letter of Credit Obligations Absolute.
The obligation of Intermet to reimburse the Agent for drawings
made under Letters of Credit issued for the account of Intermet
and the Domestic Lenders' obligation to honor their
participations purchased therein shall be unconditional and
irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including
without limitation, the following circumstances:
(a) Any lack of validity or enforceability of any
Letter of Credit;
(b) The existence of any claim, set-off, defense or
other right which Intermet or any Subsidiary or Affiliate of
Intermet may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be
acting), any Domestic Lender or any other Person, whether in
connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including
without limitation any underlying transaction between
Intermet or any of its Subsidiaries and Affiliates and the
beneficiary for which such Letter of Credit was procured);
provided that nothing in this Section shall affect the right
of Intermet to seek relief against any beneficiary,
transferee, Domestic Lender or any other Person in any
action or proceeding or to bring a counterclaim in any suit
involving such Persons;
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(c) Any draft, demand, certificate or any other
document presented under any Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(d) Payment by the Agent under any Letter of Credit
against presentation of a demand, draft or certificate or
other document which does not comply with the terms of such
Letter of Credit;
(e) Any other circumstance or happening whatsoever
which is similar to any of the foregoing; or
(f) the fact that a Default or an Event of Default
shall have occurred and be continuing.
Nothing in this Section 5.20 shall prevent an action against the
Agent for its gross negligence or willful misconduct in honoring
drafts under the Letters of Credit.
Section 5.21. Indemnification; Nature of Agent's
Duties with Respect to Letters of Credit.
(a) In addition to amounts payable elsewhere provided
in this Agreement, without duplication, Intermet hereby agrees to
protect, indemnify, pay and save the Agent harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and reasonable expenses (including
reasonable attorney's fees and disbursements) which the Agent may
incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit for the account of
Intermet, other than as a result of the gross negligence or
willful misconduct of the Agent; (ii) the failure of the Agent to
honor a drawing under any Letter of Credit due to any act or
omission (whether rightful or wrongful) of any present or future
de jure or de facto government or governmental authority; or
(iii) any confirmation of any Letter of Credit obtained by the
Agent with the consent of Intermet.
(b) As between Intermet and the Agent, Intermet
assumes all risk of the acts and omissions of, or misuse of, the
Letters of Credit issued by the Agent, by the respective
beneficiaries of such Letters of Credit, other than losses
resulting from the gross negligence and willful misconduct of the
Agent. In furtherance and not in limitation of the foregoing but
subject to the exception for the Agent's gross negligence or
willful misconduct set forth above, the Agent shall not be
responsible (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of such
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Letters of Credit, even if it should in fact prove to be in any
or all respects insufficient, inaccurate, fraudulent or forged or
otherwise invalid; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof in whole or in part which may
prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply
fully with the conditions required in order to draw upon such
Letter of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, telecopy or otherwise; (v) for good
faith errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of
Credit or the proceeds thereof; (vii) for the misapplication by
the beneficiary of any such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Agent.
Section 5.22. Additional Payments with Respect to
Letter of Credit; Illegality.
(a) If by reason of (x) any change in applicable law,
regulation, rule, regulatory requirement, guideline, request or
directive, whether or not having the force of law, or any change
in the interpretation or application thereof by any judicial or
other applicable governmental or regulatory authority, (y)
compliance by any Domestic Lender in good faith with any
direction, request or monetary authority including, without
limitation, Regulation D:
(i) such Domestic Lender shall be subject to any
tax, levy, charge or withholding of any nature or to
any variation thereof or to any penalty with respect to
the maintenance or fulfillment of its obligations under
Articles II, IV or V, whether directly or by such being
imposed on or suffered by such Domestic Lender;
(ii) any reserve, deposit or similar requirement
is or shall be applicable, imposed or modified in
respect of any Letter of Credit issued by Agent or any
participations purchased by such Domestic Lender in any
Letter of Credit (or in respect of such Domestic
Lender's commitment to purchase such a participation);
or
(iii) there shall be imposed on the Agent or
any such Domestic Lender any other condition regarding
this Article V, any Letter of Credit or any
participation therein;
and the result of the foregoing is to directly or indirectly
increase the cost to Agent or such Domestic Lender of
committing to issue, purchase, purchasing or maintaining any
participation in any Letter of Credit, or to reduce the
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amount receivable in respect thereof by Agent or such
Domestic Lender, then and in any such case such Domestic Lender
may, without duplication of any payments required to be made
pursuant to this Agreement, at any time after the additional cost
is incurred or the amount received is reduced, notify Intermet
and Intermet shall pay to the Agent or such Domestic Lender
within five (5) Business Days of written demand therefor, such
additional amounts as shall be required to compensate Agent or
such Domestic Lender for such increased costs or reduction in
amounts receivable hereunder (a written notice as to additional
amounts owing Agent or such Domestic Lender showing the basis for
the calculation thereof, submitted to Intermet by Agent or such
Domestic Lender shall, absent manifest error, be final and
conclusive and binding upon all parties hereto).
(b) Notwithstanding any other provision contained in
this Agreement, the Agent shall not be obligated to issue any
Letter of Credit, nor shall any Domestic Lender be obligated to
purchase its participation in any Letter of Credit to be issued
hereunder, if the issuance of such Letter of Credit or purchase
of such participation shall have become unlawful or prohibited by
compliance by Agent or such Domestic Lender in good faith with
any law, governmental rule, guideline, request, order,
injunction, judgment or decree (whether or not having the force
of law); provided that in the case of the obligation of a
Domestic Lender to purchase such participation, such Domestic
Lender shall have notified the Agent to such effect at least
three (3) Business Days' prior to the issuance thereof by the
Agent, which notice shall relieve the Agent of its obligation to
issue such Letter of Credit pursuant to Section 4.01 and Section
4.02 hereof.
Section 5.23. Failure to Maintain Minimum Required
Rating. If any Domestic Lender has either (A) had its long-
term deposit rating reduced below the Minimum Required Rating by
either Rating Agency, or (B) in the case of a Domestic Lender
that is a party to this Agreement on the Closing Date and has, on
such date, a long-term deposit rating from the Rating Agencies
below the applicable Minimum Required Rating, such Domestic
Lender has received from either Rating Agency a reduction in its
long-term deposit rating from the rating in effect on the Closing
Date, such Domestic Lender, will, upon the request of the Agent,
assign its Letter of Credit Commitment and all of its right,
title and interest in and to any Letters of Credit outstanding
thereunder, to an Eligible Assignee designated by the Agent and
acceptable to Intermet in accordance with the terms of this
Agreement.
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ARTICLE VI.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to
Intermet and to issue Letters of Credit for the account of
Intermet hereunder is subject to the satisfaction of the follow-
ing conditions:
Section 6.01. Conditions Precedent to Initial Loans
and Letters of Credit. On the Closing Date, all obligations of
Intermet hereunder incurred prior to such date (including,
without limitation, Intermet's obligations to reimburse the
reasonable fees and expenses of counsel to the Agent and any fees
and expenses payable to the Agent and the Lenders as previously
agreed with Intermet), shall have been paid in full, and the
Agent shall have received the following, in form and substance
reasonably satisfactory in all respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the
Revolving Loan Commitments and the duly executed Currency
Note evidencing the Currency Loan Commitment;
(c) the duly executed Guaranty Agreements,
Contribution Agreements and Pledge Agreement;
(d) certified copies of the organizational papers of
Columbus Neunkirchen;
(e) certificate of Intermet in substantially the form
of Exhibit G attached hereto and appropriately completed;
(f) certificates of the Secretary or Assistant
Secretary of each of the Credit Parties (or, in the case of
any Foreign Subsidiary, a comparable company officer)
attaching and certifying copies of the resolutions of the
boards of directors (or, in the case of any Foreign
Subsidiary, the comparable governing body of such entity) of
the Credit Parties, authorizing as applicable (i) the
execution, delivery and performance of the Credit Documents,
and (ii) the granting of the pledges and security interests
granted pursuant to the Pledge Agreements;
(g) certificates of the Secretary or an Assistant
Secretary of each of the Credit Parties (or, in the case of
any Foreign Subsidiary, a comparable company officer)
certifying (i) the name, title and true signature of each
officer of such entities executing the Credit Documents, and
(ii) the bylaws or comparable governing documents of such
entities;
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(h) certified copies of the certificate or articles of
incorporation of each Credit Party (or comparable
organizational document of each Foreign Subsidiary)
certified by the Secretary of State or the Secretary or
Assistant Secretary of such Credit Party, together with
certificates of good standing or existence, as may be avail-
able from the Secretary of State (or comparable office or
registry for each Foreign Subsidiary) of the jurisdiction of
incorporation or organization of such Credit Party;
(i) examination reports from the Uniform Commercial
Code records of those locations set forth on Schedule
6.01(i), showing no outstanding liens or security interests
granted by Intermet other than Liens permitted by Section
9.02;
(j) copies of all documents and instruments, including
all consents, authorizations and filings, required or
advisable under any Requirement of Law or by any material
Contractual Obligation of the Credit Parties, in connection
with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other
documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in
full force and effect and all applicable waiting periods
shall have expired;
(k) Reserved.
(l) acknowledgments from Rupert M. Barkoff and
Kilpatrick & Cody as to their appointment as agent for
service of process for the various Credit Parties;
(m) agreement by the exiting lenders pursuant to the
Prior Credit Agreement to accept payment in full of all
obligations outstanding under the Prior Credit Agreement and
to release all Liens securing such obligations, and the
establishment of escrow or other arrangements for such
repayment and release of Liens acceptable to the Agent and
the Lenders;
(n) certified copies of indentures, credit agreements,
instruments, and other documents evidencing or securing
Indebtedness of any Consolidated Company described on
Schedule 9.01(b), in any single case in an amount not less
than $500,000 (or the Dollar Equivalent thereof);
(o) certificates, reports and other information as the
Agent may reasonably request from any Consolidated Company
in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from matters
relating to employees of the Consolidated Companies,
including employee relations, collective bargaining
agreements, Plans, Foreign Plans, and other compensation and
employee benefit plans;
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(p) certificates, reports, environmental audits and
investigations, and other information as the Agent may
reasonably request from any Consolidated Company in order to
satisfy the Lenders as to the absence of any material
liabilities or obligations arising from environmental and
employee health and safety exposures to which the
Consolidated Companies may be subject, and the plans of the
Consolidated Companies with respect thereto;
(q) certificates, reports and other information as the
Agent may reasonably request from any Consolidated Company
in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from litigation
(including without limitation, products liability and patent
infringement claims) pending or threatened against the
Consolidated Companies;
(r) a summary, set forth in format and detail
reasonably acceptable to the Agent, of the types and amounts
of insurance (property and liability) maintained by the
Consolidated Companies;
(s) the favorable opinion of Kilpatrick & Cody, United
States counsel to the Credit Parties, substantially in the
form of Exhibit H-1 addressed to the Agent and each of the
Lenders;
(t) the favorable opinion of Hengeler Mueller Weitzel
Wirtz, special German counsel to the Credit Parties, as to
certain matters relating to the Credit Documents arising
under German law, substantially in the form of Exhibit H-2;
(u) amendment to the Note Purchase Agreement and the
Intercreditor Agreement in form and substance satisfactory
to the Agent and the Required Lenders; and
(v) certified copies of the financial statements of
the Consolidated Companies for the period ending June 30,
1995, in form and substance satisfactory to the Agent and
the Lenders.
In addition to the foregoing, the following conditions shall have
been satisfied or shall exist, all to the satisfaction of the
Agent, as of the Closing Date:
(x) the Loans to be made or deemed to be made, and the
Letters of Credit issued or deemed to be issued on the
Closing Date and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agent
or any Lender in a violation of, any law, rule, injunction,
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or regulation, or determination of any court of law or
other governmental authority; and
(y) all corporate proceedings and all other legal
matters in connection with the authorization, legality,
validity and enforceability of the Credit Documents shall be
reasonably satisfactory in form and substance to the
Required Lenders.
Section 6.02. Conditions to All Loans and Letters of
Credit. At the time of the making of all Loans and the issuance
of any Letter of Credit (before as well as after giving effect
to such Loans or Letters of Credit and to the proposed use of the
proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Intermet
contained herein shall be true and correct in all material
respects with the same effect as though such representations
and warranties had been made on and as of the date of such
Loans (except that the representation and warranty set forth
in Section 7.19 shall not be deemed to relate to any time
subsequent to the date of the initial Loans or Letters of
Credit hereunder);
(c) since the date of the most recent financial
statements of the Consolidated Companies described in
Section 7.14, there shall have been no change which has had
or could reasonably be expected to have a Materially Adverse
Effect (whether or not any notice with respect to such
change has been furnished to the Lenders pursuant to Section
8.07);
(d) there shall be no action or proceeding instituted
or pending before any court or other governmental authority
or, to the knowledge of Intermet, threatened (i) which
reasonably could be expected to have a Materially Adverse
Effect, or (ii) seeking to prohibit or restrict one or more
Credit Party's ownership or operation of any portion of its
business or assets, or to compel one or more Credit Party to
dispose of or hold separate all or any portion of its
businesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a
material portion of the total businesses or assets of the
Consolidated Companies;
(e) the Loans to be made and the use of proceeds
thereof or the Letters of Credit to be issued, as the case
may be, shall not contravene, violate or conflict with, or
involve the Agent or any Lender in a violation of, any law,
rule, injunction, or regulation, or determination of any
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court of law or other governmental authority applicable to
Intermet; and
(f) the Agent shall have received such other documents
or legal opinions as the Agent or any Lender may reasonably
request, all in form and substance reasonably satisfactory
to the Agent.
Each request for a Borrowing and the acceptance by
Intermet of the proceeds thereof and each request for the
issuance of a Letter of Credit shall constitute a representation
and warranty by Intermet, as of the date of the Loans comprising
such Borrowing or the date of the issuance of such Letter of
Credit, that the applicable conditions specified in Sections 6.01
and 6.02 have been satisfied.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Intermet (as to itself and all other Consolidated
Companies) represents and warrants as follows:
Section 7.01. Corporate Existence; Compliance with Law.
Each of the Consolidated Companies (other than Columbus
Neunkirchen) is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation, and each of the Credit Parties has the corporate
power and authority and the legal right to own and operate its
property and to conduct its business and Columbus Neunkirchen is
a German company with limited liability duly organized, validly
existing and in good standing under the laws of Germany. Each of
the Consolidated Companies (i) other than the Credit Parties and
Columbus Neunkirchen, has the corporate power and authority and
the legal right to own and operate its property and to conduct
its business, (ii) is duly qualified as a foreign corporation and
in good standing under the laws of each jurisdiction where its
ownership of property or the conduct of its business requires
such qualification, and (iii) is in compliance with all
Requirements of Law, where (a) with respect to those Consolidated
Companies that are not Credit Parties or Columbus Neunkirchen,
the failure to have such power, authority and legal right as set
forth in clause (i), (b) the failure to be so qualified or in
good standing as set forth in clause (ii), or (c) the failure to
comply with Requirements of Law as set forth in clause (iii),
would reasonably be expected, in the aggregate, to have a
Materially Adverse Effect. The jurisdiction of incorporation or
organization, and the ownership of all issued and outstanding
capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 7.01.
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Section 7.02. Corporate Power; Authorization. Each of
the Credit Parties has the corporate power and authority to make,
deliver and perform the Credit Documents to which it is a party
and has taken all necessary corporate action to authorize the
execution, delivery and performance of such Credit Documents. No
consent or authorization of, or filing with, any Person (includ-
ing, without limitation, any governmental authority), is required
in connection with the execution, delivery or performance by any
Credit Party, or the validity or enforceability against any
Credit Party, of the Credit Documents, other than such consents,
authorizations or filings which have been made or obtained.
Section 7.03. Enforceable Obligations. This Agreement
has been duly executed and delivered, and each other Credit
Document will be duly executed and delivered, by the respective
Credit Parties, and this Agreement constitutes, and each other
Credit Document when executed and delivered will constitute,
legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in
accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 7.04. No Legal Bar. The execution, delivery
and performance by the Credit Parties of the Credit Documents
will not violate any Requirement of Law or cause a breach or
default under any of their respective Contractual Obligations.
Section 7.05. No Material Litigation or
Investigations. Except as set forth on Schedule 7.05 or in any
notice furnished to the Lenders pursuant to Section 8.07(h) at or
prior to the respective times the representations and warranties
set forth in this Section 7.05 are made or deemed to be made
hereunder, no litigation, investigations or proceedings of or
before any courts, tribunals, arbitrators or governmental
authorities are pending or, to the knowledge of Intermet,
threatened by or against any of the Consolidated Companies, or
against any of their respective properties or revenues, existing
or future (a) with respect to any Credit Document, or any of the
transactions contemplated hereby or thereby, or (b) which, if
adversely determined, would reasonably be expected to have a
Materially Adverse Effect.
Section 7.06. Investment Company Act, Etc. None of
the Credit Parties is an "investment company" or a company
"controlled" by an "investment company" (as each of the quoted
terms is defined or used in the Investment Company Act of 1940,
as amended). None of the Credit Parties is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed,
guarantee such indebtedness, or pledge its assets to secure such
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indebtedness, as contemplated hereby or by any other Credit
Document.
Section 7.07. Margin Regulations. No part of the
proceeds of any of the Loans will be used for any purpose which
violates, or which would be inconsistent or not in compliance
with, the provisions of the applicable Margin Regulations.
Section 7.08. Compliance With Environmental Laws.
(a) The Consolidated Companies have received no
notices of claims or potential liability under, and are in
compliance with, all applicable Environmental Laws, where such
claims and liabilities under, and failures to comply with, such
statutes, regulations, rules, ordinances, laws or licenses, would
reasonably be expected to result in penalties, fines, claims or
other liabilities to the Consolidated Companies in amounts in
excess of $2,500,000, either individually or in the aggregate
(including any such penalties, fines, claims, or liabilities
relating to the matters set forth on Schedule 7.08(a)), except as
set forth on Schedule 7.08(a) or in any notice furnished to the
Lenders pursuant to Section 8.07(i) at or prior to the respective
times the representations and warranties set forth in this
Section 7.08(a) are made or deemed to be made hereunder.
(b) Except as set forth on Schedule 7.08(b) or in any
notice furnished to the Lenders pursuant to Section 8.07(i) at or
prior to the respective times the representations and warranties
set forth in this Section 7.08(b) are made or deemed to be made
hereunder, none of the Consolidated Companies has received any
notice of violation, or notice of any action, either judicial or
administrative, from any governmental authority (whether United
States or foreign) relating to the actual or alleged violation of
any Environmental Law, including, without limitation, any notice
of any actual or alleged spill, leak, or other release of any
Hazardous Substance, waste or hazardous waste by any Consolidated
Company or its employees or agents, or as to the existence of any
contamination on any properties owned by any Consolidated
Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated
Companies in amounts in excess of $2,500,000, either individually
or in the aggregate.
(c) Except as set forth on Schedule 7.08(c), the
Consolidated Companies have obtained all necessary governmental
permits, licenses and approvals which are material to the
operations conducted on their respective properties, including
without limitation, all required material permits, licenses and
approvals for (i) the emission of air pollutants or contaminants,
(ii) the treatment or pretreatment and discharge of waste water
or storm water, (iii) the treatment, storage, disposal or
generation of hazardous wastes, (iv) the withdrawal and usage of
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ground water or surface water, and (v) the disposal of solid
wastes.
Section 7.09. Insurance. The Consolidated Companies
currently maintain insurance with respect to their respective
properties and businesses, with financially sound and reputable
insurers, having coverages against losses or damages of the kinds
customarily insured against by reputable companies in the same or
similar businesses, such insurance being in amounts no less than
those amounts which are customary for such companies under
similar circumstances. The Consolidated Companies have paid all
material amounts of insurance premiums now due and owing with
respect to such insurance policies and coverages, and such
policies and coverages are in full force and effect.
Section 7.10. No Default. None of the Consolidated
Companies is in default under or with respect to any Contractual
Obligation in any respect which has had or is reasonably expected
to have a Materially Adverse Effect.
Section 7.11. No Burdensome Restrictions. Except as
set forth on Schedule 7.11 or in any notice furnished to the
Lenders pursuant to Section 8.07(o) at or prior to the respective
times the representations and warranties set forth in this
Section 7.11 are made or deemed to be made hereunder, none of the
Consolidated Companies is a party to or bound by any Contractual
Obligation or Requirement of Law which has had or would
reasonably be expected to have a Materially Adverse Effect.
Section 7.12. Taxes. Except as set forth on Schedule
7.12, each of the Consolidated Companies has filed or caused to
be filed all declarations, reports and tax returns which are
required to have been filed, and has paid all taxes, custom
duties, levies, charges and similar contributions ("taxes" in
this Section 7.12) shown to be due and payable on said returns or
on any assessments made against it or its properties, and all
other taxes, fees or other charges imposed on it or any of its
properties by any governmental authority (other than those the
amount or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided in its
books); and no tax liens have been filed and, to the knowledge of
Intermet, no claims are being asserted with respect to any such
taxes, fees or other charges.
Section 7.13. Subsidiaries. Except as disclosed on
Schedule 7.01, on the date of this Agreement, Intermet has no
Subsidiaries and neither Intermet nor any Subsidiary is a joint
venture partner or general partner in any partnership. After the
date of this Agreement, except as disclosed on Schedule 7.13 or
in any notice furnished pursuant to Section 8.07(p) at or prior
to the respective times the representations and warranties set
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forth in this Section 7.13 are made or deemed to be made
hereunder, Intermet has no Material Subsidiaries.
Section 7.14. Financial Statements. Intermet has
furnished to the Agent and the Lenders (i) the audited
consolidated balance sheet as of December 31, 1994 of Intermet
and the related consolidated and consolidating statements of
income, shareholders' equity and cash flows for the fiscal year
then ended, including in each case the related schedules and
notes, (ii) the unaudited balance sheet of Intermet presented on
a consolidated basis as at the end of the second fiscal quarter
of 1995, and the related unaudited consolidated and consolidating
statements of income, shareholders' equity and cash flows
presented on a consolidated basis for the year-to-date period
then ended, setting forth in each case in comparative form the
figures for the corresponding quarter of Intermet's previous
fiscal year. The foregoing financial statements fairly present
in all material respects the consolidated and consolidating
financial condition of Intermet as at the dates thereof and
results of operations for such periods in conformity with GAAP
consistently applied (subject, in the case of the quarterly
financial statements, to normal year-end audit adjustments and
the absence of certain footnotes). The Consolidated Companies
taken as a whole do not have any material contingent obligations,
contingent liabilities, or material liabilities for known taxes,
long-term leases or unusual forward or long-term commitments not
reflected in the foregoing financial statements or the notes
thereto. Since December 31, 1994, there have been no changes
with respect to the Consolidated Companies which has had or would
reasonably be expected to have a Materially Adverse Effect.
Section 7.15. ERISA. Except as disclosed on
Schedule 7.15 or in any notice furnished to the Lenders pursuant
to Section 8.07(j) at or prior to the respective times the
representations and warranties set forth in this Section 7.15 are
made or deemed to be made hereunder:
(a)(1) Identification of Plans. (A) None of the
Consolidated Companies nor any of their respective ERISA
Affiliates maintains or contributes to, or has during the past
two years maintained or contributed to, any Plan that is subject
to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan
maintained by the Consolidated Companies have at all times been
maintained, by their terms and in operation, in compliance with
all applicable laws, and the Consolidated Companies are subject
to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including
without limitation, any tax or penalty under Title I or Title IV
of ERISA or under Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under Sections 404, or
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419 of the Tax Code, where the failure to comply with such laws,
and such taxes and penalties, together with all other liabilities
referred to in this Section 7.15 (taken as a whole), would in the
aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are
subject to no liabilities (including withdrawal liabilities) with
respect to any Plans or Foreign Plans of such Consolidated
Companies or any of their ERISA Affiliates, including without
limitation, any liabilities arising from Titles I or IV of ERISA,
other than obligations to fund benefits under an ongoing Plan and
to pay current contributions, expenses and premiums with respect
to such Plans or Foreign Plans, where such liabilities, together
with all other liabilities referred to in this Section 7.15
(taken as a whole), would in the aggregate have a Materially
Adverse Effect;
(4) Funding. The Consolidated Companies and, with
respect to any Plan which is subject to Title IV of ERISA, each
of their respective ERISA Affiliates, have made full and timely
payment of all amounts (A) required to be contributed under the
terms of each Plan and applicable law, and (B) required to be
paid as expenses (including PBGC or other premiums) of each Plan,
where the failure to pay such amounts (when taken as a whole,
including any penalties attributable to such amounts) would have
a Materially Adverse Effect. No Plan subject to Title IV of
ERISA has an "amount of unfunded benefit liabilities" (as defined
in Section 4001(a)(18) of ERISA), determined as if such Plan
terminated on any date on which this representation and warranty
is deemed made, in any amount which, together with all other
liabilities referred to in this Section 7.15 (taken as a whole),
would have a Materially Adverse Effect if such amount were then
due and payable. The Consolidated Companies are subject to no
liabilities with respect to post-retirement medical benefits in
any amounts which, together with all other liabilities referred
to in this Section 7.15 (taken as a whole), would have a
Materially Adverse Effect if such amounts were then due and
payable.
(b) With respect to any Foreign Plan, reasonable
reserves have been established in accordance with prudent
business practice or where required by ordinary accounting
practices in the jurisdiction where the Foreign Subsidiary
maintains its principal place of business or in which the Foreign
Plan is maintained. The aggregate unfunded liabilities, after
giving effect to any reserves for such liabilities, with respect
to such Foreign Plans, together with all other liabilities
referred to in this Section 7.15 (taken as a whole), would not
have a Materially Adverse Effect.
Section 7.16. Patents, Trademarks, Licenses, Etc.
Except as set forth on Schedule 7.16 or in any notice furnished
to the Lenders pursuant to Section 8.07(o) at or prior to the
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respective times the representations and warranties set forth in
this Section 7.16 are made or deemed to be made hereunder, (i)
the Consolidated Companies have obtained and hold in full force
and effect all material patents, trademarks, service marks, trade
names, copyrights, licenses and other such rights, free from
burdensome restrictions, which are necessary for the operation of
their respective businesses as presently conducted, and (ii) to
the best of Intermet's knowledge, no product, process, method,
service or other item presently sold by or employed by any
Consolidated Company in connection with such business infringes
any patents, trademark, service mark, trade name, copyright,
license or other right owned by any other person and there is not
presently pending, or to the knowledge of Intermet, threatened,
any claim or litigation against or affecting any Consolidated
Company contesting such Person's right to sell or use any such
product, process, method, substance or other item where the
result of such failure to obtain and hold such benefits or such
infringement would have a Materially Adverse Effect.
Section 7.17. Ownership of Property. Except as set
forth on Schedule 7.17, (i) each Consolidated Company that is not
a Foreign Subsidiary has good and marketable fee simple title to
or a valid leasehold interest in all of its real property and
good title to, or a valid leasehold interest in, all of its other
property, and (ii) each Foreign Subsidiary owns or has a valid
leasehold interest in all of its real property and owns or has a
valid leasehold interest in, all of its other properties, in the
case of clauses (i) and (ii) as such properties are reflected in
the consolidated balance sheet of the Consolidated Companies as
of December 31, 1994 referred to in Section 7.14, other than
properties disposed of in the ordinary course of business since
such date or as otherwise permitted by the terms of this
Agreement, subject to no Lien or title defect of any kind, except
Liens permitted hereby and title defects not constituting
material impairments in the intended use for such properties.
The Consolidated Companies enjoy peaceful and undisturbed
possession under all of their respective leases.
Section 7.18. Indebtedness. Except for Indebtedness
outstanding pursuant to the Prior Credit Agreement which is
amended and restated hereby, as of the Closing Date, none of the
Consolidated Companies is an obligor in respect of any
Indebtedness for borrowed money, or any commitment to create or
incur any Indebtedness for borrowed money, in an amount not less
than $1,000,000 in any single case, and such Indebtedness and
commitments for amounts less than $1,000,000 do not exceed
$2,000,000 in the aggregate for all such Indebtedness and
commitments of the Consolidated Companies.
Section 7.19. Financial Condition. On the Closing
Date and after giving effect to the transactions contemplated by
this Agreement and the other Credit Documents, including without
limitation, the use of the proceeds of the Revolving Loans and
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the Currency Loans as provided in Sections 2.01 and 3.01 (i) the
assets of each Credit Party at fair valuation and based on their
present fair saleable value (including, without limitation, the
fair and realistic value of (x) any contribution or subrogation
rights in respect of any Guaranty Agreement given by such Credit
Party, and (y) any Intercompany Loan owed to such Credit Party)
will exceed such Credit Party's debts, including contingent
liabilities (as such liabilities may be limited under the express
terms of any Guaranty Agreement of such Credit Party), (ii) the
remaining capital of such Credit Party will not be unreasonably
small to conduct the Credit Party's business, and (iii) such
Credit Party will not have incurred debts, or have intended to
incur debts, beyond the Credit Party's ability to pay such debts
as they mature. For purposes of this Section 7.19, "debt" means
any liability on a claim, and "claim" means (a) the right to
payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, or
(b) the right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
Section 7.20. Intercompany Loans. The outstanding
Intercompany Loans do not, in the aggregate, exceed the amount
permitted by Section 9.01(g).
Section 7.21. Labor Matters. Except as set forth in
Schedule 7.21 or in any notice furnished to the Lenders pursuant
to Section 8.07(o) at or prior to the respective times the
representations and warranties set forth in this Section 7.21 are
made or deemed to be made hereunder, the Consolidated Companies
have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would
reasonably be expected to have, a Materially Adverse Effect, and,
to the best knowledge of Intermet, there are no such strikes,
disputes, slow downs or work stoppages threatened against any
Consolidated Company. The hours worked and payment made to
employees of the Consolidated Companies have not been in
violation in any material respect of the Fair Labor Standards Act
(in the case of Consolidated Companies that are not Foreign
Subsidiaries) or any other applicable law dealing with such
matters. All payments due from the Consolidated Companies, or
for which any claim may be made against the Consolidated
Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies where the
failure to pay or accrue such liabilities would reasonably be
expected to have a Materially Adverse Effect.
Section 7.22. Payment or Dividend Restrictions. Except
as set forth in Section 9.05 or described on Schedule 7.22 or as
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expressly permitted by the terms of this Agreement, none of the
Consolidated Companies is party to or subject to any agreement or
understanding restricting or limiting the payment of any
dividends or other distributions by any such Consolidated
Company.
Section 7.23. Disclosure. No representation or
warranty contained in this Agreement (including the Schedules
attached hereto) or in any other document furnished from time to
time pursuant to the terms of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will
omit to state any material fact necessary to make the statements
herein or therein not misleading in any material respect as of
the date made or deemed to be made. Except as may be set forth
herein (including the Schedules attached hereto) or in any notice
furnished to the Lenders pursuant to Section 8.07 at or prior to
the respective times the representations and warranties set forth
in this Section 7.23 are made or deemed to be made hereunder,
there is no fact known to Intermet which has had, or is
reasonably expected to have, a Materially Adverse Effect.
ARTICLE VIII.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder
or any Note shall remain unpaid or any Letter of Credit shall
remain outstanding, Intermet will:
Section 8.01. Corporate Existence, Etc. Preserve and
maintain, and cause each of its Material Subsidiaries to preserve
and maintain, its corporate existence (except for mergers and
consolidations permitted pursuant to Section 9.03), its material
rights, franchises, and licenses, and its material patents and
copyrights (for the scheduled duration thereof), trademarks,
trade names, and service marks, necessary or desirable in the
normal conduct of its business, and its qualification to do
business as a foreign corporation in all jurisdictions where it
conducts business or other activities making such qualification
necessary, where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect; provided,
however, that nothing set forth herein shall be deemed to
prohibit the sale of PBM pursuant to Section 12.18.
Section 8.02. Compliance with Laws, Etc. Comply, and
cause each of its Subsidiaries to comply with all Requirements of
Law (including, without limitation, the Environmental Laws
subject to the exception set forth in Section 7.08 where the
penalties, claims, fines, and other liabilities resulting from
noncompliance with such Environmental Laws do not involve amounts
in excess of $2,500,000 in the aggregate) and Contractual
Obligations applicable to or binding on any of them where the
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failure to comply with such Requirements of Law and Contractual
Obligations would reasonably be expected to have a Materially
Adverse Effect (with the express understanding that with respect
to noncompliance with Environmental Laws, liabilities from
noncompliance involving amounts equal to or in excess of
$2,500,000 in the aggregate shall be deemed to have a Materially
Adverse Effect).
Section 8.03. Payment of Taxes and Claims, Etc. Pay,
and cause each of its Subsidiaries to pay, (i) all taxes,
assessments and governmental charges imposed upon it or upon its
property, and (ii) all claims (including, without limitation,
claims for labor, materials, supplies or services) which might,
if unpaid, become a Lien upon its property, unless, in each case,
the validity or amount thereof is being contested in good faith
by appropriate proceedings and adequate reserves are maintained
with respect thereto.
Section 8.04. Keeping of Books. Keep, and cause each
of its Subsidiaries to keep, proper books of record and account,
containing complete and accurate entries of all their respective
financial and business transactions.
Section 8.05. Visitation, Inspection, Etc. Permit,
and cause each of its Subsidiaries to permit, any representative
of the Agent or any Lender to visit and inspect any of its
property, to examine its books and records and to make copies and
take extracts therefrom, and to discuss its affairs, finances and
accounts with its officers, all at such reasonable times and as
often as the Agent or such Lender may reasonably request after
reasonable prior notice to Intermet; provided, however, that at
any time following the occurrence and during the continuance of a
Default or an Event of Default, no prior notice to Intermet shall
be required.
Section 8.06. Insurance; Maintenance of Properties.
(a) Maintain or cause to be maintained with
financially sound and reputable insurers, insurance with respect
to its properties and business, and the properties and business
of its Subsidiaries, against loss or damage of the kinds
customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in
such amounts as is customary for such companies under similar
circumstances; provided, however, that in any event Intermet
shall use its best efforts to maintain, or cause to be
maintained, insurance in amounts and with coverages not
materially less favorable to any Consolidated Company as in
effect on the date of this Agreement, except where the costs of
maintaining such insurance would, in the judgment of both
Intermet and the Agent, be excessive.
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(b) Cause, and cause each of the Consolidated
Companies to cause, all properties used or useful in the conduct
of its business to be maintained and kept in good condition,
repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all
as in the judgment of Intermet may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent Intermet from discontinuing
the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Intermet, desirable in the
conduct of its business or the business of any Consolidated
Company.
Section 8.07. Reporting Covenants. Furnish to each
Lender:
(a) Annual Financial Statements. As soon as available
and in any event within 90 days after the end of each fiscal
year of Intermet, balance sheets of the Consolidated
Companies as at the end of such year, presented on a
consolidated and consolidating basis, and the related
statements of income, and cash flows of the Consolidated
Companies for such fiscal year, presented on a consolidated
and consolidating basis, setting forth in each case in
comparative form the figures for the previous fiscal year,
all in reasonable detail and accompanied by a report thereon
of Ernst & Young or other independent public accountants of
comparable recognized national standing, which such report
shall be unqualified as to going concern and scope of audit
and shall state that such financial statements present
fairly in all material respects the financial condition as
at the end of such fiscal year on a consolidated basis, and
the results of operations and statements of cash flows of
the Consolidated Companies for such fiscal year in
accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally
accepted auditing standards;
(b) Quarterly Financial Statements. As soon as
available and in any event within 60 days after the end of
each fiscal quarter of Intermet (other than the fourth
fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income,
shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of
Intermet's fiscal year ended at the end of such quarter,
presented on a consolidated basis setting forth in each case
in comparative form the figures for the corresponding
quarter and the corresponding portion of Intermet's previous
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fiscal year, all in reasonable detail and certified by the
chief financial officer or principal accounting officer of
Intermet that such financial statements fairly present in
all material respects the financial condition of the
Consolidated Companies as at the end of such fiscal quarter
on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for
such fiscal quarter and such portion of Intermet's fiscal
year, in accordance with GAAP consistently applied (subject
to normal year-end audit adjustments and the absence of
certain footnotes);
(c) No Default/Compliance Certificate. Together with
the financial statements required pursuant to subsections
(a) and (b) above, a certificate substantially in the form
of Exhibit M attached hereto of the president, chief
executive officer, chief financial officer or principal
accounting officer of Intermet (i) to the effect that, based
upon a review of the activities of the Consolidated
Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no
Default under this Agreement, or if there exists an Event of
Default or a Default hereunder, specifying the nature
thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end
of such fiscal year or such fiscal quarter with Section 8.08
and Sections 9.01 through 9.06;
(d) Auditor's No Default Certificate. Together with
the financial statements required pursuant to subsection
(a) above, a certificate of the accountants who prepared the
report referred to therein, to the effect that, based upon
their audit, there exists no Default or Event of Default
under this Agreement, or if there exists a Default or Event
of Default hereunder, specifying the nature thereof;
(e) Annual Budget. No later than 30 days prior to the
beginning of each fiscal year, an annual financial plan and
forecasted balance sheets and statements of income and cash
flows for the current fiscal year for the Consolidated
Companies presented on a consolidated basis;
(f) Notice of Default. Promptly after any Executive
Officer of Intermet has notice or knowledge of the
occurrence of an Event of Default or a Default, a cer-
tificate of the chief financial officer or principal
accounting officer of Intermet specifying the nature thereof
and the proposed response thereto;
(g) Reserved.
(h) Litigation and Investigations. Promptly after (i)
the occurrence thereof, notice of the institution of or any
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material adverse development in any material action, suit or
proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any
governmental or administrative body, agency or official,
against any Consolidated Company, or any material property
of any thereof, or (ii) actual knowledge thereof, notice of
the threat of any such action, suit, proceeding,
investigation or arbitration;
(i) Environmental Notices. Promptly after receipt
thereof, notice of any actual or alleged violation, or
notice of any action, claim or request for information,
either judicial or administrative, from any governmental
authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill, leak,
disposal or other release of any waste, petroleum product,
or hazardous waste or Hazardous Substance by any Consoli-
dated Company which could result in penalties, fines, claims
or other liabilities to any Consolidated Company in amounts
in excess of $750,000;
(j) ERISA. (A)(i) Promptly after the occurrence
thereof with respect to any Plan of any Consolidated Company
or any ERISA Affiliate thereof, or any trust established
thereunder, notice of (A) a "reportable event" described in
Section 4043 of ERISA and the regulations issued from time
to time thereunder (other than a "reportable event" not
subject to the provisions for 30-day notice to the PBGC
under such regulations), or (B) any other event which could
subject any Consolidated Company to any tax, penalty or li-
ability under Title I or Title IV of ERISA or Chapter 43 of
the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404 or 419 of the Tax Code, or any
tax, penalty or liability under any Requirement of Law
applicable to any Foreign Plan, where any such taxes,
penalties or liabilities exceed or could exceed $750,000 in
the aggregate;
(ii) Promptly after such notice must be provided
to the PBGC, or to a Plan participant, beneficiary or
alternative payee, any notice required under Section 101(d),
302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA
or under Section 401(a)(29) or 412 of the Tax Code with re-
spect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(iii) Promptly after receipt, any notice received
by any Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the PBGC or any other governmental
authority to terminate a Plan of such Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA, to
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impose any liability on such Company or ERISA Affiliate
under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon
the filing thereof with the Internal Revenue Service ("IRS")
or the Department of Labor ("DOL"), a copy of IRS Form 5500
or annual report for each Plan of any Consolidated Company
or ERISA Affiliate thereof which is subject to Title IV of
ERISA;
(v) Upon the request of the Agent, (A) true and
complete copies of any and all documents, government reports
and IRS determination or opinion letters or rulings for any
Plan of any Consolidated Company from the IRS, PBGC or DOL,
(B) any reports filed with the IRS, PBGC or DOL with respect
to a Plan of the Consolidated Companies or any ERISA
Affiliate thereof, or (C) a current statement of withdrawal
liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(B) Promptly upon any Consolidated Company
becoming aware thereof, notice that (i) any material
contributions to any Foreign Plan have not been made by the
required due date for such contribution and such default
cannot immediately be remedied, (ii) any Foreign Plan is not
funded to the extent required by the law of the jurisdiction
whose law governs such Foreign Plan based on the actuarial
assumptions reasonably used at any time, or (iii) a material
change is anticipated to any Foreign Plan that may have a
Materially Adverse Effect.
(k) Liens. Promptly upon any Consolidated Company
becoming aware thereof, notice of the filing of any federal
statutory Lien, tax or other state or local government Lien
or any other Lien affecting their respective properties,
other than those Liens expressly permitted by Section 9.02;
(l) Domestication of Subsidiaries. Not less than 30
days prior thereto, notice of any intended domestication of
any Foreign Subsidiary as a United States corporation,
whether by merger, stock transfer or otherwise;
(m) Public Filings, Etc. Promptly upon the filing
thereof or otherwise becoming available, copies of all
financial statements, annual, quarterly and special reports,
proxy statements and notices sent or made available
generally by Intermet to its public security holders, of all
regular and periodic reports and all registration statements
and prospectuses, if any, filed by any of them with any
securities exchange, and of all press releases and other
statements made available generally to the public containing
material developments in the business or financial condition
of Intermet and the other Consolidated Companies;
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(n) Reserved.
(o) Burdensome Restrictions, Etc. Promptly upon the
existence or occurrence thereof, notice of the existence or
occurrence of (i) any Contractual Obligation or Requirement
of Law described in Section 7.11, (ii) failure of any
Consolidated Company to hold in full force and effect those
material trademarks, service marks, patents, trade names,
copyrights, licenses and similar rights necessary in the
normal conduct of its business, and (iii) any strike, labor
dispute, slow down or work stoppage as described in Section
7.21;
(p) New Material Subsidiaries. Within 30 days after
the formation or acquisition of any Material Subsidiary, or
any other event resulting in the creation of a new Material
Subsidiary, notice of the formation or acquisition of such
Material Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in
which it will be engaged, and such other information as the
Agent may request;
(q) Intercompany Asset Transfers. Promptly upon the
occurrence thereof, notice of the transfer of any assets
from any Credit Party to any other Consolidated Company that
is not a Credit Party (in any transaction or series of
related transactions), excluding sales or other transfers of
assets in the ordinary course of business, where the Asset
Value of such assets is greater than $250,000; and
(r) Other Information. With reasonable promptness,
any other information provided under the Note Purchase
Agreement and such other information about the Consolidated
Companies as the Agent or any Lender may reasonably request
from time to time.
Section 8.08. Financial Covenants.
(a) Fixed Charge Coverage. Maintain as of the last
day of each fiscal quarter, a minimum Fixed Charge Coverage Ratio
equal to or greater than 2.0:1.0.
(b) Leverage Ratio. Maintain as of the last day of
each fiscal quarter, a maximum Leverage Ratio of less than or
equal to 55%.
(c) Funded Debt to Consolidated EBITDA. Maintain as
of the last day of each fiscal quarter, a maximum ratio of Funded
Debt to Consolidated EBITDA calculated for the immediately
preceding four fiscal quarters of less than or equal to 3.5:1.0.
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(d) Second Fiscal Quarter 1995 Calculations. Schedule
8.08 sets forth the calculation of the financial covenant
amounts, ratios, and percentages required by paragraphs (a)
through (c) of this Section 8.08 calculated as of June 30, 1995.
Section 8.09. Notices Under Certain Other
Indebtedness. Immediately upon its receipt thereof, Intermet
shall furnish the Agent a copy of any notice received by it or
any other Consolidated Company from the holder(s) of Indebtedness
referred to in Section 9.01(b), (e), (h), (i), (j) or (k) (or
from any trustee, agent, attorney, or other party acting on
behalf of such holder(s)) in an amount which, in the aggregate,
exceeds $1,000,000, where such notice states or claims (i) the
existence or occurrence of any default or event of default with
respect to such Indebtedness under the terms of any indenture,
loan or credit agreement, debenture, note, or other document
evidencing or governing such Indebtedness, or (ii) the existence
or occurrence of any event or condition which requires or permits
holder(s) of any Indebtedness to exercise rights under any Change
in Control Provision. Intermet agrees to take such actions as
may be necessary to require the holder(s) of any Indebtedness (or
any trustee or agent acting on their behalf) incurred pursuant
to documents executed or amended and restated after the Closing
Date, to furnish copies of all such notices directly to the Agent
simultaneously with the furnishing thereof to Intermet, and that
such requirement may not be altered or rescinded without the
prior written consent of the Agent.
Section 8.10. Additional Credit Parties and
Collateral. Promptly after (i) the formation or acquisition
(provided that nothing in this Section shall be deemed to
authorize the acquisition of any entity) of any Material Sub-
sidiary not listed on Schedule 7.13, (ii) the transfer of assets
to any Consolidated Company if notice thereof is required to be
given pursuant to Section 8.07(q) and as a result thereof the
recipient of such assets becomes a Material Subsidiary, (iii) the
domestication of any Foreign Subsidiary that is a Material
Subsidiary, or (iv) the occurrence of any other event creating a
new Material Subsidiary, Intermet shall execute and deliver, and
cause to be executed and delivered (x) in the case of Foreign
Subsidiary, if, in the reasonable opinion of Intermet's
accountants, delivery of a Guaranty Agreement would cause
Intermet to be subject to tax on the undistributed earnings and
profits of such Subsidiary pursuant to Subpart F of Part III,
Subchapter N of the Internal Revenue Code, a Pledge Agreement
with respect to 66% (or such greater percentage as would not
result in such adverse tax consequences to Intermet as reasonably
determined by Intermet's accountants) of the capital stock of
such Material Subsidiary if it is a Foreign Subsidiary directly
owned by Intermet or a Subsidiary that is not, and is not
directly or indirectly controlled by, a Foreign Subsidiary, and
(y) a Guaranty Agreement from each such Material Subsidiary that
is not a Foreign Subsidiary whose stock has been pledged to the
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extent and in accordance with subsection (x) hereof, together
with related documents with respect to such new Material
Subsidiary (or the pledgor of its stock) of the kind described in
Section 6.01(c), (d), (f), (g), (h), (i), (s) and (t), all in
form and substance satisfactory to the Agent and the Required
Lenders.
Section 8.11 Delivery of Modifications to Prudential
Documents; German Opinion. Promptly, and in any event within
thirty days after the Closing Date, deliver or cause to be
delivered to the Agent (i) a waiver to the share pledge agreement
in favor of Prudential and an amendment or partial release to the
accompanying UCC financing statement conforming such documents to
the Pledge Agreement executed in connection herewith, together
with such other opinions and agreements with respect to such
German collateral as shall be reasonably requested by the
Lenders, each in form and substance satisfactory to the Agent,
and (ii) the opinion of Intermet's German counsel substantially
in the form of Exhibit H-2 attached hereto.
ARTICLE IX.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder
or any Note shall remain unpaid or any Letter of Credit
Obligation shall remain outstanding, Intermet will not and will
not permit any Subsidiary to:
Section 9.01. Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof or
pursuant to lines of credit in effect on the date hereof and
described on Schedule 9.01(b); provided, however, that the
aggregate amount of Indebtedness outstanding pursuant to
such lines of credit shall at no time exceed 15,000,000
German marks;
(c) purchase money Indebtedness to the extent secured
by a Lien permitted by Section 9.02(b);
(d) unsecured current liabilities (other than
liabilities for borrowed money or liabilities evidenced by
promissory notes, bonds or similar instruments) incurred in
the ordinary course of business and either (i) not more than
30 days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed
liability maintained in conformity with GAAP;
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(e) Indebtedness of Intermet pursuant to the Note
Purchase Agreement and secured by Liens which are pari passu
with the Liens in favor of the Lenders securing the
Obligations hereunder and governed by the terms of the
Intercreditor Agreement;
(f) Indebtedness (other than liabilities for borrowed
money or liabilities evidenced by promissory notes, bonds or
similar instruments) permitted under Section 9.02(c) or (d)
or Section 9.07, or permitted under Section 9.03 in
connection with the purchase, lease or other acquisition of
property or assets where such Indebtedness is to the seller
of such property or assets and represents a deferral of
payment for such property or assets for a period not to
exceed the lesser of (i) normal trade terms for such
property or asset, or (ii) 180 days (commencing from the
date of delivery or, if applicable, the date of
installation of such property or asset);
(g) Intercompany Loans; provided that the aggregate
amount of Intercompany Loans made by Credit Parties to
Consolidated Companies which are not Credit Parties shall
not exceed $3,000,000 in the aggregate at any one time
outstanding unless otherwise agreed in writing by the Agent
and the Required Lenders;
(h) Subordinated Debt which is unsecured and approved
as to terms and conditions by the Agent and the Required
Lenders;
(i) Unsecured Indebtedness of Intermet incurred in
connection with lines of credit in an aggregate principal
amount not to exceed $20,000,000 at any time outstanding;
(j) Indebtedness of a Person which is acquired by or
consolidated with a Consolidated Company as long as such
Indebtedness is unsecured and not obtained in contemplation
of such acquisition; and
(k) Other Indebtedness not to exceed $2,000,000 at any
one time outstanding.
Section 9.02. Liens. Create, incur, assume or suffer
to exist any Lien on any of its property now owned or hereafter
acquired to secure any Indebtedness other than:
(a) Liens existing on the date hereof and disclosed on
Schedule 9.02;
(b) any Lien on any property securing Indebtedness
incurred or assumed for the purpose of financing all or any
part of the acquisition cost of such property and any
refinancing thereof, provided that such Lien does not extend
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to any other property, and provided further that the
aggregate principal amount of Indebtedness secured by all
such Liens at any time does not exceed $2,000,000;
(c) Liens for taxes not yet due, and Liens for taxes
or Liens imposed by ERISA which are being contested in good
faith by appropriate proceedings and with respect to which
adequate reserves are being maintained;
(d) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for
the payment of borrowed money);
(f) Liens permitted by Section 9.01(e);
(g) any Lien on any asset of any Person existing at
the time such Person is merged or consolidated with or into
Intermet or another Consolidated Company which (i) is not
created in contemplation of such event, and (ii) does not
secure Indebtedness not otherwise permitted pursuant to
Section 9.01; and
(h) Liens (other than those permitted by paragraphs
(a) through (g) of this Section 9.02) encumbering assets
having an Asset Value not greater than $2,000,000 in the
aggregate at any one time.
Section 9.03. Mergers, Acquisitions, Divestitures.
(a) Merge or consolidate with any other Person, except that the
foregoing restrictions shall not be applicable to:
(i) mergers or consolidations of (x) any Subsidiary
with any other Subsidiary or (y) any Subsidiary with
Intermet; or
(ii) mergers or consolidations which result in
Acquisitions of Persons engaged in businesses permitted by
Section 9.10 of this Agreement;
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provided that before and after giving effect to any such merger
or consolidations, (w) Intermet is in compliance with Section
8.08 hereof; (x) no other Default or Event of Default exists
hereunder; (y) in the event of such merger or consolidation, the
surviving Person is a Consolidated Company and complies with
Section 8.10 hereof, if applicable, and (z) Intermet is the
surviving corporation in connection with any merger or
consolidation to which it is a party;
(b) Sell or otherwise dispose of the capital stock of a
Credit Party or any other Consolidated Company whose capital
stock is pledged to the Lender; or
(c) make or permit any Acquisition other than an
Acquisition of Persons engaged in businesses which a Consolidated
Company is permitted to engage in pursuant to Section 9.10 of
this Agreement; provided that Intermet meets the conditions of
(w), (x), (y) and (z) of paragraph (a) of this Section 9.03.
Section 9.04. Asset Sales.
Sell, lease or otherwise dispose of its accounts, property,
stock of its Subsidiaries or other assets (excluding a sale of
the stock or substantially all assets of PBM); provided, however,
that the foregoing restrictions on Asset Sales shall not be
applicable to:
(a) sales of inventory in the ordinary course of
business;
(b) sales of equipment or other personal property
being replaced by other equipment or other personal property
purchased as a capital expenditure item; or
(c) Asset Sales, where, on the date of execution of a
binding obligation to make such Asset Sale (provided that if
the Asset Sale is not consummated within six (6) months of
such execution, then on the date of consummation of such
Asset Sale rather than on the date of execution of such
binding obligation), (i) (x) the Asset Value of Asset Sales
that occur during any particular fiscal year, taking into
account the Asset Value of the proposed Asset Sale but
excluding any Asset Sale related to PBM, would not exceed
ten percent (10%) of Intermet's Net Fixed Assets as of the
last day of the preceding fiscal year of Intermet, and (y)
the assets subject to such Asset Sale, but excluding any
Asset Sale related to PBM, would not have produced during
the prior 12 months prior to such Asset Sale, in excess of
ten percent (10%) of Intermet's Consolidated EBITDA at the
end of the most recently competed 12 months, and (ii) the
Asset Value of Asset Sales that occur at any time and from
time to time after the Closing Date, taking into account the
Asset Value of all Asset Sales since the Closing Date and
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the proposed Asset Sale, but excluding any Asset Sale
relating to PBM, would not exceed twenty percent (20%) of
Intermet's Net Fixed Assets as of June 30, 1995; provided,
however, that (x) the Asset Value of Asset Sales occurring
after the Closing Date that relate to any particular
Material Subsidiary shall not exceed fifty percent (50%) of
the Net Fixed Assets of that same Material Subsidiary as of
the last day of the preceding fiscal year of Intermet and
(y) the assets subject to such Asset Sale shall not have
produced during the prior 12 months prior to such Asset Sale
in excess of fifty percent (50%) of the such Material
Subsidiary's Consolidated EBITDA at the end of the most
recently completed 12 months;
provided that not withstanding the foregoing, no transaction
pursuant to clauses (ii) or (iii) above shall be permitted if any
Default or Event of Default exists at the time of such
transaction or would exist as a result of such transaction.
Section 9.05. Dividends, Etc. Intermet shall not (a)
declare or pay any dividend on any class of its stock, or (b)
make any payment to purchase, redeem, retire or acquire any of
its Subordinated Debt or stock or any option, warrant, or other
right to acquire such Subordinated Debt or stock (a "Restricted
Payment"), other than:
(i) dividends payable solely in shares of any class of
its stock; and
(ii) cash dividends declared and paid, and all other
Restricted Payments made, after December 31, 1994 in an
aggregate amount at any time not to exceed the amount set
forth below:
(x) if Intermet's Leverage Ratio is equal to or
greater than 40% as of the most recently ended fiscal period
for which financial statements have been delivered to the
Lenders pursuant to Section 8.07 hereof (the "Calculation
Date"), twenty-five percent (25%) of Consolidated Net Income
earned during the period commencing on January 1, 1995 and
ending on such Calculation Date (such period to be treated
as one accounting period taking into account 100% of
Consolidated Net Loss during such period); and
(y) if Intermet's Leverage Ratio is less than 40% as
of the most recent Calculation Date, forty percent (40%) of
Consolidated Net Income earned during the period commencing
on January 1, 1995 and ending on such Calculation Date (such
period to be treated as one accounting period taking into
account 100% of Consolidated Net Loss during such period);
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provided, however, no such dividend or other Restricted
Payment may be declared or paid pursuant to clause (ii)
above unless no Default or Event of Default exists at the
time of such declaration or Restricted Payment, or would
exist as a result of such declaration or Restricted Payment.
Section 9.06. Investments, Loans, Etc. Make, permit
or hold any Investments other than:
(a) Investments in Subsidiaries which are Guarantors
under this Agreement, whether such Subsidiaries are
Guarantors on the Closing Date or become Guarantors in
accordance with Section 8.10 after the Closing Date;
provided, however, nothing in this Section 9.06 shall be
deemed to authorize an Investment pursuant to this
subsection (a) in any entity that is not a Guarantor prior
to such Investment;
(b) Investments in Subsidiaries which are not
Guarantors, which, when aggregated with all other
Investments made in such other Subsidiaries after
December 31, 1994, shall not exceed $3,000,000 unless
otherwise consented to in writing by the Required Lenders,
provided, however, that Investments in the form of
Intercompany Loans are otherwise permitted by Section
9.01(g);
(c) Investments in the following securities:
(i) direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United
States or any agency thereof, in each case supported by
the full faith and credit of the United States and
maturing within one year from the date of creation
thereof;
(ii) commercial paper maturing within one year
from the date of creation thereof rated in the highest
grade by a nationally recognized credit rating agency;
(iii) time deposits maturing within one year from
the date of creation thereof with, including
certificates of deposit issued by, any office located
in the United States of any bank or trust company which
is organized under the laws of the United States or any
state thereof and has capital, surplus and undivided
profits aggregating at least $500,000,000, including
without limitation, any such deposits in Eurodollars
issued by a foreign branch of any such bank or trust
company;
(d) Investments made by Plans and Foreign Plans; and
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(e) Investments (other than those permitted by
paragraphs (a) through (d) above), including loans to
employees, officers and other Persons, in an aggregate
amount not to exceed $5,000,000 at any one time outstanding.
Section 9.07. Sale and Leaseback Transactions. Sell
or transfer any property, real or personal, whether now owned or
hereafter acquired, and thereafter rent or lease such property or
other property which any Consolidated Company intends to use for
substantially the same purpose or purposes as the property being
sold or transferred.
Section 9.08. Transactions with Affiliates.
(a) Enter into any material transaction or series of
related transactions which in the aggregate would be material,
whether or not in the ordinary course of business, with any
Affiliate of any Consolidated Company (but excluding any
Affiliate which is also a Consolidated Company), other than on
terms and conditions substantially as favorable to such
Consolidated Company as would be obtained by such Consolidated
Company at the time in a comparable arm's-length transaction with
a Person other than an Affiliate.
(b) Convey or transfer to any other Person (including
any other Consolidated Company) any real property, buildings, or
fixtures used in the manufacturing or production operations of
any Consolidated Company, or convey or transfer to any other
Consolidated Company any other assets (excluding conveyances or
transfers in the ordinary course of business) if at the time of
such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
Section 9.09. Prepayments of Subordinated Debt in
Violation Thereof. Directly or indirectly, prepay, purchase,
redeem, retire, defease or otherwise acquire, or make any
optional payment on account of any principal of, interest on, or
premium payable in connection with any of its Subordinated Debt,
in each case, which is a violation of the subordination
provisions of such Subordinated Debt.
Section 9.10. Changes in Business. Enter into any
business which is substantially different from that presently
conducted by the Consolidated Companies taken as a whole (which
includes iron and aluminum foundry operations and machining);
provided that, Intermet and the Consolidated Companies may make
Acquisitions of, and Investments in Persons engaged in an
unrelated business as long as the sum of (x) the amount expended
in connection with such Acquisitions since the Closing Date, and
(y) the aggregate outstanding Investments in such Persons
(including any amount committed by Intermet or a Consolidated
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Company to be loaned to or otherwise invested in such Person)
does not exceed $5,000,000 on any date of determination.
Section 9.11. ERISA. Take or fail to take any action
with respect to any Plan or Foreign Plan of any Consolidated
Company or, with respect to its ERISA Affiliates, any Plans which
are subject to Title IV of ERISA or to continuation health care
requirements for group health plans under the Tax Code, including
without limitation (i) establishing any such Plan, (ii) amending
any such Plan (except where required to comply with applicable
law), (iii) terminating or withdrawing from any such Plan, or
(iv) incurring an amount of unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan,
or any unfunded liabilities under any Foreign Plan, without first
obtaining the written approval of the Required Lenders, where
such actions or failures could result in a Material Adverse
Effect.
Section 9.12. Additional Negative Pledges. Create or
otherwise cause or suffer to exist or become effective, directly
or indirectly, any prohibition or restriction on the creation or
existence of any Lien upon any asset of any Consolidated Company,
other than pursuant to (i) Section 9.02, (ii) the terms of any
agreement, instrument or other document pursuant to which any
Indebtedness permitted by Section 9.02(b) is incurred by any
Consolidated Company, so long as such prohibition or restriction
applies only to the property or asset being financed by such
Indebtedness, (iii) the terms of any agreement, instrument or
other document pursuant to which any Indebtedness permitted by
Section 9.01(i) is incurred, (iv) the terms of the Note Purchase
Agreement (as originally executed), and (v) any requirement of
applicable law or any regulatory authority having jurisdiction
over any of the Consolidated Companies.
Section 9.13. Limitation on Payment Restrictions Af-
fecting Consolidated Companies. Create or otherwise cause or
suffer to exist or become effective, any consensual encumbrance
or restriction on the ability of any Consolidated Company to (i)
pay dividends or make any other distributions on such
Consolidated Company's stock, or (ii) pay any indebtedness owed
to Intermet or any other Consolidated Company, or (iii) transfer
any of its property or assets to Intermet or any other
Consolidated Company, except any consensual encumbrance or
restriction existing under the Credit Documents or the Pledge
Agreement (as defined in the Note Purchase Agreement) (as
originally executed) or as set forth on Schedule 7.22.
Section 9.14. Actions Under Certain Documents.
(a) Without the prior written consent of the Agent and
the Required Lenders, modify, amend or supplement the Note
Purchase Agreement to (i) increase the principal amount of the
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indebtedness thereunder, (ii) increase the interest rate
thereunder, (iii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or
average life of the indebtedness outstanding thereunder or make
the requirement of prepayment more onerous, or (iv) make any more
onerous any other provision thereof.
(b) Without the prior written consent of the Agent and
the Required Lenders, modify, amend or supplement any agreement
governing Subordinated Debt to (i) increase the principal amount
of the indebtedness thereunder, (ii) increase the interest rate
thereunder, (iii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or
average life of the indebtedness outstanding thereunder or make
the requirement of prepayment more onerous, (iv) make any more
onerous any other provision thereof, or (v) amend or modify the
subordination provisions thereof.
ARTICLE X.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any
of the following specified events (each an "Event of Default"):
Section 10.01. Payments. Intermet shall fail to make
promptly when due (including, without limitation, by mandatory
prepayment) any principal payment with respect to the Loans, or
Intermet shall fail to make within three (3) days after the due
date thereof any payment of interest, fee or other amount payable
hereunder or any of the Obligations;
Section 10.02. Covenants Without Notice. Intermet or
any Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 8.07(f), 8.08, 9.01 through 9.07,
9.09, 9.10, and 9.12 through 9.14;
Section 10.03. Other Covenants. Intermet shall fail
to observe or perform any covenant or agreement contained in this
Agreement, other than those referred to in Sections 10.01 and
10.02, and, if capable of being remedied, such failure shall
remain unremedied for 30 days after the earlier of (i) Intermet's
obtaining knowledge thereof, or (ii) written notice thereof shall
have been given to Intermet by Agent or any Lender;
Section 10.04. Representations. Any representation or
warranty made or deemed to be made by Intermet or any other
Credit Party or by any of its officers under this Agreement or
any other Credit Document (including the Schedules attached
thereto), or any certificate or other document submitted to the
Agent or the Lenders by any such Person pursuant to the terms of
this Agreement or any other Credit Document, shall be incorrect
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in any material respect when made or deemed to be made or
submitted;
Section 10.05. Non-Payments of Other Indebtedness.
Any Consolidated Company shall fail to make when due (whether at
stated maturity, by acceleration, on demand or otherwise, and
after giving effect to any applicable grace period) any payment
of principal of or interest on any Indebtedness (other than the
Obligations) exceeding $2,500,000 in the aggregate;
Section 10.06. Defaults Under Other Agreements. Any
Consolidated Company shall fail to observe or perform within any
applicable grace period any covenants or agreements contained in
any agreements or instruments relating to any of its Indebtedness
exceeding $2,500,000 in the aggregate, or any other event shall
occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any
other Person to accelerate, the maturity of such Indebtedness; or
any such Indebtedness shall be required to be prepaid (other than
by a regularly scheduled required prepayment) in whole or in part
prior to its stated maturity;
Section 10.07. Bankruptcy. Intermet or any other
Consolidated Company shall commence a voluntary case concerning
itself under the Bankruptcy Code or applicable foreign bankruptcy
laws; or an involuntary case for bankruptcy is commenced against
any Consolidated Company and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the
Bankruptcy Code) or similar official under applicable foreign
bankruptcy laws is appointed for, or takes charge of, all or any
substantial part of the property of any Consolidated Company; or
any Consolidated Company commences proceedings of its own
bankruptcy or to be granted a suspension of payments or any other
proceeding under any reorganization, arrangement, adjustment of
debt, relief of debtors, dissolution, insolvency or liquidation
or similar law of any jurisdiction, whether now or hereafter in
effect, relating to any Consolidated Company or there is
commenced against any Consolidated Company any such proceeding
which remains undismissed for a period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or pro-
ceeding is entered; or any Consolidated Company suffers any
appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or any Consolidated Company
makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is
unable to pay, or shall be unable to pay, its debts generally as
they become due; or any Consolidated Company shall call a
meeting of its creditors with a view to arranging a composition
or adjustment of its debts; or any Consolidated Company shall by
any act or failure to act indicate its consent to, approval of or
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acquiescence in any of the foregoing; or any corporate action is
taken by any Consolidated Company for the purpose of effecting
any of the foregoing;
Section 10.08. ERISA. A Plan or Foreign Plan of a
Consolidated Company or a Plan subject to Title IV of ERISA of
any of its ERISA Affiliates
(i) shall fail to be funded in accordance with the
minimum funding standard required by applicable
law, the terms of such Plan or Foreign Plan,
Section 412 of the Tax Code or Section 302 of
ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such
Plan or Foreign Plan under applicable law, the
terms of such Plan or Foreign Plan or Section 412
of the Tax Code or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject
of termination proceedings under applicable law or
the terms of such Plan or Foreign Plan; or
(iii) shall require a Consolidated Company to
provide security under applicable law, the
terms of such Plan or Foreign Plan, Section
401 or 412 of the Tax Code or Section 306 or
307 of ERISA; or
(iv) results in a liability to a Consolidated Company
under applicable law, the terms of such Plan or
Foreign Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination
or other event a liability to the PBGC (or any similar Person
with respect to any Foreign Plan) or a Plan that would have a
Materially Adverse Effect.
Section 10.09. Money Judgment. A judgment or order
for the payment of money in excess of $2,500,000 or otherwise
having a Materially Adverse Effect shall be rendered against
Intermet or any other Consolidated Company and such judgment or
order shall continue unsatisfied (in the case of a money
judgment) and in effect for a period of 30 days during which
execution shall not be effectively stayed or deferred (whether by
action of a court, by agreement or otherwise);
Section 10.10. Ownership of Credit Parties and Pledged
Entities. If Intermet shall at any time fail to own and control
one hundred percent (100%) of the voting stock of any Credit
Party or entity whose stock is pledged to the Lenders, either
directly or indirectly through a wholly-owned Subsidiary of
Intermet, except for (x) Intermotive Technologies, Inc. where
Intermet shall maintain ownership and control of the percentage
of voting stock owned and controlled as of the Closing Date, (y)
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PBM where Intermet may cease to own and control the stock thereof
in connection with any sale of the stock of PBM permitted
pursuant to Section 12.18, and (z) any Credit Party acquired
after the Closing Date where Intermet shall, directly or
indirectly, maintain ownership and control of the percentage of
voting stock owned and controlled as of the date such Person
became a Credit Party hereunder or such greater percentage as
shall thereafter be obtained, directly or indirectly by Intermet;
Section 10.11. Change in Control of Intermet. Any
"person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act), other than George W. Mathews, Jr.
shall become the "beneficial owner(s)" (as defined in said Rule
13d-3) of more than twenty-five percent (25%) of the shares of
the outstanding common stock of Intermet entitled to vote for
members of Intermet's board of directors, or (ii) any event or
condition shall occur or exist which, pursuant to the terms of
any Change in Control Provision, requires or permits the
holder(s) of Indebtedness of any Consolidated Company to require
that such Indebtedness be redeemed, repurchased, defeased,
prepaid or repaid, in whole or in part, or the maturity of such
Indebtedness to be accelerated in any respect;
Section 10.12. Default Under Other Credit Documents.
There shall exist or occur any "Event of Default" as provided
under the terms of any other Credit Document, or any Credit
Document ceases to be in full force and effect or the validity or
enforceability thereof is disaffirmed by or on behalf of Intermet
or any other Credit Party, or at any time it is or becomes
unlawful for Intermet or any other Credit Party to perform or
comply with its obligations under any Credit Document, or the
obligations of Intermet or any other Credit Party under any
Credit Document are not or cease to be legal, valid and binding
on Intermet or any such Credit Party or the Agent ceases to hold
a perfected lien on the Pledged Stock subject only to Liens
permitted by the terms of this Credit Agreement;
Section 10.13. Attachments. An attachment or similar
action shall be made on or taken against any of the assets of any
Consolidated Company with an Asset Value exceeding $1,000,000 in
aggregate and is not removed, suspended or enjoined within 30
days of the same being made or any suspension or injunction being
lifted;
then, and in any such event, and at any time thereafter if any
Event of Default shall then be continuing, the Agent may, and
upon the written or telex request of the Required Lenders, shall,
by written notice to Intermet, take any or all of the following
actions, without prejudice to the rights of the Agent, any Lender
or the holder of any Note to enforce its claims against Intermet
or any other Credit Party: (i) declare all Commitments
terminated, whereupon the pro rata Commitments of each Lender
shall terminate immediately and any commitment fee shall
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forthwith become due and payable without any other notice of any
kind; and (ii) declare the principal of and any accrued interest
on the Loans, and all other Obligations owing hereunder,
including without limitation, an amount equal to the maximum
amount which would be available at any time to be drawn under all
Letters of Credit then outstanding (whether or not any
beneficiary under any Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other
documents required to draw under such Letter of Credit), to be,
whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Intermet; provided, that, if an
Event of Default specified in Section 10.07 shall occur, the
result which would occur upon the giving of written notice by the
Agent to any Credit Party, as specified in clauses (i) and (ii)
above, shall occur automatically without the giving of any such
notice; and (iii) exercise any rights or remedies under the
Security Documents. As long as any Letter of Credit shall remain
outstanding, any amounts described in clause (ii) above with
respect to Letters of Credit, when received by the Agent, shall
be deposited in a cash collateral account as cash collateral for
the obligation of Intermet under Articles II and IV of this
Agreement in the event of any drawing under a Letter of Credit,
and upon drawing under any outstanding Letter of Credit in
respect of which the Agent has deposited in the cash collateral
account any amounts described in clause (ii) above, the Agent
shall pay such amounts to itself to reimburse itself for the
amount of such drawing.
ARTICLE XI.
THE AGENT
Section 11.01. Appointment of Agent. Each Lender
hereby designates TCB as Agent to administer all matters
concerning the Loans and to act as herein specified. Each Lender
hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably to authorize,
the Agent to take such actions on its behalf under the provisions
of this Agreement, the other Credit Documents, and all other
instruments and agreements referred to herein or therein, and to
exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the
Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through their agents or employees.
Section 11.02. Authorization of Agent with Respect to
the Security Documents. (a) Each Lender hereby authorizes the
Agent to enter into each of the Security Documents substantially
in the form attached hereto, and to take all action contemplated
thereby. All rights and remedies under the Security Documents
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may be exercised by the Agent for the benefit of the Agent and
the Lenders and the other beneficiaries thereof upon the terms
thereof. The Lenders further agree that the Agent may assign its
rights and obligations under any of the Security Documents to any
affiliate of the Agent or to any trustee, if necessary or
appropriate under applicable law, which assignee in each such
case shall (subject to compliance with any requirements of
applicable law governing the assignment of such Security
Documents) be entitled to all the rights of the Agent under and
with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of
any Security Document, the Agent shall have the right to grant or
withhold any consent, exercise any remedy, make any determination
or direct any action by the Agent under such Security Document,
the Agent shall act in respect of such consent, exercise of
remedies, determination or action, as the case may be, with the
consent of and at the direction of the Required Lenders;
provided, however, that no such consent of the Required Lenders
shall be required with respect to any consent, determination or
other matter that is, in the Agent's judgment, ministerial or
administrative in nature. In each circumstance where any consent
of or direction from the Required Lenders is required, the Agent
shall send to the Lenders a notice setting forth a description in
reasonable detail of the matter as to which consent or direction
is requested and the Agent's proposed course of action with
respect thereto. In the event the Agent shall not have received
a response from any Lender within five (5) Business Days after
such Lender's receipt of such notice, such Lender shall be deemed
to have agreed to the course of action proposed by the Agent.
Section 11.03. Nature of Duties of Agent. The Agent
shall have no duties or responsibilities except those expressly
set forth in this Agreement and the other Credit Documents. None
of the Agent nor any of its respective officers, directors,
employees or agents shall be liable for any action taken or
omitted by it as such hereunder or in connection herewith, unless
caused by its or their gross negligence or willful misconduct.
The duties of the Agent shall be ministerial and administrative
in nature; the Agent shall not have by reason of this Agreement a
fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect
of this Agreement or the other Credit Documents except as
expressly set forth herein.
Section 11.04. Lack of Reliance on the Agent.
(a) Independently and without reliance upon the Agent,
each Lender, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of
the financial condition and affairs of the Credit Parties in
connection with the taking or not taking of any action in
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connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly
provided in this Agreement, the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender
for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the
Notes, the Guaranty Agreements, the Pledge Agreement, or any
other documents contemplated hereby or thereby, or the financial
condition of the Credit Parties, or be required to make any
inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement, the Notes,
the Guaranty Agreements, the Pledge Agreements or the other
documents contemplated hereby or thereby, or the financial
condition of the Credit Parties, or the existence or possible
existence of any Default or Event of Default; provided, however,
to the extent that the Agent has been advised that a Lender has
not received any information formally delivered to the Agent
pursuant to Section 8.07, the Agent shall deliver or cause to be
delivered such information to such Lender.
Section 11.05. Certain Rights of the Agent. If the
Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act)
in connection with this Agreement, the Agent shall be entitled to
refrain from such act or taking such act, unless and until the
Agent shall have received instructions from the Required Lenders;
and the Agent shall not incur liability in any Person by reason
of so refraining. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Lenders.
Section 11.06. Reliance by Agent. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cable gram, radiogram,
order or other documentary, teletransmission or telephone message
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person. The Agent may consult with
legal counsel (including counsel for any Credit Party),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
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Section 11.07. Indemnification of Agent. To the ex-
tent the Agent is not reimbursed and indemnified by the Credit
Parties, each Lender will reimburse and indemnify the Agent,
ratably according to the respective amounts of the Loans
outstanding under all Facilities (or if no amounts are
outstanding, ratably in accordance with the Total Commitments),
in either case, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements)
or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in
performing its duties hereunder, in any way relating to or
arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Agent for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct.
Section 11.08. The Agent in its Individual Capacity.
With respect to its obligation to lend under this Agreement, the
Loans made by it and the Notes issued to it, the Agent shall have
the same rights and powers hereunder as any other Lender or
holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include
the Agent in its individual capacity. The Agent may accept de-
posits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with the
Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the
Consolidated Companies for services in connection with this
Agreement and otherwise without having to account for the same to
the Lenders.
Section 11.09. Holders of Notes. The Agent may deem
and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the
Agent. Any request, authority or consent of any Person who, at
the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
Section 11.10. Successor Agent.
(a) The Agent may resign at any time by giving written
notice thereof to the Lenders and Intermet and may be removed at
any time with or without cause by the Required Lenders; provided,
however, the Agent may not resign or be removed until a successor
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Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Agent subject
to Intermet's prior written approval. If no successor Agent
shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent subject to
Intermet's prior written approval, which shall be a bank which
maintains an office in the United States, or a commercial bank
organized under the laws of the United States of America or any
State thereof, or any Affiliate of such bank, having a combined
capital and surplus of at least $100,000,000. If at any time
Trust Company Bank is removed as a Lender pursuant to Section
12.06(g), Trust Company Bank shall simultaneously resign as
Agent.
(b) Upon the acceptance of any appointment as the
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this
Article XI shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Agent under this
Agreement.
ARTICLE XII.
MISCELLANEOUS
Section 12.01. Notices. All notices, requests and
other communications to any party hereunder shall be in writing
(including bank wire, telex, telecopy or similar teletransmission
or writing) and shall be given to such party at its address or
applicable teletransmission number set forth on the signature
pages hereof, or such other address or applicable
teletransmission number as such party may hereafter specify by
notice to the Agent and Intermet. Each such notice, request or
other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received, (ii) if
given by mail, 72 hours after such communication is deposited in
the mails with first class postage prepaid, addressed as
aforesaid, (iii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and
the appropriate confirmation is received, or (iv) if given by any
other means (including, without limitation, by air courier), when
delivered or received at the address specified in this Section;
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provided that notices to the Agent shall not be effective until
received.
Section 12.02. Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the other Credit
Documents, nor consent to any departure by any Credit Party
therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided
that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders do any of the following: (i) waive any
of the conditions specified in Section 6.01 or 6.02, (ii)
increase the Commitments or other contractual obligations to
Intermet under this Agreement, (iii) reduce the principal of, or
interest on, the Notes or any fees hereunder, (iv) postpone any
date fixed for the payment in respect of principal of, or
interest on, the Notes or any fees hereunder or the date fixed
for the mandatory reduction of the Revolving Loan Commitments
pursuant to Article II, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Notes, or the number or identity of Lenders which shall be
required for the Lenders or any of them to take any action
hereunder, (vi) agree to release any of the Pledged Stock from
the Lien of the Security Documents to the extent securing the
Obligations or to release any Guarantor from its obligations
under any Guaranty Agreement, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 12.02.
Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to
the Lenders required hereinabove to take such action, affect the
rights or duties of the Agent under this Agreement or under any
other Credit Document.
Section 12.03. No Waiver; Remedies Cumulative. No
failure or delay on the part of the Agent, any Lender or any
holder of a Note in exercising any right or remedy hereunder or
under any other Credit Document, and no course of dealing between
any Credit Party and the Agent, any Lender or the holder of any
Note shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy hereunder or under any
other Credit Document preclude any other or further exercise
thereof or the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly provided
are cumulative and not exclusive of any rights or remedies which
the Agent, any Lender or the holder of any Note would otherwise
have. No notice to or demand on any Credit Party not required
hereunder or under any other Credit Document in any case shall
entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the
rights of the Agent, the Lenders or the holder of any Note to any
other or further action in any circumstances without notice or
demand.
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Section 12.04. Payment of Expenses, Etc. Intermet
shall:
(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-of-
pocket costs and expenses of the Agent in the administration
(both before and after the execution hereof and including
reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agent and the
Lenders with respect thereto) of, and in connection with the
preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event
of Default, refinancing, renegotiation or restructuring of,
this Agreement and the other Credit Documents and the
documents and instruments referred to therein, and any
amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees actually incurred
and disbursements of counsel for the Agent), and in the case
of enforcement of this Agreement or any Credit Document
after an Event of Default, all such reasonable, out-of-
pocket costs and expenses (including, without limitation,
the reasonable fees actually incurred and disbursements of
counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 5.07(b), pay and hold each
of the Lenders harmless from and against any and all present
and future stamp, documentary, and other similar Taxes with
respect to this Agreement, the Notes and any other Credit
Documents, any collateral described therein, or any payments
due thereunder, and save each Lender harmless from and
against any and all liabilities with respect to or resulting
from any delay or omission to pay such Taxes; and
(iii) indemnify the Agent and each Lender, and
their respective officers, directors, employees,
representatives and agents from, and hold each of them
harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether
or not any of them is designated a party thereto) (an
"Indemnitee") arising out of or by reason of any
investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans
or any Credit Party's entering into and performing of the
Agreement, the Notes, or the other Credit Documents,
including, without limitation, the reasonable fees actually
incurred and disbursements of counsel (including foreign
counsel) incurred in connection with any such investigation,
litigation or other proceeding; provided, however, Intermet
shall not be obligated to indemnify any Indemnitee for any
of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct;
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(iv) without limiting the indemnities set forth in
subsection (iii) above, indemnify each Indemnitee for any
and all expenses and costs (including without limitation,
remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and
including the cost of investigating or defending any claim
and whether or not such claim is ultimately defeated, and
whether such claim arose before, during or after any Credit
Party's ownership, operation, possession or control of its
business, property or facilities or before, on or after the
date hereof, and including also any amounts paid incidental
to any compromise or settlement by the Indemnitee or
Indemnitees to the holders of any such claim), lawsuits,
liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including
without limitation damages for contamination or destruction
of natural resources), penalties and fines of any kind or
nature whatsoever (including without limitation in all cases
the reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred,
suffered or sustained by that Indemnitee based upon, arising
under or relating to Environmental Laws based on, arising
out of or relating to in whole or in part, the existence or
exercise of any rights or remedies by any Indemnitee under
this Agreement, any other Credit Document or any related
documents (but excluding those incurred, suffered or
sustained by any Indemnitee as a result of any action taken
by or on behalf of the Lenders with respect to any
Subsidiary of Intermet (or the assets thereof) owned or
controlled by the Lenders, the Collateral Agent, or their
nominees or designees, as a result of their acquisition of
Pledged Stock pursuant to exercise of remedies under the
Pledge Agreements).
If and to the extent that the obligations of Intermet under
this Section 12.04 are unenforceable for any reason,
Intermet hereby agrees to make the maximum contribution to
the payment and satisfaction of such obligations which is
permissible under applicable law.
Section 12.05. Right of Setoff. In addition to and
not in limitation of all rights of offset that any Lender or
other holder of a Note may have under applicable law, each Lender
or other holder of a Note shall, upon the occurrence of any Event
of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have
the right to appropriate and apply to the payment of any Credit
Party's obligations hereunder and under the other Credit
Documents, all deposits of any Credit Party (general or special,
time or demand, provisional or final) then or thereafter held by
and other indebtedness or property then or thereafter owing by
such Lender or other holder to any Credit Party, whether or not
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related to this Agreement or any transaction hereunder. Each
Lender shall promptly notify Intermet of any offset hereunder.
Section 12.06. Benefit of Agreement.
(a) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided that Intermet may not
assign or transfer any of its interest hereunder without the
prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at,
to or for the account of, any of its branch offices or the office
of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its
interests, rights and obligations under this Agreement (including
all or a portion of any of its Commitments, Letter of Credit
Obligations and the Loans at the time owing to it and the Notes
held by it) to any Eligible Assignee; provided, however, that
(i) the Agent and Intermet must give their prior written consent
to such assignment (which consent shall not be unreasonably
withheld) unless such assignment is to an Affiliate of the
assigning Lender, (ii) the amount of the Commitments, in the case
of the Revolving Loan Commitments and the Currency Loan
Commitments, or Loans or Letter of Credit Obligations, of the
assigning Lender subject to each assignment (determined as of the
date the assignment and acceptance with respect to such
assignment is delivered to the Agent) shall not be less than
$5,000,000, (iii) the parties to each such assignment shall
execute and deliver to the Agent an Assignment and Acceptance,
together with a Note or Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a
processing and recordation fee of $2500, and (iv) the assignee
must execute and deliver a confirmation of its acceptance of the
terms and conditions of the Intercreditor Agreement to the other
parties to the Intercreditor Agreement in accordance with Section
12(g) thereof. Intermet shall not be responsible for such
processing and recordation fee or any costs or expenses incurred
by any Lender or the Agent in connection with such assignment.
From and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, the assignee
thereunder shall be a party hereto and to the extent of the
interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement.
Notwithstanding the foregoing, the assigning Lender must retain
after the consummation of such Assignment and Acceptance, a
minimum aggregate amount of Commitments, the Loans and the Letter
of Credit Obligations, as the case may be, of $15,000,000;
provided, however, no such minimum amount shall be required with
respect to any such assignment made at any time there exists an
Event of Default hereunder. Within five (5) Business Days after
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receipt of the notice and the Assignment and Acceptance,
Intermet, at its own expense, shall execute and deliver to the
Agent, in exchange for the surrendered Note or Notes, a new Note
or Notes to the order of such assignee in a principal amount
equal to the applicable Commitments assumed by it pursuant to
such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or
Commitments. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the date of the
surrendered Note or Notes which they replace, and shall otherwise
be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Intermet
or the Agent, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments,
the Letter of Credit Obligations and the Loans owing to it and
the Notes held by it), provided, however, that (i) no Lender may
sell a participation in its aggregate Commitments (after giving
effect to any permitted assignment hereof) in an amount in excess
of fifty percent (50%) of such aggregate Commitments, provided,
however, sales of participations to an Affiliate of such Lender
shall not be included in such calculation; provided, however, no
such maximum amount shall be applicable to any such participation
sold at any time there exists an Event of Default hereunder, (ii)
such Lender's obligations under this Agreement shall remain
unchanged, (iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations,
and (iv) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of
the cost protection provisions contained in Article V of this
Agreement, and (v) Intermet and the Agent and other Lenders shall
continue to deal solely and directly with each Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents, and such Lender shall
retain the sole right to enforce the obligations of Intermet
relating to the Loans and to approve any amendment, modification
or waiver of any provisions of this Agreement. Any Lender
selling a participation hereunder shall provide prompt written
notice to Intermet of the name of such participant.
(e) Any Lender or participant may, in connection with
the assignment or participation or proposed assignment or
participation, pursuant to this Section, disclose to the assignee
or participant or proposed assignee or participant any
information relating to Intermet or the other Consolidated
Companies furnished to such Lender by or on behalf of Intermet or
any other Consolidated Company. With respect to any disclosure
of confidential, non-public, proprietary information, such
proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the
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information in any manner prohibited by any law, including
without limitation, the securities laws of the United States.
The proposed participant or assignee shall agree not to disclose
any of such information except (i) to directors, employees,
auditors or counsel to whom it is necessary to show such
information, each of whom shall be informed of the confidential
nature of the information, (ii) in any statement or testimony
pursuant to a subpoena or order by any court, governmental body
or other agency asserting jurisdiction over such entity, or as
otherwise required by law (provided prior notice is given to
Intermet and the Agent unless otherwise prohibited by the
subpoena, order or law), and (iii) upon the request or demand of
any regulatory agency or authority with proper jurisdiction. The
proposed participant or assignee shall further agree to return
all documents or other written material and copies thereof
received from any Lender, the Agent or Intermet relating to such
confidential information unless otherwise properly disposed of by
such entity.
(f) Any Lender may at any time assign all or any
portion of its rights in this Agreement and the Notes issued to
it to a Federal Reserve Bank; provided that no such assignment
shall release the Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 5.07(b)
have been levied or imposed so as to require withholdings or
deductions by Intermet and payment by Intermet of additional
amounts to any Lender as a result thereof, (ii) any Lender shall
make demand for payment of increased costs pursuant to Section
5.10 or for its reduced rate of return pursuant to Section 5.17
or any Lender determines that LIBOR is unascertainable or illegal
pursuant to Section 5.08 or Section 5.09, or any Lender makes a
claim for increased costs or determines that its participation in
any Letter of Credit is illegal pursuant to Section 5.22, or
(iii) any Lender shall decline to consent to a modification or
waiver of the terms of this Agreement or the other Credit Docu-
ments requested by Intermet, then and in such event, upon request
from Intermet delivered to such Lender and the Agent, such Lender
shall assign, in accordance with the provisions of Section
12.06(c), all of its rights and obligations under this Agreement
and the other Credit Documents to another Lender or an Eligible
Assignee selected by Intermet, in consideration for the payment
by such assignee to the Lender of the principal of, and interest
on, the outstanding Loans accrued to the date of such assignment,
and the assumption of such Lender's Total Commitment hereunder,
together with any and all other amounts owing to such Lender
under any provisions of this Agreement or the other Credit
Documents accrued to the date of such assignment; provided,
however, Lenders subject to this subsection due to a claim
pursuant to Section 5.08, Section 5.09 or an illegality claim
pursuant to Section 5.22 shall be treated in a substantially
identical manner.
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Section 12.07. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF
GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA, OR ANY
OTHER COURT OF THE STATE OF GEORGIA OR OF THE UNITED STATES OF
AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, INTERMET HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND
INTERMET HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS.
(c) INTERMET HEREBY IRREVOCABLY DESIGNATES RUPERT M.
BARKOFF AND KILPATRICK & CODY OF ATLANTA, GEORGIA, AS ITS
DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON BEHALF
OF INTERMET, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS
IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR THE NOTES OR ANY DOCUMENT RELATED THERETO. IT IS UNDERSTOOD
THAT A COPY OF SUCH PROCESS SERVED ON SUCH LOCAL AGENT WILL BE
PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF SUCH
PROCESS BY MAIL TO INTERMET AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, BUT THE FAILURE OF INTERMET TO RECEIVE SUCH COPY
SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS.
INTERMET FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO INTERMET AT ITS SAID ADDRESS,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the
Agent, any Lender, any holder of a Note or any Credit Party to
serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against Intermet in any
other jurisdiction.
Section 12.08. Independent Nature of Lenders' Rights.
The amounts payable at any time hereunder to each Lender shall be
a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights pursuant to this
Agreement and its Notes, and it shall not be necessary for any
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other Lender to be joined as an additional party in any
proceeding for such purpose.
Section 12.09. Counterparts. This Agreement may be
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
Section 12.10. Effectiveness; Survival.
(a) This Agreement shall become effective on the date
(the "Effective Date") on which all of the parties hereto shall
have signed a copy hereof (whether the same or different copies)
and shall have delivered the same to the Agent pursuant to Sec-
tion 12.01 or, in the case of the Lenders, shall have given to
the Agent written or telex notice (actually received) that the
same has been signed and mailed to them.
(b) The obligations of Intermet under Sections
5.07(b), 5.10, 5.12, 5.13, 5.17, 12.04 and 12.15 hereof shall
survive the payment in full of the Notes and all other
Obligations after the Final Maturity Date. All representations
and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement
shall survive the execution and delivery of this Agreement, the
other Credit Documents, and such other agreements and documents,
the making of the Loans hereunder, and the execution and delivery
of the Notes.
Section 12.11. Severability. In case any provision in
or obligation under this Agreement or the other Credit Documents
shall be invalid, illegal or unenforceable, in whole or in part,
in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 12.12. Independence of Covenants. All
covenants hereunder shall be given independent effect so that if
a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
Section 12.13. Change in Accounting Principles, Fiscal
Year or Tax Laws. If (i) any preparation of the financial
statements referred to in Section 8.07 hereafter occasioned by
the promulgation of rules, regulations, pronouncements and
opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) (other
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<PAGE>
than changes mandated by FASB 106) result in a material change in
the method of calculation of financial covenants, standards or
terms found in this Agreement, (ii) there is any change in
Intermet's fiscal quarter or fiscal year, or (iii) there is a
material change in federal tax laws which materially affects any
of the Consolidated Companies' ability to comply with the finan-
cial covenants, standards or terms found in this Agreement,
Intermet and the Required Lenders agree to enter into
negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria
for evaluating any of the Consolidated Companies' financial
condition shall be the same after such changes as if such changes
had not been made. Unless and until such provisions have been so
amended, the provisions of this Agreement shall govern.
Section 12.14. Headings Descriptive; Entire Agreement.
The headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this
Agreement. This Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the
terms of this Agreement constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof
and thereof and supersede all prior agreements, representations
and understandings related to such subject matters.
Section 12.15. Judgment Currency.
(a) The Credit Parties' obligations hereunder and
under the other Credit Documents to make payments in a particular
Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the
Obligation Currency, except to the extent that such tender or
recovery actually results in the effective receipt by the Agent,
or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Agent or such Lender under this
Agreement or the other Credit Documents. If for the purpose of
obtaining or enforcing judgment against Intermet or other Credit
Party in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as
the "Judgment Currency") an amount due in the Obligation
Currency, the conversion shall be made, and the Currency
equivalent determined, in each case, as on the day immediately
preceding the day on which the judgment is given (such Business
Day being hereafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the
date of actual payment of the amount due, the Credit Parties
covenant and agree to pay, or cause to be paid, such additional
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<PAGE>
amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange quoted by the
Agent at its prevailing rate for such Currency exchange on the
date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Currency
equivalent for this Section, such amounts shall include any
premium and costs payable in connection with the purchase of the
Obligation Currency.
Section 12.16. Dollar Equivalent Computations. Unless
otherwise provided herein, to the extent that the determination
of compliance with any requirement of this Agreement requires the
conversion to U.S. Dollars of foreign currency amounts, such U.S.
Dollar amount shall be computed using the Dollar Equivalent of
the amount of such foreign currency at the time such item is to
be calculated or is to be or was incurred, created or suffered or
permitted to exist, or assumed or transferred or sold for
purposes of this Agreement (except if such item was incurred,
created or assumed, or suffered or permitted to exist or
transferred or sold prior to the date hereof, such conversion
shall be made based on the Dollar Equivalent of the amounts of
such foreign currency at the date hereof).
Section 12.17. Pledge of Stock of Columbus
Neunkirchen. Notwithstanding any other provision of this
Agreement or any other Credit Document to the contrary, the
Lenders hereby agree that their Lien on the stock of Columbus
Neunkirchen is limited to 66% of the outstanding stock of such
entity.
Section 12.18 Sale of PBM. Each of the Agent and the
Lenders hereby (i) acknowledges and agrees that Intermet has
entered into negotiations for the sale of all of the stock or
substantially all of the assets of PBM, (ii) agrees that upon
delivery to the Lenders of a written notice from Intermet that a
definitive agreement for such sale has been executed by Intermet,
the Lenders shall execute and deliver a release of PBM from its
obligations pursuant to the Guaranty Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and to be delivered in Atlanta,
Georgia, by their duly authorized officers as of the day and year
first above written.
Address for Notices: INTERMET CORPORATION
1450 West Long Lake Road By: /s/ Doretha J. Christoph
Suite 150 Name: Doretha J. Christoph
Detroit, Michigan 48098 Title: Vice President - Finance
Attn: Doretha J. Christoph
Attest: /s/ Peter C. Bouxsein
Telephone: (810) 952-1503 Name: Peter C. Bouxsein
Telecopy: (810) 952-1512 Title: Assistant Secretary
[CORPORATE SEAL]
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<PAGE>
Address for Notices: TRUST COMPANY BANK,
As Agent
One Park Place, N.E.
Atlanta, Georgia 30303 By: /s John K. Shoffner
Attention: H. T. Harvin, III John K. Shoffner
Group Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ H.T. Harvin III
Name: H.T. Harvin III
Title: Banking Officer
Payment Office:
One Park Place, N.E.
Atlanta, Georgia 30303
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<PAGE>
Address for Notices: TRUST COMPANY BANK
One Park Place, N.E.
Atlanta, Georgia 30303 By: /s/ John K. Shoffner
Attention: H.T. Harvin, III John K. Shoffner
Group Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ H.T. Harvin III
Name: H.T. Harvin III
Title: Banking Officer
Lending Office:
One Park Place, N.E.
Atlanta, Georgia 30303
REVOLVING LOAN COMMITMENT: $19,600,000.00
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 28%
LETTER OF CREDIT COMMITMENT $ 1,400,000.00
PRO RATA SHARE OF LETTER OF
CREDIT COMMITMENTS: 28%
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<PAGE>
Address for Notices: LANDESBANK SAAR GIROZENTRALE
Ursulinenstrasse
D-6600 Saarbruecken By: /s/ Dr. Georg Grasel
Germany Dr. Georg Grasel
Attention: Dr. Georg Grasel/ Vorstandsmitglied
Dr. Ingrid Walter
Telex No.: 4 421 442 By: /s/ Dr. Ingrid Walter
Answerback: gz sb d Dr. Ingrid Walter
Bankdirektorin
Telecopy No.: 681-3006-208
Lending Office and Payment Office:
Ursulinenstrasse 2
D-66111 Saarbrucken
Germany
CURRENCY LOAN COMMITMENT: DM 8,000,000
PRO RATA SHARE OF CURRENCY LOAN
COMMITMENT: 100%
-100-
<PAGE>
Address for Notices: NBD BANK
611 Woodward Avenue
Detroit, Michigan 48226 By: /s/ Sarah L. McClelland
Attention: Kelly T. Cotton Name: Sarah L. McClelland
Title: First Vice President
Telex No.: 164177
Answerback: NATIONSBANK DET
Telecopy No.: (313) 225-2290
Lending Office:
611 Woodward Avenue
Detroit, Michigan 48226
REVOLVING LOAN COMMITMENT: $ 16,800,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENT: 24%
LETTER OF CREDIT COMMITMENT $ 1,200,000.00
PRO RATA SHARE OF LETTER OF
CREDIT COMMITMENTS: 24%
-101-
<PAGE>
Address for Notices: FIRST UNION NATIONAL
BANK OF NORTH CAROLINA
One First Union Center
TW-19
Charlotte, NC 28288-0745 By: /s/ Henry R. Biedrzycki
Attn: Glen Edwards Name: Henry R. Biedrzycki
Title: Vice President
Telex No.:
Answerback:
Telecopy: (703) 374-2802
Lending Office:
One First Union Center, TW19
Charlotte, NC 28288-0745
REVOLVING LOAN COMMITMENT: $ 16,800,000.00
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 24%
LETTER OF CREDIT COMMITMENT: $1,200,000.00
PRO RATA SHARE OF LETTER OF
CREDIT COMMITMENTS: 24%
-102-<PAGE>
Address for Notices: NATIONSBANK, N.A. (CAROLINAS)
233 S. Wacker Drive
Suite 2800
Chicago, Illinois 60606-6308 By: /s/ Stephen K. Foutch
Name: Stephen K. Foutch
Title: Vice President
Attention: Stephen K. Foutch
Telex Number: (704) 386-7429
Answerback: (704) 386-8694
Telecopy No.: (312) 234-5601
Payment Office:
101 N. Tryon Street
NC1-001-15-03
Charlotte, NC 28255
Attention: Corporate Credit Support
REVOLVING LOAN COMMITMENT: $ 16,800,000.00
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 24%
LETTER OF CREDIT COMMITMENT: $1,200,000.00
PRO RATA SHARE OF LETTER OF
CREDIT COMMITMENTS: 24%
-103-
<PAGE>
EXECUTION COPY
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
c/o Prudential Capital Group
Four Gateway Center
Newark, New Jersey 07102
August 21, 1995
Intermet Corporation
2859 Paces Ferry Road
Suite 1600
Atlanta, Georgia 30339
Ladies and Gentlemen:
Reference is made to the Note Agreement dated as of December 11,
1992 (as amended, the "Note Agreement") between Intermet Corporation
(the "Company") and The Prudential Insurance Company of America
("Prudential"). Capitalized terms used herein without definition have
the meaning ascribed to such terms in the Note Agreement.
Pursuant to Paragraph 11C of the Note Agreement, Prudential and
the Company agree as follows:
1. Paragraph 4A of the Note Agreement is hereby amended by
deleting "(i)" and deleting clause (ii) in its entirety.
2. Paragraph 5A(vi) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"(vi) [Intentionally Omitted];"
3. Paragraph 5A(f) of the Note Agreement is hereby amended by
deleting "$250,000" and inserting in lieu thereof "$750,000."
4. Paragraph 5A(ix) of the Note Agreement is hereby deleted in
its entirety.
5. Paragraph 5K of the Note Agreement is hereby amended and
restated in its entirety as follows:
"5K. ADDITIONAL GUARANTORS AND COLLATERAL.
Promptly after (i) the formation or acquisition
(provided that nothing in this paragraph shall be
deemed to authorize the acquisition of any entity)
of any Material Subsidiary not listed on Exhibit
D, (ii) the transfer of assets to any Consolidated
Company if as a result thereof the recipient of
such assets becomes a Material Subsidiary, (iii)
<PAGE>
Intermet Corporation
August 21, 1995
Page -2-
the domestication of any Foreign Subsidiary that
is a Material Subsidiary, or (iv) the occurrence
of any other event creating a new Material
Subsidiary, the Company shall execute and deliver,
and cause to be executed and delivered (x) in the
case of a Foreign Subsidiary a Subsidiary Guaranty
Agreement or, if , in the reasonable opinion of
the Company's accountants, delivery of a guarantee
would cause the Company to be subject to tax on
the undistributed earnings and profits of such
Subsidiary pursuant to Subpart F of Part III,
Subchapter N of the Internal Revenue Code, a
Pledge Agreement with respect to 66% (or such
greater percentage as would not result in such
adverse tax consequences to the Company as
reasonably determined by the Company's
accountants) of the capital stock of such Material
Subsidiary if it is a Foreign Subsidiary directly
owned by the Company or a Subsidiary that is not,
and is not directly or indirectly controlled by, a
Foreign Subsidiary, and (y) a Subsidiary Guaranty
Agreement from each such Material Subsidiary that
is not a Foreign Subsidiary whose stock has been
pledged to the extent and in accordance with
subparagraph (x) hereof, together with related
documents with respect to such Material Subsidiary
(or the pledgor of its stock) of the kind
described in paragraphs 3A(iii), 3C, 3D, 3G and
3H, all in form and substance satisfactory to the
Required Holder(s)."
6. Paragraph 6A(i) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"[Intentionally Omitted]"
7. Paragraph 6A(ii) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"the Fixed Charge Coverage Ratio, calculated for
the immediately preceding four fiscal quarters to
be less than 2.0: 1.0 as of the last day of each
fiscal quarter."
8. Paragraph 6A(iii) of the Note Agreement is hereby deleted in
its entirety.
9. Paragraph 6B(2) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"6B(2). DEBT. Create, incur, assume or suffer to
exist any Funded Debt or Current Debt, except:
(i) Funded Debt represented by the Notes;
<PAGE>
Intermet Corporation
August 21, 1995
Page -3-
(ii) Debt represented by the Subsidiary
Guaranty Agreement or any guaranty agreement
issued under the Bank Agreement by a Subsidiary;
(iii) Debt of a Subsidiary owing to the
Company or any other Subsidiary;
(iv) Debt of a Subsidiary existing on the
Date of Closing and specified on Exhibit F so long
as such Debt is not increased, extended, renewed
or refunded;
(v) Debt represented by endorsement of
negotiable instruments for collection in the
ordinary course of business;
(vi) other Funded Debt of the Company
(whether Secured or Unsecured), other than Funded
Debt owing by the Company to any Subsidiary;
PROVIDED, HOWEVER, that all Funded Debt which
constitutes Bank Subordinated Debt shall also
constitute Subordinated Debt.
(vii) other Current Debt of the Company
(whether Secured or Unsecured) other than Current
Debt owning by the Company to any Subsidiary;
PROVIDED, HOWEVER, that all Current Debt which
constitutes Bank Subordinated Debt shall also
constitute Subordinated Debt.
Notwithstanding the foregoing exceptions to the prohibition
against incurring or maintaining Debt, the Company shall not permit:
(1) as of the last day of each fiscal
quarter, Funded Debt to exceed 55% of Total
Capitalization;
(2) as of the last day of each fiscal
quarter, the ratio of Funded Debt to Consolidated
EBITDA, calculated for the immediately preceding
four fiscal quarters, to exceed 3.5 to 1.0;
(3) at any time Current Debt to exceed $20,000,000;
(4) at any time the aggregate outstanding
amount of the Debt specified on Exhibit F as item
1.(b) to exceed 15,000,000 German marks;
<PAGE>
Intermet Corporation
August 21, 1995
Page -4-
(5) at any time Secured Debt of the Company
and its Subsidiaries to exceed an aggregate amount
equal to 10% of Consolidated Net Worth."
10. Paragraph 6B(4) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"6B(4). MERGER AND SALE OF ASSETS. Merge,
consolidate or exchange shares with any other
corporation, or sell, lease or transfer or
otherwise dispose of any assets of the Company
and/or of its Subsidiaries (in the ordinary course
of business or otherwise) to any Person for a
consideration which is materially less than the
fair value (as valued in good faith by the Company
as market value) of such assets at the time of the
disposition; or sell, lease or transfer or
otherwise dispose of (whether for fair value or
otherwise) assets of the Company and/or any of its
Subsidiaries (other than equipment or other
personal property being replaced by other
equipment or other personal property purchased as
a capital expenditure item and inventory in the
ordinary course of business) except that:
(i) any Subsidiary may merge or consolidate
with the Company (provided that the Company shall
be the continuing or surviving corporation) or
with any one or more other Domestic Subsidiaries
or if such Subsidiary is a Foreign Subsidiary,
another Foreign Subsidiary organized under the
laws of the jurisdiction of such Subsidiary's
organizational jurisdiction;
(ii) any Subsidiary of the Company may sell,
lease, transfer or otherwise dispose of any of its
assets to the Company or another Domestic
Subsidiary or if such Subsidiary is a Foreign
Subsidiary, another Foreign Subsidiary organized
under the laws of the jurisdiction of such
Subsidiary's organizational jurisdiction;
(iii) the Company may merge or consolidate
with, or sell, lease, transfer, or otherwise
dispose of substantially all of its assets in a
single transaction or series of transactions to,
any other corporation organized under the laws of
the United States thereof or the District of
Columbia and conducting substantially all of its
business and making substantially all of its sales
in the United States or Canada so long as (x) the
<PAGE>
Intermet Corporation
August 21, 1995
Page -5-
successor formed by such consolidation or the
survivor of the merger or the Person acquiring
such assets (the "Successor"), is the Company or
if the Company is not the Successor such
corporation shall have assumed all of the
obligations under this Agreement and the Notes in
a writing satisfactory to the Required Holder(s)
and (y) immediately after giving effect to such
transaction, no Default or Event of Default would
exist; and
(iv) the Company or any Subsidiary may sell,
lease, abandon or otherwise dispose of any of its
assets if immediately after giving effect to such
proposed disposition, the assets so disposed of
(whether or not leased back) by the Company and
its Subsidiaries during the twelve months
preceding the date of such disposition (x) shall
not have an aggregate net book value (determined
as to particular assets as of the respective dates
of disposition of such assets), in excess of 10%
of consolidated assets determined as of the end of
the most recently completed fiscal quarter of the
Company and (y) shall not have produced during the
12 months prior to such disposition in excess of
10% of Consolidated EBITDA at the end of the most
recently completed 12 months and (z) no Default or
Event of Default would exist;
PROVIDED, HOWEVER, that the prohibitions of this paragraph 6B(4) shall
not apply to the sale or other disposition of all or substantially all
the capital stock or assets of PBM Industries, Inc.
11. Paragraph 6B(8) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"6B(8). DIVIDENDS, ETC. Declare or pay any
dividend on any class of its stock, or make any
payment to purchase, redeem, retire or acquire any
Subordinated Debt or any class of its stock, or
any option, warrant or other right to acquire any
class of its stock or Subordinated Debt, or make
any other distribution on account of any class of
its stock or Subordinated Debt (each a "Restricted
Payment") unless:
(i) such Restricted Payment
consists of dividends payable solely in
shares of its capital stock; or
<PAGE>
Intermet Corporation
August 21, 1995
Page -6-
(ii) (a) the aggregate amount of
cash dividends declared and paid and all
other Restricted Payments made during
the period from December 31, 1994 to the
date on which such Restricted Payment is
made or declared (such period, the
"Determination Period") does not exceed
40% of Consolidated Net Income (or minus
100% of Consolidated Net Income for any
fiscal year included in the
Determination Period if Consolidated Net
Income for any such fiscal year is a
loss) and (b) no Default or Event of
Default exists at the time such
Restricted Payment is declared or made
or would occur as a result of the making
or declaration of such Restricted
Payment."
12. Paragraph 6B(9) of the Note Agreement is hereby amended and
restated in its entirety as follows:
"6B(9). PREPAYMENTS OF SUBORDINATED DEBT.
Directly or indirectly, prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any
optional payment on account of any principal of,
interest on, or premium payable in connection with
any of its Subordinated Debt, in each case, which
is in violation of the subordination provisions of
such Subordinated Debt."
13. Paragraph 6B(10)of the Note Agreement is hereby amended and
restated in its entirety as follows:
"6B(10). CHANGES IN BUSINESS. Enter into any
business if, as a result, the general nature of
the business in which the Consolidated Companies
taken as a whole would then be engaged would be
substantially different from the general nature of
the business in which the Consolidated Companies
taken as a whole engage as of August 15, 1995
(which includes iron and aluminum foundry
operations, design and machinery)."
14. Paragraph 6G of the Note Agreement is hereby amended and
restated in its entirety as follows:
<PAGE>
Intermet Corporation
August 21, 1995
Page -7-
"6G. NO AMENDMENT. The Company will not amend,
modify, or supplement (i) Sections 2.04 or 3.04 or
the repayment or prepayment provisions or make any
more onerous any other provision of the Bank
Agreement without the prior written consent of the
Required Holder(s); or (ii) any agreement
governing Subordinated Debt to (a) increase the
principal amount thereunder, (b) increase the
interest rate thereunder, (c) modify any
requirement of prepayment or repayment thereunder
which would shorten the final maturity or make the
requirement of prepayment more onerous, (d) make
any more onerous any other provision thereof, or
(e) amend or modify the subordination provisions
thereof."
15. Paragraph 10B is hereby amended by (i) deleting the
definitions of "Asset Sale," "Net Proceeds," "Consolidated EBITDAR,"
"Adjusted Cash Flow," "Adjusted Fixed Charge Coverage Ratio," "FAS
106" and "Senior Funded Debt," and (ii) amending and restating the
following definitions:
"BANK AGREEMENT" shall mean the Amended and
Restated Credit Agreement dated as of August 21,
1995 among the Company, the financial institutions
party thereto and Trust Company Bank, as agent, as
amended, restated, supplemented or modified from
time to time.
"CONSOLIDATED EBIT shall mean, for any fiscal
period of the Company, an amount equal to (A) the
sum for such fiscal period of Consolidated Net
Income (Loss) and, to the extent subtracted in
determining such Consolidated Net Income (Loss),
provisions for (i) taxes based on income and (ii)
Consolidated Interest Expense, MINUS (B) any items
of gain (or PLUS any items of loss) which were
included in determining such Consolidated Net
Income (Loss) and were (x) not realized in the
ordinary course of business (whether or not
classified as "ordinary or GAAP), (y) the result
of any sale of assets, or (z) resulting from
minority investments, together in the case of (x),
(y) or (z), any related provision for taxes
included in Consolidated Net Income (Loss) with
respect thereto.
"CONSOLIDATED INTEREST EXPENSE" shall mean,
for any fiscal period of Company, total interest
expense of the Consolidated Companies (including
without limitation, interest expense attributable
<PAGE>
Intermet Corporation
August 21, 1995
Page -8-
to capitalized leases in accordance with GAAP, all
commissions, discounts and other fees and charges
owed with respect to bankers acceptance
financings, and total interest expense whether
shown as interest expense or as loss and expenses
on sale of receivables) under a receivables
purchase facility) determined on a consolidated
basis in accordance with GAAP but specifically
excluding Consolidated Capitalized Interest for
such period.
"CONSOLIDATED NET INCOME (LOSS) shall mean,
for any fiscal period of the Company, the net
income (or loss) of the Consolidated Companies on
a consolidated basis for such period (taken as a
single accounting period) determined in conformity
with GAAP, but excluding therefrom to the extent
otherwise included therein) (i) any income or loss
of any Person accrued prior to the date such
person becomes a Subsidiary of the Company or is
merged into or consolidated with any Consolidated
Company or all or substantially all of such
Person's assets are required by any Consolidated
Company and (ii) the income of any Consolidated
Company to the extent that the declaration or
payment of dividends or similar distributions by
such Consolidated Company of that income is not at
the time permitted by operation of the terms of
its charter or any agreement, instrument,
judgment, decree, order, statute, rule or
governmental regulation.
"CONSOLIDATED RENTAL EXPENSE" shall mean, for
any fiscal period of Company, the operating lease
expense of the Consolidated Companies determined
in accordance with GAAP for leases with a term
greater than one year, as disclosed in the notes
to the "Company's consolidated financial
statements of the Consolidated Companies,
determined on a consolidated basis in accordance
with GAAP.
"CURRENT DEBT" shall mean, with respect to
any Person, all Indebtedness of such Person for
borrowed money which by its terms or by the terms
of any instrument or agreement relating thereto
matures on demand or within one year from the date
of the creation thereof and is not directly or
<PAGE>
Intermet Corporation
August 21, 1995
Page -9-
indirectly renewable or extendible at the option
of the debtor to a date more than one year from
the date or calculation, other than, with respect
to the Consolidated Companies, the indebtedness
pursuant to German lines of credit described as
item 1(b) on EXHIBIT F.
"FIXED CHARGE COVERAGE RATIO" shall mean, as
of the last day of any fiscal quarter of Intermet,
the ratio of (A) the sum of Consolidated EBIT plus
Consolidated Rental Expense to (B) the sum of the
amounts of (i) Consolidated Interest Expense, (ii)
Consolidated Rental Expense, and (iii)
Consolidated Capitalized Interest .
"FUNDED DEBT" shall mean all Indebtedness for
money borrowed, Indebtedness evidenced or secured
by purchase money Liens, capitalized leases,
conditional sales contracts and similar title
retention debt instruments, including any current
maturities of such Indebtedness, which by its
terms matures more than one year form the date of
creation thereof or which is renewable or
extendible at the option of the obligor to a date
beyond one year from the date of determination.
The calculation of Funded Debt shall include (i)
all Funded Debt of the Consolidated Companies,
PLUS (ii) all Funded Debt of other Persons to the
extent guaranteed by a Consolidated Company, to
the extent supported by a letter of credit issued
for the account of a Consolidated Company, or as
to which and to the extent which a Consolidated
Company or its assets otherwise have become liable
for payment thereof, PLUS (iii) the redemption
amount with respect to the stock of any
Consolidated Company required to be redeemed
during the next succeeding twelve months, PLUS
(iv) the lowest average amount of Current Debt
outstanding for any period of sixty (60)
consecutive days during the preceding twelve month
period ending on any date of determination PLUS
(v) the amount outstanding pursuant to the German
lines of credit described as item 1(b) on Exhibit
F on the date of determination.
"GUARANTORS" shall mean, collectively,
Intermet Foundries, Inc., Columbus Foundries,
Inc., Lynchburg Foundry Company, Ironton Iron,
Inc., Northern Castings Corporation, Intermet
International, Inc., Intermet Machining, Inc.,
Commercial and Precision Machining, Inc., New
River Castings Company, PBM Industries, Inc.,
Intermotive Technologies, Inc. and all other
Material Subsidiaries that are not Foreign
Subsidiaries, and their respective successors and
permitted assigns.
<PAGE>
Intermet Corporation
August 21, 1995
Page -10-
"MATERIAL SUBSIDIARY" shall mean (i) each
Guarantor under the Subsidiary Guaranty Agreement
(ii) Columbus Neunkirchen, and (iii) each other
Subsidiary of the Company, now existing or
hereinafter established or acquired, that at any
time prior to the maturity of the Notes has or
acquires gross assets equal to or in excess of 5%
of total assets of the Consolidated Companies, or
that accounted for or produced more than 5% of the
Consolidated EBIT of the Company on a consolidated
basis during any of the three most recently
competed fiscal years of the Company, or that (x)
holds any fixed assets material to the operations
or business of the Company or another Material
Subsidiary, or (y) is otherwise material to the
operations or business of Company or another
Material Subsidiary.
16. Paragraph 10B of the Note Agreement is hereby amended by
inserting the following definitions in alphabetical order:
"BANK SUBORDINATED DEBT" shall mean
"Subordinated Debt" as defined in the Bank
Agreement.
"CONSOLIDATED CAPITALIZED INTEREST" shall
mean, for any period of the Company, the
capitalized interest of the Consolidated
Companies, determined on a consolidated basis in
accordance with GAAP.
17. Exhibit D and F to the Note Agreement are hereby replaced by
Exhibits D and F attached hereto.
18. CONDITIONS TO EFFECTIVENESS. This letter agreement shall be
effective upon (a) execution and delivery of this letter agreement by
Prudential and the Company; (b) receipt by Prudential of all fees and
expenses payable in connection herewith; and (c) receipt by the
Prudential of the following:
(i) a duly executed consent by the parties to the Bank Agreement
to the execution and delivery of this letter agreement; and
(ii) the Bank Agreement amended and restated in form and
substance satisfactory to Prudential.
19. OTHER AGREEMENTS. Prudential hereby: (i) consents and
agrees pursuant to Section 6 of the Subsidiary Guaranty Agreement,
that Intermet Aluminum, Inc., I.C. Venture, Inc. and Pennsylvania
<PAGE>
Intermet Corporation
August 21, 1995
Page -11-
Casting Corporation are hereby released and discharged from their
respective obligations under the Subsidiary Guaranty Agreement; and
(ii) consents to the execution and delivery by the Company of the Bank
Agreement in the form attached as Exhibit A to the First Amendment to
the Intercreditor Agreement; and (iii) agrees that upon delivery to
the undersigned of a written notice from the Company that a definitive
agreement for the sale of all or substantially all of the assets or
stock of PBM Industries, Inc. ("PBM") has been executed by the
Company, will execute and deliver a release of PBM from its
obligations under the Subsidiary Guaranty Agreement.
20. This letter agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
21. This letter agreement may be executed in any number of
counterparts each of which shall be deemed an original and all of
which taken together shall constitute one and the same instrument.
22. Except as modified hereby, all terms and conditions of the
Note Agreement and the Subsidiary Guaranty Agreement remain in full
force and effect.<PAGE>
Intermet Corporation
August 21, 1995
Page -12-
If you agree to the foregoing, please sign each enclosed copy of
this letter and return two to Prudential and upon satisfaction of the
conditions set forth in paragraph 18 above, this letter will become a
binding agreement between the Company and Prudential.
Very truly yours,
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: ___________________________________
Vice President
Agreed to and Accepted
this ___ day of August 1995
INTERMET CORPORATION
By: __________________________
Title:
<TABLE>
Intermet Corporation
Computation of Earnings per Common Share
<CAPTION>
Three months ended Nine months ended
------------------------ -------------------------
October 2, October 1, October 2, October 1,
1994 1995 1994 1995
------------------------ -------------------------
(In thousands of dollars, except per share data)
<S> <C> <C> <C> <C>
Net income $ 373 $ 3,377 $ 4,522 $19,434
======================== =========================
Weighted average number of
shares outstanding 24,595 24,727 24,584 24,684
Dilutive effect of outstanding
options 41 221 80 126
------------------------ ------------------------
Weighted average number of
shares and equivalent shares
outstanding 24,636 24,948 24,664 24,810
========================= =========================
Earnings per share $ 0.02 $ 0.14 $ 0.18 $ 0.78
========================= ==========================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000745287
<NAME> INTERMET CORPORATOIN
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> OCT-01-1995
<CASH> 14,647
<SECURITIES> 0
<RECEIVABLES> 64,953
<ALLOWANCES> 901
<INVENTORY> 29,076
<CURRENT-ASSETS> 121,274
<PP&E> 368,218
<DEPRECIATION> 202,796
<TOTAL-ASSETS> 296,157
<CURRENT-LIABILITIES> 86,991
<BONDS> 0
<COMMON> 2,473
0
0
<OTHER-SE> 87,077
<TOTAL-LIABILITY-AND-EQUITY> 296,157
<SALES> 419,644
<TOTAL-REVENUES> 419,644
<CGS> 357,807
<TOTAL-COSTS> 378,840
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,399
<INCOME-PRETAX> 35,581
<INCOME-TAX> 16,147
<INCOME-CONTINUING> 19,434
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 19,434
<EPS-PRIMARY> .78
<EPS-DILUTED> .78
</TABLE>
