<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] Annual report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended December 31, 1996, 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 No. 0-13787
INTERMET CORPORATION
(Exact name of registrant as specified in its charter)
GEORGIA 58-1563873
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
5445 Corporate Drive, Suite 200, Troy, Michigan 48098
(Address of principal executive offices) (Zip code)
(810) 952-2500
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None Not applicable
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.10 par value
(Title of class)
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 .
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10K. X
Aggregate market value of the voting stock held by non-affiliates of the
registrant as of February 25, 1997 was $309,179,547 based on $15.50 per share,
the closing sale price of the Common Stock as quoted on The NASDAQ Stock
Market. For purposes of determining the aggregate market value of the Company's
voting stock held by non-affiliates, shares held by all current directors and
executive officers of the Company have been excluded. The exclusion of such
shares is not intended to, and shall not, constitute a determination as to
which persons or entities may be "affiliates" of the Company as defined by the
Securities and Exchange Commission.
At February 25, 1997 there were 25,172,874 shares of Common Stock, $0.10 par
value, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Annual Report to Shareholders for the fiscal year
ended December 31, 1996 are incorporated by reference into Parts I and II.
Portions of the registrant's definitive Proxy Statement for the 1997 Annual
Meeting of Shareholders, filed with the Commission, are incorporated by
reference into Part III.
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PART I
ITEM 1. BUSINESS
GENERAL
The Company is a leading independent manufacturer of precision ductile and gray
iron and aluminum castings, with production facilities in North America and
Europe. The Company's castings are used primarily in passenger cars and light
trucks, as well as in heavy trucks. The castings also have railroad,
municipal, marine and construction applications. The Company specializes in
safety-related parts critical to vehicle control that meet its customers'
exacting metallurgical, dimensional and quality control standards. Products
manufactured for the automotive, light truck and heavy truck industries include
brake and suspension parts, steering components, differential cases, camshafts
and crankshafts. The Company provides castings used by over 20 automobile
manufacturers throughout the world, including Chrysler, Ford, General Motors,
Volkswagen, BMW, Mercedes-Benz, Honda and Toyota.
With the acquisition of Sudbury, Inc. ("Sudbury") in December 1996, the Company
also manufactures zinc and aluminum die castings, cantilevered cranes,
specialty service vehicle truck bodies and precision machined components for
the automotive and industrial markets. In addition, the Company serves the
automotive and appliance industries through the application of coatings to
metal parts, components and finished products.
As used herein, the term "Company" refers collectively to Intermet Corporation
and its subsidiaries, except where otherwise indicated by context.
RECENT DEVELOPMENTS
In December 1996, the Company acquired for cash substantially all of the
outstanding stock of Sudbury, Inc. for $182,434,000, including cost of
$5,277,000 directly related to the acquisition. The accompanying balance
sheet includes as a current liability accrued acquisition costs of
$37,299,000 which principally represents the purchase cost of employee stock
options and participation certificates. The transaction has been accounted
for as a purchase, and, accordingly, the purchase price has been allocated to
the assets purchased and the liabilities assumed based upon the fair values
at the date of acquisition. The excess of the purchase price over the fair
values of tangible net assets acquired was $82,598,000 and has been recorded
as goodwill, which is being amortized on a straight-line basis over 40 years.
The results of operations of Sudbury from the date of acquisition to December
31, 1996 were not significant.
In November 1996, the Company purchased for cash a minority interest in IWESA
GmbH, for 4,000,000 DM. The Company also purchased a newly issued share from
IWESA for 374,000, DM bringing its share interest to 49%; and contributed
6,000,000 DM to the capital reserves of IWESA in support of new capital
expansion projects. The Company's total investment in IWESA amounts to
10,374,000, DM ($6,780,000 at then current exchange rates) and is accounted
for on the equity method. The results of operations of IWESA since
acquisition have not been significant. IWESA is a precision machining and
engineering company located in Saarbrucken, Germany, producing parts for the
commercial motor vehicle and industrial markets.
The Company has an unsecured revolving credit agreement with a bank consortium
which was refinanced in November 1996. The agreement, which expires in
November 1999, provides for loans up to $200,000,000. The borrowing limit
includes certain standby letters of credit. At December 31, 1996 such standby
letters of credit totaled $3,375,000. The revolving credit agreement provides
the Company with several interest rate pricing mechanisms ranging from 6.025%
to 8.25% at December 31, 1996. The Company must also pay a fee at an annual
rate of .15% on any unused portion of the loan commitment. The revolving
credit agreement requires the Company to maintain certain financial ratios and
imposes limitations on certain activities.
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As a result of the acquisition of Sudbury, the Company assumed the
outstanding subordinated notes of Sudbury. These notes are due September 1997
and bear interest at an annual rate of 8.6% At December 31, 1996, $9.8 million
was outstanding. Prior to Sudbury refinancing its bank debt in May 1993, the
subordinated notes provided that interest payments would be made through the
issuance of additional promissory notes in the aggregate principal of the
amount of interest owed ("PIK Notes"). At December 31, 1996, $.7 million of
PIK Notes were outstanding. The terms and conditions of the PIK Notes are
identical to the subordinated notes. The Company notified the trustee for the
bondholders that it would be redeeming all of the notes prior to maturity, at
par, and this redemption was completed February 21, 1997.
Sudbury has a credit agreement with National City Bank and Star Bank for
$805,000 to support letters of credit which are outstanding for the same amount
as the credit agreement. The letters of credit bear an annual commission rate
of .75%, which is payable on a quarterly basis.
PRODUCTS, MARKETS AND SALES
The Company specializes in safety-related parts critical to vehicle control,
including brake and suspension parts and steering system components, as well as
differential cases, camshafts and crankshafts. Products for other industries
include brackets, valves and railroad adaptors. With the acquisition of
Sudbury in December 1996, the Company's product lines have expanded to
include zinc and aluminum die castings, cantilevered cranes, specialty service
vehicle truck bodies, and precision machined components. In addition, the
Company serves the automotive and appliance industries with the application of
coatings to metal parts.
The Company has had a longstanding quality assurance program and is committed
to maintaining its reputation for high quality products and timely delivery.
Most of the Company's facilities have QS 9000 certification or are ISO 9002
certified. Many also have Ford's Q-1 quality award and/or Chrysler's PENTASTAR
award.
The Company primarily markets its products through its own sales and customer
service staff, except in Europe and a few locations in the United States where
it also uses independent sales representatives. The Company maintains its
principal sales office in Michigan. The Company produces principally to
customer order and does not maintain any significant inventory of finished
goods not on order.
The Company provides extensive production and technical training to its sales
staff. This technical background enables the sales staff to act as an
effective liaison between customers and the Company's production personnel and
permits the Company to offer customer assistance at the design stage of major
casting programs. The Company also employs quality assurance representatives
and engineers who work with customers' manufacturing personnel to detect and
avoid potential problems and to develop new product opportunities for the
Company. In addition to working with customer purchasing personnel, the
Company's sales engineers confer with design engineers and other technical
staff.
During 1996, 1995 and 1994, direct sales to Chrysler accounted for 23%, 20% and
23%, respectively; direct sales to Ford accounted for 19%, 18% and 23%,
respectively; and direct sales to General Motors Corporation accounted for 12%,
18% and 14%, respectively, of the Company's consolidated net sales. The loss
of any of these customers or a substantial reduction in their purchases from
the Company would have a material adverse effect on the Company. The Company's
six largest customers accounted for approximately 72%, 77% and 79% of the
Company's consolidated net sales during 1996, 1995 and 1994, respectively.
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The following table sets forth information regarding sales by the Company to
customers in these markets during 1996, 1995 and 1994.
<TABLE>
<CAPTION>
1996 1995 1994
--------------- ---------------- ----------------
Sales % Sales % Sales %
-------- --- -------- --- -------- ---
(In Thousands of Dollars, Except Percentages)
<S> <C> <C> <C> <C> <C> <C>
North American passenger
cars and light trucks $395,500 74 $413,600 76 $380,100 76
North American industrial 80,200 15 34,800 7 46,100 9
European passenger cars and light trucks 58,800 11 93,300 17 75,100 15
---------- ----------- -----------
Total Sales $534,500 $541,700 $501,300
========== =========== ===========
</TABLE>
In 1996 reported sales included 458,000 tons of casting shipments, compared to
445,000 tons in 1995 and 419,000 tons in 1994. The Company's foundries
operated at 87% of average annual capacity in 1996 compared to 89% during 1995,
and 99% during 1994.
MANUFACTURING, MACHINING AND DESIGN
The Company produces ductile and gray iron castings, as well as aluminum
castings. Gray iron, the oldest and most widely used cast iron, is readily
cast into intricate shapes that are easily machinable and wear resistant.
Ductile iron has greater strength and elasticity than gray iron, and its use as
a higher strength substitute for gray iron and a lower-cost substitute for
steel has grown steadily, while aluminum brings a lower weight alternative.
For the years ended December 31, 1996, 1995 and 1994, sales of ductile iron
castings represented 87%, 92% and 89%, and sales of gray iron represented 10%,
8% and 11%, respectively, of the Company's total sales (in dollars) of
castings, the balance being aluminum castings in 1996. The Company's castings
range in size from small pieces weighing less than one pound to castings
weighing up to 125 pounds.
The cast iron manufacturing process involves melting steel scrap and pig iron
in cupola or electric furnaces, adding various alloys and pouring the molten
metal into molds made primarily of sand. The molten metal solidifies and cools
in the molds, and the molds are broken and removed. The aluminum manufacturing
process utilizes exact polystyrene foam replicas of the desired castings which
are embedded in sand. The foam is evaporated by the hot metal and the casting
is formed.
Customers usually specify the properties their castings are to embody, such as
hardness and strength, and the Company determines how best to meet those
specifications. Constant testing and monitoring of the manufacturing process
is necessary to maintain the quality and performance consistency of the
castings. Electronic testing and monitoring equipment, including x-ray,
cobalt x-ray, ultrasonic and magnetic-particle testing equipment, is used
extensively in grading scrap metal, analyzing molten metal and testing
castings. The Company also uses its testing equipment and procedures to
provide particular tests requested by a customer for its castings.
Many castings require machining (which may include drilling, threading or
cutting operations) before they can be put to their ultimate use. Most
customers machine their own castings or have them machined by third parties.
The Company operates a facility in Columbus, Georgia, where it machines
castings produced by it and by others. The Company also contracts with other
companies to machine castings it produces before shipment to customers.
With the acquisition of Sudbury in December 1996, the Company also
manufactures zinc and aluminum die castings, cantilevered cranes, specialty
service vehicle truck bodies and precision machined components for the
automotive and industrial markets. In addition, Sudbury serves the automotive
and appliance industries through the application of coatings to metal parts,
components and finished products.
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Sudbury designs and manufactures hydraulic articulating and telescoping
truck-mounted cranes, tire handling equipment, air compressors, and service
bodies including lubrication, field service, utility and tire service bodies.
With these products Sudbury services, both domestically and internationally,
the following industries: construction, utilities, tire service, railroad,
forestry and municipalities.
Sudbury's high volume precision machining operation principally produces small
diameter shafts, spindles and spindle assemblies for the electric motor,
electric hand tool and automotive markets.
Sudbury's powder coating facilities have nine powder coating lines. Powder
coatings are used to enhance appearance and improve corrosion protection to
parts with 95 - 98% efficiency. Powder coating's use of a dry paint process
gives it environmental advantages over liquid painting processes by eliminating
the use of solvents and the generation of air emissions. These facilities also
have the capability of cathodic electrodeposition coating of parts which is
used primarily for anti-corrosion purposes.
The Company's design and engineering teams assist the customer, when requested,
in the initial stages of product creation and modification. Among other
computer-aided design techniques, the Company uses three-dimensional solid
modeling software in conjunction with rapid prototype equipment. This
equipment greatly enhances the Company's design flexibility and, depending on
the complexity of the product, can reduce the time required to produce sample
castings for customers by several weeks.
RESEARCH AND DEVELOPMENT
The Company conducts process and product development programs, principally at a
separate research and development foundry located adjacent to the Archer
Creek facility in Lynchburg, Virginia, a facility in Decatur, Illinois, and to
a lesser extent at laboratories in its other facilities. Current research and
testing projects encompass both new manufacturing processes and product
development. The research foundries have a self-contained melting and molding
facility with complete metallurgical, physical and chemical testing
capabilities. The work on new manufacturing processes is focused on ways to
lower costs and improve quality. Product development work includes projects to
enhance existing iron castings, such as austempering, which enhances the
strength and elasticity of iron, as well as projects to develop new products,
such as the conversion of forgings to castings. Amounts directly expensed by
Intermet for research and development totaled $1.0 million, $0.9 million and
$1.5 million in 1996, 1995 and 1994, respectively.
COMPETITION
The Company competes with many other foundries, both domestically and
internationally. Some of these foundries are owned by major users of iron
castings. For example, the three largest domestic automobile manufacturers,
which are among the Company's largest customers, operate their own foundries
and have greater financial resources than the Company. However, they also
purchase a significant amount of castings from the Company and others, and
there is a trend toward increased outsourcing by the domestic original
equipment manufacturers. Castings produced by the Company also compete to some
degree with malleable iron castings, other metal castings and steel forgings.
The machining industry is highly fragmented and competitive. As in the foundry
industry, large purchasers of machined components often have significant
in-house capabilities to perform their own machining work.
The Company competes primarily on the basis of product quality, engineering,
service and price. The Company emphasizes its ability to produce complex,
precision-engineered products in order to compete for value-added castings that
generally provide a higher profit margin.
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RAW MATERIALS
The primary raw material used by the Company to manufacture iron castings is
steel scrap. The Company is not dependent on any single supplier of steel
scrap. The Company has no long-term contractual commitments with any steel
scrap supplier and does not anticipate any difficulties in obtaining scrap
because of the large number of suppliers and because of the Company's position
as a major purchaser. The cost of steel scrap is subject to fluctuations, but
the Company has implemented arrangements with most of its customers for
adjusting its casting prices to reflect those fluctuations.
The Company has contractual arrangements, which expire at various times through
1998, for the purchase of various materials, other than steel scrap, used in or
during the manufacturing process. These contracts and the Company's overall
level of purchases provide some protection against price increases. In most
cases the Company does not have specific arrangements in place to adjust its
casting prices for fluctuations in the prices of alloys and other materials.
CYCLICALITY AND SEASONALITY
Most of the Company's products are generally not affected by year-to-year
automotive style changes. However, the inherent cyclicality of the automotive
industry has affected the Company's sales and earnings during periods of slow
economic growth or recession. The Company's third and fourth quarter sales are
usually lower than first and second quarter sales due to plant closings by
automakers for vacations and model changeovers.
BACKLOG
Most of the Company's business involves supplying all or a stated portion of
the customer's annual requirements, generally flexible in amount, for a
particular casting against blanket purchase orders. The lead time and cost of
commencing production of a particular casting tend to inhibit transfers of
production from one foundry to another. Customers typically issue firm
releases and shipping schedules on a monthly basis. The Company's backlog at
any given time generally consists only of the orders which have been released
for shipment. Certain subsidiaries of the Company, which manufacture industrial
products other than castings, have a backlog at December 31, 1996 of $20.5
million in the aggregate ($19.1 million of the backlog is expected to be
shipped during 1997).
EMPLOYEES
At February 28, 1997 the Company employed 6,415 persons, including 5,736 in the
United States. Of the persons employed in the United States, 4,530 were hourly
manufacturing personnel, and the remainder were clerical, sales and management
personnel. The Company employed 614 persons in Germany, 526 of whom were
hourly manufacturing personnel. The Company employed 65 persons in Mexico, 58
of whom were hourly manufacturing personnel. Most of the manufacturing
personnel are represented by unions under collective bargaining agreements
expiring at various times through 2000. One collective bargaining agreement
covering approximately 339 hourly employees expired in 1996 and was replaced.
Another domestic bargaining agreement covering approximately 493 hourly
employees was scheduled to expire in January 1997 and was replaced in September
1996.
The Company from time to time adjusts the size of its work force to meet
fluctuations in production demands at various facilities and for other reasons.
For example, the Company significantly reduced its salaried work force during
1995. During the past ten years the Company has not experienced any strike or
work stoppage, other than a five-week strike by the 69 covered employees at the
Hibbing, Minnesota plant during 1992. The Company believes that its
relationship with its employees is satisfactory.
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ENVIRONMENTAL MATTERS
The Company's operations are subject to various federal, state and local laws
and regulations relating to the protection of the environment. These laws and
regulations, which are implemented principally by the United States
Environmental Protection Agency and corresponding state agencies, govern the
management of solid and hazardous waste, the discharge of pollutants into the
air and into surface and ground waters, and the manufacture, treatment and
disposal of hazardous and non-hazardous substances.
Certain of the Company's operating units have been identified as potentially
responsible parties in legal proceedings or otherwise notified that they may be
liable for the cleanup of hazardous substances under federal "Superfund" and
other environmental protection legislation. In addition, the Company and
certain of its operating units are in the process of attempting to resolve
certain known environmental matters with various third parties, including those
arising in connection with the sale of certain business units by the Company
and its present and former subsidiaries.
The Company intends to utilize available legal defenses and remedies, including
insurance owned by the Company or its predecessors in interest, with respect to
these sites at which environmental proceedings may be involved, to minimize the
Company's financial exposure to such matters. The Company, with the assistance
of environmental engineers and consultants, has accrued a $5.4 million aggregate
reserve to cover estimated known environmental conditions, including those
arising from such proceedings. There could also exist, however, more extensive
or unknown environmental conditions, including those arising at existing or
previously owned business units.
The Company also incurs recurring costs related to environmental matters
particularly the management and disposition of waste (principally
non-hazardous) generated as part of its ongoing operations. Such costs totaled
approximately $9 million in each of 1995 and 1996, and are expected to increase
in 1997. In addition, a portion of the Company's capital expenditures are
regularly incurred to limit or monitor pollution, principally for ventilation,
dust control equipment and air pollution control. Such expenditures totaled
approximately $2.0 million in 1995, $2.4 million in 1996 and are expected to
total approximately $5.8 million in 1997. Anticipated 1997 operating
capital expenditures for environmental and pollution control matters will be
influenced by certain factors, including revenue increases and engineering
resources.
In addition to these recurring and anticipated expenditures, the 1990
amendments to the federal Clean Air Act are expected to have a major impact on
the compliance costs of many U.S. companies, including foundries of the type
owned by the Company. Until final regulations implementing those amendments
are adopted by the federal and state governments, it is not possible to
estimate such costs.
The Company currently does not anticipate any environmental costs that would
have a material adverse effect on its operations. However, it cannot be
assured that the Company's activities will not give rise to actions by
governmental agencies or private parties which could cause the Company to incur
fines, penalties, operational shutdowns, damages, cleanup costs or other
similar expenses. Also, the Company's foundry capacity levels and increases
therein are dependent upon the Company's ability to maintain, or obtain
increases in such capacity levels in its permits for air emissions or water
discharges. In the event the Company desires to increase its foundry capacity
levels in the future, it cannot be assured that the Company will be able to
obtain approvals of such increases under its applicable permits.
Although the Company continues to assess the potential liability of its
operating units for pending and anticipated legal proceedings, the ultimate
liability for such environmental matters cannot be predicted with certainty and
could exceed the Company's estimates.
See also Item 3 "Legal Proceedings" below and the "Management's Discussion and
Analysis of Financial Information" section of the Annual Report to Shareholders
of the Company for the year ended December 31, 1996, for additional information
related to environmental matters, which are incorporated herein by reference.
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FOREIGN OPERATIONS
Information as to revenues, operating profits and identifiable assets for its
foreign operations for 1996, 1995 and 1994 is contained in Note 11 of the
consolidated financial statements included in the Company's 1996 Annual Report
to Shareholders included as Exhibit 13 to this Report and is incorporated
herein by reference.
EXECUTIVE OFFICERS OF THE REGISTRANT
Executive officers are elected by the Board of Directors annually at its
meeting immediately following the Annual Meeting of Shareholders, and hold
office until the next Annual Meeting unless they resign or are removed
from office by the Board of Directors prior to the Annual Meeting of
Shareholders.
The executive officers of the Company as of February 25, 1997 and their ages
and principal positions with the Company as of that date are as follows:
<TABLE>
<CAPTION>
Name (Age) Principal Position(s)
- ---------- ---------------------
<S> <C>
John Doddridge (56) Chairman of the Board, Chief Executive Officer and
President
Doretha J. Christoph (47) Vice President-Finance, Treasurer, Chief Financial
Officer and Secretary
John C. Engeswick (62) Vice President - Technical Services
Daryl R. Marsh (58) Group Vice President
David L. Neilson (52) Vice President - Sales and Marketing
C. James Peterson (49) Vice President - Foundry Operations
</TABLE>
Mr. Doddridge became Chairman of the Board and Chief Executive Officer in 1994
and became President in February 1995. Mr. Doddridge was Vice Chairman and
Chief Executive Officer of Magna International, Inc., a supplier of motor
vehicle parts, from November 1992 until November 1994. From 1989 to 1992 he
served as President of North American Operations of Dana Corporation, a motor
vehicle parts manufacturer, and prior to that time he served as President of
Hayes-Dana Inc., a subsidiary of Dana Corporation.
Ms. Christoph became Vice President - Finance in June 1995. In addition, she
was named Chief Financial Officer in March 1996 and Secretary in January 1997.
Prior to that time she served as Vice President and Director of Administration
of LNP Engineering Plastics, a worldwide supplier of engineered plastics and a
subsidiary of Kawasaki Steel Corporation, from November 1991 until May 1995.
From 1989 to 1991, she served as Director of Finance for the Engineering
Plastics Americas operation of ICI, plc.
Mr. Engeswick became Vice President - Technical Services in February 1995.
Prior to that time he served as Vice President - Quality Assurance for Intermet
Foundries, Inc. (IFI), a former subsidiary of the Company, from 1988.
Mr. Marsh became Group Vice President of the Company in January 1997. Prior to
that he served as Vice President - Machining Services from 1993. From 1969
through 1993, Mr. Marsh was employed by Simpson Industries, Inc., most recently
as Group Vice President, Transmission and Chassis Group.
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Mr. Neilson joined the Company in January 1997 as Vice President - Sales and
Marketing. He served as Vice President of Sales for North and South America for
ITT Automotive from June 1993 to January 1997. From September 1992 to June
1993, he was Vice President of Sales and Marketing at Takata, Inc. He served
as President of Sales at a subsidiary of Automotive Industries from December
1991 to June 1992.
Mr. Peterson became Vice President - Foundry Operations in February 1995. He
served as Director of Manufacturing of IFI from 1993 to 1995. From 1985 to
1993, he was with Columbus Foundries, Inc., a subsidiary of
the Company, most recently as General Manager.
ITEM 2. PROPERTIES
The Company currently owns, operates or has an ownership interest in nine
operational ductile and gray iron foundries, one lost foam aluminum foundry,
one aluminum and zinc die cast foundry and two research foundries. Most
castings can be produced at more than one of the Company's foundries except
that aluminum castings must be produced at Alexander City Casting and die
castings must be produced at Cast-Matic. In addition, the Company performs
various powder coating services at seven separate facilities, manufactures
precision machined components at one facility and manufactures cantilevered
cranes and specialty service vehicle truck bodies at another facility.
The following provides information about the manufacturing locations of the
Company and the types of products produced at each location:
<TABLE>
<CAPTION>
Name Location Type of Products
- ---- -------- ----------------
<S> <C> <C>
Alexander City Alexander City, Alabama Aluminum castings
Archer Creek Campbell County, Virginia Ductile iron castings
Ironton Iron Ironton, Ohio Ductile iron castings
Columbus Columbus, Georgia Ductile iron castings
Radford Shell Radford, Virginia Ductile and gray iron castings
Columbus Neunkirchen Neunkirchen, Germany Ductile iron castings
New River Radford, Virginia Ductile iron castings
Northern Hibbing, Minnesota Ductile iron castings
Wagner - Decatur Decatur, Illinois Ductile iron castings
Wagner - Havana Havana, Illinois Ductile iron castings
Cast-Matic Stevensville, Michigan Aluminum and zinc die castings
Industrial Powder Coatings Norwalk, Ohio (4 locations) Custom powder coating
Louisville, Kentucky Blank powder coating
Shelbyville, Kentucky Custom powder coating
Monterrey, Mexico Electrodeposition coating
Frisby P.M.C. Elk Grove Village, Illinois High precision machined components
Iowa Mold Tooling Garner, Iowa Metal fabrication of truck
mounted cranes and specialty
service vehicle truck bodies
</TABLE>
The Company continually reviews the operation of its foundries and may from
time to time close one or more foundries on a permanent or temporary basis due
to its production needs and general business and economic conditions. The
Pennsylvania foundry has been idled since 1991. The Lower Basin foundry
stopped pouring iron in 1993 and was closed completely in 1994.
The research foundries are located in Lynchburg, Virginia and Decatur,
Illinois, and are wholly-owned by the Company. The Company also owns a
machining facility in Georgia; a 49% minority interest in IWESA GmbH in
Saarbrucken, Germany, a machining and engineering company; and a 35% interest
in General Products Delaware Corporation, a machining and assembly company in
Michigan.
In addition, the Company leases certain executive, sales, and other
administrative offices, located in Michigan, Georgia and Ontario, Canada.
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The only property of the Company which secures long-term indebtedness is the
German foundry, which secures indebtedness with an aggregate outstanding
principal balance at December 31, 1996 of 3.8 million deutsche marks ($2.4
million at the December 31, 1996 exchange rate). See Note 6 to the
consolidated financial statements of the Company included in the Company's 1996
Annual Report to Shareholders included as Exhibit 13 to this Report for
additional information on secured debt, which is incorporated herein by
reference.
ITEM 3. LEGAL PROCEEDINGS
The Company has entered into negotiations with the Office of the Ohio Attorney
General with respect to certain past violations by the Company's Ironton, Ohio
foundry of Ohio water pollution laws and regulations. The Attorney General's
Office advised the Company that the Company could avoid litigation with respect
to such violations by entering into a consent order. In November 1995 the
Company agreed to pay the State of Ohio a fine of $285,000 to settle the water
pollution mater. The parties have agreed to the language of the consent
decree, and the Company is waiting for the office of Attorney General to file
the decree in Ohio State Court. On receipt of the decree, the fee will be paid
by the Company.
With respect to the Company's Sudbury subsidiary, the Minnesota Pollution
Control Agency ("MPCA") issued Metalcote Grease and Oil Company ("Metalcote"), a
division of Western Capital Corporation which is a non-operating subsidiary of
Sudbury, an order in April 1993 to investigate and take other corrective action
at property Metalcote owned in St. Paul, Minnesota. This property was
subsequently transferred to Randolph Capital Corporation, a subsidiary of
Western Capital Corporation. Although Randolph Capital is currently contesting
its responsibility for environmental conditions that allegedly exist at the
property, Randolph Capital is cooperating with the MPCA and has retained legal
counsel and environmental consultants to respond to the MPCA order. Such
consultants conducted certain subsurface investigation in the fall of 1996, and
the results of such investigation were submitted to, and are currently being
reviewed by, the MPCA. Randolph Capital also submitted a claim under Minnesota
Petroleum Tank Release Cleanup Act (the "Minnesota Act") for reimbursement of
the costs of the investigation at the property, and may submit a claim for any
future investigation or cleanup costs incurred at this property. Under the
Minnesota Act, such claims are limited to $1 million per release and $2 million
per facility. The Company has estimated the future costs related to this
matter as part of its environmental reserves (See Note 8 to the consolidated
financial statements of the Company included in the Company's Annual Report to
Shareholders for the fiscal year ended December 31, 1996, furnished to the
Commission as Exhibit 13 to this Report, which is incorporated herein by
reference and "Environmental Matters" in Item 1 "Business"). The MPCA has yet
to respond to the investigation results that were submitted in the fall of
1996, and therefore the actual future costs of such matters are uncertain, and
could differ from the Company's estimates.
Consultants on behalf of Sudbury have also completed certain environmental
investigations with respect to former operations by Metalcote at an adjacent
site in St. Paul Minnesota. In 1995, a release of petroleum products was
identified at the site and reported to the MPCA. In connection with the sale
of this property to an unrelated third party, Randolph Capital removed all of
the aboveground storage/processing tanks at the site and the MPCA issued a
Voluntary Petroleum Investigation Cleanup liability protection letter to the
buyer. In April and September 1996, environmental consultants for Randolph
Capital completed certain further investigation with respect to former
operations of the property. The MPCA has reviewed the April 1996 investigation
results and is currently reviewing the September 1996 investigation results.
The buyer of the former Metalcote property has also requested certain
other investigation or remediation with respect to potential environmental
issues at the property, and Randolph Capital's consultants and legal counsel
are evaluating whether any additional investigation or remediation will be
necessary. Randolph Capital submitted a claim under the Minnesota Act for
reimbursement of the costs of investigation at this property, and may submit a
claim for any future investigation or cleanup costs incurred at the site. The
actual future costs of such matters are uncertain, and could differ from the
Company's estimates (See Note 8 to the consolidated financial statements of the
Company included in the Company's Annual Report to Shareholders for the fiscal
year ended December 31, 1996, furnished to the Commission as Exhibit 13 to this
Report, which is incorporated herein by reference and "Environmental Matters"
in Item 1 "Business").
10
<PAGE> 11
On April 24, 1996, a Stipulation of Dismissal Without Prejudice was filed in
the Superior Court of Fulton County, State of Georgia terminating litigation
filed on October 6, 1995 by Brickell Partners, a Florida partnership, against
the Company and each director of the Company (except George W. Mathews, Jr.).
The complaint was brought on behalf of the plaintiff and, purportedly, public
shareholders of the Company, as a class. Neither the Company nor its directors
were required to pay any damages, legal fees, or any other costs to the
plaintiff. In addition, neither the Company nor its directors have paid or
have agreed to pay any damages, legal fees, or other costs to the plaintiff.
The Company is also party to a number of other legal proceedings in the
ordinary course of its business. Except as set forth above and in the
"Environmental Matters" section above, Management of the Company presently does
not believe there are any pending or threatened legal proceeding to which the
Company is a party of or which any of its property is subject which will have a
material adverse effect on the Company's consolidated financial position,
results of operations and liquidity taken as a whole.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders of the Company during
the fourth quarter of the fiscal year covered by this Report.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The information contained in Note 12 to the consolidated financial statements
of the Company included in the Company's Annual Report to Shareholders for the
fiscal year ended December 31, 1996, furnished to the Commission as Exhibit 13
to this Report, is hereby incorporated herein by reference.
The Company's Common Stock, $0.10 par value, is traded in the over-the-counter
market under the NASDAQ symbol "INMT." As of February 25, 1997, there were
approximately 585 holders of record of the Company's Common Stock.
The Board of Directors of the Company suspended payment of the regular
quarterly dividend in 1993 pending improvement in the Company's operating
performance. This suspension was lifted in 1996 due to improvements in the
Company's performance. During the third and fourth quarters of 1996, the
Company declared and paid dividends of $2.0 million in the aggregate ($.04 per
share per quarter). The Company is subject to restrictions on the payment of
dividends under certain loan agreements. As of December 31, 1996, $43,513,000
of the Company's retained earnings were restricted and unavailable for the
payment of dividends under those agreements.
ITEM 6. SELECTED FINANCIAL DATA
Selected financial data included in the Company's 1996 Annual Report to
Shareholders, which is furnished to the Commission as Exhibit 13 to this
Report, in the section Financial Highlights under the headings "Statement of
Operations Data," "Share Data" and "Balance Sheet Data," are hereby
incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION
The information included under the heading "Management Discussion and Analysis
of Financial Information" in the Company's 1996 Annual Report to Shareholders,
which is furnished to the Commission as Exhibit 13 to this Report, is hereby
incorporated herein by reference.
11
<PAGE> 12
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements and related notes of the Company and the
report of the independent auditors thereon included in the Company's 1996
Annual Report to Shareholders, which is furnished to the Commission as Exhibit
13 to this Report, are hereby incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Within the 24-month period prior to the date of the Company's financial
statements for the fiscal year ended December 31, 1996, the Company did not
change auditors.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information contained under the heading "INFORMATION ABOUT NOMINEES FOR
DIRECTORS" in the definitive Proxy Statement used in connection with the
solicitation of proxies for the Company's Annual Meeting of Shareholders to be
held April 10, 1997, filed with the Commission, is hereby incorporated herein
by reference. Pursuant to Instruction 3 to Paragraph (b) of Item 401 of
Regulation S-K, information relating to the executive officers of the Company
is included in Item 1 of this Report.
ITEM 11. EXECUTIVE COMPENSATION
The information contained under the headings "EXECUTIVE COMPENSATION",
"INTERMET CORPORATION EMPLOYMENT AGREEMENTS AND CHANGE OF CONTROL ARRANGEMENTS",
"INTERMET CORPORATION COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION",
"INTERMET CORPORATION COMPENSATION COMMITTEE" and "SHAREHOLDER RETURN
PERFORMANCE GRAPH" in the definitive Proxy Statement used in connection with
the solicitation of proxies for the Company's Annual Meeting of Shareholders to
be held April 10, 1997, filed with the Commission, is hereby incorporated
herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information contained under the heading "VOTING SECURITIES AND PRINCIPAL
HOLDERS" in the definitive Proxy Statement used in connection with the
solicitation of proxies for the Company's Annual Meeting of Shareholders to be
held April 10, 1997, filed with the Commission, is hereby incorporated herein
by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information contained under the heading "CERTAIN TRANSACTIONS" in the
definitive Proxy Statement used in connection with the solicitation of proxies
for the Company's Annual Meeting of Shareholders to be held April 10, 1997,
filed with the Commission, is hereby incorporated herein by reference.
12
<PAGE> 13
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) 1. Financial Statements
The following consolidated financial statements and notes thereto of the
Company and its subsidiaries contained in the Company's 1996 Annual Report
to Shareholders are incorporated by reference in Item 8 of this Report:
Consolidated Balance Sheets at December 31, 1996 and 1995
Consolidated Statements of Operations for the Years Ended December 31,
1996, 1995 and 1994
Consolidated Statements of Shareholders' Equity for the Years Ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flows for the Years Ended December 31,
1996, 1995 and 1994
Notes to Consolidated Financial Statements
Report of Independent Auditors
2. Financial Statement Schedules
The following consolidated financial statement schedule for the Company is
filed as Item 14(d) hereof, beginning on page F-1.
Report and Consent of Independent Auditors
Schedule II - Valuation and Qualifying Accounts
3. Exhibits
The following exhibits are filed with this Report pursuant to Item 601 of
Regulation S-K:
Exhibit Number Description of Exhibit
2.1 Agreement and Plan of Merger among the Company, I M Acquisition
Corp., and Sudbury, Inc. dated as of November 18, 1996
(included as Exhibit 4 to the Company's Form 8-K dated November
18, 1996, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).
2.2 Agreement and Plan of Merger among South Coast Delaware, Inc.,
Sudbury, Inc. and South Coast Terminals, Inc. dated as of
December 22, 1995 (included as Exhibit 2 to Sudbury's Form 10-Q
for the fiscal quarter ended November 30, 1995, File No.
1-10023, previously filed with the Commission and incorporated
herein by reference).
2.3 Agreement on the Sale and Transfer of Shares in IWESA
Gesellschaft fur Qualifizierten Maschinenbau among the Company,
Mr. Axel Ganz and Mr. Armin Becker dated October 30, 1996.
13
<PAGE> 14
3.1 and 4.1 Amended and Restated Articles of Incorporation of the Company
(included as Exhibit 4.1 to the Company's Form S-3 Registration
Statement, filed June 3, 1992, File No. 33-48304, previously
filed with the Commission and incorporated herein by
reference).
3.2 and 4.2 By-Laws of the Company, as amended (included as Exhibit 3.1 and
4.1 to the Company's Form 10Q for the quarter ended October 1,
1995, previously filed with the Commission and incorporated
herein by reference).
3.3 Resolution dated October 17, 1996 to amend the By-Laws of the
Corporation.
4.3 Promissory Note of Lynchburg Foundry Company, dated December 1,
1973, payable to Industrial Development Authority of the City
of Lynchburg, Virginia in the original principal amount of
$4,400,000.*
4.4 Guaranty Agreement, dated December 1, 1973, by and between The
Mead Corporation and the Industrial Development Authority of
the City of Lynchburg, Virginia.*
4.5 Trust Indenture, dated December 1, 1973, by and among
Industrial Development Authority of the City of Lynchburg,
Virginia, Lynchburg Foundry Company and United Virginia Bank,
as trustee.*
4.6 Promissory Notes of Lynchburg Foundry Company, dated June 1,
1976, payable to Industrial Development Authority of the City
of Lynchburg, Virginia, in the original principal amounts of
$2,700,000, $1,000,000, $550,000 and $550,000, respectively.*
4.7 Guaranty Agreement, dated June 1, 1976, of The Mead Corporation
in favor of Industrial Development Authority of the City of
Lynchburg, Virginia.*
4.8 Trust Indenture, dated June 1, 1976, by and among Industrial
Development Authority of the City of Lynchburg, Virginia,
Lynchburg Foundry Company and United Virginia Bank, as trustee,
with respect to Pollution Control Revenue Bonds (Mead-Lynchburg
Foundry Project), Series 1976, Series 1976A, Series 1976B and
Series 1976C.*
4.9 Loan Contract, dated September 28, 1988, by and between
Columbus Neunkirchen Foundry GmbH and Saarlandische
Investitionskreditbank, relating to a loan in the original
principal amount of DM 740,000.*
4.10 Loan Contract, dated October 11, 1988, by and between Columbus
Neunkirchen Foundry GmbH and the Landesbank Saar Girozentrale,
relating to a loan in the original principal amount of DM
1,550,000.*
4.11 Loan Contract, dated December 14, 1988, by and between Columbus
Neunkirchen Foundry GmbH and Saarlandische
Investitionskreditbank, relating to a loan in the principal
amount of DM 3,833,500.*
4.12 Loan Contract, dated March 1, 1989, by and between Columbus
Neunkirchen Foundry GmbH and Saarlandische
Investitionskreditbank, relating to a loan in the principal
amount of DM 2,000,000.*
4.13 Loan Contract, dated April 12, 1989, by and between Columbus
Neunkirchen Foundry GmbH and Landesbank Saar Girozentrale,
relating to a loan in the principal amount of DM 2,725,000.*
14
<PAGE> 15
4.14 Third Amended and Restated Credit Agreement, dated November 14,
1996, by and among the Company, SunTrust Bank, Atlanta
(formerly known as Trust Company Bank) as lender and agent and
the various lenders named therein.
4.15 Master Assignment and Acceptance Agreement dated December 9,
1996, by and among the Company and various lenders named
therein.
4.16 Amended and Restated Note Agreement, dated as of March 21,
1996, by and between Intermet Corporation and The Prudential
Insurance Company of America, relating to $25,000,000 principal
amount of 8.05% Senior Notes due December 11, 2002 and related
Promissory Note (included as Exhibit 4.20 to the Company's Form
10-K for the year ended December 31, 1995, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
4.17 First Amendment to Amended and Restated Note Agreement, dated
as of January 31, 1997, by and between the Company and The
Prudential Insurance Company of America, relating to
$25,000,000 principal amount of 8.05% Senior Notes due
December 11, 2002 and related Promissory Note.
4.18 Credit Agreement by and among Sudbury, Inc. and National City
Bank, Star Bank, National Association and National City Bank,
as Agent, dated May 30, 1995, (included as Exhibit (4)(c) to
Sudbury's Form 10-K for the fiscal year ended May 31, 1995,
File No. 1-10023, previously filed with the Commission and
incorporated herein by reference).
4.19 First Amendment dated August 30, 1995 to Credit Agreement by
and among Sudbury, Inc. and National City Bank, Star Bank,
National Association and National City Bank, as Agent, dated
May 30, 1995, (included as Exhibit (4)(a) to Sudbury's Form
10-Q for the fiscal quarter ended August 31, 1995, File No.
1-10023, previously filed with the Commission and incorporated
herein by reference).
4.20 Second Amendment dated May 31, 1996 to Credit Agreement by and
among Sudbury, Inc. and National City Bank, Star Bank, National
Association and National City Bank, as Agent, dated May 30,
1995, (included as Exhibit (4)(c) to Sudbury's Form 10-K for
the fiscal year ended May 31, 1996, File No. 1-10023,
previously filed with the Commission and incorporated herein by
reference).
4.21 Form of Indenture between Sudbury, Inc. and IBJ Schroder Bank
and Trust Company, as Trustee for Sudbury's 8.6% $10 million
Senior Subordinated Pay-In-Kind Notes due 1997, distributed
pursuant to Sudbury's Third Amended Plan of Reorganization
(included as Exhibit T-3 filed by Sudbury on August 17, 1992,
File No. 1-10023, previously filed with the Commission and
incorporated herein by reference).
4.22 Shareholder Protection Rights Agreement, dated as of October 6,
1995 between the Company and Trust Company Bank, as Rights
Agent (included as Exhibit 4 to the Company's Form 8-K, having
an event date of October 6, 1995, File No. 0-13787, previously
filed with the Commission and incorporated herein by
reference).
10.1(a) Intermet Corporation Key Individual Stock Option Plan, adopted
April 25, 1984 (included as Exhibit 10.1 to the Company's
registration statement on Form S-14, File No. 2-90815,
previously filed with the Commission and incorporated herein by
reference).**
15
<PAGE> 16
10.1(b) Amendment No. 1 to the Intermet Corporation Key Individual
Stock Option Plan, dated as of August 4, 1988 (included as
Exhibit 10.2 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1988, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).**
10.1(c) Amendment No. 2 to the Intermet Corporation Key Individual
Stock Option Plan, dated October 27, 1988 (included as Exhibit
10.3 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1988, File No. 0-13787, previously
filed with the Commission and incorporated herein by
reference).**
10.2(a) Form of Intermet Corporation Directors Stock Option Agreement
(included as Exhibit 10.4 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1988, File No.
0-13787, previously filed with the Commission and incorporated
herein by reference).**
10.2(b) Intermet Corporation Directors Stock Option Plan (included as
Exhibit 10.6 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1990, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).**
10.3 Intermet Corporation Executive Stock Option and Incentive Award
Plan (included as Exhibit 4 to the Company's Form S-8, File No.
33-59011, previously filed with the Commission and incorporated
herein by reference)**
10.4 Stock Purchase Agreement, dated March 30, 1992, by and between
the Company, PBM Industries, Inc., Batten Design and
Engineering Services, Inc., Wind Point Partners II, L.P., The
Prudential Insurance Company of America, Pruco Life Insurance
Company, PruSupply Capital Assets, Inc., Ingersoll Engineers,
Inc. and certain individuals (included as Exhibit 2.1 to the
Company's Form 8-K dated March 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference.)
10.5 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Wind Point Partners II, L.P., as
Shareholders' Representative, in the principal amount of
$438,754.58 (included as Exhibit 10.7 to the Company's Form 10-K
for the year ended December 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
10.6 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Pruco Life Insurance Company, in
the principal amount of $12,673.31 (included as Exhibit 10.8 to
the Company's Form 10-K for the year ended December 31, 1992,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference)
10.7 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of PruSupply Capital Assets, Inc., in
the principal amount of $114,059.79 (included as Exhibit 10.9
to the Company's Form 10-K for the year ended December 31,
1992, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).
10.8 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Wind Point Partners II, L.P., as
Shareholders' Representative, in the principal amount of
$1,982,107 (included as Exhibit 10.10 to the Company's Form
10-K for the year ended December 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
16
<PAGE> 17
10.9 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Pruco Life Insurance Company, in
the principal amount of $35,240.53 (included as Exhibit 10.11
to the Company's Form 10-K for the year ended December 31,
1992, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).
10.10 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of The Prudential Insurance Company of
America, in the principal amount of $317,164.79 (included as
Exhibit 10.12 to the Company's Form 10-K for the year ended
December 31, 1992, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).
10.11 Guaranty Agreement, dated March 30, 1992, by the Company in
favor of the shareholders named in the PBM Stock Purchase
Agreement (included as Exhibit 10.13 to the Company's Form 10-K
for the year ended December 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
10.12 Asset Purchase Agreement among Intermet Corporation, Intermet
Machining, Inc., PBM Industries, Inc. and PBM Acquisition
Limited, dated September 6, 1995, as amended by Amendments 1, 2
and 3 thereto (included as an Exhibit to the Company's Form 8-K
dated October 6, 1995, File No. 0-13787, previously filed with
the Commission and incorporated herein by reference).
10.13 Asset Purchase Agreement by and among Ricardo North American
Detroit, Inc., Ricardo Group, plc., InterMotive Technologies,
Inc. and Intermet Corporation, dated October 12, 1995 (included
as an Exhibit to the Company's Form 8-K dated October 18, 1995,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).
10.14(a) Agreement for Purchase and Sale of Assets of Bodine-Robinson,
Inc. among the Company, Alexander City Casting Company, Inc.,
Bodine-Robinson, Inc., Joe Robinson and Robinson Foundry, Inc.,
dated November 15, 1995 (included as Exhibit 2(a) to the
Company's Form 8-K dated November 15, 1995 (the "Robinson 8-K"),
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).
10.14(b) Agreement for Purchase and Sale of Certain Assets of Robinson
Foundry, Inc. among the Company, Alexander City Casting
Company, Inc., Bodine-Robinson Foundry, Inc., Joe Robinson and
Robinson Foundry, Inc., dated November 15, 1995 (included as
Exhibit 2(b) to the Robinson 8-K, File No. 0-13787, previously
filed with the Commission and incorporated herein by
reference).
10.14(c) Management Agreement among Joe Robinson, the Company and
Alexander City Casting Company, Inc., dated November 15, 1995
(included as Exhibit 2(c) to the Robinson 8-K, File No.
0-13787, previously filed with the Commission and incorporated
herein by reference).
10.14(d) Registration Rights Agreement between the Company and Robinson
Foundry, Inc., dated November 15, 1995 (included as Exhibit
2(d) to the Robinson 8-K, File No. 0-13787, previously filed
with the Commission and incorporated herein by reference).
10.15 Operating Committee 1997 Profit Sharing Plan**
17
<PAGE> 18
10.16(a) Intermet Corporation Salaried Employees Severance Plan
effective as of October 1, 1993 (included as Exhibit 10.16(a)
to the Company's Form 10-K for the year ended December 31,
1993, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).**
10.16(b) Amendment No. 1 to the Intermet Corporation Salaried Employees
Severance Plan, dated December 20, 1993 (included as Exhibit
10.16(b) to the Company's Form 10-K for the year ended December
31, 1993, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).**
10.17 Intermet Salary Continuation Plan (included as Exhibit 10.18 to
the Company's Form 10-K for the year ended December 31, 1992,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.18 Employment Agreement, dated as of December 1, 1994, by and
between the Company and John Doddridge (included as Exhibit
10.16 to the Company's Form 10-K for the year ended December
31, 1994, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).**
10.19 Letter, dated as of December 19, 1994, related to George
Mathews' retirement. (included as Exhibit 10.17 to the
Company's Form 10-K for the year ended December 31, 1994, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.20 Employment Agreement, dated July 15, 1993, by and between the
Company and Daryl R. Marsh (included as Exhibit 10.18 to the
Company's Form 10-K for the year ended December 31, 1994, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.21 Form of employment agreement by and between the Company and the
executive officers of the Company, other than John Doddridge,
effective November 1, 1996 (included as Exhibit 10.21 to the
Company's Form 10-K for the year ended December 31, 1995, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.22 Employment Agreement, dated October 26, 1995, by and between
the Company and John E. Doddridge (included as Exhibit 10.22 to
the Company's Form 10-K for the year ended December 31, 1995,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.23 Employment Agreement, dated May 12, 1995, by and between the
Company and Doretha Christoph (included as Exhibit 10.23 to the
Company's Form 10-K for the year ended December 31, 1995, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.24 Employment Agreement, dated December 27, 1996, by and between
the Company and David L. Neilson.**
10.25 1997 Directors' Deferred Compensation Plan.**
10.26(a) Employment Agreement between Jacques R. Sardas and Sudbury,
Inc. dated July 28, 1995 (included as Exhibit (10)(j) to
Sudbury's Form 10-K for the fiscal year ended May 31, 1995,
File No. 1-10023, previously filed with the Commission and
incorporated herein by reference). **
18
<PAGE> 19
10.26(b) Non-Qualified Stock Option Agreement between Jacques R. Sardas
and Sudbury, Inc. dated July 28, 1995 (included as Exhibit
(10)(k) to Sudbury's Form 10-K for the fiscal year ended May
31, 1995, File No. 1-10023, previously filed with the
Commission and incorporated herein by reference). **
10.27(a) Agreement and Plan of Merger dated November 7, 1989 among
Sudbury, Inc., Western, General Products Delaware Corporation,
General Products Angola Corporation and General Products
Corporation (included as Exhibit (10)(b) to Sudbury's Form 8-K
filed for the November 7, 1989 event, File No. 1-10023,
previously filed with the Commission and incorporated herein by
reference).
10.27(b) Asset Purchase Agreement dated November 7, 1989 among Sudbury,
Inc., Western and General Products Delaware Corporation
(included as Exhibit (10)(a) to Sudbury's Form 8-K filed for
the November 7, 1989 event, File No. 1-10023, previously filed
with the Commission and incorporated herein by reference).
11 Computation of Earnings per Common Share.
13 Annual Report to Shareholders. Certain portions of this Exhibit
which are incorporated by reference into this Report on Form
10-K are filed herewith.
21 Subsidiaries of the Company.
23 Consent of Independent Auditors (included herein on Page F-1).
27 Financial Data Schedule.
99 Notice of Annual Meeting of Shareholders to be held April 10,
1997 and related Proxy Statement of the Company, dated March 4,
1997 (previously filed with the Commission on March 5, 1997 and
incorporated herein by reference).
* This instrument defines the rights of holders of long-term debt
of the Company not being registered and the total amount of
securities authorized under the instrument does not exceed ten
percent of the total assets of the Company and its subsidiaries
on a consolidated basis. This instrument is not being filed,
but the Company will furnish a copy of this instrument to the
Commission upon request.
** Management contract or compensatory plan or arrangement
required to be filed as an exhibit.
19
<PAGE> 20
(b) The following current reports on Form 8-K were filed during the fourth
quarter of the Company's 1996 fiscal year:
Form 8-K of the Company, File No. 0-13787, having an event date of November
18, 1996, and related Form 8-K/A.
(c) The Company hereby files as exhibits to this Report the exhibits set forth
in Item 14(a)(3) hereof.
(d) The Company hereby files as financial statement schedules to this Report
the financial statement schedules set forth in Item 14(a)(2) hereof.
20
<PAGE> 21
INDEX TO FINANCIAL STATEMENT SCHEDULES
Item Page
- ---- ----
Consent of Independent Auditors F-1
Schedule II - Valuation and Qualifying Accounts F-2
21
<PAGE> 22
Consent of Independent Auditors
We consent to the incorporation by reference in this Annual Report (Form 10-K)
of Intermet Corporation of our report dated January 30, 1997, included in the
1996 Annual Report to Shareholders of Intermet Corporation.
Our audits also included the financial statement schedule of Intermet
Corporation listed in Item 14(a). This schedule is the responsibility of the
Company's management. Our responsibility is to express an opinion based on our
audits. In our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth
therein.
We also consent to the incorporation by reference in the Registration
Statements (Form S-8 Nos. 33-57665, 33-58354, 33-58352 and 33-59011) pertaining
to 50,000 shares of Intermet Corporation common stock, the Intermet Corporation
Directors Stock Option Plan, the Intermet Corporation Key Individual Stock
Option Plan and the Intermet Corporation Executive Stock Option and Incentive
Award Plan, respectively, of our report dated January 30, 1997, with respect to
the consolidated financial statements incorporated herein by reference, and
our report included in the preceding paragraph with respect to the financial
statement schedule included in this Annual Report (Form 10-K) of Intermet
Corporation.
/s/ Ernst & Young LLP
March 26, 1997
Detroit, Michigan
F-1
<PAGE> 23
Intermet Corporation
(Consolidated)
Schedule II
Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
Balance at
Beginning of Charged to Balance at
Description Period Expense Other End of Period
- ----------- ------------ ---------- ----- ------------
(In Thousands of Dollars)
<S> <C> <C> <C> <C>
Year ended December 31, 1996:
Allowance for returns and doubtful
accounts (a) $ 4,407 (465)(b) (47)(c) $ 3,895
Supplies inventory reserve 3,784 (255) - 3,529
Deferred tax asset valuation
allowance 26,332 - (11,513)(e) 14,819
Year ended December 31, 1995:
Allowance for returns and doubtful
accounts (a) 3,039 1,319(b) 49(c) 4,407
Supplies inventory reserve 4,361 (775) 198(c) 3,784
Deferred tax asset valuation
allowance 26,332 - - 26,332
Year ended December 31, 1994:
Allowance for returns and doubtful
accounts (a) 2,206 784(b) 49(c) 3,039
Supplies inventory reserve 3,694 435 232(c) 4,361
Deferred tax asset valuation
allowance 30,520 3,683 (7,871)(d) 26,332
</TABLE>
(a) Reflected as reduction of trade accounts receivable on consolidated balance
sheet.
(b) Net effect of amounts charged to expense less actual returns and write offs.
(c) Effect of foreign currency translation.
(d) Increase (decrease) in certain deferred tax assets, including effect of
U.S. rate change in 1993.
(e) Decrease in valuation allowance due to increased viability of anticipated
future income.
F-2
<PAGE> 24
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Company has duly caused this Report to be signed on its behalf
by the undersigned, thereunto duly authorized.
INTERMET CORPORATION
(Company)
By: /s/ John Doddridge
--------------------------------------------------
John Doddridge
Chairman of the Board of Directors, Chief
Executive Officer and President
Date: March 25, 1997
POWER OF ATTORNEY AND SIGNATURES
Know all men by these presents, that each person whose signature appears below
constitutes and appoints John Doddridge and Doretha J. Christoph, or either of
them, as attorney-in-fact, either with power of substitution, for him in any
and all capacities, to sign any amendments to this Report on Form 10-K, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below as of March 25, 1997 by the following persons on
behalf of the Company in the capacities indicated.
Signature Capacity
/s/ John Doddridge Chairman of the Board of Directors, Chief
- ------------------------------- Executive Officer and President
John Doddridge (Principal Executive Officer)
/s/ Vernon R. Alden Director
- -------------------------------
Vernon R. Alden
/s/ J. Frank Broyles Director
- -------------------------------
J. Frank Broyles
/s/ John P. Crecine Director
- -------------------------------
John P. Crecine
<PAGE> 25
/s/ Anton Dorfmueller, Jr. Director
- -------------------------------
Anton Dorfmueller, Jr.
/s/ John B. Ellis Director
- -------------------------------
John B. Ellis
/s/ Wilfred E. Gross, Jr. Director
- -------------------------------
Wilfred E. Gross, Jr.
/s/ A. Wayne Hardy Director
- -------------------------------
A. Wayne Hardy
/s/ George W. Mathews, Jr. Director
- -------------------------------
George W. Mathews, Jr.
/s/ Harold C. McKenzie, Jr. Director
- -------------------------------
Harold C. McKenzie, Jr.
/s/ J. Mason Reynolds Director
- -------------------------------
J. Mason Reynolds
/s/ Curtis W. Tarr Director
- -------------------------------
Curtis W. Tarr
/s/ Doretha J. Christoph Vice President--Finance, Chief Financial
- ------------------------------- Officer and Secretary
Doretha J. Christoph (Principal Financial Officer)
<PAGE> 26
EXHIBIT INDEX
Exhibit Number Description of Exhibit
2.1 Agreement and Plan of Merger among the Company, I M Acquisition
Corp., and Sudbury, Inc. dated as of November 18, 1996
(included as Exhibit 4 to the Company's Form 8-K dated November
18, 1996, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).
2.2 Agreement and Plan of Merger among South Coast Delaware, Inc.,
Sudbury, Inc. and South Coast Terminals, Inc. dated as of
December 22, 1995 (included as Exhibit 2 to Sudbury's Form 10-Q
for the fiscal quarter ended November 30, 1995, File No.
1-10023, previously filed with the Commission and incorporated
herein by reference).
2.3 Agreement on the Sale and Transfer of Shares in IWESA
Gesellschaft fur Qualifizierten Maschinenbau among the Company,
Mr. Axel Ganz and Mr. Armin Becker dated October 30, 1996.
<PAGE> 27
3.1 and 4.1 Amended and Restated Articles of Incorporation of the Company
(included as Exhibit 4.1 to the Company's Form S-3 Registration
Statement, filed June 3, 1992, File No. 33-48304, previously
filed with the Commission and incorporated herein by
reference).
3.2 and 4.2 By-Laws of the Company, as amended (included as Exhibit 3.1 and
4.1 to the Company's Form 10Q for the quarter ended October 1,
1995, previously filed with the Commission and incorporated
herein by reference).
3.3 Resolution dated October 17, 1996 to amend the By-Laws of the
Corporation.
4.3 Promissory Note of Lynchburg Foundry Company, dated December 1,
1973, payable to Industrial Development Authority of the City
of Lynchburg, Virginia in the original principal amount of
$4,400,000.*
4.4 Guaranty Agreement, dated December 1, 1973, by and between The
Mead Corporation and the Industrial Development Authority of
the City of Lynchburg, Virginia.*
4.5 Trust Indenture, dated December 1, 1973, by and among
Industrial Development Authority of the City of Lynchburg,
Virginia, Lynchburg Foundry Company and United Virginia Bank,
as trustee.*
4.6 Promissory Notes of Lynchburg Foundry Company, dated June 1,
1976, payable to Industrial Development Authority of the City
of Lynchburg, Virginia, in the original principal amounts of
$2,700,000, $1,000,000, $550,000 and $550,000, respectively.*
4.7 Guaranty Agreement, dated June 1, 1976, of The Mead Corporation
in favor of Industrial Development Authority of the City of
Lynchburg, Virginia.*
4.8 Trust Indenture, dated June 1, 1976, by and among Industrial
Development Authority of the City of Lynchburg, Virginia,
Lynchburg Foundry Company and United Virginia Bank, as trustee,
with respect to Pollution Control Revenue Bonds (Mead-Lynchburg
Foundry Project), Series 1976, Series 1976A, Series 1976B and
Series 1976C.*
4.9 Loan Contract, dated September 28, 1988, by and between
Columbus Neunkirchen Foundry GmbH and Saarlandische
Investitionskreditbank, relating to a loan in the original
principal amount of DM 740,000.*
4.10 Loan Contract, dated October 11, 1988, by and between Columbus
Neunkirchen Foundry GmbH and the Landesbank Saar Girozentrale,
relating to a loan in the original principal amount of DM
1,550,000.*
4.11 Loan Contract, dated December 14, 1988, by and between Columbus
Neunkirchen Foundry GmbH and Saarlandische
Investitionskreditbank, relating to a loan in the principal
amount of DM 3,833,500.*
4.12 Loan Contract, dated March 1, 1989, by and between Columbus
Neunkirchen Foundry GmbH and Saarlandische
Investitionskreditbank, relating to a loan in the principal
amount of DM 2,000,000.*
4.13 Loan Contract, dated April 12, 1989, by and between Columbus
Neunkirchen Foundry GmbH and Landesbank Saar Girozentrale,
relating to a loan in the principal amount of DM 2,725,000.*
<PAGE> 28
4.14 Third Amended and Restated Credit Agreement, dated November 14,
1996, by and among the Company, SunTrust Bank, Atlanta
(formerly known as Trust Company Bank) as lender and agent and
the various lenders named therein.
4.15 Master Assignment and Acceptance Agreement dated December 9,
1996, by and among the Company and various lenders named
therein.
4.16 Amended and Restated Note Agreement, dated as of March 21,
1996, by and between Intermet Corporation and The Prudential
Insurance Company of America, relating to $25,000,000 principal
amount of 8.05% Senior Notes due December 11, 2002 and related
Promissory Note (included as Exhibit 4.20 to the Company's Form
10-K for the year ended December 31, 1995, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
4.17 First Amendment to Amended and Restated Note Agreement, dated
as of January 31, 1997, by and between the Company and The
Prudential Insurance Company of America, relating to
$25,000,000 principal amount of 8.05% Senior Notes due
December 11, 2002 and related Promissory Note.
4.18 Credit Agreement by and among Sudbury, Inc. and National City
Bank, Star Bank, National Association and National City Bank,
as Agent, dated May 30, 1995, (included as Exhibit (4)(c) to
Sudbury's Form 10-K for the fiscal year ended May 31, 1995,
File No. 1-10023, previously filed with the Commission and
incorporated herein by reference).
4.19 First Amendment dated August 30, 1995 to Credit Agreement by
and among Sudbury, Inc. and National City Bank, Star Bank,
National Association and National City Bank, as Agent, dated
May 30, 1995, (included as Exhibit (4)(a) to Sudbury's Form
10-Q for the fiscal quarter ended August 31, 1995, File No.
1-10023, previously filed with the Commission and incorporated
herein by reference).
4.20 Second Amendment dated May 31, 1996 to Credit Agreement by and
among Sudbury, Inc. and National City Bank, Star Bank, National
Association and National City Bank, as Agent, dated May 30,
1995, (included as Exhibit (4)(c) to Sudbury's Form 10-K for
the fiscal year ended May 31, 1996, File No. 1-10023,
previously filed with the Commission and incorporated herein by
reference).
4.21 Form of Indenture between Sudbury, Inc. and IBJ Schroder Bank
and Trust Company, as Trustee for Sudbury's 8.6% $10 million
Senior Subordinated Pay-In-Kind Notes due 1997, distributed
pursuant to Sudbury's Third Amended Plan of Reorganization
(included as Exhibit T-3 filed by Sudbury on August 17, 1992,
File No. 1-10023, previously filed with the Commission and
incorporated herein by reference).
4.22 Shareholder Protection Rights Agreement, dated as of October 6,
1995 between the Company and Trust Company Bank, as Rights
Agent (included as Exhibit 4 to the Company's Form 8-K, having
an event date of October 6, 1995, File No. 0-13787, previously
filed with the Commission and incorporated herein by
reference).
10.1(a) Intermet Corporation Key Individual Stock Option Plan, adopted
April 25, 1984 (included as Exhibit 10.1 to the Company's
registration statement on Form S-14, File No. 2-90815,
previously filed with the Commission and incorporated herein by
reference).**
<PAGE> 29
10.1(b) Amendment No. 1 to the Intermet Corporation Key Individual
Stock Option Plan, dated as of August 4, 1988 (included as
Exhibit 10.2 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1988, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).**
10.1(c) Amendment No. 2 to the Intermet Corporation Key Individual
Stock Option Plan, dated October 27, 1988 (included as Exhibit
10.3 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1988, File No. 0-13787, previously
filed with the Commission and incorporated herein by
reference).**
10.2(a) Form of Intermet Corporation Directors Stock Option Agreement
(included as Exhibit 10.4 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1988, File No.
0-13787, previously filed with the Commission and incorporated
herein by reference).**
10.2(b) Intermet Corporation Directors Stock Option Plan (included as
Exhibit 10.6 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1990, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).**
10.3 Intermet Corporation Executive Stock Option and Incentive Award
Plan (included as Exhibit 4 to the Company's Form S-8, File No.
33-59011, previously filed with the Commission and incorporated
herein by reference)**
10.4 Stock Purchase Agreement, dated March 30, 1992, by and between
the Company, PBM Industries, Inc., Batten Design and
Engineering Services, Inc., Wind Point Partners II, L.P., The
Prudential Insurance Company of America, Pruco Life Insurance
Company, PruSupply Capital Assets, Inc., Ingersoll Engineers,
Inc. and certain individuals (included as Exhibit 2.1 to the
Company's Form 8-K dated March 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference.)
10.5 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Wind Point Partners II, L.P., as
Shareholders' Representative, in the principal amount of
$438,754.58 (included as Exhibit 10.7 to the Company's Form 10-K
for the year ended December 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
10.6 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Pruco Life Insurance Company, in
the principal amount of $12,673.31 (included as Exhibit 10.8 to
the Company's Form 10-K for the year ended December 31, 1992,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference)
10.7 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of PruSupply Capital Assets, Inc., in
the principal amount of $114,059.79 (included as Exhibit 10.9
to the Company's Form 10-K for the year ended December 31,
1992, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).
10.8 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Wind Point Partners II, L.P., as
Shareholders' Representative, in the principal amount of
$1,982,107 (included as Exhibit 10.10 to the Company's Form
10-K for the year ended December 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
<PAGE> 30
10.9 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of Pruco Life Insurance Company, in
the principal amount of $35,240.53 (included as Exhibit 10.11
to the Company's Form 10-K for the year ended December 31,
1992, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).
10.10 Promissory Note, dated March 30, 1992, executed by Intermet
Machining, Inc. in favor of The Prudential Insurance Company of
America, in the principal amount of $317,164.79 (included as
Exhibit 10.12 to the Company's Form 10-K for the year ended
December 31, 1992, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).
10.11 Guaranty Agreement, dated March 30, 1992, by the Company in
favor of the shareholders named in the PBM Stock Purchase
Agreement (included as Exhibit 10.13 to the Company's Form 10-K
for the year ended December 31, 1992, File No. 0-13787,
previously filed with the Commission and incorporated herein by
reference).
10.12 Asset Purchase Agreement among Intermet Corporation, Intermet
Machining, Inc., PBM Industries, Inc. and PBM Acquisition
Limited, dated September 6, 1995, as amended by Amendments 1, 2
and 3 thereto (included as an Exhibit to the Company's Form 8-K
dated October 6, 1995, File No. 0-13787, previously filed with
the Commission and incorporated herein by reference).
10.13 Asset Purchase Agreement by and among Ricardo North American
Detroit, Inc., Ricardo Group, plc., InterMotive Technologies,
Inc. and Intermet Corporation, dated October 12, 1995 (included
as an Exhibit to the Company's Form 8-K dated October 18, 1995,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).
10.14(a) Agreement for Purchase and Sale of Assets of Bodine-Robinson,
Inc. among the Company, Alexander City Casting Company, Inc.,
Bodine-Robinson, Inc., Joe Robinson and Robinson Foundry, Inc.,
dated November 15, 1995 (included as Exhibit 2(a) to the
Company's Form 8-K dated November 15, 1995 (the "Robinson 8-K"),
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).
10.14(b) Agreement for Purchase and Sale of Certain Assets of Robinson
Foundry, Inc. among the Company, Alexander City Casting
Company, Inc., Bodine-Robinson Foundry, Inc., Joe Robinson and
Robinson Foundry, Inc., dated November 15, 1995 (included as
Exhibit 2(b) to the Robinson 8-K, File No. 0-13787, previously
filed with the Commission and incorporated herein by
reference).
10.14(c) Management Agreement among Joe Robinson, the Company and
Alexander City Casting Company, Inc., dated November 15, 1995
(included as Exhibit 2(c) to the Robinson 8-K, File No.
0-13787, previously filed with the Commission and incorporated
herein by reference).
10.14(d) Registration Rights Agreement between the Company and Robinson
Foundry, Inc., dated November 15, 1995 (included as Exhibit
2(d) to the Robinson 8-K, File No. 0-13787, previously filed
with the Commission and incorporated herein by reference).
10.15 Operating Committee 1997 Profit Sharing Plan**
<PAGE> 31
10.16(a) Intermet Corporation Salaried Employees Severance Plan
effective as of October 1, 1993 (included as Exhibit 10.16(a)
to the Company's Form 10-K for the year ended December 31,
1993, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).**
10.16(b) Amendment No. 1 to the Intermet Corporation Salaried Employees
Severance Plan, dated December 20, 1993 (included as Exhibit
10.16(b) to the Company's Form 10-K for the year ended December
31, 1993, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).**
10.17 Intermet Salary Continuation Plan (included as Exhibit 10.18 to
the Company's Form 10-K for the year ended December 31, 1992,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.18 Employment Agreement, dated as of December 1, 1994, by and
between the Company and John Doddridge (included as Exhibit
10.16 to the Company's Form 10-K for the year ended December
31, 1994, File No. 0-13787, previously filed with the
Commission and incorporated herein by reference).**
10.19 Letter, dated as of December 19, 1994, related to George
Mathews' retirement. (included as Exhibit 10.17 to the
Company's Form 10-K for the year ended December 31, 1994, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.20 Employment Agreement, dated July 15, 1993, by and between the
Company and Daryl R. Marsh (included as Exhibit 10.18 to the
Company's Form 10-K for the year ended December 31, 1994, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.21 Form of employment agreement by and between the Company and the
executive officers of the Company, other than John Doddridge,
effective November 1, 1996 (included as Exhibit 10.21 to the
Company's Form 10-K for the year ended December 31, 1995, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.22 Employment Agreement, dated October 26, 1995, by and between
the Company and John E. Doddridge (included as Exhibit 10.22 to
the Company's Form 10-K for the year ended December 31, 1995,
File No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.23 Employment Agreement, dated May 12, 1995, by and between the
Company and Doretha Christoph (included as Exhibit 10.23 to the
Company's Form 10-K for the year ended December 31, 1995, File
No. 0-13787, previously filed with the Commission and
incorporated herein by reference).**
10.24 Employment Agreement, dated December 27, 1996, by and between
the Company and David L. Neilson.**
10.25 1997 Directors' Deferred Compensation Plan.**
10.26(a) Employment Agreement between Jacques R. Sardas and Sudbury,
Inc. dated July 28, 1995 (included as Exhibit (10)(j) to
Sudbury's Form 10-K for the fiscal year ended May 31, 1995,
File No. 1-10023, previously filed with the Commission and
incorporated herein by reference). **
<PAGE> 32
10.26(b) Non-Qualified Stock Option Agreement between Jacques R. Sardas
and Sudbury, Inc. dated July 28, 1995 (included as Exhibit
(10)(k) to Sudbury's Form 10-K for the fiscal year ended May
31, 1995, File No. 1-10023, previously filed with the
Commission and incorporated herein by reference). **
10.27(a) Agreement and Plan of Merger dated November 7, 1989 among
Sudbury, Inc., Western, General Products Delaware Corporation,
General Products Angola Corporation and General Products
Corporation (included as Exhibit (10)(b) to Sudbury's Form 8-K
filed for the November 7, 1989 event, File No. 1-10023,
previously filed with the Commission and incorporated herein by
reference).
10.27(b) Asset Purchase Agreement dated November 7, 1989 among Sudbury,
Inc., Western and General Products Delaware Corporation
(included as Exhibit (10)(a) to Sudbury's Form 8-K filed for
the November 7, 1989 event, File No. 1-10023, previously filed
with the Commission and incorporated herein by reference).
11 Computation of Earnings per Common Share.
13 Annual Report to Shareholders. Certain portions of this Exhibit
which are incorporated by reference into this Report on Form
10-K are filed herewith.
21 Subsidiaries of the Company.
23 Consent of Independent Auditors (included herein on Page F-1).
27 Financial Data Schedule.
99 Notice of Annual Meeting of Shareholders to be held April 10,
1997 and related Proxy Statement of the Company, dated March 4,
1997 (previously filed with the Commission on March 5, 1997 and
incorporated herein by reference).
* This instrument defines the rights of holders of long-term debt
of the Company not being registered and the total amount of
securities authorized under the instrument does not exceed ten
percent of the total assets of the Company and its subsidiaries
on a consolidated basis. This instrument is not being filed,
but the Company will furnish a copy of this instrument to the
Commission upon request.
** Management contract or compensatory plan or arrangement
required to be filed as an exhibit.
<PAGE> 1
EXHIBIT 2.3
Rolls No. 1055/1996
-------------------
Recorded in Dusseldorf
on October 30, 1996
Before me
the undersigned notary Dr. Burkhard Punder
in the district of the Court of Appeals in Dusseldorf
with place of residence in Dusseldorf
appeared today:
1) Dr. Kerstin Kopp, attorney at law, born on August 19, 1963 with place of
office at Cecilienallee 6, 40474 Dusseldorf, personally known to the
notary public acting not for herself but on the basis of the power of
attorney attached to this deed for JFVG Siebzigste
Vermogensverwaltungsgesellschaft mbH, a limited liability company existing
under German law with its seat in Wiesbaden (transferred to Neunkirchen),
registered in the Commercial Register with the County Court in Wiesbaden
under number HRB 10111,
hereinafter referred to as "Buyer" or "NEWCO";
2) Mr. Axel Ganz, mechanical engineer, born on November 17, 1955, residing:
ElstersteinstraBe 21 h, D-66386 St. Ingbert, identified by his passport,
acting
a) for himself personally;
b) as managing director of IWESA Gesellschaft fur qualifizierten
Maschinenbau, with its seat in Saarbrucken, registered in the
Commercial Register with the County Court in Saarbrucken under
number HRB 9940;
<PAGE> 2
2
3) Mr. Armin Becker, graduate in business management, born on September 5,
1958, residing: ZiegelhuttenstraBe 22, D-66773 Schwalbach, identified by
his passport, acting
a) for himself personally;
b) as managing director of IWESA Gesellschaft fur qualifizierten
Maschinenbau, with its seat in Saarbrucken, registered in the
Commercial Register with the County Court in Saarbrucken under
number HRB 9940;
Mr. Ganz and Mr. Becker hereinafter jointly referred to as "Selling
Shareholders" unless identified otherwise
The persons appearing requested the notary to notarize the following notarial
deed in the English language. The notary and the persons appearing are in
command of the English language. The persons appearing expressly waived the
right to have an interpreter present and to receive a German translation of
this notarial deed, after having been advised by the notary about their
respective rights.
The persons appearing then requested the recording of the following:
Preamble
Buyer is a fully owned subsidiary of INTERMET Corporation ("INTERMET") with its
principal place of business in Troy, Michigan. IWESA Gesellschaft fur
qualifizierten Maschinenbau ("IWESA" or the "Company") machines products for
the vehicle and industrial machine industry, develops, constructs and produces
machines, parts thereof and provides related services. IWESA has substantial
special know-how, customer relations in Germany and other material and
immaterial assets. INTERMET and the Selling Shareholders be-
<PAGE> 3
3
lieve that IWESA and its business will be substantially strengthened if the
capital base of IWESA is broadened by means of INTERMET joining IWESA as a
shareholder with a 49% participation in IWESA.
<PAGE> 4
4
NOW; THEREFORE THE PARTIES AGREE AS FOLLOWS:
A AGREEMENT ON THE SALE AND TRANSFER OF SHARES IN A LIMITED LIABILITY COMPANY
Definitions:
Assigned shares shall have the meaning set forth in Section 2.3 of this
Agreement.
Best Knowledge of Sellers shall have the meaning as set forth in section
8.4 of this Agreement
Claim shall have the meaning set forth in Section 6.2 of this Agreement.
IWESA, Company shall have the meaning set forth in the Preamble of this
Agreement.
Selling Shareholders are Mr. Ganz and Mr. Becker.
Buyer, NEWCO means JFVG Siebzigste Vermogensverwaltungsgesellschaft mbH
Shares shall have the meaning set forth in Section 1.1 of this Agreement.
Closing Date shall have the meaning set forth in Section 3 of this
Agreement.
Closing Financial Statements shall have the meaning set forth in Section
4.1 of this Agreement.
<PAGE> 5
5
Appointed Auditors shall have the meaning set forth in Section 4.3 of this
Agreement.
Net Asset Value Certificate shall have the meaning set forth in Section
4.3 of this Agreement.
Purchase Price shall have the meaning set forth in Section 5 of this
Agreement.
Audited Financial Statements shall have the meaning set forth in Section
7.5.1 of this Agreement.
Leased Property shall have the meaning set forth in Section 7.6.2 of this
Agreement.
Employees shall have the meaning set forth in Section 7.11.1 of this
Agreement.
Material Contracts shall have the meaning set forth in Section 7.12.1 of
this Agreement.
Taxes shall have the meaning set forth in Section 7.14.3 of this
Agreement.
Article 1
Object of the Purchase
1.1 Mr. Becker and Mr. Ganz jointly hold all shares in IWESA (the "Shares"
whose total registered share capital amounts to DM 1,000,000 (Deutsche
Mark one million) as follows:
Mr. Becker: one share in the nominal value of DM 35,000
one share in the nominal value of DM 365,000
Mr. Ganz: one share in the nominal value of DM 65,000
<PAGE> 6
6
one share in the nominal value of DM 535,000.
1.2 By virtue of a shareholder's resolution the Selling Shareholders resolve
to consolidate their respective shares as follows:
Mr. Becker: one share in the nominal value of DM 400,000
Mr. Ganz: one share in the nominal value of DM 600,000
1.3 For the purpose of selling their respective shares the Selling
Shareholders hereby split their shares as follows:
o The share in the nominal value of DM 400,000 held
by Mr. Becker is hereby split into one share in the nominal
value of DM 291,800 and one share in the nominal value of DM
108,200.
o The share in the nominal value of DM 600,000 held
by Mr. Ganz is hereby split into one share in the nominal value
of DM 437,700 and one share in the nominal value of DM 162,300.
The total of all shares in IWESA are hereinafter referred to as the
Shares.
Article 2
Sale and Transfer
2.1 Mr. Becker hereby sells and assigns his share in the nominal value of DM
108,200 as per the Closing Date to the Buyer, who accepts such transfer.
2.2 Mr. Ganz hereby sells and assigns his share in the nominal value of DM
162,300 as per the Closing Date to the Buyer who accepts such transfer.
<PAGE> 7
7
2.3 The sale of the shares referred to in section 2.1 and section 2.2 hereof
(the "Assigned Shares") includes all ancillary rights relating thereto, in
particular the right to participate in the profits for the current
business year.
2.3 The requirement contained in section 8 of IWESA's Articles of Association
to obtain the consent of the shareholder's meeting prior to a transfer of
shares is hereby waived by the Selling Shareholders. The Selling
Shareholders also waive their respective rights under section 9 of IWESA's
Articles of Association ("Anbietungspflicht").
2.4 The Selling Shareholders in their capacity as managing directors of IWESA
hereby confirm that the transfer of the Assigned Shares to the Buyer has
been notified to them in accordance with section 16 GmbHG.
2.5 The approval of Saarlandische Kapitalbeteiligungsgesellschaft ("KBG") in
accordance with the Agreement, dated August 8, 1995 is attached as
Appendix 2.5.
Article 3
Closing Date
The Closing Date shall be October 31, 1996, 24.00 o'clock German time or such
other date and time the parties may agree in writing.
<PAGE> 8
8
Article 4
Closing Financial Statements
4.1 Immediately following the Closing Date the Parties will procure that the
Company will prepare financial statements (balance sheet and profit and
loss statement), including a physical inventory for IWESA as per the
Closing Date. ("Closing Financial Statements"). Representatives of the
Buyer shall have full access to all documents and working papers relating
to the preparation of the Closing Financial Statements and shall have a
right to participate in preparing the Closing Financial Statements.
4.2 The Closing Financial Statements will be prepared in accordance with
generally accepted accounting principles and German statutory requirements
applicable to limited liability companies, observing balance sheet
continuity. The Closing Financial Statements will be prepared in such form
and detail to allow a transformation into US-GAAP.
4.3 The Closing Financial Statements will be audited by Ernst & Young (the
"Appointed Auditor") or any other auditor the parties shall agree upon.
Article 5
Purchase Price
5.1 The purchase price for the Assigned Shares, shall amount to DM 4,000,000
(in words: Deutsche Mark four million) (the "Purchase Price"). Mr. Becker
and Mr. Ganz shall be joint and several creditors and debtors for the
Purchase Price. The Purchase Price shall be paid via bank transfer to the
following joint account of the Selling Shareholders on the Closing Date,
provided that the Selling Shareholders present evidence that
<PAGE> 9
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the balance of the share capital in the amount of DM 495,000.00 has been
paid to IWESA.
Bank: Kreissparkasse Saarlouis,
Bank Code: 593 501 10,
Account-no.: 212 781 298
Article 6
Tax Indemnities
6.1 The Selling Shareholders hereby guarantee that upon first demand the
Selling Shareholders will indemnify and hold harmless IWESA if, due to a
field audit or any other circumstance, Taxes will become payable for IWESA
relating to events or periods before the Closing Date regardless of cause,
except where payments have been refunded to IWESA.
6.2 The obligation to hold harmless and indemnify shall exist whenever the
Purchaser, IWESA or the successors is obliged to make a payment in
connection with such obligation irrespective whether or not such
obligation is already final and unappealable.
6.3 Without limiting the applicability of the above in any way, the Purchaser
and the Seller will cooperate in defending any claims of third persons
against IWESA to the extent that such defense appears to be reasonable.
Article 7
Representations and Warranties
7.1 The following representations and warranties relate to IWESA and its
business.
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7.2 The Selling Shareholders represent and warrant as joint and several
debtors as of the Closing Date the completeness and correctness of all
facts and circumstances mentioned or described below. These warranties
constitute "zugesicherte Eigenschaften" of the Selling Shareholders.
7.3 IWESA
7.3.1 IWESA has been duly incorporated and is validly existing under the laws
of Germany.
7.3.2 There has been no proposal made or resolution adopted by the respective
shareholders for the dissolution and liquidation of IWESA or a merger of
IWESA with any other company.
7.3.3 No application is pending to declare IWESA bankrupt and no application
for composition proceedings is pending.
7.3.4 The Articles of Association of IWESA read in conformity with the copy
thereof attached as Schedule 7.3.4 and no shareholders' resolutions exist
relating to the change thereof.
7.3.5 The excerpt from the Commercial Register for IWESA attached as Schedule
7.3.5 is correct and complete. All shareholders' resolutions or other
circumstances capable of being registered are reflected in this excerpt.
7.3.6 IWESA is not bound by "Unternehmensvertrage" within the meaning of
Section 291 et. seq. German Stock Corporation Act.
7.3.7 IWESA does not and has not held shares or other interests in other
companies or similar entities.
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7.4 Shares
7.4.1 The factual information relating to the Shares given in Article 1 of
this Agreement is complete and correct.
7.4.2 The Selling Shareholders hold jointly 100% of all Shares in IWESA.
7.4.3 All Shares of IWESA have been paid in full as disclosed to the Buyer and
they have not been reduced in whole or in part by losses or distributions.
7.4.4 IWESA does not hold, and has not since 1993 held, any shares or an
interest in any other company, partnership or similar entity.
7.4.5 No resolution has been adopted to increase the registered share capital
of IWESA or to issue additional shares; no rights, including options, have
been granted, relating to the Shares.
7.4.6 The Shares are free and clear of any rights of pledge, charges, liens,
attachments, usufructs or any other encumbrances or obligatory rights of
third persons, including, but not limited, to option rights and rights of
first refusal, in favor of any third party. The Selling Shareholders can
dispose of the Shares and Partnership Interests without the cooperation,
approval or violation of rights of third persons. There are no
sub-interests ("Unterbeteiligungen") in the Shares. The Silent Partnership
Agreement KBG is attached as Schedule 7.4.6.
7.4.7 Since 1 January 1995 no (interim) dividends have been declared on the
Shares nor have any rights to a future dividend or other rights with
respect to IWESA' profits been committed, transferred or pledged to third
parties.
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7.4.8 No restrictions on the transfer of the Shares than those set forth in
the Articles of Association of IWESA are in effect.
7.5 Financial Information
7.5.1 The audited year end financial statements of IWESA as of December 31st
1993, 1994 and 1995 including cash flow status
("KapitalverkehrsfluBrrechnung) Audited Financial Statements")
(including the apportionment of its equity for tax purposes
("Gliederung des verwendbaren Eigenkapitals"):
7.5.1.1 have been prepared in accordance with all applicable laws and
accounting principles with respect to the preparation of annual
accounts ("GAAP") and applied on a consistent basis;
7.5.1.2 provide such insight into the financial position of IWESA that a
responsible judgment can be made regarding the assets and the
results and also regarding the solvability and liquidity of IWESA;
7.5.1.3 present, in as far as the profit and loss accounts with the notes
are concerned, correctly, clearly and consistently the results of
IWESA;
7.5.1.4 present, in as far as the balance sheets are concerned, correctly,
clearly and consistently the financial position of IWESA (the
nature and amount of IWESA's assets, liabilities and shareholders'
equity) at the respective balance sheet dates.
7.5.2 Each of the Audited Financial Statements of IWESA have been furnished
with an unrestricted auditor's certificate by IWESA's auditors.
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7.5.3 All accounts, books, ledgers, financial and other records of IWESA
(including financial information and data stored electronically):
(a) are in the possession of IWESA;
(b) have been properly and accurately maintained;
(c) contain materially true, complete and accurate records of
all matters required to be entered in them by the law; and
(d) have been held for the period required by law.
7.5.4 On the relevant balance sheet dates for the Audited Financial Statements
and the Closing Financial Statements there are no liabilities or
commitments of IWESA, contingent or otherwise, matured or unmatured, not
included or provided for in the Audited Financial Statements which are
required under German GAAP to be included or provided for. There was
no need to provide for additional provisions or increase existing
provisions.
7.5.5 All accounts receivable reflected in the Audited Financial Statements or
the Closing Financial Statements will be collected in full, within one
hundred and eighty days from the Closing Date, except in as far as
provisions will be made in this respect in the Closing Financial
Statements.
7.5.6 All supplies and stocks of IWESA have been valued in accordance with the
principle of "Lower-of-cost-or-market-value".
7.5.7 IWESA has at least DM 4,000,000 of working capital ("Umlaufvermogen") in
the sense of sec. 266 German Commercial Code ("HGB") as per Closing.
7.5.8 Since December 31, 1995
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7.5.8.1 There have been no changes in the condition, financial or otherwise, of
IWESA, which have had or might have a material adverse effect on its net
worth or in general its business, results or financial condition;
7.5.8.2 IWESA has not entered into any transaction or incurred any liability or
obligation which individually or in the aggregate was material to their
business other than transactions concluded and/or liabilities or
obligations incurred in the ordinary course of business of IWESA, in
particular no direct or indirect payments have been made to the Selling
Shareholders or entities controlled by the Selling Shareholders,
except as expressly provided for in this Agreement;
7.5.8.3 There has not been any damage, destruction, or other casualty loss
(whether or not covered by insurance), affecting the business or assets
of IWESA which has had or would reasonably be expected to have a
negative effect on IWESA;
7.5.8.4 There have not been any incurrence, assumption or guarantee by IWESA of
any indebtedness for borrowed money other than in the ordinary course of
business and in amounts and on terms consistent with past practices;
7.5.8.5 There has not been any change in any method of accounting or accounting
practice by IWESA;
7.5.8.6 There have not been any (i) grant of any severance or termination
payment to any managing director or other employee of a Company, (ii)
increase in benefits payable under the severance or termination policy
of IWESA or any employment agreement or (iii) increase in
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compensation, bonus or other benefits payable to the managing directors
or other employees of IWESA by IWESA, other than in the ordinary course
of business consistent with past practice.
7.5.10 Schedule 7.5.10 lists completely all bank loans and other loans taken
out by IWESA together with their respective main terms and conditions.
The total amount outstanding under these loans does not exceed the
equivalent of DM 30,000,000.
7.5.11 There exists no indebtedness of IWESA to persons related to the Selling
Shareholders.
7.5.12 None of the loan facilities granted to IWESA is conditional upon or
otherwise dependent on the guarantee or support or indemnity of, or any
security provided by, a third party other than IWESA.
7.5.13 IWESA has not factored or encumbered its receivables except as disclosed
in Schedule 7.5.13.
7.6 Real Property
7.6.1 IWESA does not and did not at any time hold title to any real property.
7.6.2 Real property set forth in Schedule 7.6.2 (the "Leased Property") has
been leased (Miete, Pacht) by IWESA on the terms and conditions stated in
such Schedule and fully suitable for the purpose for which they are
leased.
7.6.3 All obligations towards the lessors arising from the lease agreements
referred to in the preceding subsection have been complied with. There
are no disputes regarding those agreements pending or threatening.
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7.6.4 Neither public law nor rights of third parties prohibit or restrict the
present use of the Leased Property. No construction on or use of the
Leased Property has taken place without the necessary licenses or permits.
7.6.5 The Leased Property (including buildings) are in a good state of
maintenance and repair and as far as the Leased Property is concerned in
accordance with all terms of the relevant lease agreements, taking into
consideration normal wear and tear.
7.6.6 Neither IWESA nor any entity to whom IWESA can be considered a legal
successor did since its incorporation possess any real property other than
the Leased Property. The Buyer acknowledges that E. Haaf Sawema had real
property.
7.6.7 To the Best Knowledge of Sellers and after due and diligent
investigation, the Leased Property does not contain any asbestos or other
material which is damaging to health. The Sellers submit in this respect
the declaration attached as Schedule 7.6.7.
7.6.8 To the Best Knowledge of Sellers and after due and diligent
investigation, the Leased Property, its surroundings and its groundwater
is not polluted or contaminated. The Sellers submit in this respect the
declaration attached as Schedule 7.6.8.
7.7 Other Property and Inventory
7.7.1 IWESA has good and marketable title to all movable property in its
possession, including the machinery (the "Personal Property"), the main
items of which are listed in Schedule 7.7.1. All properties acquired or
disposed of between 31
<PAGE> 17
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December 1995 until October 30, 1996 are listed in Schedule 7.7.1b.
7.7.2 Except for customary retention of title the Personal Property is not
subject to any attachments or charged with any pledges, liens or charges.
7.7.3 The Personal Property on the Closing Date will be in a good state of
maintenance and repair, taking into consideration normal wear and tear,
and there is no backlog in maintenance.
7.7.4 The inventory reflected in the Audited Financial Statements and those
maintained at the Closing Date were acquired or produced or shall be
acquired or produced in the ordinary course of business of IWESA and are
or will be of a good and merchantable quality and their quantity is
adequate for the level at which the business of IWESA is currently run and
is not excessive.
7.8 Legality and Business Operation
To the Best Knowledge of Sellers and after due and diligent investigation,
7.8.1 the conduct of the operations and the business of IWESA do not violate
any provisions of any applicable laws, orders, regulations or
requirements, including but not limited to any laws, orders, regulations
or requirements of any EC institution or any federal, state or municipal
administrative body or entity having competence in relation thereto. This
applies, in particular but not limited to any environmental laws and
regulations. The conduct of the business of IWESA does not violate any
provision of the above laws, orders etc. in a way which would have a
material adverse effect on IWESA;
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7.8.2 IWESA has complied with all EC and/or national and/or state and/or
municipal laws, provisions, regulations and orders in respect of
employment and employment practices and particularly in respect of work
place protection, hygiene and safety protection;
The conduct of the business of IWESA does not violate any provision of
the above laws, orders etc. in a way which would have a material
adverse effect on IWESA.
7.8.3 There are no past or present events which may interfere with the conduct
of the business of IWESA or prevent their continued compliance with any of
the said laws, provisions, regulations and orders, or which may give rise
to any liability, or otherwise form the basis of any claim, proceeding or
investigation, based on or related to the use, storage or disposal or the
release into the environment, of any pollutant, hazardous material or
other substance or material with respect to IWESA or its business;
The conduct of the business of IWESA does not violate any provision of
the above laws, orders etc. in a way which would have a material
adverse effect on IWESA.
7.8.4 IWESA has at its disposal all licences and permits as are necessary for
carrying out and continuing its operations and business at the place and
in the manner and capacity as presently conducted, as well as in
accordance with its designed capacity;
These licences and permits are in full force and are not subject to
conditions other than the conditions contained in these licences
themselves and do not require any further expenditure by IWESA for the
term of the respective license or permit.
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The said permits and licences have neither been suspended, revoked nor
restricted, nor is a suspension, revocation or restriction impending or
reasonably anticipated.
The operations and the business of IWESA are carried out in a manner
which is consistent with the said licences and permits.
The conduct of the business of IWESA does not violate any provision of
the above laws, orders etc. in a way which would have a material
adverse effect on IWESA.
7.8.5 there have been no serious industrial injuries suffered during the
period from 31 December 1993, which may lead to a claim against IWESA
which is not fully covered by insurance. There have been no
employment-related illnesses or accidents suffered by any employee at any
time that may lead to a claim against IWESA. There are no unsettled
complaints by public authorities or the competent "Berufsgenossenschaft"
(Occupational Health and Safety Insurance Board);
The conduct of the business of IWESA does not violate any provision of
the above laws, orders etc. in a way which would have a material
adverse effect on IWESA.
7.8.6 The products produced and distributed by IWESA were and are in
compliance with all applicable EC, federal, state or other laws and
regulations as well as with all applicable industrial standards, like ISO,
DIN and the like;
The conduct of the business of IWESA does not violate any provision of
the above laws, orders etc. in a way which would have a material
adverse effect on IWESA.
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The qualification of the representatives and warranties under Article
7.8 to the Best Knowledge of Sellers and after due and diligent
investigation shall not apply to the representation and warranty given
in the last paragraph of each of the Articles 7.8.1 through 7.8.6.
7.9 Insurance
7.9.1 IWESA has purchased and maintained in full force and effect the
insurance policies listed in Schedule 7.9.1.
7.9.2 All due premiums on the mentioned policies have been paid and to the
Best Knowledge of Sellers and after due and diligent investigation, all
obligations under these policies have been fulfilled by IWESA.
7.9.3 To the Best Knowledge of Sellers and after due and diligent
investigation, the above-mentioned policies contain accurate descriptions
of the insured properties and persons and offer IWESA full cover against
all risks normally insured against by IWESA or persons carrying on a
similar business and in particular adequately insure the assets of IWESA.
The Sellers submit in this respect the declaration attached as Schedule
7.9.3.
7.9.4 Each of the above-mentioned policies will remain in effect for at least
until December 31, 1996.
7.9.5 No notifications have been received with regard to the non-renewal of
any policy.
7.9.6 There are no circumstances which may nullify any policy or to the Best
Knowledge of Sellers and after due and diligent investigation which may
cause premiums or deductibles to be increased.
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7.10 Intellectual and Industrial Property
7.10.1 IWESA is or the Selling Shareholders are the sole and exclusive
owner/holder of the licenses, patents, trade and service marks, model and
design rights described and listed by registration number in Schedule
7.10.1a or used in its business. None of the aforementioned licences,
patents, marks, model and design rights or copyrights is encumbered or is
subject to an agreement for its encumbrance by any right in favor of a
third party, including usage rights, licences, pledges or usufructs.
There exist no licences for industrial property rights which IWESA uses
or holds under non-exclusive license agreements. The selling
shareholders undertake to assign all patents and trademark (Patente und
Gebrauchsmuster) necessary for the business of IWESA to IWESA.
7.10.2 To the Best Knowledge of Sellers and after due and diligent
investigation, IWESA has taken all measures necessary to preserve and
maintain the aforementioned licences, patents, marks, model and design
rights and copyrights and has registered them in the name of IWESA. None
of such registrations has lapsed.
7.10.3 IWESA has not undertaken any obligation with respect to its know-how,
trade secrets, confidential information or lists of customers or
suppliers and have not communicated any of the foregoing or permitted
any of the foregoing to be communicated to third parties.
7.10.4 To the Best Knowledge of Sellers and after due and diligent
investigation, IWESA is fully authorized to carry on their business under
the trade names listed in Schedule 7.10.1 a.
7.10.5 The licenses, patents, marks, model and design rights and copyrights
held by IWESA are sufficient for the carrying on of its business in the
present form. To the Best Knowledge of Sellers and after due and
diligent investigation, the carrying on of IWESA's business does not
infringe upon intellectual and industrial rights of any third party and
<PAGE> 22
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IWESA are not liable for
the payment of any royalty or compensation in any form in connection
with intellectual and industrial property rights of any third party. To
the Best Knowledge of Sellers and after due and diligent investigation,
there exists no infringements of intellectual and industrial rights of
any third party which would have a material adverse effect on IWESA.
7.10.6 IWESA has not (otherwise than in the ordinary and normal course of
business) disclosed or permitted to be disclosed or undertaken or
arranged to disclose to any person other than the Buyer any of its
know-how, trade secrets, confidential information, price lists or lists
of customers or suppliers.
7.11 Employees and Pensions
7.11.1 IWESA has no employees other than those listed in Schedule 7.11.1 hereto
which list includes part-time employees and also the managing directors
(collectively: the "Employees"), their date of birth, date of entry into
service, current salary and benefits and their position. Apart from the
Employees no person can claim to have a (full-time or part-time)
employment agreement with IWESA.
7.11.2 Schedule 7.11.2 lists the collective labor agreement(s) applicable to
the Employees and all other existing agreements concluded with trade
unions or the work councils and the "Firmentarifvertrag", dated June 1,
1995 between IWESA and IG Metall.
7.11.3 The principal terms of the contracts of such Employees which are not
covered by collective labour agreements are disclosed in Schedule 7.11.3.
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7.11.4 IWESA has no obligation, whether legally or established by custom, to
pay or grant to any of its current or former Employees or directors any
salary, fringe benefit or premium save as reflected in the Closing
Financial Statements or in Schedule 7.11.1.
7.11.5 Except as provided in the Closing Financial Statements IWESA has no
obligations with respect to pension payments or contributions for current
or former employees or directors.
7.11.6 IWESA has no obligations arising from the termination or cancellation of
any of its employment agreements, except as provided in the Closing
Financial Statements or in Schedule 7.11.6.
7.11.7 There is no profit sharing, saving, (early) retirement (other than
contained in any collective labour agreement or customary within the
industry), in effect with or in respect for Employees and/or others.
7.11.8 To the Best Knowledge of Sellers and after due and diligent
investigation, and save to the extent (if any) to which provision has
been made in the Closing Financial Statements:
7.11.8.1 no liability has been incurred by IWESA for breach of any contract of
service or services for redundancy payments, protective awards or for
compensation for wrongful dismissal or unfair dismissal or for
failure to comply with any order for the reinstatement or
re-engagement of any employee or for any other liability accruing
from the termination or variation of any contract of employment or
for services;
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7.11.8.2 no gratuitous payment has been made or promised by IWESA in
connection with the actual or proposed termination or suspension of
employment or variation or any contract of employment of any
present or former director or employee.
7.11.9 There are no schemes in operation by, or in relation to, IWESA under
which any employee of IWESA is entitled to a commission or remuneration
of any other sort calculated by reference to the whole or part of the
turnover, profits or sales of IWESA except as described in Schedule
7.11.9.
7.12 Material Contracts
7.12.1 Except for the contracts and commitments disclosed in Schedule 7.12.1
(collectively: the "Material Contracts"), IWESA is not a party to or in
any way bound by:
7.12.1.1 any lease or hire-purchase agreement for a period of more than six
months and exceeding yearly expenditures equivalent to DM 25,000;
7.12.1.2 any contract for the purchase of goods or services for a period of
more than twelve months and/or exceeding an amount equivalent to DM
50,000;
7.12.1.3 any sales or similar agreement providing for the sale by IWESA of
goods for a period of more than twelve months and/or exceeding an
amount equivalent to DM 50,000;
7.12.1.4 any partnership, or joint ventures;
7.12.1.5 loan agreements and other banking and overdraft facilities;
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7.12.1.6 any agency or distributorship agreement;
7.12.1.7 any contract or other document that substantially limits the freedom
of IWESA to compete in any line of business or with any person or
in any area which would so limit the freedom of IWESA after the
Closing Date;
7.12.1.8 any contract or commitment concerning the business of IWESA as a
whole;
7.12.1.9 any power of attorney granted to third parties;
7.12.1.10 any guarantee, suretyship or indemnity in favor of third parties or
an agreement to provide security in favor of third parties;
7.12.1.11 any mortgage, pledge or other security interest (including an
assignment of claims) except as stated in the Audited Financial
Statements;
7.12.1.12 any agreement outside the ordinary course of business and/or not a
arm's length.
7.12.1.13 any other capital commitment exceeding a value of DM 50,000.
7.12.2 To the Best Knowledge of Sellers and after due and diligent
investigation, neither IWESA nor any other party to the Material
Contracts are in breach of any provision of, or in default under, the
terms of any Material Contract, where such breach or default would
reasonably be expected to have a materially adverse effect on the
business of IWESA.
7.12.3 To the Best Knowledge of Sellers and after due and diligent
investigation, IWESA is not a party to any contract which shall or is
likely to be terminated or changed by another
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party, nor is there any reason to believe that any customer or supplier
of IWESA will terminate or limit its business with IWESA as a result of
the conclusion of this Agreement and related agreements. IWESA is not a
party to any contract which could be terminated or changed due to the
conclusion of this Agreement ("change of control") except the Silent
Partnership Agreement with KBG.
7.12.4 To the Best Knowledge of Sellers, the conclusion of this Agreement and
related agreements does not conflict with or result in the termination of
or accelerate the performance required by or under any contract to which
IWESA are a party, nor will it constitute a default thereunder.
7.12.5 IWESA has not given or made any guarantee, warranty or representation in
respect of articles or trading stock sold or contracted to be sold by it
save for any warranty or guarantee implied by law or made or given in
accordance with IWESA's normal terms of trading and (save as aforesaid)
has not accepted any liability or obligation to service, maintain,
repair, take back or otherwise do or not do anything in respect of any
articles or stock.
7.13 Violations and Litigation
7.13.1 To the Best Knowledge of Sellers and after due and diligent
investigation, neither IWESA, nor any of its employees in the course of
the employment, has violated any laws of Germany, or the laws of any
other country, which violation could lead to a judicial decision,
arbitration award or any other judgment or ruling by any judicial or
arbitration court or governmental or regulatory authority or body which
could materially affect the financial or commercial position of IWESA.
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7.13.2 No conflicts have arisen in the past three years between IWESA and the
Employees except on an individual basis, and to the Best Knowledge of
Sellers and after due and diligent investigation, there are no existing
circumstances which could lead to such a collective labor dispute.
7.13.3 To the Best Knowledge of Sellers and after due and diligent
investigation, IWESA is not a party to any agreement or arrangement which
contravenes the Act against Restraints on Competition ("Gesetz gegen
Wettbewerbsbeschrankungen") or comparable provisions in other countries
or which is or should have been registered under the aforementioned Act
or was or should have been notified to the European Commission under
Article 85 of the EC Treaty.
7.13.4 IWESA has received no notice, summons or official request of any kind
from the European Commission or from the authorities in Germany or in any
other country, competent in anti-trust or competition matters, with
respect to any aspect of IWESA's activities.
7.13.5 IWESA is not engaged in criminal, civil (including proceedings before
labor courts), administrative, arbitration or any other type of legal
proceedings against or affecting IWESA, nor to the Best Knowledge of
Sellers and after due and diligent investigation, there are any such
proceedings or any investigations threatened against IWESA other than
disclosed in Schedule 7.13.5.
7.14. Taxes
7.14.1 IWESA has filed completely and correctly all declarations and documents
in connection with Taxes (as defined hereunder) in accordance with all
tax laws and tax regulations and paid all Taxes on or before their
respective due dates or has fully reserved for all Taxes not yet due.
IWESA have
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kept proper and complete records in relation to all matters relating to
Taxes.
7.14.2 To the Best Knowledge of Sellers and after due and diligent
investigation, IWESA will not lose any tax relief or tax benefit as the
consequence of consuming this transaction or as a consequence of any
events or actions of IWESA or the Selling Shareholders before the
Closing.
7.14.3 The term Taxes shall for the purposes of this Agreement mean all
Abgaben, Steuern, Beitrage, Steuerabzugsbetrage, Zolle and all types of
contributions to mandatory insurance schemes.
7.15 Conduct of business
7.15.1 The tangible and intangible assets as well as all rights and know-how
held by IWESA are sufficient for IWESA to continue its business as
conducted in the past.
7.15.2 IWESA does not have any of its records, systems, or data recorded or
operated or otherwise wholly or partly dependent on, or held by, any
means (including any electronic, mechanical or photographic process
whether computerized or not) which (including all means of access to it
and from it) are not under the exclusive ownership and direct control
of IWESA.
7.16. Arrangements with the Selling Shareholders
Except as for the lease agreements with Sellers for a garage, dated May
30, 1994, IWESA is not a party to any agreement or arrangement with any
of the Selling Shareholders or any person or entity related to any of
the Selling Shareholders.
<PAGE> 29
29
7.17. Product Liability
No claims for defective products or product liability exist, have been
filed or notified against IWESA, nor have the Selling Shareholders or
IWESA any reason to believe that any such claims will be brought
forward. Up to the date hereof there were no serial defects.
7.18 Grants and subsidies
7.18.1 As a result of the conclusion of this Agreement no grants, subsidies or
similar benefits from any governmental, state, municipality, or EC
authority will become repayable, in whole or in part.
7.18.2 Full particulars of all grants, allowances, subsidies, applied for or
paid or made to IWESA during the last three years by, and of all
outstanding claims by IWESA for, any grant or allowance from, any
supranational, national or local authority or government agency are set
out in Schedule 7.18.2, nor will the sale of the Assigned Shares or
subscription to new shares by the Buyer result in all or any part of such
grant or allowance becoming repayable or forfeited or in a claim not
being granted. To the Best Knowledge of Sellers and after due and
diligent investigation, IWESA has not done or failed to do any act or
thing which could result in the foregoing.
7.19 Miscellaneous
7.19.1 To the Best Knowledge of Sellers and after due and diligent
investigation, IWESA will not be subject to any claims brought by a third
party in connection with any assets formerly owned or used by IWESA.
<PAGE> 30
30
7.19.2 To the Best Knowledge of Sellers and after due and diligent
investigation, there are no material facts or circumstances, in relation
to the assets, business or financial condition of IWESA which have not
been fully and fairly disclosed in writing to the Buyer and which, if
disclosed, might reasonably have been expected to affect the decision of
the Buyer to enter into this Agreement.
7.19.3 None of the Selling Shareholders uses his entire assets or substantial
parts (90%) thereof by entering into or by performing his or her
obligations under this Agreement. The Selling Shareholders live in
Gutertrennung.
Article 8
Legal Consequences
8.1 If one or more warranties or representations of the Selling Shareholders
or information provided by the Selling Shareholders during the
negotiations should turn out to be incomplete or incorrect, the Buyer has
a claim for damages for non-performance ("Schadensersatz wegen
Nichterfullung") proportionate to his ownership share.
8.2 The Buyer may also demand that the Selling Shareholders do everything
necessary to create a financial situation with respect to IWESA and its
business which complies with the representations and warranties given
under this Agreement, in particular by paying such amounts to IWESA which
are necessary to enable IWESA to pay dividends in such quantity which it
would have been paid had the representations and warranties been correct
and complete.
8.3 The Buyer may raise Claims only to the extent that they exceed DM 50,000
in the aggregate. If the Claims of the Buyer exceed DM 50,000 in the
aggregate, the Sellers shall be li-
<PAGE> 31
31 & 32
able for the full amount of all such
Claims. For all Claims in connection with Taxes, the Seller shall be
liable in full.
8.4 Section 464 of the German Civil Code and Section 377 of the German
Commercial Code are herewith excluded. In as far as Article 8 contains a
reference to the Best Knowledge of Sellers, such knowledge shall comprise
not only the knowledge of Sellers but also the knowledge of the employees
of IWESA with positions described in the organization chart in Schedule
8.4.
8.5 The Buyer shall have no other remedy than those provided for in this
Agreement.
Article 9
Limitation of Claims
9.1 Claims of the Buyer under Art. 8 shall be limited in time two years after
the Closing Date except in cases where this Agreement provide for longer
periods of limitation.
9.2 Claims of the Buyer against the Selling Shareholders in connection with
Taxes including claims for indemnification shall only be limited in time
six months after the claims by the respective tax authorities have become
time-barred.
9.3 Claims of the Buyer against the Selling Shareholders in connection with
environmental matters and occupational health and safety matters shall
become limited in time five years after the Closing Date.
9.4 Claims of the Buyer based on sections 7.3 and 7.4 hereof shall be limited
after 30 years.
<PAGE> 32
33
Article 10
Covenants of Sellers and Buyer
10.1 Prior to the Closing Date the Selling Shareholders
10.1.1 will procure that IWESA will conduct its operations their usual and
regular course and in the same manner as heretofore conducted;
10.1.2 will use their reasonable efforts to preserve intact the respective
business organizations and goodwill of IWESA;
10.1.3 promptly notify the Buyer of any material emergency or other material
change in the condition (financial or otherwise), business of IWESA,
assets, liabilities or other aspect of IWESA's business;
10.1.4 consult with the Buyer regarding any matter materially affecting IWESA's
business or financial position and any business decision outside the
ordinary course of business.
10.2 Prior to the Closing Date the Selling Shareholders will procure that
IWESA will pay all Taxes and file all tax returns and similar filings on
or before their respective due dates.
10.3 Prior to Closing, the share capital of IWESA shall be increased from DM
1,000,000 to DM 1,430,400.
10.4 With effect as of Closing Date, the Shareholder's Agreement, attached as
Annex 1 to this Agreement shall apply.
<PAGE> 33
34
Article 11
Confidentiality
Except with mutual prior consent, the Parties will keep confidence about any
knowledge or information in connection with the conclusion of this Agreement
and they will not disclose such information to third parties unless there is a
legal obligations to disclose. This shall not apply in relation to the advisors
of the Parties and any company affiliated with INTERMET Corporation. Any
publications have to be agreed upon in advance.
Article 12
Notices
All notices and other material communication required or permitted under this
Agreement shall be in writing,
a) if to Buyer: Mrs. Doretha Christoph or the person occupying her
position, Intermet Corporation, 5445 Corporate
Drive, Suite 200, Troy, Michigan 48098, USA
b) if to Seller: Mr. Armin Becker, Geschaftsfuhrer, IWESA
Gesellschaft fur qualifizierten Maschinenbau mbH,
Lebacher StraBe 6 a, 66113 Saarbrucken
or such other addresses as any such party may designate from time to time.
<PAGE> 34
35
Article 13
Costs and Taxes
Each party will be responsible individually for their own costs connected with
the conclusion of this Agreement and taxes, including costs for their
respective advisors and brokers, if any. Notarial fees and fees for the Federal
Cartel Office, if any, will be split in equal parts between the Seller and the
Buyer. Fees for the Commercial Register and notarial fees relating to this
portion of the notarial deed will be paid for by IWESA; possible transfer taxes
will be borne by the Buyer.
Article 14
Miscellaneous
14.1 In the event any provision hereof is or becomes for any reason invalid
whole or in part, the remainder of this Agreement shall not be affected.
In such an event such a provision shall be considered to be agreed upon
which the Parties would have chosen, had they known about the invalidity
of such provision in order to reach to the economic aim of the provision
to the furthest extent possible. This applies accordingly to issues which
the parties would have addressed in this Agreement had they foreseen the
factual situation underlying those issues ("contractual gaps").
14.2 Changes and amendments of this Agreement require written form, unless
stricter form is required. This applies also to the change of this
provision.
14.3 The Agreement contains all arrangements between the Parties and there are
no side agreements. The Parties agree that with the conclusion of this
Agreement all earlier agreements between the Parties relating to the
subject matters
<PAGE> 35
36
addressed in this Agreement are superseded and shall cease to have any
effect.
14.4 For all disputes arising out of this Agreement and related agreements,
including any dispute regarding the validity of this Agreement, the
Parties submit to the competent courts in Saarbrucken.
This Agreement is governed by the laws of Germany.
14.5 Any institution of proceedings under this Article shall be preceeded by a
meeting between Mr. Ganz, Mr. Becker and the Chief Executive Officer of
INTERMET Corporation or his designate who shall negotiate in good faith to
settle the matter in dispute.
With respect to certain schedules we refer to in the foregoing deed, the
parties make reference to the notarial deed of Dr. Burkhard Punder, notary
public, dated October 29, 1996, Rolls No. 1050/1996, in which the schedules
have already been notarized. This document has been presented in the original
at the time of this notarization. The persons appearing waive their rights to
have the notarial deed read out aloud again and further waive their right to
have the notarial deed appended hereto. The parties hereby approve its
contents.
The notary public has informed the parties that the contents of the above
mentioned public deed will become binding upon the parties through conclusion
of this Agreement.
The persons appearing declare that the notary public Dr. Burkhard Punder has
read aloud the above record as well as the annexes attached hereto (excluding
the powers of attorney), that such record
<PAGE> 36
37
in the notarial deed, Rolls No. 1050/1996 is in compliance with their
intention and that they have personally signed this deed in the presence of
the notary as follows.
[SIG]
[SIG] [SIG]
[SIG]
<PAGE> 1
Exhibit 3.3
INTERMET CORPORATION
RESOLUTION
BE IT RESOLVED, that effective this date at a regular meeting of the Board of
Directors of the Intermet Corporation, that the By-Laws of the Corporation,
amended and restated as of October 27, 1994, be further amended with regard to
Article III, Directors, Section 2, Number, Election and Term.
RESOLVED FURTHER, that the number of directors which shall constitute the whole
board be amended to increase the number of directors up to fifteen (15).
RESOLVED FURTHER, that the remaining terms of Article III, Directors, Section
2, remain as stated.
ADOPTED this 17th day of October, 1996 by the Board of Directors.
<PAGE> 1
Exhibit 4.14
EXECUTION COUNTERPART
==================================================================
THIRD
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of November 14, 1996
among
INTERMET CORPORATION,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK, ATLANTA
as Agent
and
NBD BANK
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
as Co-Agents
==================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I. DEFINITIONS; CONSTRUCTION ........................................ 2
Section 1.01. Definitions .......................................................... 2
Section 1.02. Accounting Terms and Determination ................................... 19
Section 1.03. Other Definitional Terms ............................................. 19
Section 1.04. Exhibits and Schedules ............................................... 20
ARTICLE II. SYNDICATED LOANS, BID RATE LOANS AND
LETTERS OF CREDIT ................................................ 20
Section 2.01. Commitments; Use of Proceeds ......................................... 20
Section 2.02. Notes; Repayment of Principal ........................................ 21
Section 2.03. Voluntary Reduction of Commitments ................................... 21
Section 2.04. Letter of Credit Facility ............................................ 21
Section 2.05. Notice of Issuance of Letter of Credit; Agreement to Issue ........... 21
Section 2.06. Payment of Amounts Drawn Under Letters of Credit ..................... 22
Section 2.07. Payment by Lenders ................................................... 23
Section 2.08. Bid Rate Loans ....................................................... 24
ARTICLE III. GENERAL LOAN AND LETTER OF CREDIT TERMS........................... 26
Section 3.01. Funding Notices ...................................................... 26
Section 3.02. Disbursement of Funds ................................................ 27
Section 3.03. Interest ............................................................. 28
Section 3.04. Interest Periods ..................................................... 30
Section 3.05. Fees ................................................................. 30
Section 3.06. Voluntary Prepayments of Borrowings .................................. 31
Section 3.07. Payments, etc. ....................................................... 32
Section 3.08. Interest Rate Not Ascertainable, etc. ................................ 33
Section 3.09. Illegality ........................................................... 34
Section 3.10. Increased Costs ...................................................... 35
Section 3.11. Lending Offices ...................................................... 36
Section 3.12. Funding Losses ....................................................... 37
Section 3.13. Assumptions Concerning Funding of Eurodollar Advances ................ 37
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 3.14. Apportionment of Payments ............................................ 38
Section 3.15. Sharing of Payments, Etc. ............................................ 38
Section 3.16. Benefits to Guarantors ............................................... 38
Section 3.17. Limitation on Certain Payment Obligations ............................ 38
Section 3.18. Letter of Credit Obligations Absolute ................................ 39
Section 3.19. Failure to Maintain Minimum Required Rating .......................... 40
ARTICLE IV. CONDITIONS TO BORROWINGS ......................................... 40
Section 4.01. Conditions Precedent to Initial Loans and Letters of Credit .......... 40
Section 4.02. Conditions to All Loans and Letters of Credit ........................ 42
ARTICLE V. REPRESENTATIONS AND WARRANTIES ................................... 43
Section 5.01. Corporate Existence; Compliance with Law ............................. 43
Section 5.02. Corporate Power; Authorization ....................................... 44
Section 5.03. Enforceable Obligations .............................................. 44
Section 5.04. No Legal Bar ......................................................... 44
Section 5.05. No Material Litigation or Investigations ............................. 44
Section 5.06. Investment Company Act, Etc. ......................................... 45
Section 5.07. Margin Regulations ................................................... 45
Section 5.08. Compliance with Environmental Laws ................................... 45
Section 5.09. Insurance ............................................................ 46
Section 5.10. No Default ........................................................... 46
Section 5.11. No Burdensome Restrictions ........................................... 46
Section 5.12. Taxes ................................................................ 46
Section 5.13. Subsidiaries ......................................................... 46
Section 5.14. Financial Statements ................................................. 46
Section 5.15. ERISA ................................................................ 47
Section 5.16. Patents, Trademarks, Licenses, Etc. .................................. 48
Section 5.17. Ownership of Property ................................................ 48
Section 5.18. Financial Condition .................................................. 49
Section 5.19. Labor Matters ........................................................ 49
Section 5.20. Payment or Dividend Restrictions ..................................... 49
Section 5.21. Disclosure ........................................................... 49
ARTICLE VI. AFFIRMATIVE COVENANTS ............................................ 50
Section 6.01. Corporate Existence, Etc. ............................................ 50
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 6.02. Compliance with Laws, Etc. ........................................... 50
Section 6.03. Payment of Taxes and Claims, Etc. .................................... 50
Section 6.04. Keeping of Books ..................................................... 50
Section 6.05. Visitation, Inspection, Etc. ......................................... 50
Section 6.06. Insurance; Maintenance of Properties ................................. 51
Section 6.07. Reporting Covenants .................................................. 51
Section 6.08. Financial Covenants .................................................. 55
Section 6.09. Notices Under Certain Other Indebtedness ............................. 55
Section 6.10. Additional Credit Parties and Collateral ............................. 56
Section 6.11. Amendment to Note Purchase Agreement and
Intercreditor Agreement .............................................. 56
ARTICLE VII. NEGATIVE COVENANTS ............................................... 56
Section 7.01. Indebtedness ......................................................... 56
Section 7.02. Liens ................................................................ 57
Section 7.03. Mergers, Acquisitions, Divestitures. ................................. 58
Section 7.04. Asset Sales. ......................................................... 59
Section 7.05. Dividends, Etc. ...................................................... 61
Section 7.06. Investments, Loans, Etc. ............................................. 61
Section 7.07. Sale and Leaseback Transactions ...................................... 62
Section 7.08. Transactions with Affiliates ......................................... 62
Section 7.09. Prepayments of Subordinated Debt in Violation Thereof ................ 63
Section 7.10. Changes in Business .................................................. 63
Section 7.11. Limitation on Payment Restrictions Affecting Consolidated
Companies ........................................................... 63
Section 7.12. Actions Under Certain Documents ...................................... 63
ARTICLE VIII. EVENTS OF DEFAULT ................................................. 64
Section 8.01. Payments ............................................................. 64
Section 8.02. Covenants Without Notice ............................................. 64
Section 8.03. Other Covenants ...................................................... 64
Section 8.04. Representations ...................................................... 64
Section 8.05. Non-Payments of Other Indebtedness ................................... 64
Section 8.06. Defaults Under Other Agreements ...................................... 64
Section 8.07. Bankruptcy ........................................................... 65
Section 8.08. ERISA ................................................................ 65
Section 8.09. Money Judgment ....................................................... 66
Section 8.10. Ownership of Credit Parties and Pledged Entities ..................... 66
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 8.11. Change in Control of Intermet ........................................ 66
Section 8.12. Default Under Other Credit Documents ................................. 67
Section 8.13. Attachments .......................................................... 67
ARTICLE IX. THE AGENT AND CO-AGENTS ........................................... 68
Section 9.01. Appointment of Agent ................................................. 68
Section 9.02. Authorization of Agent with Respect to the Security Documents ........ 68
Section 9.03. Nature of Duties of Agent ............................................ 69
Section 9.04. Lack of Reliance on the Agent ........................................ 69
Section 9.05. Certain Rights of the Agent .......................................... 69
Section 9.06. Reliance by Agent .................................................... 70
Section 9.07. Indemnification of Agent ............................................. 70
Section 9.08. The Agent in its Individual Capacity ................................. 70
Section 9.09. Holders of Notes ..................................................... 70
Section 9.10. Successor Agent ...................................................... 71
Section 9.11. Co-Agents ............................................................ 71
ARTICLE X. MISCELLANEOUS ..................................................... 71
Section 10.01. Notices .............................................................. 71
Section 10.02. Amendments, Etc. ..................................................... 72
Section 10.03. No Waiver; Remedies Cumulative ....................................... 72
Section 10.04. Payment of Expenses, Etc. ............................................ 72
Section 10.05. Right of Setoff ...................................................... 74
Section 10.06. Benefit of Agreement ................................................. 75
Section 10.07. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial ...... 77
Section 10.08. Independent Nature of Lenders' Rights ................................ 78
Section 10.09. Counterparts ......................................................... 78
Section 10.10. Effectiveness; Survival .............................................. 78
Section 10.11. Severability ......................................................... 79
Section 10.12. Independence of Covenants ............................................ 79
Section 10.13. Change in Accounting Principles, Fiscal Year or Tax Laws ............. 79
Section 10.14. Headings Descriptive; Entire Agreement ............................... 79
</TABLE>
iv
<PAGE> 6
SCHEDULES
<TABLE>
<S> <C>
SCHEDULE 5.01 Organization and Ownership of Subsidiaries
SCHEDULE 5.01(a) Lack of Qualification
SCHEDULE 5.05 Certain Pending and Threatened Litigation
SCHEDULE 5.08 Environmental Matters
SCHEDULE 5.11 Burdensome Restrictions
SCHEDULE 5.12 Tax Filings and Payments
SCHEDULE 5.15 Employee Benefit Matters
SCHEDULE 5.16 Patent, Trademark, License, and Other Intellectual Property
Matters
SCHEDULE 5.17 Ownership of Properties
SCHEDULE 5.20 Dividend Restrictions
SCHEDULE 6.08 Financial Covenant Calculations Second Quarter 1996
SCHEDULE 7.01 Existing Indebtedness
SCHEDULE 7.02 Existing Liens
SCHEDULE 7.06 Existing Investments
</TABLE>
EXHIBITS
<TABLE>
<S> <C> <C>
EXHIBIT A - Form of Revolving Note
EXHIBIT B - Form of Bid Facility Note
EXHIBIT C - Form of Letter of Credit Application
EXHIBIT D - Bid Request
EXHIBIT E - Bid Request Invite
EXHIBIT F - Bid Rate Bid
EXHIBIT G - Bid Rate Acceptance/Rejection
EXHIBIT H - Form of Amended and Restated Subsidiary Guaranty
EXHIBIT I - Form of Closing Certificate
EXHIBIT J-1 - Form of Opinion of Dickinson, Wright, Moon, Van Dusen &
Freeman
EXHIBIT J-2 - Form of Opinion of Kilpatrick & Cody
EXHIBIT K - Form of Assignment and Acceptance Agreement
EXHIBIT L - Form of Compliance Certificate
</TABLE>
v
<PAGE> 7
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT made and entered into as
of November 14, 1996, by and among INTERMET CORPORATION, a Georgia corporation
("Intermet"), SUNTRUST BANK, ATLANTA (formerly known as Trust Company Bank), a
banking corporation organized under the laws of the State of Georgia
("SunTrust"), the other banks and lending institutions listed on the signature
pages hereof, and any assignees of SunTrust, or such other banks and lending
institutions which become "Lenders" as provided herein (SunTrust, and such
other banks, lending institutions, and assignees referred to collectively
herein as the "Lenders"), SUNTRUST BANK, ATLANTA, in its capacity as agent for
the Lenders and each successor agent for such Lenders as may be appointed from
time to time pursuant to Article IX hereof (the "Agent"), NBD BANK ("NBD") and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA ("First Union"), in their
respective capacities as co-agents for the Lenders (the "Co-Agents");
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 and restated pursuant to that certain Amended and Restated
Credit Agreement dated as of August 21, 1995 as further amended and restated
pursuant to that Second Amended and Restated Credit Agreement dated as of
February 23, 1996 (as amended up to the date hereof, the "Prior Credit
Agreement") providing certain credit facilities to Intermet;
WHEREAS, Intermet has requested, and the Agent, the Co-Agents and the
Lenders have agreed, to extend certain of the credit facilities provided in the
Prior Credit Agreement, to amend the interest rate and certain other provisions
thereof and to make certain other amendments as set forth herein;
WHEREAS, the parties wish to amend and restate the Prior Credit Agreement
on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, Intermet, the Lenders, the Agent and the Co-Agents agree,
upon the terms and subject to the conditions set forth herein as follows:
1
<PAGE> 8
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 Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of the
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise, (b) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority in
ordinary voting power of the securities of a Person which have ordinary voting
power for the election of directors or (c) otherwise acquires control of a 50%
or more ownership interest in any such Person.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period for
a Eurodollar Advance, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined pursuant to the following formula:
Adjusted LIBO Rate = LIBOR
----------------------
1.00 - LIBOR Reserve Percentage
As used herein, LIBOR Reserve Percentage shall mean, for any Interest Period
for a Eurodollar Advance, the reserve percentage (expressed as a decimal) equal
to the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D).
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under (i) the Syndicated Loans, which Advances shall be
made or outstanding as Base Rate Advances, Overnight Rate Advances or
Eurodollar Advances, as the case may be, and (ii) the Bid Rate Loans, which
Advances shall be made or outstanding as Bid Rate Advances.
2
<PAGE> 9
"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 SunTrust Bank, Atlanta, formerly known as Trust Company
Bank, a Georgia banking corporation and any successor agent appointed pursuant
to Section 9.10 hereof.
"Agreement" shall mean this Third Amended and Restated Credit Agreement,
as amended, modified, restated, or supplemented from time to time.
"Applicable Commitment Percentage" shall mean, with respect to the period
commencing on the Closing Date and continuing through December 31, 1996,
fifteen basis points (0.15%) per annum, and with respect to each fiscal quarter
thereafter, the percentage determined for such fiscal quarter from the chart
set forth below based on Intermet's ratio of Funded Debt to Consolidated EBITDA
determined as of the end of each fiscal quarter, with any change to the
Applicable Commitment Percentage to be immediately effective on the first day
of the second fiscal quarter thereafter:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO COMMITMENT PERCENTAGE
- ------------ ---------------------
Greater than or Equal to
3.0:1.0 .30%
Less than 3.0:1.0 and
Greater than or Equal to
2.75:1.0 .25%
Less than 2.75:1.0 and
Greater than or Equal to
2.50:1.0 .225%
Less than 2.50:1.0 and
Greater than or Equal to
3
<PAGE> 10
2.25:1.00 .20%
Less than 2.25:1.0 but
Greater than or Equal to
2.0:1.0 .175%
Less than 2.0:1.0 .15%
provided, however, if Intermet fails to deliver its financial statements for
such second preceding fiscal quarter pursuant to Section 6.07 prior to the
first day of the then-current fiscal quarter, the Applicable Commitment
Percentage during such current fiscal quarter shall be .30%.
"Applicable Margin" shall mean, with respect to all outstanding Eurodollar
Advances and Letter of Credit Obligations through December 31, 1996, one-half
of one percent (0.50%) per annum, and with respect to all outstanding
Eurodollar Advances and Letter of Credit Obligations during each fiscal quarter
thereafter, the percentage determined for such fiscal quarter from the chart
set forth below based on Intermet's ratio of Funded Debt to Consolidated EBITDA
determined as of the end of each fiscal quarter, with any change to the
Applicable Margin to be immediately effective on the first day of the second
fiscal quarter thereafter:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO MARGIN
- ------------ ----------
Greater than or Equal to
3.0:1.0 1.25%
Less than 3.0:1.0 and
Greater than or Equal to
2.75:1.0 1.00%
Less than 2.75:1.0 and
Greater than or Equal to
2.50:1.0 .875%
Less than 2.50:1.0 and
Greater than or Equal to
2.25:1.00 .75%
Less than 2.25:1.0 but
Greater than or Equal to
2.0:1.0 .625%
4
<PAGE> 11
Less than 2.0:1.0 .50%
provided, however, if Intermet fails to deliver its financial statements for
such second preceding fiscal quarter pursuant to Section 6.07 prior to the
first day of the then-current fiscal quarter, the Applicable Margin with
respect to Eurodollar Advances and Letter of Credit Obligations during such
current fiscal quarter shall be 1.25%. By way of example, as of the first day
of the fourth fiscal quarter of Intermet, the Applicable Margin with respect to
Eurodollar Advances and Letter of Credit Obligations outstanding hereunder
shall be calculated based upon the ratio of Funded Debt to Consolidated EBITDA
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, 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 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 K.
"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 the higher of (with any change in the Base Rate to
be effective as of the date of change of either of the following rates):
(a) the rate which the Agent publicly announces from time to time to
be its prime lending rate, as in effect from time to time, and
(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
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<PAGE> 12
best rate charged to customers; the Agent may make commercial loans or other
loans at rates of interest at, above or below the Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding as (i) a
Syndicated Loan bearing interest based on the Base Rate, or (ii) an Advance
bearing interest at the rate agreed upon between Intermet and the Lenders
pursuant to Section 3.08, Section 3.09 or Section 3.10.
"Bid Accept/Reject Letter" shall mean a notification made by Intermet
pursuant to Section 2.08 substantially in the form of Exhibit G.
"Bid Facility Note" shall mean a promissory note of Intermet payable to
the order of any Lender, in substantially the form of Exhibit B hereto,
evidencing the maximum aggregate principal indebtedness of Intermet to such
Lender with respect to outstanding Bid Rate Advances made by such Lender
pursuant to this Agreement, either as originally executed or as it may be from
time to time supplemented, modified, amended, renewed or extended.
"Bid Rate" shall mean, as to any Bid Rate Bid made by a Lender pursuant to
Section 2.08, the fixed rate of interest per annum offered by the Lender making
the Bid Rate Bid for the relevant Interest Period.
"Bid Rate Advance" shall mean an Advance made by a Lender to Intermet
pursuant to the bidding procedure described in Section 2.08.
"Bid Rate Bid" shall mean an offer by a Lender to make a Bid Rate Loan
pursuant to Section 2.08.
"Bid Rate Loan" shall mean a Borrowing made up of Advances by all of those
Lenders whose Bid Rate Bids have been accepted by Intermet pursuant to the same
Bid Request under the bidding procedure described in Section 2.08 for the same
Interest Period and interest rate (with the understanding that two Bid Rate
Loans may be made pursuant to a single Bid Request).
"Bid Request" shall mean a request made by Intermet pursuant to Section
2.08 substantially in the form of Exhibit D.
"Borrowing" 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:
(a) any day which is neither a Saturday or Sunday nor a legal holiday on
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<PAGE> 13
which banks are required or authorized to close in Atlanta, Georgia or New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
Eurodollar Advances, any day on which trading is carried on by and between
banks in deposits of Dollars in the London interbank market.
"Change in Control Provision" shall mean any term or provision 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 November 14, 1996 on which
the initial Loans are made or deemed to have been made hereunder and the
conditions set forth in Section 4.01 are satisfied or waived in accordance with
Section 10.02.
"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, the amount of such
commitment set forth opposite such Lender's name on the signature pages hereof,
as the same may be increased or decreased from time to time as a result of any
reduction thereof pursuant to Section 2.03, any assignment thereof pursuant to
Section 10.06, or any amendment thereof pursuant to Section 10.02.
"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 period of Consolidated Net Income
(Loss) and, to the extent deducted in determining such Consolidated Net Income
(Loss), provisions for (i) taxes based on income and (ii) Consolidated Interest
Expense, minus (B) any items of gain (or plus any items of loss) which were
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, plus (C) without duplication, the sum of the following items to the
extent not
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<PAGE> 14
included in Consolidated Net Income (Loss) for such period:
(1) the net income (or net loss) for such period of any Person
which became a Subsidiary during such period (a "New Subsidiary");
(2) the net income (or net loss) derived during such period from
any assets acquired by any Consolidated Company during such period ("New
Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any New Subsidiary or derived from any New Assets
during such period: (x) taxes based on income, (y) Consolidated Interest
Expense, and (z) any items of gain (or plus any items of loss) which
were included in determining such net income and were (aa) not realized in
the ordinary course of business (whether or not classified as "ordinary" by
GAAP), (bb) the result of any sale of assets, or (cc) resulting from
minority investments, together in the case of (aa), (bb) or (cc), any
related provision for taxes included in such net income with respect
thereto;
minus (D) the sum of the following items to the extent included in determining
Consolidated Net Income (Loss) for such period:
(1) the net income (or net loss) for such period of any Person
which ceased to be a Subsidiary (other than due to merger or consolidated
with another Consolidated Company) during such period (an "Old
Subsidiary");
(2) the net income (or net loss) derived during such period from
any assets sold or otherwise disposed of by any Consolidated Company during
such period ("Old Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any Old Subsidiary or derived from any Old Assets
during such period: (x) taxes based on income, (y) Consolidated Interest
Expense, and (z) any items of gain (or plus any items of loss) which were
included in determining such net income and were (aa) not realized in
the ordinary course of business (whether or not classified as "ordinary" by
GAAP), (bb) the result of any sale of assets, or (cc) resulting from
minority investments, together in the case of (aa), (bb) or (cc), any
related provision for taxes included in such net income with respect
thereto.
For purposes of calculating any financial definitions based upon Consolidated
EBIT, the addition or subtraction of any other financial definitions to or from
Consolidated EBIT shall be calculated with appropriate adjustment for New
Subsidiaries, New Assets, Old Subsidiaries and Old Assets as is consistent with
this definition.
"Consolidated EBITDA" shall mean for any fiscal period of Intermet, an
amount equal to the sum of Consolidated EBIT plus depreciation and amortization
expense to the extent
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<PAGE> 15
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.
"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 an initial 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.
"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.
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<PAGE> 16
"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.
"Default" shall mean any condition or event which, with notice or lapse of
time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money of the
United States of America.
"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
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).
"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
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<PAGE> 17
(whether or not incorporated) which is a member of a group of which that Person
is a member and which is under common control within the meaning of the
regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or outstanding as a
Syndicated Loan bearing interest based on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning provided in Article VIII.
"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 Commitments, or the Bid Rate
subfacility or the Letter of Credit facility, as the context may indicate.
"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.
"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, and (ii) Consolidated Rental
Expense, in each case, calculated with respect to the immediately preceding
four fiscal quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing, deferred
compensation, or other employee benefit plan, program or arrangement maintained
by any Foreign Subsidiary which, under applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not include any
benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company that is
organized under the laws of a jurisdiction other than the United States of
America or any State thereof.
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<PAGE> 18
"Funded Debt" shall mean all Indebtedness for money borrowed, Indebtedness
evidenced or secured by purchase money Liens, capitalized leases, conditional
sales contracts and similar title retention debt instruments, whether
designated as long term or current debt under GAAP. 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.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantors" shall mean, collectively, Lynchburg Foundry Company, Ironton
Iron, Inc., Northern Castings Corporation, Intermet International, Inc., New
River Castings Company, Alexander City Castings Company, Inc. and all other
domestic Subsidiaries formed or acquired after the Closing Date unless
otherwise agreed by the Required Lenders pursuant to Section 6.10.
"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 H as the same may be amended, restated or supplemented from time to
time.
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"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 Act of 1986.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or
combinations thereof to the extent required to be disclosed in accordance with
GAAP.
"Intercreditor Agreement" shall mean that certain Intercreditor Agreement
dated as of December 11, 1992 by and among the Lenders and The Prudential
Insurance Company of America, as amended by that certain First Amendment to
Intercreditor Agreement dated as of August 21, 1995, as further amended by that
certain Second Amendment to Intercreditor Agreement, dated as of February 23,
1996, as hereafter further amended, modified or supplemented.
"Interest Period" shall mean (i) as to any Eurodollar Advances, the
interest period selected by Intermet pursuant to Section 3.04(a) hereof, and
(ii) as to any Bid Rate Advances, the interest period requested by Intermet and
agreed to by the participating Lenders pursuant to Section 3.04(b) hereof.
"Intermet" shall mean Intermet Corporation, a Georgia corporation, its
successors and permitted assigns.
"Investment" shall mean, when used with respect to any Person, any direct
or indirect advance, loan or other extension of credit (other than the creation
of receivables in the ordinary 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.
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"Lender" or "Lenders" shall mean SunTrust, the other banks and lending
institutions listed on the signature pages hereof, and each assignee thereof,
if any, pursuant to Section 10.06(c).
"Lending Office" shall mean for each Lender the office such Lender may
designate in writing from time to time to Intermet and the Agent with respect
to each Type of Loan.
"Letter of Credit Fee" shall have the meaning set forth in Section
3.05(b).
"Letters of Credit" shall mean the letters of credit issued pursuant to
Article II hereof by the Agent for the account of Intermet pursuant to the
Commitments.
"Letter of Credit Obligations" shall mean, with respect to Letters of
Credit, as at any date of determination, the sum of (a) the maximum aggregate
amount which at such date of determination is available to be drawn by the
beneficiaries thereof (assuming the conditions for drawing thereunder have been
met) under all Letters of Credit then outstanding, plus (b) the aggregate
amount of all drawings under Letters of Credit honored by the Agent not
theretofore reimbursed by Intermet.
"Leverage Ratio" shall mean, as of any date of determination, the ratio,
expressed as a percentage, of Funded Debt to Total Capitalization for the
Consolidated Companies.
"LIBOR" shall mean, for any Interest Period, with respect to Eurodollar
Advances under the Commitments, the offered rate for deposits in Dollars, for a
period comparable to the Interest Period and in an amount comparable to the
Agent's portion of such Advances, appearing on Telerate Page 3750 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 such
Telerate Page, the rate shall be the arithmetic mean of such rates. If the
foregoing rate is unavailable from Telerate for any reason, then such rate
shall be determined by the Agent from the Reuters Screen LIBO Page or, if such
rate is also unavailable on such service, then on any other interest rate
reporting service of recognized standing designated in writing by the Agent to
Intermet and the other Lenders; in any such case rounded, if necessary, to the
next higher 1/100 of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, lien, charge,
hypothecation, assignment, deposit arrangement, title retention, preferential
property right, trust or other arrangement having the practical effect of the
foregoing and shall include the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention
agreement.
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<PAGE> 21
"Loans" shall mean, collectively, the Syndicated Loans and the Bid Rate
Loans.
"Margin Regulations" shall mean Regulation G, Regulation T, Regulation U
and Regulation X of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time.
"Margin Stock" shall have the meaning set forth in the Margin Regulations.
"Materially Adverse Effect" shall mean any materially adverse change in
(i) the business, results of operations, financial condition, assets or
prospects of the Consolidated Companies, taken as a whole, (ii) the ability of
Intermet to perform its obligations under this Agreement, (iii) the ability of
the other Credit Parties (taken as a whole) to perform their respective
obligations under the Credit Documents, or (iv) the perfection or priority of
the Liens granted in favor of the Agent pursuant to the Security Documents.
"Maturity Date" shall mean the earlier of (i) November 14, 1999, and (ii)
the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the
provisions of Article VIII.
"Minimum Required Rating" shall mean (i) from Moody's, a long-term deposit
rating of A1 or higher (or comparable rating in the event Moody's hereafter
modifies its rating system for long-term deposits of commercial banks), and
(ii) from S&P, a long-term deposit rating of A+ or higher (or comparable rating
in the event S&P hereafter modifies its rating system for long-term deposits of
commercial banks).
"Moody's" shall mean Moody's Investors Service, Inc., and its successors
and assigns.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Fixed Assets" shall mean, as of any date of determination, the net
property, plant and equipment of the Consolidated Companies determined in
accordance with GAAP and as reflected on the balance sheet of Intermet.
"Note Purchase Agreement" shall mean that certain Amended and Restated
Note Purchase Agreement dated as of March 21, 1996, by and between Intermet and
The Prudential Insurance Company of America, as amended, modified or
supplemented.
"Notes" shall mean, collectively, the Revolving Credit Notes and the Bid
Facility Notes.
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<PAGE> 22
"Notice of Borrowing" shall have the meaning provided in Section
3.01(a)(i).
"Notice of Continuation/Conversion" shall have the meaning provided in
Section 3.01(b)(i).
"Obligations" shall mean all amounts owing to the Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document, including
without limitation, all Loans (including all principal and interest payments
due thereunder), all Letter of Credit Obligations, fees, expenses,
indemnification and reimbursement payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising, together with
all renewals, extensions, modifications or refinancings thereof.
"Overnight Advances" shall mean Advances hereunder bearing interest based
upon the Overnight Rate.
"Overnight Rate" shall mean the rate per annum determined by the Agent in
good faith as of 11:00 A.M. (local time for the Agent) on each Business Day to
be the rate at which overnight loans are made available to the Agent by the
Federal Reserve Bank of Atlanta, with such rate to remain in effect until
redetermined by the Agent on the next Business Day.
"Payment Office" shall mean the office specified as the "Payment Office"
for the Agent on the signature page of the Agent, or such other location as to
which the Agent shall have given written notice to Intermet and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted by Section
7.02.
"Person" shall mean any individual, limited liability company,
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, any pledge agreement
providing
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<PAGE> 23
for the grant of first priority Liens on the Pledged Stock.
"Pledged Stock" shall mean, collectively, 49% of the issued and
outstanding capital stock, together with all warrants, stock options, and other
purchase and conversion rights with respect to such capital stock, of all
Subsidiaries that are Foreign Subsidiaries directly owned by Intermet and/or
owned by one or more other Subsidiaries organized in the United States (other
than Columbus Neunkirchen, Intermet Machining GmbH, and Intermet Holding
Deutschland GmbH).
"Prior Credit Agreement" shall have the meaning set forth in the recitals
hereof.
"Pro Rata Share" shall mean, with respect to Commitments, each Syndicated
Loan and all Letters of Credit to be made by and each payment (including,
without limitation, any payment of principal, interest or fees) to be made to
each Lender, the percentage designated as such Lender's Pro Rata Share of such
Commitments, set forth under the name of such Lender on the respective
signature page for such Lender, as such percentage may change based upon
amendments and assignments hereunder.
"Prudential" shall mean The Prudential Insurance Company of America.
"Rating Agencies" shall mean, collectively, Moody's and S&P.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean at any time prior to the termination of the
Commitments, Lenders holding at least 66-2/3% of the then aggregate amount of
the Commitments, or, following the termination of the Commitments hereunder,
Lenders holding at least 66-2/3% of the sum of the aggregate outstanding Loans
and Letter of Credit Obligations.
"Requirement of Law" for any person shall mean the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
"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).
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"Revolving Credit Notes" shall mean, collectively, the promissory notes
evidencing the Syndicated Loans in the form attached hereto as Exhibit A,
either as originally executed or as hereafter amended, modified or substituted.
"S&P" shall mean Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
"Security Documents" shall mean, collectively, the Guaranty Agreements,
the Pledge Agreements, and each other guaranty agreement, mortgage, deed of
trust, security agreement, pledge agreement, or other security or collateral
document guaranteeing or securing the Obligations, as the same may be amended,
restated, or supplemented from time to time.
"Shareholders' Equity" shall mean, with respect to any Person as at any
date of determination, shareholders' equity of such Person determined on a
consolidated basis in conformity with GAAP.
"Solvent" shall mean, as to Intermet or any Guarantor at any time, that
(i) each of the fair value and the present fair saleable value of such Person's
assets (including any rights of subrogation or contribution to which such
Person is entitled, under any of the Loan Documents or otherwise) is greater
than such Person's debts and other liabilities (including contingent, unmatured
and unliquidated debts and liabilities) and the maximum estimated amount
required to pay such debts and liabilities as such debts and liabilities mature
or otherwise become payable; (ii) such Person is able and expects to be able to
pay its debts and other liabilities (including, without limitation, contingent,
unmatured and unliquidated debts and liabilities) as they mature; and (iii)
such Person does not have unreasonably small capital to carry on its business
as conducted and as proposed to be conducted.
"Subordinated Debt" shall mean other Indebtedness of Intermet subordinated
to all obligations of Intermet or any other Credit Party arising under this
Agreement, the Notes, and the Guaranty Agreements on terms and conditions
satisfactory in all respects to the Agent and the Required Lenders, including
without limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Agent and Required
Lenders.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, joint ventures, and
associations) regardless of its jurisdiction of organization or formation, at
least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries.
"Syndicated Loans" shall mean, collectively, all outstanding Loans made to
Intermet by the Lenders pursuant to Section 2.01 hereof.
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"Tax Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever
nature, including without limitation, income, receipts, excise, property,
sales, transfer, license, payroll, withholding, social security and franchise
taxes now or hereafter imposed or levied by the United States, or any state,
local or foreign government or by any department, agency or other political
subdivision or taxing authority thereof or therein and all interest, penalties,
additions to tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any designated page
and LIBOR, the display page so designated on the Dow Jones Telerate Service (or
such other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Total Assets" shall mean the total assets of the Consolidated Companies,
determined in accordance with GAAP.
"Total Capitalization" shall mean, as of any date of determination, the
sum of Funded Debt and Consolidated Net Worth of the Consolidated Companies.
"Total Sales" shall mean, for any period of determination, the total
revenues of the Consolidated Companies, determined in accordance with GAAP.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Overnight Rate Advances or Eurodollar Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms shall be construed herein,
all accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP, except that financial records of
Foreign Subsidiaries may be maintained in accordance with generally accepted
accounting principles in effect from time to time in the jurisdiction of
organization of such Foreign Subsidiary; provided, however, that compliance
with the financial covenants and calculations set forth in Section 6.08,
Article VII, and elsewhere herein, and in the definitions used in such
covenants and calculations, shall be calculated, made and applied in accordance
with GAAP and such generally accepted accounting principles in such foreign
jurisdictions, as the case may be, as in effect on the date of this Agreement
applied on a basis consistent with the preparation of the financial statements
referred to in Section 5.14 unless and until Intermet and the Required Lenders
enter into an agreement with respect thereto in
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accordance with Section 10.13.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified. Any of the terms defined in Section
1.01 may, unless the context otherwise requires, be used in the singular or the
plural depending on the reference.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE II.
SYNDICATED LOANS, BID RATE LOANS AND LETTERS OF CREDIT
SECTION 2.01. COMMITMENTS; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth, each
Lender severally agrees to make to Intermet from time to time on and after the
Closing Date, but prior to the Maturity Date, Syndicated Loans in an aggregate
amount outstanding at any time not to exceed such Lender's Commitment minus
such Lender's Pro Rata Share of the Letter of Credit Obligations, subject,
however, to the conditions that (i) at no time shall the sum of the (x) the
outstanding principal amount of all Syndicated Loans, plus (y) the outstanding
principal amount of all Bid Rate Loans, plus (z) the outstanding Letter of
Credit Obligations, exceed the sum of the Commitments, (ii) at no time shall
the sum of the outstanding principal amount of Syndicated Loans comprised of
Overnight Rate Advances exceed $30,000,000, and (iii) at all times shall the
outstanding principal amount of the Syndicated Loans of each Lender equal the
product of each Lender's Pro Rata Share of the Commitments multiplied by the
aggregate outstanding amount of the Syndicated Loans. In addition, at no time
shall the outstanding principal amount of the Bid Rate Loans outstanding under
this Agreement exceed $100,000,000. Intermet shall be entitled to repay and
reborrow Syndicated Loans in accordance with the provisions hereof.
(b) Each Syndicated Loan shall, at the option of Intermet, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances, Eurodollar Advances, or subject to the
limitation set forth in subsection (a) above, Overnight Rate Advances. The
aggregate principal amount of each Borrowing of Syndicated Loans shall be not
less than $5,000,000 or a greater integral multiple of $1,000,000, provided
that each Borrowing of Syndicated Loans comprised of Base Rate Advances or
Overnight Rate Advances shall be not less than $1,000,000 or a greater integral
multiple of $100,000. At no time shall the number of outstanding Borrowings
comprised of Eurodollar Advances exceed twelve.
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(c) The proceeds of Loans shall be used solely for the following
purposes:
(i) On the Closing Date all amounts outstanding pursuant to the
Prior Credit Agreement and the letters of credit issued thereunder shall
be deemed to be outstanding hereunder and the Lenders shall make and
receive such payments as the Agent shall direct to pay out the exiting
lenders under the Prior Credit Agreement and to adjust the Pro Rata
Shares of the Lenders to reflect the terms of this Agreement; and
(ii) All other amounts shall be used as working capital and for
other general corporate purposes, including Acquisitions, Investments,
the repayment of Indebtedness and the funding of capital expenditures of
the Consolidated Companies.
SECTION 2.02. NOTES; REPAYMENT OF PRINCIPAL.
(a) Intermet's obligations to pay the principal of, and interest on, the
Syndicated Loans to each Lender shall be evidenced by the records of the Agent
and such Lender and by the Revolving Credit Note payable to such Lender (or the
assignor of such Lender) completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Commitments shall be due
and payable in full on the Maturity Date.
SECTION 2.03. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
(3) Business Days' prior telephonic notice (promptly confirmed in writing) to
the Agent, Intermet shall have the right, without premium or penalty, to
terminate the unutilized Commitments, in part or in whole, provided that (i)
any such termination shall apply to proportionately and permanently reduce the
Commitments of each of the Lenders, and (ii) any partial termination pursuant
to this Section 2.03 shall be in an amount of at least $5,000,000 and integral
multiples of $1,000,000.
SECTION 2.04. LETTER OF CREDIT FACILITY. Subject to, and upon the terms
and conditions set forth herein, Intermet may request, in accordance with the
provisions of this Section 2.04 and Section 2.05 and the other terms of this
Agreement, that on and after the Closing Date but prior to the Maturity Date,
the Agent issue a Letter or Letters of Credit for the account of Intermet;
provided that the application for such Letters of Credit issued by the Agent
shall be in the form substantially identical to Exhibit C attached hereto,
provided further that (i) no Letter of Credit shall have an expiration date
that is later than one year after the date of issuance thereof (provided that a
Letter of Credit may provide that it is extendible for consecutive one year
periods); (ii) in no event shall any Letter of Credit issued by the Agent have
an expiration date (or be extended so that it will expire) later than the
Maturity Date; and
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(iii) Intermet shall not request that the Agent issue any Letter of Credit, if,
after giving effect to such issuance, the sum of the aggregate Letter of Credit
Obligations plus the aggregate outstanding principal amount of the Syndicated
Loans plus the aggregate outstanding principal amount of the Bid Rate Loans
would exceed the Commitments.
SECTION 2.05. NOTICE OF ISSUANCE OF LETTER OF CREDIT; AGREEMENT TO ISSUE.
(a) Whenever Intermet desires the issuance of a Letter of Credit, it
shall, in addition to any application and documentation procedures required by
the Agent for the issuance of such Letter of Credit, deliver to the Agent a
written notice no later than 11:00 AM (local time for the Agent) at least five
(5) days in advance of the proposed date of issuance and the Agent shall
promptly forward a copy of such notice to each of the Lenders. Each such
notice shall specify (i) the proposed date of issuance (which shall be a
Business Day); (ii) the face amount of the Letter of Credit; (iii) the
expiration date of the Letter of Credit; and (iv) the name and address of the
beneficiary with respect to such Letter of Credit and shall attach a precise
description of the documentation and a verbatim text of any certificate to be
presented by the beneficiary of such Letter of Credit which would require the
Agent to make payment under the Letter of Credit, provided that the Agent may
require changes in any such documents and certificates in accordance with its
customary letter of credit practices, and provided further, that no Letter of
Credit shall require payment against a conforming draft to be made thereunder
on the same Business Day that such draft is presented if such presentation is
made after 11:00 AM (Atlanta, Georgia time). In determining whether to pay any
draft under any Letter of Credit, the Agent shall be responsible only to
determine that the documents and certificate required to be delivered under
its Letter of Credit have been delivered, and that they comply on their face
with the requirements of the Letter of Credit. Promptly after receiving the
notice of issuance of a Letter of Credit, the Agent shall notify each Lender of
such Lender's respective participation therein, determined in accordance with
its respective Pro Rata Share of the Commitments.
(b) The Agent agrees, subject to the terms and conditions set forth in
this Agreement, to issue for the account of Intermet a Letter of Credit in a
face amount equal to the face amount requested under paragraph (a) above,
following its receipt of a notice required by Section 2.05(a). Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Agent a participation in
such Letter of Credit and any drawing thereunder in an amount equal to such
Lender's Pro Rata Share of the Commitments multiplied by the face amount of
such Letter of Credit. Upon issuance and amendment or extension of any Letter
of Credit, the Agent shall provide a copy of each such Letter of Credit issued,
amended or extended hereunder to each of the Lenders.
(c) As of the Closing Date, each of the Letters of Credit set forth on
Schedule 7.01 shall be deemed to have been issued by the Agent in accordance
with the terms hereof, each of the Lenders shall be deemed to have purchased a
participation in such Letters of Credit in an amount equal to such Lender's Pro
Rata Share of the Commitments multiplied by the face amount thereof, and such
Letters of Credit shall be governed by the terms hereof.
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SECTION 2.06. PAYMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(a) In the event of any request for a drawing under any Letter of Credit
by the beneficiary thereof, the Agent shall notify Intermet and the Lenders on
or before the date on which the Agent intends to honor such drawing, and
Intermet shall reimburse the Agent on the day on which such drawing is honored
in an amount, in same day funds, equal to the amount of such drawing.
(b) Notwithstanding any provision of this Agreement to the contrary, to
the extent that any Letter of Credit or portion thereof remains outstanding on
the Maturity Date, for any reason whatsoever, the parties hereto hereby agree
that the beneficiary or beneficiaries thereof shall be deemed to have made a
drawing of all available amounts pursuant to such Letters of Credit on the
Maturity Date which amount shall be held by the Agent as cash collateral for
its remaining obligations pursuant to such Letters of Credit.
(c) As between Intermet and the Agent, Intermet assumes
all risk of the acts and omissions of, or misuse of, the Letters of Credit
issued by the Agent, by the respective beneficiaries of such Letters of Credit,
other than losses resulting from the gross negligence and willful misconduct of
the Agent. In furtherance and not in limitation of the foregoing but subject
to the exception for the Agent's gross negligence or willful misconduct set
forth above, the Agent shall not be responsible (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Letters
of Credit, even if it should in fact prove to be in any or all respects
insufficient, inaccurate, fraudulent or forged or otherwise invalid; (ii) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof in whole or in part which may prove to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of any such Letter of Credit to comply fully with the conditions required in
order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, telecopy or otherwise; (v) for good faith errors in
interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of the Agent.
SECTION 2.07. PAYMENT BY LENDERS. In the event that Intermet shall fail
to reimburse the Agent as provided in Section 2.06, the Agent shall promptly
notify each Lender of the unreimbursed amount of such drawing and of such
Lender's respective participation therein. Each Lender shall make available to
the Agent an amount equal to its respective participation, in
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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 and such amount shall be
deemed to be outstanding hereunder as a Base Rate Loan. Each Lender shall be
obligated to make such Base Rate Loan hereunder regardless of whether the
conditions precedent in Article IV are satisfied and regardless of whether such
Base Rate Loan complies with the minimum borrowing requirements hereunder. In
the event that any such Lender fails to make available to the Agent the amount
of such Lender's participation in such Letter of Credit, the Agent shall be
entitled to recover such amount on demand from such Lender together with
interest as provided for in Section 3.02. The Agent shall distribute to each
Lender which has paid all amounts payable under this Section with respect to
any Letter of Credit, such Lender's Pro Rata Share of all payments received by
the Agent from Intermet in reimbursement of drawings honored by the Agent under
such Letter of Credit when such payments are received.
SECTION 2.08 BID RATE LOANS. Subject to the terms and conditions
hereof, Intermet may request, and each Lender, in its sole discretion, may
agree to make Bid Rate Advances in accordance with the following procedure;
provided, that, (x) at no time shall the sum of the aggregate outstanding
principal amount of the Bid Rate Loans exceed $100,000,000, and (y) at no time
shall the sum of the outstanding principal amount of the Loans plus the Letter
of Credit Obligations exceed the sum of Commitments:
(a) In order to request Bid Rate Bids, Intermet shall telecopy to the
Agent a duly completed Bid Request in the form of Exhibit D attached hereto
(which may request not more than two Bid Rate Bids), to be received by the
Agent not later than 11:00 a.m. (local time for the Agent) time, on the
Business Day of the proposed Bid Rate Loan or Loans; provided that, such Bid
Request shall not be deemed to have been received by the Agent in a timely
manner unless Intermet shall also have notified the Agent by telephone
(excluding voice mail notification) of such Bid Request by the time specified
above. A Bid Request that does not conform substantially to the format of
Exhibit D may be rejected in the Agent's sole discretion, and the Agent shall
notify Intermet of such rejection by telecopy not later than 12:00 noon
(Atlanta, Georgia time) on the date of receipt. Such request shall in each
case refer to this Agreement and specify (i) the date of such Borrowing or
Borrowings (which shall be a Business Day) and (ii) the aggregate principal
amount thereof which shall be in a minimum principal amount of $1,000,000 and
in an integral multiple of $100,000, and (iii) the Interest Period with respect
thereto. Promptly after its receipt of a Bid Request that is not rejected as
aforesaid, the Agent shall invite by telecopy (substantially in the form set
forth in Exhibit E attached hereto) the Lenders to bid, on the terms and
conditions of this Agreement, to make Bid Rate Advances pursuant to the Bid
Request.
(b) Each Lender may, in its sole discretion, make one or more Bid Rate
Bids (but not more than two) to Intermet responsive to a Bid Request. Each Bid
Rate Bid by a Lender must be received by the Agent via telecopy, substantially
in the form of Exhibit F attached hereto, not later than 12:00 noon (local time
for the Agent) on the Business Day of the proposed Bid Rate Loan. Multiple
bids (not to exceed two per Lender) will be accepted by the
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Agent. Bid Rate Bids that do not conform substantially to the format of
Exhibit F may be rejected by the Agent acting in consultation with Intermet,
and the Agent shall notify the Lender making such nonconforming bid of such
rejection as soon as practicable. Each Bid Rate Bid shall refer to this
Agreement and specify (i) the principal amount (which shall be in a minimum
principal amount of $1,000,000 and in an integral multiple of $100,000 and
which may equal the entire principal amount of the Bid Rate Loan requested by
Intermet) of the Bid Rate Advance or Advances that the Lender is willing to
make to Intermet, (ii) the Bid Rate or Rates at which the Lender is prepared to
make the Bid Rate Advance or Advances, and (iii) the Interest Period and the
last day thereof. If any Lender shall elect not to make a Bid Rate Bid, such
Lender shall so notify the Agent via telecopy by the time specified above for
submitting a Bid Rate Bid; provided, however, that failure by any Lender to
give such notice shall not cause such Lender to be obligated to make any Bid
Rate Advance as part of such Bid Rate Loan. A Bid Rate Bid submitted by a
Lender pursuant to this paragraph (b) shall be irrevocable (absent manifest
error).
(c) The Agent shall promptly notify Intermet by telecopy of all the Bid
Rate Bids made, the Bid Rate and the principal amount of each Bid Rate Advance
in respect of which a Bid Rate Bid was made and the identity of the Lender that
made each bid. The Agent shall send a copy of all Bid Rate Bids to Intermet
for its records as soon as practicable after completion of the bidding process
set forth in this Section 2.08.
(d) Intermet may, in its sole and absolute discretion, subject only to the
provisions of this paragraph (d), accept or reject any Bid Rate Bid referred to
in paragraph (c) above. Intermet shall notify the Agent by telephone,
confirmed by telecopy in the form of a Bid Accept/Reject Letter, whether and to
what extent it has decided to accept or reject any of or all the bids referred
to in paragraph (c) above not later than 12:30 p.m. (local time for the Agent)
on the Business Day of the proposed Bid Loan; provided, however, that (i) the
failure by Intermet to give such notice shall be deemed to be a rejection of
all the bids referred to in paragraph (c) above, (ii) Intermet shall not accept
a bid made at a particular Bid Rate if Intermet has decided to reject a bid
made at a lower Bid Rate, (iii) the aggregate amount of the Bid Rate Bids
accepted by Intermet shall not exceed the principal amount specified in the Bid
Request, (iv) if Intermet shall accept a bid or bids made at a particular Bid
Rate but the amount of such bid or bids shall cause the total amount of bids to
be accepted by Intermet to exceed the amount specified in the Bid Request, then
Intermet shall accept a portion of such bid or bids in an amount equal to the
amount specified in the Bid Request less the amount of all other Bid Rate Bids
accepted with respect to such Bid Request, which acceptance, in the case of
multiple bids at the same Bid Rate, shall be made pro rata in accordance with
the amount of each such bid at such Bid Rate, and (v) except pursuant to clause
(iv) above, no bid shall be accepted for a Bid Rate Loan unless such Bid Rate
Loan is in a minimum principal amount of $1,000,000 and an integral multiple of
$100,000; provided further, however, that if a Bid Loan must be in an amount
less than $1,000,000 because of the provisions of clause (iv) above, such Bid
Loan may be for a minimum of $500,000 or any integral multiple thereof, and in
calculating the pro rata allocation of
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acceptances of portions of multiple bids at a particular Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of $500,000 in a
manner which shall be in the discretion of Intermet. A notice given by
Intermet pursuant to this paragraph (d) shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender whether or not its
Bid Rate Bid has been accepted (and if so, in what amount and at what Bid Rate)
and shall notify each Lender as to the amount, Interest Period and Bid Rate of
each Bid Rate Bid accepted by Intermet by telecopy sent by the Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Bid Rate Loan in respect of which its bid has
been accepted.
(f) Intermet shall not submit a Bid Request more than twice in any seven
day period.
(g) If the Agent shall elect to submit a Bid Rate Bid in its capacity as a
Lender, it shall submit such bid directly to Intermet one half of an hour
earlier than the earliest time at which the other Lenders are required to
submit their bids to the Agent pursuant to paragraph (b) above.
(h) Each Lender participating in any Bid Rate Loan shall make its Bid Rate
Advance available to the Agent on the date specified in the Bid Request at the
time and in the manner and subject to the provisions specified in Section 3.02.
(i) The Bid Rate Advances of each Lender shall be evidenced by its Bid
Facility Note and shall be due and payable in full on the Maturity Date unless
sooner accelerated pursuant to Article VIII hereof.
ARTICLE III.
GENERAL LOAN AND LETTER OF CREDIT TERMS
SECTION 3.01. FUNDING NOTICES.
(a) (i) Whenever Intermet desires to obtain a Syndicated Loan with respect
to the Commitments (other than one resulting from a conversion or continuation
pursuant to Section 3.01(b)(i)), it shall give the Agent prior written notice
(or telephonic notice promptly confirmed in writing) of such Borrowing (a
"Notice of Borrowing"), such Notice of Borrowing to be given prior to 11:00 AM
(local time for the Agent) at its Payment Office (x) three Business Days prior
to the requested date of such Borrowing in the case of Eurodollar Advances, and
(y) on the date of such Borrowing (which shall be a Business Day) in the case
of a Borrowing consisting of Overnight Rate Advances or Base Rate Advances.
Notices received after 11:00 AM shall be deemed received on the next Business
Day. Each Notice of Borrowing shall be
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irrevocable and shall specify the aggregate principal amount of the Borrowing,
the date of Borrowing (which shall be a Business Day), and whether the
Borrowing is to consist of Base Rate Advances, Overnight Rate Advances or
Eurodollar Advances and (in the case of Eurodollar Advances) the Interest
Period to be applicable thereto.
(ii) Whenever Intermet desires to obtain a Bid Rate Loan, it shall
notify the Agent in accordance with the procedure set forth in Section 2.08
hereof.
(b) (i) Whenever Intermet desires to convert all or a portion of an
outstanding Borrowing under the Commitments, which Borrowing consists of Base
Rate Advances, Overnight Rate Advances or Eurodollar Advances, into one or more
Borrowings consisting of Advances of another Type, or to continue outstanding a
Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall
give the Agent at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each such Borrowing to be
converted into or continued as Eurodollar Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 AM (local time for the
Agent) on the date specified at the Payment Office of the Agent. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Advances to be converted or continued, the
date of such conversion or continuation, whether the Advances are being
converted into or continued Eurodollar Advances and, if so, the Interest Period
applicable thereto. If, upon the expiration of any Interest Period in respect
of any Borrowing, Intermet shall have failed to deliver the Notice of
Conversion/Continuation, Intermet shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So
long as any Executive Officer of Intermet has knowledge that any Default or
Event of Default shall have occurred and be continuing, no Borrowing may be
converted into or continued as (upon expiration of the current Interest Period)
Eurodollar Advances unless the Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any Borrowing of Eurodollar
Advances shall be permitted except on the last day of the Interest Period in
respect thereof.
(ii) Upon the expiration of the applicable Interest Period with
respect to Bid Rate Loans, Intermet shall repay such Loan in full in accordance
with the terms hereof.
(c) Without in any way limiting Intermet's obligation to confirm in
writing any telephonic notice, the Agent may act without liability upon the
basis of telephonic notice believed by the Agent in good faith to be from
Intermet prior to receipt of written confirmation. In each such case, Intermet
hereby waives the right to dispute the Agent's record of the terms of such
telephonic notice.
(d) The Agent shall promptly give each Lender notice by telephone
(confirmed in writing) or by telex, telecopy or facsimile transmission of the
matters covered by
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the notices given to the Agent pursuant to this Section 3.01 with respect to
the Commitments.
SECTION 3.02. DISBURSEMENT OF FUNDS.
(a) No later than 12:00 Noon (local time for the Agent) on the date of
each Syndicated Loan pursuant to the Commitments (other than one resulting from
a conversion or continuation pursuant to Section 3.01(b)(i)), each Lender will
make available its Pro Rata Share of such Syndicated Loan in immediately
available funds at the Payment Office of the Agent. The Agent will make
available to Intermet the aggregate of the amounts (if any) so made available
by the Lenders to the Agent in a timely manner by crediting such amounts to
Intermet's demand deposit account maintained with the Agent or at Intermet's
option, effecting a wire transfer of such amounts to an account specified by
Intermet, by the close of business on such Business Day. In the event that the
Lenders do not make such amounts available to the Agent by the time prescribed
above, but such amount is received later that day, such amount may be credited
to Intermet in the manner described in the preceding sentence on the next
Business Day (with interest on such amount to begin accruing hereunder on such
next Business Day).
(b) No later than 3:00 P.M. (local time for the Agent) on the date of each
Bid Rate Loan, the Lenders participating in such Bid Rate Loan will make
available the amount of its Bid Rate Advance in immediately available funds at
the Payment Office of the Agent on the date of such Bid Rate Loan.
(c) Unless the Agent shall have been notified by any Lender prior to the
date of a Borrowing that such Lender does not intend to make available to the
Agent such Lender's portion of the Borrowing to be made on such date, the Agent
may assume that such Lender has made such amount available to the Agent on such
date and the Agent may make available to Intermet a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by such
Lender on the date of Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify
Intermet, and Intermet shall immediately pay such corresponding amount to the
Agent together with interest at the rate specified for the Borrowing. Nothing
in this subsection shall be deemed to relieve any Lender from its obligation to
fund its Commitment or Bid Rate Loans hereunder or to prejudice any rights
which Intermet may have against any Lender as a result of any default by such
Lender hereunder.
(d) All Syndicated Loans under the Commitments shall be loaned by the
Lenders on the basis of their Pro Rata Share of the Commitments. All Bid Rate
Loans shall be loaned by the Lenders participating therein in accordance with
their respective pro rata shares thereof as determined in accordance with
Section 2.08 with respect to each Bid Loan. No Lender shall be responsible for
any default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of
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the failure of any other Lender to fund its Commitments or Bid Rate Loans
hereunder.
SECTION 3.03. INTEREST.
(a) Intermet agrees to pay interest in respect of all unpaid principal
amounts of Syndicated Loans from the respective dates such principal amounts
were advanced to maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time to
time;
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate plus
the Applicable Margin; or
(iii) For Overnight Rate Advances -- The relevant Overnight Rate
plus one and one-half of one percent (1.5%) per annum;
(b) Intermet agrees to pay interest in respect of all unpaid principal
amounts of the Bid Rate Loans made to Intermet from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at the Bid Rate established for such Loan pursuant to
Section 2.08;
(c) Overdue principal and, to the extent not prohibited by applicable law,
overdue interest, in respect of the Loans, and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect to
all Loans outstanding as Eurodollar Advances and Bid Rate Advances, at
the rate otherwise applicable for the then-current Interest Period plus
an additional two percent (2.0%) per annum; thereafter at the rate in
effect for Base Rate Advances plus an additional two percent (2.0%) per
annum; and
(ii) in the case of overdue principal and interest with respect to
all other Loans outstanding as Base Rate Advances and Overnight Rate
Advances, and all other Obligations hereunder (other than Loans), at a
rate equal to the applicable Base Rate plus an additional two percent
(2.0%) per annum;
(d) Interest on each Loan shall accrue from and including the date of such
Loan to but excluding the date of any repayment thereof; provided that, if a
Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all Base Rate
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Advances and Overnight Rate Advances shall be payable quarterly in arrears on
the last calendar day of each calendar quarter of Intermet in each year.
Interest on all outstanding Eurodollar Advances and Bid Rate Advances shall be
payable on the last day of each Interest Period applicable thereto, and, in the
case of Interest Periods in excess of three months (in the case of Eurodollar
Advances and Bid Rate Advances), on each day which occurs every 3 months, as
the case may be, after the initial date of such Interest Period. Interest on
all Loans shall be payable on any conversion of any Advances comprising such
Loans into Advances of another Type, prepayment (on the amount prepaid), at
maturity (whether by acceleration, notice of prepayment or otherwise) and,
after maturity, on demand; and
(e) The Agent, upon determining the Adjusted LIBO Rate for any Interest
Period, shall promptly notify by telephone (confirmed in writing) or in writing
Intermet and the other Lenders. Any such determination shall, absent manifest
error, be final, conclusive and binding for all purposes.
SECTION 3.04. INTEREST PERIODS.
(a) In connection with the making or continuation of, or conversion into,
each Borrowing of Eurodollar Advances, Intermet shall select an Interest Period
to be applicable to such Eurodollar Advances, which Interest Period shall be
either a 1, 2, 3 or 6 month period.
(b) In connection with the making of each Bid Rate Loan, Intermet shall
request an Interest Period to be applicable thereto, which Interest Period
shall be for a minimum of seven (7) days and a maximum of ninety (90) days,
which request may be accepted or rejected by the Lenders as provided in Section
2.08 hereof.
(c) Notwithstanding paragraphs (a) or (b) above:
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing consisting of Advances of another
Type) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest
Period expires;
(ii) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period in respect
of Eurodollar Advances would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically corresponding day in
the calendar
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month at the end of such Interest Period shall, subject to part (iv)
below, expire on the last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend
beyond the Maturity Date.
SECTION 3.05. FEES.
(a) Intermet shall pay to the Agent, for the account of and distribution
of the respective Pro Rata Share to each Lender (subject to the last sentence
hereof), a commitment fee (the "Commitment Fee") for the period commencing on
the Closing Date to and including the Maturity Date, computed at a rate equal
to the Applicable Commitment Percentage per annum multiplied by the average
daily unused portion of the Commitments of the 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 Maturity Date. For purposes of
calculating the Commitment Fee, Bid Rate Loans shall be considered a usage of
the Commitments only with respect to the Lenders participating therein and only
to the extent of such Lenders' actual participation therein. Outstanding
Letter of Credit Obligations shall be considered usage of the Commitments.
(b) Intermet agrees to pay to the Agent, for the account of the Lenders, a
letter of credit fee equal to the Applicable Margin applicable to Eurodollar
Advances multiplied by the daily average amount of Letter of Credit Obligations
(the "Letter of Credit Fee"). The Letter of Credit Fee shall be payable by
Intermet quarterly, in arrears, on the date which is five days following the
last day of each fiscal quarter of Intermet, and on the Maturity Date.
(c) Intermet shall pay to the Agent such fees for its administrative
services in the respective amounts and on the dates as previously agreed in
writing by Intermet with the Agent.
SECTION 3.06. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Intermet may, at its option, prepay Borrowings consisting of Base Rate
Advances, Bid Rate Advances and Overnight Rate Advances at any time in whole,
or from time to time in part, in amounts aggregating $100,000 or any greater
integral multiple of $100,000, by paying the principal amount to be prepaid
together with interest accrued and unpaid thereon to the date of prepayment,
together with, in the case of Bid Rate Advances, all compensation payments
pursuant to Section 3.12 if such prepayment is made on a date other than the
last day of the Interest Period applicable thereto. Those Borrowings
consisting of Eurodollar Advances may be prepaid, at Intermet's option, in
whole, or from time to time in part, in amounts aggregating $1,000,000 or any
greater integral multiple of $100,000, by paying the principal amount to be
prepaid, together with interest accrued and unpaid thereon to the date of
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prepayment, and all compensation payments pursuant to Section 3.12 if such
prepayment is made on a date other than the last day of an Interest Period
applicable thereto. Each such optional prepayment shall be applied in
accordance with Section 3.06(c) below.
(b) Intermet shall give written notice (or telephonic notice confirmed in
writing) to the Agent of any intended prepayment of the Loans (i) prior to
12:00 Noon (local time for the Agent), on the date of any prepayment of Base
Rate Advances, Overnight Rate Advances and Bid Rate Advances and (ii) not less
than three Business Days prior to any prepayment of Eurodollar Advances. Such
notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment, the Agent shall promptly notify each Lender of the contents of
such notice and of such Lender's share of such prepayment (provided that
notices of prepayments of Bid Rate Loans shall only be given to the Lenders
participating therein).
(c) Intermet, when providing notice of prepayment pursuant to Section
3.06(b), may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid provided that each prepayment made pursuant
to a single Borrowing shall be applied pro rata among the Advances comprising
such Borrowing. In the absence of a designation by Intermet, the Agent shall,
subject to the foregoing, make such designation in its sole discretion. All
voluntary prepayments shall be applied to the payment of interest on the
Borrowings prepaid before application to principal.
SECTION 3.07. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all payments under
this Agreement and the other Credit Documents, other than the payments
specified in clause (ii) below, shall be made without defense, set-off or
counterclaim to the Agent not later than 1:00 PM (local time for the Agent) on
the date when due and shall be made in Dollars in immediately available funds
at its Payment Office.
(b) (i) All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in respect of this Agreement, the Notes
or other Credit Documents, or any payments of principal, interest, fees or
other amounts payable hereunder or thereunder (but excluding, except as
provided in paragraph (iii) hereof, any Taxes imposed on the overall net income
of the Lenders pursuant to the laws of the jurisdiction in which the principal
executive office or appropriate Lending Office of such Lender is located). If
any Taxes are so levied or imposed, Intermet agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every
net payment of all amounts due hereunder and under the Notes and other Credit
Documents, after withholding or deduction for or on account of any such Taxes
(including additional sums payable under this Section 3.07), will not be less
than the full amount provided for herein had no such deduction or withholding
been required, (B) to make such withholding or deduction and (C) to pay the
full amount deducted to the relevant authority in accordance with applicable
law. Intermet will furnish to the Agent and each Lender, within 30 days after
the date the payment of any Taxes is due pursuant to applicable
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law, certified copies of tax receipts evidencing such payment by Intermet.
Intermet will indemnify and hold harmless the Agent and each Lender and
reimburse the Agent and each Lender upon written request for the amount of any
Taxes so levied or imposed and paid by the Agent or Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or illegally asserted. A
certificate as to the amount of such payment by such Lender or the Agent,
absent manifest error, shall be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) agrees to furnish to Intermet and the Agent, prior to the
time it becomes a Lender hereunder, two copies of either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any successor
forms thereto (wherein such Lender claims entitlement to complete exemption
from or reduced rate of U.S. Federal withholding tax on interest paid by
Intermet hereunder) and to provide to Intermet and the Agent a new Form 4224 or
Form 1001 or any successor forms thereto if any previously delivered form is
found to be incomplete or incorrect in any material respect or upon the
obsolescence of any previously delivered form; provided, however, that no
Lender shall be required to furnish a form under this paragraph (ii) if it is
not entitled to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law, promptly upon written request
of Intermet, shall so inform Intermet in writing.
(iii) Intermet shall also reimburse the Agent and each Lender, upon
written request, for any Taxes imposed (including, without limitation, Taxes
imposed on the overall net income of the Agent or Lender or its applicable
Lending Office pursuant to the laws of the jurisdiction in which the principal
executive office or the applicable Lending Office of the Agent or Lender is
located) as the Agent or Lender shall determine are payable by the Agent or
Lender in respect of amounts paid by or on behalf of Intermet to or on behalf
of the Agent or Lender pursuant to paragraph (i) hereof.
(c) Subject to Section 3.04(ii), whenever any payment to be made hereunder
or under any Note shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable
at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed), except that
interest on Base Rate Advances shall be computed on the basis of a year of
365/366 days for the actual number of days. Interest on Base Rate Advances
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shall be calculated based on the Base Rate from and including the date of such
Loan to but excluding the date of the repayment or conversion thereof.
Interest on Eurodollar Advances and Bid Rate Advances shall be calculated as to
each Interest Period from and including the first day thereof to but excluding
the last day thereof. Each determination by the Agent of an interest rate or
fee hereunder shall be made in good faith and, except for manifest error, shall
be final, conclusive and binding for all purposes.
(e) Payment by Intermet to the Agent in accordance with the terms of this
Agreement shall, as to Intermet, constitute payment to the Lenders under this
Agreement.
SECTION 3.08. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that
the Agent shall have determined (which determination shall be made in good
faith and, absent manifest error, shall be final, conclusive and binding upon
all parties) that on any date for determining the Adjusted LIBO Rate for any
Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Agent's position in
such market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Adjusted LIBO Rate then, and in any such event, the Agent shall forthwith give
notice (by telephone confirmed in writing) to Intermet and to the Lenders, of
such determination and a summary of the basis for such determination. Until
the Agent notifies Intermet that the circumstances giving rise to the
suspension described herein no longer exist, the obligations of the Lenders to
make or permit portions of the Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar Advances shall be suspended,
and such affected Advances shall bear interest at the Base Rate (or at such
other rate of interest per annum as Intermet and each of the Agent and the
Lenders shall have agreed to in writing).
SECTION 3.09. ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to
Intermet and to the Agent of such determination and a summary of the basis for
such determination (which notice the Agent shall promptly transmit to the other
Lenders).
(b) Upon the giving of the notice to Intermet referred to in subsection
(a) above, (i) Intermet's right to request and such Lender's obligation to make
Eurodollar Advances shall be immediately suspended, and such Lender shall make
an Advance as part of the requested Borrowing of Eurodollar Advances, bearing
interest at the Base Rate (or at such other rate of interest per annum as
Intermet and each of the Agent and the Lenders shall have agreed to in
writing), which Base Rate Advance shall, for all other purposes, be considered
part of such
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Borrowing, and (ii) if the affected Eurodollar Advance or Advances are then
outstanding, Intermet shall immediately, or if permitted by applicable law, no
later than the date permitted thereby, upon at least one Business Day's written
notice to the Agent and the affected Lender, convert each such Advance into an
Advance or Advances of a different Type with an Interest Period ending on the
date on which the Interest Period applicable to the affected Eurodollar
Advances expires, provided that if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant to this
Section 3.09(b).
(c) Notwithstanding any other provision contained in this Agreement, the
Agent shall not be obligated to issue any Letter of Credit, nor shall any
Lender be obligated to purchase its participation in any Letter of Credit to be
issued hereunder, if the issuance of such Letter of Credit or purchase of such
participation shall have become unlawful or prohibited by compliance by Agent
or such Lender in good faith with any law, governmental rule, guideline,
request, order, injunction, judgment or decree (whether or not having the force
of law); provided that in the case of the obligation of a Lender to purchase
such participation, such Lender shall have notified the Agent to such effect at
least three (3) Business Days' prior to the issuance thereof by the Agent,
which notice shall relieve the Agent of its obligation to issue such Letter of
Credit pursuant to Section 2.04 and Section 2.05 hereof.
SECTION 3.10. INCREASED COSTS.
(a) (i) If, by reason of (x) after the date hereof, the introduction of or
any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any
central bank or other governmental authority or quasi-governmental authority
exercising control over banks or financial institutions generally (whether or
not having the force of law):
(1) any Lender (or its applicable Lending Office) shall be subject
to any tax, duty or other charge with respect to its Eurodollar Advances,
Letter of Credit Obligations or its obligation to make Eurodollar
Advances or to issue Letters of Credit, or the basis of taxation of
payments to any Lender of the principal of or interest on its Eurodollar
Advances or its obligation to make Eurodollar Advances or to issue
Letters of Credit shall have changed (except for changes in the tax on
the overall net income of such Lender or its applicable Lending Office
imposed by the jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(2) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender's applicable Lending Office shall
be imposed or deemed applicable or any
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other condition affecting its Eurodollar Advances, Letter of Credit
Obligations or its obligation to make Eurodollar Advances shall be
imposed on any Lender or its applicable Lending Office or the London
interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances or
Letters of Credit (except to the extent already included in the determination
of the applicable Adjusted LIBO Rate), or there shall be a reduction in the
amount received or receivable by such Lender or its applicable Lending Office,
then Intermet shall from time to time (subject, in the case of certain Taxes,
to the applicable provisions of Section 3.07(b)), or
(ii) in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any 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, in the case of (i) or (ii) above, upon written notice from and demand by
such Lender on Intermet (with a copy of such notice and demand to the Agent),
Intermet shall pay to the Agent for the account of such Lender within five
Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost or reduced
yield. A certificate as to the amount of such increased cost or reduced yield
submitted to Intermet and the Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time, because of the
circumstances described in clauses (x) or (y) in Section 3.10(a) or any other
circumstances beyond such Lender's reasonable control arising after the date of
this Agreement affecting such Lender or the London interbank market or such
Lender's position in such markets, the Adjusted LIBO Rate as determined by the
Agent, will not adequately and fairly reflect the cost to such Lender of
funding its Eurodollar Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed in
writing) to Intermet and to the other Lenders of such advice;
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(ii) Intermet's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding past the last
day of the then current Interest Periods as Eurodollar Advances shall be
immediately suspended; and
(iii) such Lender shall make an Advance as part of the requested
Borrowing of Eurodollar Advances, as the case may be, bearing interest
at the Base Rate (or at such other rate of interest per annum as Intermet
and each of the Agent and the Lenders shall have agreed to in writing),
which Base Rate Advance shall, for all other purposes, be considered part
of such Borrowing.
SECTION 3.11. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Intermet, it will use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate an alternate Lending Office with respect to any of its Eurodollar
Advances affected by the matters or circumstances described in Sections
3.07(b), 3.08, 3.09 or 3.10 to reduce the liability of Intermet or avoid the
results provided thereunder, so long as such designation is not disadvantageous
to such Lender as determined by such Lender, which determination if made in
good faith, shall be conclusive and binding on all parties hereto. Nothing in
this Section 3.11 shall affect or postpone any of the obligations of Intermet
or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the closing
of its lending offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be required to be
made by Intermet thereafter pursuant to Section 3.07(b), such Lender shall use
reasonable efforts to furnish Intermet notice thereof as soon as practicable
thereafter; provided, however, that no delay or failure to furnish such notice
shall in any event release or discharge Intermet from its obligations to such
Lender pursuant to Section 3.07(b) or otherwise result in any liability of such
Lender.
SECTION 3.12. FUNDING LOSSES. Intermet shall compensate each Lender,
upon its written request to Intermet (which request shall set forth the basis
for requesting such amounts in reasonable detail and which request shall be
made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances or Bid
Rate Advances, in either case to the extent not recovered by such Lender in
connection with the re-employment of such funds and including loss of
anticipated profits), which the Lender may sustain: (i) if for any reason
(other than a default by such Lender) a borrowing of, or conversion to or
continuation of, Eurodollar Advances or Bid Rate Advances to Intermet does not
occur on the date specified therefor in a
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Notice of Borrowing, Bid Request or Notice of Conversion/Continuation, (whether
or not withdrawn), (ii) if any repayment (including mandatory prepayments and
any conversions pursuant to Section 3.09(b)) of any Eurodollar Advances or Bid
Rate Advances by Intermet occurs on a date which is not the last day of an
Interest Period applicable thereto, or (iii) if, for any reason, Intermet
defaults in its obligation to repay its Eurodollar Advances when required by
the terms of this Agreement.
SECTION 3.13. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
Calculation of all amounts payable to a Lender under this Article III shall be
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Eurodollar Advances in an amount equal to the amount of
the Eurodollar Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that Lender in the
United States of America; provided however, that each Lender may fund each of
its Eurodollar Advances in any manner it sees fit and the foregoing assumption
shall be used only for calculation of amounts payable under this Article III.
SECTION 3.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans and payments in respect of Letter of
Credit Fees and Commitment Fees shall be apportioned among all outstanding
Commitments, Letter of Credit Obligations and Loans to which such payments
relate, proportionately to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans and Letter of Credit Obligations. The Agent
shall promptly distribute to each Lender at its Payment Office set forth beside
its name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Agent.
SECTION 3.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code) of the Obligations (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its pro rata
portion of payments or reductions on account of such obligations obtained by
all the Lenders (other than, prior to the termination of the Commitments,
payments of principal, interest and fees with respect to the Bid Rate Loans
which are payable solely to the Lenders participating therein), such Lender
shall forthwith (i) notify each of the other Lenders and Agent of such receipt,
and (ii) purchase from the other Lenders such participations in the affected
obligations as shall be necessary to cause such purchasing Lender to share the
excess payment or reduction, net of costs incurred in connection therewith,
ratably with each of them, provided that if all or any portion of such excess
payment or reduction is thereafter recovered from such purchasing Lender or
additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional
costs, but without interest unless the Lender obligated to return such funds is
required to pay interest on such funds. Intermet agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 3.15
may, to
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the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of Intermet in the amount of such
participation.
SECTION 3.16. BENEFITS TO GUARANTORS. In consideration of the execution
and delivery by the Guarantors of the Guaranty Agreement, Intermet agrees,
subject to the terms hereof, to make extensions of credit hereunder available
to the Guarantors.
SECTION 3.17. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or Agent shall make written demand on Intermet for
indemnification or compensation pursuant to Section 3.07 no later than 90 days
after the earlier of (i) the date on which such Lender or Agent makes payment
of such Taxes, and (ii) the date on which the relevant taxing authority or
other governmental authority makes written demand upon such Lender or Agent for
payment of such Taxes.
(b) Each Lender or Agent shall make written demand on Intermet for
indemnification or compensation pursuant to Sections 3.12 and 3.13 no later
than 90 days after the event giving rise to the claim for indemnification or
compensation occurs.
(c) Each Lender or Agent shall make written demand on Intermet for
indemnification or compensation pursuant to Sections 3.09 no later than 90 days
after such Lender or Agent receives actual notice or obtains actual knowledge
of the promulgation of a law, rule, order or interpretation or occurrence of
another event giving rise to a claim pursuant to such sections.
(d) In the event that the Lenders or Agent fail to give Intermet notice
within the time limitations prescribed in (a) or (b) above, Intermet shall not
have any obligation to pay such claim for compensation or indemnification. In
the event that any Lender or Agent fails to give Intermet notice within the
time limitation prescribed in (c) above, Intermet shall not have any obligation
to pay any amount with respect to claims accruing prior to the ninetieth day
preceding such written demand.
SECTION 3.18. LETTER OF CREDIT OBLIGATIONS ABSOLUTE. The obligation of
Intermet to reimburse the Agent for drawings made under Letters of Credit
issued for the account of Intermet and the Lenders' obligation to honor their
participations purchased therein shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including without limitation, the following circumstances:
(a) Any lack of validity or enforceability of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which
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Intermet or any Subsidiary or Affiliate of Intermet may have at any time
against a beneficiary or any transferee of any Letter of Credit (or any Persons
or entities for whom any such beneficiary or transferee may be acting), any
Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including
without limitation any underlying transaction between Intermet or any of its
Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit
was procured); provided that nothing in this Section shall affect the right of
Intermet to seek relief against any beneficiary, transferee, Lender or any
other Person in any action or proceeding or to bring a counterclaim in any suit
involving such Persons;
(c) Any draft, demand, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect;
(d) Payment by the Agent under any Letter of Credit against presentation
of a demand, draft or certificate or other document which does not comply with
the terms of such Letter of Credit;
(e) Any other circumstance or happening whatsoever which is similar to any
of the foregoing; or
(f) the fact that a Default or an Event of Default shall have occurred and
be continuing.
Nothing in this Section 3.18 shall prevent an action against the Agent for its
gross negligence or willful misconduct in honoring drafts under the Letters of
Credit.
SECTION 3.19. FAILURE TO MAINTAIN MINIMUM REQUIRED RATING. If any Lender
has either (a) had its long-term deposit rating reduced below the Minimum
Required Rating by either Rating Agency, or (b) in the case of a Lender that
is a party to this Agreement on the Closing Date and has, on such date, a
long-term deposit rating from the Rating Agencies below the applicable Minimum
Required Rating, such Lender has received from either Rating Agency a reduction
in its long-term deposit rating from the rating in effect on the Closing Date,
such Lender, will, upon the request of the Agent, assign its Commitment and all
of its right, title and interest in and to any Letters of Credit or Loans
outstanding thereunder, to an Eligible Assignee designated by the Agent and
acceptable to Intermet in accordance with the terms of this Agreement.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Intermet and the
obligation
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of the Agent to issue Letters of Credit for the account of Intermet hereunder
is subject to the satisfaction of the following conditions:
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF
CREDIT. On the Closing Date, all obligations of Intermet hereunder incurred
prior to such date (including, without limitation, Intermet's obligations to
reimburse the reasonable fees and expenses of counsel to the Agent and any fees
and expenses payable to the Agent, the Co-Agents, the Lenders and their
Affiliates 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 executed Revolving Credit Notes evidencing the Commitments
and the duly executed Bid Facility Notes;
(c) the duly executed Guaranty Agreement;
(d) certificate of Intermet in substantially the form of Exhibit I
attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of each of the
Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company
officer) attaching and certifying copies of the resolutions of the boards of
directors (or, in the case of any Foreign Subsidiary, the comparable governing
body of such entity) of the Credit Parties, authorizing as applicable (i) the
execution, delivery and performance of the Credit Documents, and (ii) the
granting of the pledges and security interests granted pursuant to the Pledge
Agreements;
(f) certificates of the Secretary or an Assistant Secretary of each of the
Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company
officer) certifying (i) the name, title and true signature of each officer of
such entities executing the Credit Documents, and (ii) the bylaws or comparable
governing documents of such entities;
(g) certified copies of the certificate or articles of incorporation of
each Credit Party (or comparable organizational document of each Foreign
Subsidiary) certified by the Secretary of State or the Secretary or Assistant
Secretary of such Credit Party, together with certificates of good standing or
existence, as may be available from the Secretary of State (or comparable
office or registry for each Foreign Subsidiary) of the jurisdiction of
incorporation or organization of such Credit Party;
(h) copies of all documents and instruments, including all consents,
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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;
(i) an internally prepared draft of Intermet's consolidated financial
statements for the fiscal period ending June 30, 1996, certified by the chief
financial officer of Intermet;
(j) notice to, and acknowledgment by, the exiting lenders pursuant to the
Prior Credit Agreement to accept payment in full of all obligations outstanding
under the Prior Credit Agreement;
(k) 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;
(l) 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;
(m) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations arising
from litigation (including without limitation, products liability and patent
infringement claims) pending or threatened against the Consolidated Companies;
(n) 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;
(o) the favorable opinion of Dickinson, Wright, Moon, Van Dusen & Freeman,
counsel to the Credit Parties, substantially in the form of Exhibit J-1
addressed to the Agent, the Co-Agents and each of the Lenders and the favorable
opinion of Kilpatrick & Cody, special Georgia counsel to the Credit Parties,
substantially in the form of Exhibit J-2 addressed to the Agent, the Co-Agents
and each of the Lenders;
(p) consent from Prudential to the execution and delivery of this
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Agreement in form and substance satisfactory to the Agent and the Required
Lenders; and
(q) all corporate proceedings and all other legal matters in connection
with the authorization, legality, validity and enforceability of the Credit
Documents shall be reasonably satisfactory in form and substance to the
Required Lenders.
SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. At the time
of the making of all Loans and the issuance of any Letter of Credit (before as
well as after giving effect to such Loans or Letters of Credit and to the
proposed use of the proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Intermet contained herein shall
be true and correct in all material respects with the same effect as though
such representations and warranties had been made on and as of the date of such
Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 5.14, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect (whether or not any notice with respect to such change has been
furnished to the Lenders pursuant to Section 6.07);
(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; and
(e) the Loans to be made and the use of proceeds thereof or the Letters of
Credit to be issued, as the case may be, shall not contravene, violate or
conflict with, or involve the Agent or any Lender in a violation of, any law,
rule, injunction, or regulation, or determination of any court of law or other
governmental authority applicable to Intermet.
Each request for a Borrowing and the acceptance by Intermet of the
proceeds thereof and each request for the issuance of a Letter of Credit shall
constitute a representation and warranty by Intermet, as of the date of the
Loans comprising such Borrowing or the date of the issuance of such Letter of
Credit, that the applicable conditions specified in Sections 4.01 and 4.02 have
been satisfied or waived in writing.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Intermet (as to itself and all other Consolidated Companies) represents
and warrants as follows:
SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Except as set
forth on Schedule 5.01(a), each of the Consolidated Companies (other than the
German Subsidiaries set forth in the next sentence) is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. Each of Columbus Neunkirchen, Intermet
Machining GmbH and Intermet Holding Deutschland GmbH is a German company with
limited liability duly organized, validly existing and in good standing under
the laws of Germany. Each of the Consolidated Companies (i) has the corporate
power and authority and the legal right to own and operate its property and to
conduct its business, (ii) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its ownership of
property or the conduct of its business requires such qualification, and (iii)
is in compliance with all Requirements of Law, except where the failure to duly
qualify or to comply with applicable Requirements of Law would not have a
Materially Adverse Effect. The jurisdiction of incorporation or organization,
and the ownership of all issued and outstanding capital stock, for each
Subsidiary as of the date of this Agreement is accurately described on Schedule
5.01.
SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the Credit Parties
has the corporate power and authority to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate action
to authorize the execution, delivery and performance of such Credit Documents.
No consent or authorization of, or filing with, any Person (including, without
limitation, any governmental authority), is required in connection with the
execution, delivery or performance by any Credit Party, or the validity or
enforceability against any Credit Party, of the Credit Documents, other than
such consents, authorizations or filings which have been made or obtained
(other than routine filings with the Securities and Exchange Commission).
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement has been duly
executed and delivered, and each other Credit Document will be duly executed
and delivered, by the respective Credit Parties, and this Agreement
constitutes, and each other Credit Document when executed and delivered will
constitute, legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
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SECTION 5.04. 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 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS. Except as set
forth on Schedule 5.05 or in any notice furnished to the Lenders pursuant to
Section 6.07(g) at or prior to the respective times the representations and
warranties set forth in this Section 5.05 are made or deemed to be made
hereunder, no litigation, investigations or proceedings of or before any
courts, tribunals, arbitrators or governmental authorities are pending or, to
the knowledge of Intermet, threatened by or against any of the Consolidated
Companies, or against any of their respective properties or revenues, existing
or future (a) with respect to any Credit Document, or any of the transactions
contemplated hereby or thereby, or (b) which, if adversely determined, would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the Consolidated
Companies is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). None of the Consolidated
Companies is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any foreign, federal or local statute or
regulation limiting its ability to incur indebtedness for money borrowed,
guarantee such indebtedness, or pledge its assets to secure such indebtedness,
as contemplated hereby or by any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of any of the
Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) Except as set forth on Schedule 5.08 attached hereto, the Consolidated
Companies have received no notices of claims or potential liability under, and
are in compliance with, all applicable Environmental Laws, where such claims
and liabilities under, and failures to comply with, such statutes, regulations,
rules, ordinances, laws or licenses, would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated Companies in
amounts in excess of five percent (5%) of Consolidated Net Worth, either
individually or in the aggregate.
(b) Except as set forth on Schedule 5.08 attached hereto, none of the
Consolidated Companies has received any notice of violation, or notice of any
action, either judicial or administrative, from any governmental authority
(whether United States or foreign) relating to the actual or alleged violation
of any Environmental Law, including, without
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limitation, any notice of any actual or alleged spill, leak, or other release
of any Hazardous Substance, waste or hazardous waste by any Consolidated
Company or its employees or agents, or as to the existence of any contamination
on any properties owned by any Consolidated Company, where any such violation,
spill, leak, release or contamination would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated Companies in
amounts in excess of five percent (5%) of Consolidated Net Worth, either
individually or in the aggregate.
(c) Except as set forth on Schedule 5.08 attached hereto, the Consolidated
Companies have obtained all necessary governmental permits, licenses and
approvals which are material to the operations conducted on their respective
properties, including without limitation, all required material permits,
licenses and approvals for (i) the emission of air pollutants or contaminants,
(ii) the treatment or pretreatment and discharge of waste water or storm water,
(iii) the treatment, storage, disposal or generation of hazardous wastes, (iv)
the withdrawal and usage of ground water or surface water, and (v) the disposal
of solid wastes.
SECTION 5.09. INSURANCE. The Consolidated Companies currently maintain
insurance with respect to their respective properties and businesses, with
financially sound and reputable insurers, having coverages against losses or
damages of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance being in amounts no less than those
amounts which are customary for such companies under similar circumstances.
The Consolidated Companies have paid all material amounts of insurance premiums
now due and owing with respect to such insurance policies and coverages, and
such policies and coverages are in full force and effect.
SECTION 5.10. NO DEFAULT. None of the Consolidated Companies is in
default under or with respect to any Contractual Obligation in any respect
which is having or is reasonably expected to have a Materially Adverse Effect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. Except as set forth on
Schedule 5.11 or in any notice furnished to the Lenders pursuant to Section
6.07 at or prior to the respective times the representations and warranties set
forth in this Section 5.11 are made or deemed to be made hereunder, none of the
Consolidated Companies is a party to or bound by any Contractual Obligation or
Requirement of Law which has had or would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.12. TAXES. Except as set forth on Schedule 5.12, each of the
Consolidated Companies has filed or caused to be filed all declarations,
reports and tax returns which are required to have been filed, and has paid all
taxes, custom duties, levies, charges and similar contributions ("taxes" in
this Section 5.12) shown to be due and payable on said returns or on any
assessments made against it or its properties, and all other taxes, fees or
other charges imposed on it or any of its properties by any governmental
authority (other than those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided in its books); and
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no tax liens have been filed and, to the knowledge of Intermet, no claims are
being asserted with respect to any such taxes, fees or other charges.
SECTION 5.13. SUBSIDIARIES. Except as disclosed on Schedule 5.01 or in
any notice given to the Lenders pursuant to Section 6.07 at or prior to the
respective times this representation and warranty is made or deemed to be made
hereunder, Intermet has no Subsidiaries and neither Intermet nor any Subsidiary
is a joint venture partner or general partner in any partnership.
SECTION 5.14. FINANCIAL STATEMENTS. Intermet has furnished to the Agent
and the Lenders (i) the audited consolidated balance sheet as of December 31,
1995 of Intermet and the related consolidated 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 1996, and the related unaudited consolidated 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 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, 1995, there have been no changes with respect to
the Consolidated Companies which has had or would reasonably be expected to
have a Materially Adverse Effect.
SECTION 5.15. ERISA. Except as disclosed on Schedule 5.15 or in any
notice furnished to the Lenders pursuant to Section 6.07 at or prior to the
respective times the representations and warranties set forth in this Section
5.15 are made or deemed to be made hereunder:
(a)(1) Identification of Plans. (A) None of the Consolidated Companies
nor any of their respective ERISA Affiliates maintains or contributes to, or
has during the past two years maintained or contributed to, any Plan that is
subject to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan maintained by the
Consolidated Companies have at all times been maintained, by their terms and in
operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including without
limitation, any tax or penalty under Title I or Title IV of ERISA or under
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Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404, or 419 of the Tax Code, where the failure to
comply with such laws, and such taxes and penalties, together with all other
liabilities referred to in this Section 5.15 (taken as a whole), would in the
aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans or
Foreign Plans of such Consolidated Companies or any of their ERISA Affiliates,
including without limitation, any liabilities arising from Titles I or IV of
ERISA, other than obligations to fund benefits under an ongoing Plan and to pay
current contributions, expenses and premiums with respect to such Plans or
Foreign Plans, where such liabilities, together with all other liabilities
referred to in this Section 5.15 (taken as a whole), would in the aggregate
have a Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect to any Plan
which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to be
contributed under the terms of each Plan and applicable law, and (b) required
to be paid as expenses (including PBGC or other premiums) of each Plan, where
the failure to pay such amounts (when taken as a whole, including any penalties
attributable to such amounts) would have a Materially Adverse Effect. No Plan
subject to Title IV of ERISA has an "amount of unfunded benefit liabilities"
(as defined in Section 4001(a)(18) of ERISA, determined as if such Plan
terminated on any date on which this representation and warranty is deemed
made, in any amount which, together with all other liabilities referred to in
this Section 5.15 (taken as a whole), would have a Materially Adverse Effect if
such amount were then due and payable. The Consolidated Companies are subject
to no liabilities with respect to post-retirement medical benefits in any
amounts which, together with all other liabilities referred to in this Section
5.15 (taken as a whole), would have a Materially Adverse Effect if such amounts
were then due and payable.
(b) With respect to any Foreign Plan, reasonable reserves have been
established in accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction where the Foreign Subsidiary
maintains its principal place of business or in which the Foreign Plan is
maintained. The aggregate unfunded liabilities, after giving effect to any
reserves for such liabilities, with respect to such Foreign Plans, together
with all other liabilities referred to in this Section 5.15 (taken as a whole),
would not have a Materially Adverse Effect.
SECTION 5.16. PATENTS, TRADEMARKS, LICENSES, ETC. Except as set forth on
Schedule 5.16 or in any notice furnished to the Lenders pursuant to Section
6.07 at or prior to the respective times the representations and warranties set
forth in this Section 5.16 are made or deemed to be made hereunder, (i) the
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,
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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 5.17. OWNERSHIP OF PROPERTY. Except as set forth on Schedule
5.17, (i) each Consolidated Company that is not a Foreign Subsidiary has good
and marketable fee simple title to or a valid leasehold interest in all of its
real property and good title to, or a valid leasehold interest in, all of its
other property, and (ii) each Foreign Subsidiary owns or has a valid leasehold
interest in all of its real property and owns or has a valid leasehold interest
in, all of its other properties, in the case of clauses (i) and (ii) as such
properties are reflected in the consolidated balance sheet of the Consolidated
Companies as of December 31, 1995 referred to in Section 5.14, other than
properties disposed of in the ordinary course of business since such date or as
otherwise permitted by the terms of this Agreement, subject to no Lien or title
defect of any kind, except Liens permitted hereby and title defects not
constituting material impairments in the intended use for such properties. The
Consolidated Companies enjoy peaceful and undisturbed possession under all of
their respective leases.
SECTION 5.18. FINANCIAL CONDITION. On the Closing Date and after giving
effect to the transactions contemplated by this Agreement and the other Credit
Documents, including without limitation, the use of the proceeds of the Loans
as provided in Sections 2.01, each of the Credit Parties is Solvent.
SECTION 5.19. LABOR MATTERS. Since December 31, 1995, the Consolidated
Companies have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of
Intermet, there are no such strikes, disputes, slow downs or work stoppages
threatened against any Consolidated Company which if they occurred, would
reasonably be expected to have a Materially Adverse Effect. Since December 31,
1992, the hours worked and payment made to employees of the Consolidated
Companies have not been in violation in any material respect of the Fair Labor
Standards Act (in the case of Consolidated Companies that are not Foreign
Subsidiaries) or any other applicable law dealing with such matters. All
payments due from the Consolidated Companies, or for which any claim may be
made against the Consolidated Companies, on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies in all jurisdictions
where the failure to pay or accrue such liabilities would reasonably be
expected to exceed five percent (5%) of Consolidated Net Worth of Intermet in
the aggregate.
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SECTION 5.20. PAYMENT OR DIVIDEND RESTRICTIONS. Except as set forth in
Section 7.05 or described on Schedule 5.20 or as expressly permitted by the
terms of this Agreement, none of the Consolidated Companies is party to or
subject to any agreement or understanding restricting or limiting the payment
of any dividends or other distributions by any such Consolidated Company.
SECTION 5.21. DISCLOSURE. No representation or warranty contained in
this Agreement (including the Schedules attached hereto) or in any other
document furnished from time to time pursuant to the terms of this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary to make the statements herein or
therein not misleading in any material respect as of the date made or deemed to
be made. Except as may be set forth herein (including the Schedules attached
hereto) or in any notice furnished to the Lenders pursuant to Section 6.07 at
or prior to the respective times the representations and warranties set forth
in this Section 5.21 are made or deemed to be made hereunder, there is no fact
known to Intermet which is having, or is reasonably expected to have, a
Materially Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid or any Letter of Credit shall remain outstanding, Intermet will
(unless waived in writing by the Required Lenders):
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence
(except for mergers, divestitures and consolidations permitted pursuant to
Section 7.03), its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect.
SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws) and Contractual Obligations applicable to
or binding on any of them where the failure to comply with such Requirements of
Law and Contractual Obligations would reasonably be expected to have a
Materially Adverse Effect (with the express understanding that with respect to
noncompliance with Requirements of Laws, liabilities from noncompliance
involving amounts equal to or in excess of five percent (5%) of Consolidated
Net Worth in the aggregate shall be deemed to have a Materially Adverse
Effect).
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SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of
its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
SECTION 6.05. VISITATION, INSPECTION, ETC. Permit, and cause each of its
Subsidiaries to permit, any representative of the Agent or any Lender to visit
and inspect any of its property, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs, finances and
accounts with its officers, all at such reasonable times and as often as the
Agent or such Lender may reasonably request after reasonable prior notice to
Intermet; provided, however, that at any time following the occurrence and
during the continuance of a Default or an Event of Default, no prior notice to
Intermet shall be required.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts as are
customary for such companies under similar circumstances; provided, however,
that in any event Intermet shall use its best efforts to maintain, or cause to
be maintained, insurance in amounts and with coverages not materially less
favorable to any Consolidated Company as in effect on the date of this
Agreement, except where the costs of maintaining such insurance would, in the
judgment of both Intermet and the Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, settlements and improvements thereof, all as in the judgment of
Intermet may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 6.06 shall prevent Intermet from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Intermet, desirable in the conduct of its
business or the business of any Consolidated Company.
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SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in any event
within 90 days after the end of each fiscal year of Intermet, balance sheets of
the Consolidated Companies as at the end of such year, presented on a
consolidated basis, and the related statements of income, and cash flows of the
Consolidated Companies for such fiscal year, presented on a consolidated basis,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and accompanied by a report thereon of
Ernst & Young, L.L.P. or other independent public accountants of comparable
recognized national standing, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at the end of
such fiscal year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal year in
accordance with GAAP and that the 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 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 L 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
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fiscal quarter with Section 6.08 and Sections 7.01 through 7.06;
(d) Auditor's No Default Certificate. Together with the financial
statements required pursuant to subsection (a) above, a certificate of the
accountants who prepared the report referred to therein, to the effect that,
based upon their audit, there exists no Default or Event of Default under this
Agreement, or if there exists a Default or Event of Default hereunder,
specifying the nature thereof;
(e) Annual Budget. No later than 30 days prior to the beginning of
each fiscal year, an annual financial plan and forecasted balance sheets and
statements of income and cash flows for the current fiscal year for the
Consolidated Companies presented on a consolidated basis;
(f) Notice of Default. Promptly after any Executive Officer of
Intermet has notice or knowledge of the occurrence of an Event of Default or a
Default, a certificate of the chief financial officer or principal accounting
officer of Intermet specifying the nature thereof and the proposed response
thereto;
(g) Litigation and Investigations. Promptly after (i) the occurrence
thereof, notice of the institution of or any material adverse development in any
material action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company, or
any material property of any thereof, or (ii) actual knowledge thereof, notice
of the threat of any such action, suit, proceeding, investigation or
arbitration;
(h) Environmental Notices. Promptly after receipt thereof, notice of
any actual or alleged violation, or notice of any action, claim or request for
information, either judicial or administrative, from any governmental authority
relating to any actual or alleged claim, notice of potential responsibility
under or violation of any Environmental Law, or any actual or alleged spill,
leak, disposal or other release of any waste, petroleum product, or hazardous
waste or Hazardous Substance by any Consolidated Company which could result in
penalties, fines, claims or other liabilities to any Consolidated Company in
amounts in excess of $1,000,000;
(i) ERISA. (A)(i) Promptly after the occurrence thereof with respect
to any Plan of any Consolidated Company or any ERISA Affiliate thereof, or any
trust established thereunder, notice of (A) a "reportable event" described in
Section 4043 of ERISA and the regulations issued from time to time thereunder
(other than a "reportable event" not subject to the provisions for 30-day notice
to the PBGC under such regulations), or (B) any other event which could subject
any Consolidated Company to
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any tax, penalty or liability under Title I or Title IV of ERISA or Chapter
43 of the Tax Code, or any tax or penalty resulting from a loss of deduction
under Sections 404 or 419 of the Tax Code, or any tax, penalty or liability
under any Requirement of Law applicable to any Foreign Plan, where any such
taxes, penalties or liabilities exceed or could exceed $1,000,000 in the
aggregate;
(ii) Promptly after such notice must be provided to the PBGC, or
to a Plan participant, beneficiary or alternative payee, any notice required
under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of
ERISA or under Section 401(a)(29) or 412 of the Tax Code with respect to any
Plan of any Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the intent of
the PBGC or any other governmental authority to terminate a Plan of such
Company or ERISA Affiliate thereof which is subject to Title IV of ERISA, to
impose any liability on such Company or ERISA Affiliate under Title IV of ERISA
or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon the filing thereof
with the Internal Revenue Service ("IRS") or the Department of Labor ("DOL"), a
copy of IRS Form 5500 or annual report for each Plan of any Consolidated Company
or ERISA Affiliate thereof which is subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and complete copies of
any and all documents, government 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.
(j) Liens. Promptly upon any Consolidated Company becoming aware
thereof, notice of the filing of any federal statutory Lien, tax or other state
or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 7.02;
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(k) Public Filings, Etc. Promptly upon the filing thereof or otherwise
becoming available, copies of all financial statements, annual, quarterly
and special reports, proxy statements and notices sent or made available
generally by Intermet to its public security holders, of all regular and
periodic reports and all registration statements and prospectuses, if any,
filed by any of them with any securities exchange, and of all press releases
and other statements made available generally to the public containing
material developments in the business or financial condition of Intermet and
the other Consolidated Companies;
(l) Burdensome Restrictions, Etc. Promptly upon the existence or
occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 5.11, (ii)
failure of any Consolidated Company to hold in full force and effect those
material trademarks, service marks, patents, trade names, copyrights,
licenses and similar rights necessary in the normal conduct of its business,
and (iii) any strike, labor dispute, slow down or work stoppage as described
in Section 5.19;
(m) New Subsidiaries. Within 30 days after the formation or acquisition
of any Subsidiary, or any other event resulting in the creation of a new
Subsidiary, or the domestication of any Foreign Subsidiary, notice of the
formation or acquisition of such Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it will be
engaged, and such other information as the Agent may request; and
(n) Other Information. With reasonable promptness, any other
information provided under the Note Purchase Agreement and such other
information about the Consolidated Companies as the Agent or any Lender may
reasonably request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. Maintain as of the last day of each
fiscal quarter, a 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 60%; provided that in the event
that Intermet consummates an Acquisition after the Closing Date which affects
its compliance with this subsection (b), the maximum Leverage Ratio permitted
hereunder shall be 72.5% for each of the fiscal quarters ending during the
twelve-month period immediately succeeding such Acquisition and the maximum
Leverage Ratio permitted hereunder shall be reduced to 60% on the next fiscal
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quarter end thereafter and shall remain a maximum ratio of 60% regardless of
any other Acquisitions occurring thereafter.
(c) Funded Debt to Consolidated EBITDA. Maintain as of the last day of
each fiscal quarter, a maximum ratio of Funded Debt to Consolidated EBITDA
calculated for the immediately preceding four fiscal quarters of less than or
equal to 3.5:1.0.
(d) Second Fiscal Quarter 1996 Calculations. Schedule 6.08 sets forth
the calculation of the financial covenant amounts, ratios, and percentages
required by paragraphs (a) through (c) of this Section 6.08 calculated as of
June 30, 1996.
SECTION 6.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. Immediately upon
its receipt thereof, Intermet shall furnish the Agent a copy of any notice
received by it or any other Consolidated Company from the holder(s) of
Indebtedness of the Consolidated Companies (or from any trustee, agent,
attorney, or other party acting on behalf of such holder(s)) in an amount
which, in the aggregate, exceeds $5,000,000, where such notice states or claims
(i) the existence or occurrence of any default or event of default with respect
to such Indebtedness under the terms of any indenture, loan or credit
agreement, debenture, note, or other document evidencing or governing such
Indebtedness, or (ii) the existence or occurrence of any event or condition
which requires or permits holder(s) of any Indebtedness to exercise rights
under any Change in Control Provision.
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL. Unless the
Required Lenders otherwise agree, promptly after (i) the formation or
acquisition (provided that nothing in this Section shall be deemed to authorize
the acquisition of any entity not otherwise permitted hereunder) of any
Subsidiary not listed on Schedule 5.01 (unless such Subsidiary holds no assets
and conducts no business), (ii) the domestication of any Foreign Subsidiary, or
(iii) the occurrence of any other event creating a new Subsidiary, Intermet
shall execute and deliver, and cause to be executed and delivered (x) in the
case of Foreign Subsidiary, if, in the reasonable opinion of Intermet's
accountants, delivery of a Guaranty Agreement would cause Intermet to be
subject to tax on the undistributed earnings and profits of such Subsidiary
pursuant to Subpart F of Part III, Subchapter N of the Internal Revenue Code, a
Pledge Agreement with respect to 49% of the capital stock of such Subsidiary if
it is a Foreign Subsidiary directly owned by Intermet or a Subsidiary that is
not, and is not directly or indirectly controlled by, a Foreign Subsidiary, and
(y) a Guaranty Agreement from each such Subsidiary that is not a Foreign
Subsidiary whose stock has been pledged to the extent and in accordance with
subsection (x) hereof, together with related documents with respect to such new
Subsidiary (or the pledgor of its stock) of the kind described in Section 4.01
(e), (f), (g), (h) and (o), all in form and substance satisfactory to the Agent
and the Required Lenders.
SECTION 6.11. AMENDMENT TO NOTE PURCHASE AGREEMENT AND INTERCREDITOR
AGREEMENT. Promptly, and in any event within sixty (60) days after the Closing
Date, deliver, or cause to be delivered to the Agent in form and substance
satisfactory to the Agent and the
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Required Lenders, (i) an amendment to the Note Purchase Agreement conforming
the representations and warranties, covenants, events of default and financial
definitions used therein to the terms of this Agreement, and (ii) a duly
executed amendment to the Intercreditor Agreement evidencing the modifications
made herein.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid or any Letter of Credit Obligation shall remain outstanding,
Intermet will not and will not permit any Subsidiary to (unless waived in
writing by the Required Lenders):
SECTION 7.01. INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, other than:
(a) Indebtedness under this Agreement and otherwise outstanding on
the Closing Date as set forth on Schedule 7.01 attached hereto;
(b) unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or
similar instruments) incurred in the ordinary course of business;
(c) Indebtedness of Intermet pursuant to the Note Purchase Agreement
and secured by Liens which are pari passu with Liens on such collateral
in favor of the Lenders securing the Obligations hereunder and governed
by the terms of the Intercreditor Agreement;
(d) Investments in the form of intercompany loans permitted by
Sections 7.06(a) hereof;
(e) Subordinated Debt which is unsecured and approved as to terms
and conditions by the Agent and the Required Lenders;
(f) Indebtedness of a Person which is acquired by or consolidated
with a Consolidated Company as long as such Indebtedness is not obtained
in contemplation of such acquisition;
(g) purchase money Indebtedness to the extent secured by a Lien
permitted pursuant to Section 7.02(f); and
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(h) additional Indebtedness of Intermet which is pari passu in all
material respects with the Obligations, without limiting the foregoing,
such Indebtedness will not have the benefit of any security or guaranties
not benefitting the Obligations and will have representations and
warranties, covenants, events of default and conditions to borrowing
which are not more restrictive than the provisions of this Agreement.
SECTION 7.02. LIENS. Create, incur, assume or suffer to exist any Lien on
any of its property now owned or hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the Closing Date and disclosed on Schedule
7.02 and Liens in favor of the Agent and/or the Lenders to secure the
Obligations;
(b) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(e) Liens permitted by Section 7.01(c) and (h);
(f) to the extent that, on any date of determination, the value of
Margin Stock of Intermet and its Subsidiaries, whether now owned or
hereafter acquired, in the aggregate exceeds twenty-five percent (25%) of
the value of the total assets of Intermet and its Subsidiaries on such
date which assets are subject to the restrictions of this Section 7.2,
Liens encumbering such excess Margin Stock; and
(g) Liens (other than those permitted by paragraphs (a) through (f)
of this Section 7.02) encumbering assets having an Asset Value not
greater than five percent (5%) of Consolidated Net Worth of Intermet in
the aggregate at any one time.
SECTION 7.03. MERGERS, ACQUISITIONS, DIVESTITURES.
(a) Merge or consolidate with any other Person, except that the foregoing
restrictions shall not be applicable to:
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(i) mergers or consolidations of (x) any Subsidiary with any other
Subsidiary which is a Guarantor or (y) any Subsidiary with Intermet; or
(ii) mergers or consolidations which result in Acquisitions of
Persons engaged in businesses in which Intermet is engaged on the Closing
Date or substantially related thereto and as otherwise permitted by
Section 7.10 of this Agreement where the surviving corporation is a
wholly-owned Subsidiary of Intermet (or will become a wholly-owned
Subsidiary within six (6) months of the such Acquisition) and such
Acquisition is in compliance with subsection (c) hereof;
provided that before and after giving effect to any such merger or
consolidations, (w) Intermet is in compliance with Section 6.08 hereof (as
demonstrated by delivery of pro forma financial covenants calculations prepared
in compliance with clause (c) 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 6.10
hereof, if applicable, and (z) Intermet is the surviving corporation in
connection with any merger or consolidation to which it is a party;
(b) Sell or otherwise dispose of the capital stock of a Subsidiary of
Intermet except as permitted pursuant to Section 7.04(c); or
(c) make or permit any Acquisition other than an Acquisition of Persons
engaged in businesses in which Intermet is engaged on the Closing Date or
substantially related thereto and as otherwise permitted pursuant to Section
7.10 of this Agreement; provided that:
(i) after giving effect to such Acquisition, assets
comprising such Acquisition are owned by Intermet or a
wholly-owned Subsidiary of Intermet, or, in the case of a stock
purchase, such Person is a wholly-owned Subsidiary of Intermet or
is merged into Intermet or a wholly-owned Subsidiary of Intermet;
(ii) prior to the consummation of such Acquisition, Intermet
provides to the Lenders calculations evidencing Intermet's
compliance on a pro forma basis with the financial covenants set
forth in Section 6.08 hereof on the last day of the immediately
preceding fiscal quarter of Intermet, calculated with respect to
the immediately preceding four fiscal quarters of Intermet as if
the Acquisition had been consummated on the first day of such
period;
(iii) such Acquisition shall have been approved in advance by
a majority of the board of directors of the seller; and
(iv) no Default or Event of Default shall exist hereunder or shall
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6.10 hereof.
SECTION 7.04. ASSET SALES.
Sell, lease or otherwise dispose of its accounts, property, stock of its
Subsidiaries or other assets; provided, however, that the foregoing
restrictions on Asset Sales shall not be applicable to:
(a) sales of inventory in the ordinary course of business;
(b) sales of equipment or other personal property being replaced by
other equipment or other personal property purchased as a capital
expenditure item; or
(c) Asset Sales comprised of stock of Subsidiaries or all or
substantially all of the assets of any Subsidiary where, on the date of
execution of a binding obligation to make such Asset Sale (provided that
if the Asset Sale is not consummated within six (6) months of such
execution, then on the date of consummation of such Asset Sale rather
than on the date of execution of such binding obligation):
(x) after giving effect to the proposed Asset Sale, the
assets which are the subject of the proposed Asset Sale, together
with all other such Asset Sales of the Consolidated Companies
during the immediately preceding four fiscal quarters of Intermet,
did not generate twenty percent (20%) or more of Consolidated
EBITDA during the then most recently ended four fiscal quarters of
Intermet; and
(y) after giving effect to the proposed Asset Sale, the
aggregate Asset Value of all such Asset Sales of the Consolidated
Companies since the Closing Date would not exceed thirty (30%) of
the Net Fixed Assets of Intermet as determined as of the last day
of the most recently ended fiscal quarter of Intermet; or
(d) Other Asset Sales (other than sales of capital stock of
Subsidiaries or all or substantially all of the assets of any
Subsidiary), where, on the date of execution of a binding obligation to
make such Asset Sale (provided that if the Asset Sale is not consummated
within six (6) months of such execution, then on the date of consummation
of such Asset Sale rather than on the date of execution of such binding
obligation), after giving effect to the proposed Asset Sale, the
aggregate Asset Value of all Asset Sales made pursuant to this
subparagraph (d) by the Consolidated Companies since the Closing Date
would not exceed ten percent (10%) of Intermet's Net Fixed Assets as of
the last day of the most recently ended fiscal quarter of Intermet; or
(e) to the extent that, on any date of determination, the value of
Margin Stock of Intermet and its Subsidiaries, whether now owned or
hereafter acquired, in the aggregate exceeds twenty-five percent (25%) of
the total assets of Intermet and its Subsidiaries on such date which
assets are subject to the
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restriction of this Section 7.04, sales of such excess Margin Stock for
fair value where the proceeds of such sale are held by a Consolidated
Company as cash or invested in cash equivalents such as certificates of
deposit, U.S. government securities, commercial paper with a term of 90
days or less which is rated A-1/P-1 or other money market instruments;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
(c) or (d) above shall be permitted if any Default or Event of Default exists
at the time of such transaction or would exist as a result of such transaction.
Upon the consummation of the sale of any capital stock of a Subsidiary
pursuant to subsection (c) above, which capital stock is pledged to the Agent
for the benefit of the Lenders, the Agent and the Lenders shall release the
Lien upon such stock upon the request of Intermet, and the Lenders hereby
authorize the Agent to do so.
SECTION 7.05. DIVIDENDS, ETC. Intermet shall not (a) declare or pay any
dividend on any class of its stock, or (b) make any payment to purchase,
redeem, retire or acquire any Subordinated Debt or stock or any option,
warrant, or other right to acquire such Subordinated Debt or stock (each, a
"Restricted Payment"), other than:
(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 the Closing Date in an aggregate amount not to
exceed the sum of (x) $25,000,000, plus (y) fifty percent (50%) of
Consolidated Net Income earned during the period commencing on June 30,
1996 and ending on the last day of the most recently ended fiscal quarter
of Intermet (such period to be treated as one accounting period taking
into account 100% of Consolidated Net Losses during such period);
provided, however, no such dividend or other Restricted Payment may be declared
or paid pursuant to clause (ii) above unless no Default or Event of Default
exists at the time of such declaration or Restricted Payment, or would exist as
a result of such declaration or Restricted Payment.
SECTION 7.06. INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments other than:
(a) Investments in Subsidiaries which are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date
or become Guarantors in accordance with Section 6.10 after the Closing
Date; provided, however, nothing in this Section 7.06 shall be deemed to
authorize an Investment pursuant to this subsection (a) in any entity
that is not a Guarantor prior to such Investment;
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(b) Investments in the following securities:
(i) direct obligations of the United States or any agency thereof,
or obligations guaranteed by the United States or any agency thereof, in
each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(ii) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(iii) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by, any
office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and
has capital, surplus and undivided profits aggregating at least
$500,000,000, including without limitation, any such deposits in
Eurodollars issued by a foreign branch of any such bank or trust company;
(iv) mid-term notes of corporations existing under the laws of the
United States rated in the highest grade by a nationally recognized
credit rating agency;
(v) municipal "lower floater" bonds rated A or better (or backed by
a letter of credit rated A or better) by a nationally recognized credit
rating agency;
(c) Investments made by Plans and Foreign Plans;
(d) Investments outstanding on the Closing Date and listed on Schedule
7.06 hereto; and
(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 five percent (5%) of Consolidated Net Worth
at any one time outstanding; provided that, Investments in Subsidiaries
which are not Guarantors are expressly prohibited by this Section 7.06.
SECTION 7.07. SALE AND LEASEBACK TRANSACTIONS. Sell or transfer any
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 7.08. TRANSACTIONS WITH AFFILIATES.
(a) Enter into any material transaction or series of related transactions
which in the aggregate would be material, whether or not in the ordinary course
of business, with
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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; and
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations of any Consolidated Company, or convey
or transfer to any other Consolidated Company any other assets (excluding
conveyances or transfers in the ordinary course of business) if at the time of
such conveyance or transfer any Default or Event of Default exists or would
exist as a result of such conveyance or transfer.
SECTION 7.09. PREPAYMENTS OF SUBORDINATED DEBT IN VIOLATION THEREOF.
Directly or indirectly, prepay, purchase, redeem, retire, defease or otherwise
acquire, or make any optional payment on account of any principal of, interest
on, or premium payable in connection with any of its Subordinated Debt, in each
case, which is a violation of the subordination provisions of such Subordinated
Debt.
SECTION 7.10. CHANGES IN BUSINESS. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies taken as a whole (which includes iron and aluminum foundry operations
and machining); provided that, Intermet and the Consolidated Companies may make
Acquisitions of, and Investments in, (to the extent permitted by this
Agreement) Persons engaged in an unrelated business as long as the total
revenues of such Persons resulting from unrelated businesses (or total
revenues generated by such assets used in unrelated businesses in the case of a
purchase of assets), as determined for the most recently ended four fiscal
quarters of such Person in accordance with GAAP, do not exceed twenty percent
(20%) of Total Sales of the Consolidated Companies for the most recently ended
four fiscal quarters of Intermet.
SECTION 7.11. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
COMPANIES. Create or otherwise cause or suffer to exist or become effective,
any consensual encumbrance or restriction on the ability of any Consolidated
Company to (i) pay dividends or make any other distributions on such
Consolidated Company's stock, or (ii) pay any indebtedness owed to Intermet or
any other Consolidated Company, or (iii) transfer any of its property or assets
to Intermet or any other Consolidated Company, except any consensual
encumbrance or restriction existing under the Credit Documents or the Pledge
Agreement (as defined in the Note Purchase Agreement) (as originally executed)
or as set forth on Schedule 5.20.
SECTION 7.12. ACTIONS UNDER CERTAIN DOCUMENTS.
(a) Without the prior written consent of the Agent and the Required
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Lenders, modify, amend or supplement the Note Purchase Agreement to (i)
increase the principal amount of the indebtedness thereunder, (ii) increase the
interest rate thereunder, (iii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or average life of
the indebtedness outstanding thereunder or make the requirement of prepayment
more onerous, or (iv) make any more onerous any other provision thereof.
(b) Without the prior written consent of the Agent and the Required
Lenders, modify, amend or supplement any agreement governing Subordinated Debt
to (i) increase the principal amount of the indebtedness thereunder, (ii)
increase the interest rate thereunder, (iii) modify any requirement of
prepayment or repayment thereunder which would shorten the final maturity or
average life of the indebtedness outstanding thereunder or make the requirement
of prepayment more onerous, (iv) make any more onerous any other provision
thereof, or (v) amend or modify the subordination provisions thereof.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Intermet shall fail to make promptly when due
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Loans, or Intermet shall fail to make within five (5) days
after the due date thereof any payment of interest, fee or other amount payable
hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Intermet shall fail to observe
or perform any covenant or agreement contained in Sections 6.07(f), 6.08, 6.11,
7.01 through 7.07, 7.09 through 7.12;
SECTION 8.03. OTHER COVENANTS. Intermet shall fail to observe or perform
any covenant or agreement contained in this Agreement, other than those
referred to in Sections 8.01 and 8.02, and, if capable of being remedied, such
failure shall remain unremedied for thirty (30) days after the earlier of (i)
Intermet's obtaining knowledge thereof, or (ii) written notice thereof shall
have been given to Intermet by Agent or any Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or warranty made or
deemed to be made by Intermet or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
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SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness
(other than the Obligations) exceeding $5,000,000 in the aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate, or any other
event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person to
accelerate, the maturity of such Indebtedness; or any such Indebtedness shall
be required to be prepaid (other than by a regularly scheduled required
prepayment) in whole or in part prior to its stated maturity;
SECTION 8.07. BANKRUPTCY. Intermet or any other Consolidated Company
shall commence a voluntary case concerning itself under the Bankruptcy Code or
applicable foreign bankruptcy laws; or an involuntary case for bankruptcy is
commenced against any Consolidated Company and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) or similar official
under applicable foreign bankruptcy laws is appointed for, or takes charge of,
all or any substantial part of the property of any Consolidated Company; or any
Consolidated Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction,
whether now or hereafter in effect, relating to any Consolidated Company or
there is commenced against any Consolidated Company any such proceeding which
remains undismissed for a period of 60 days; or any Consolidated Company is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or any Consolidated Company
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days; or any Consolidated Company makes a general assignment for the benefit of
creditors; or any Consolidated Company shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts generally as they
become due; or any Consolidated Company shall call a meeting of its creditors
with a view to arranging a composition or adjustment of its debts; or any
Consolidated Company shall by any act or failure to act indicate its consent
to, approval of or acquiescence in any of the foregoing; or any corporate
action is taken by any Consolidated Company for the purpose of effecting any of
the foregoing;
SECTION 8.08. ERISA. A Plan or Foreign Plan of a Consolidated Company or
a Plan subject to Title IV of ERISA of any of its ERISA Affiliates:
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(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 for any reason, in a liability (including without
limitation, withdrawal liability) to a Consolidated Company under
applicable law, the terms of such Plan or Foreign Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver, termination or other
event a liability to the PBGC (or any similar Person with respect to any
Foreign Plan), a Plan or any other Person that would have a Materially Adverse
Effect.
SECTION 8.09. MONEY JUDGMENT. A judgment or order for the payment of
money in excess of $5,000,000 or otherwise having a Materially Adverse Effect
shall be rendered against Intermet or any other Consolidated Company and such
judgment or order shall continue unsatisfied (in the case of a money judgment)
and in effect for a period of 30 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 8.10. OWNERSHIP OF CREDIT PARTIES AND PLEDGED ENTITIES. If
Intermet shall at any time fail to own and control one hundred percent (100%)
of the voting stock of any Credit Party or entity whose stock is pledged to the
Lenders, either directly or indirectly through a wholly-owned Subsidiary of
Intermet, except for (x) as a result of any Asset Sale permitted pursuant to
Section 7.04(c) hereof, and (y) with respect to any Credit Party or Foreign
Subsidiary whose stock is pledged to the Lenders after the Closing Date where
Intermet shall, directly or indirectly, maintain ownership and control of the
percentage of voting stock owned and controlled as of the date such Person
became a Credit Party hereunder or a Foreign Subsidiary or such greater
percentage as shall thereafter be obtained, directly or indirectly by Intermet;
SECTION 8.11. CHANGE IN CONTROL OF INTERMET. (i) Any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) shall
become the "beneficial owner(s)" (as defined in said Rule 13d-3) of more than
fifty percent (50%) of the shares of the outstanding common stock of Intermet
entitled to vote for members of Intermet's
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board of directors, (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,
or (iii) John Doddridge or another Person possessing substantially equivalent
qualifications, background, proven record of success in running a public
company and ability shall cease to hold the position and actively carry out the
duties of Chairman of the Board of Directors of Intermet.
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist or
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Intermet
or any other Credit Party, or at any time it is or becomes unlawful for
Intermet or any other Credit Party to perform or comply with its obligations
under any Credit Document, or the obligations of Intermet or any other Credit
Party under any Credit Document are not or cease to be legal, valid and binding
on Intermet or any such Credit Party or the Agent ceases to hold a perfected
lien on the Pledged Stock subject only to Liens permitted by the terms of this
Credit Agreement; or
SECTION 8.13. ATTACHMENTS. An attachment or similar action shall be made
on or taken against any of the assets of any Consolidated Company with an Asset
Value exceeding $5,000,000 in aggregate and is not removed, suspended or
enjoined within 30 days of the same being made or any suspension or injunction
being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Agent may, with the consent of the Required
Lenders, and upon the written (including telecopied) or telex request of the
Required Lenders, shall, by written notice to Intermet, take any or all of the
following actions, without prejudice to the rights of the Agent, any Lender or
the holder of any Note to enforce its claims against Intermet or any other
Credit Party: (i) declare all Commitments terminated, whereupon the pro rata
Commitments of each Lender shall terminate immediately and any commitment fee
shall forthwith become due and payable without any other notice of any kind;
and (ii) declare the principal of and any accrued interest on the Loans, and
all other Obligations owing hereunder, including without limitation, an amount
equal to the maximum amount which would be available at any time to be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any Letter of Credit shall have presented, or shall be entitled at such
time to present, the drafts or other documents required to draw under such
Letter of Credit), to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by Intermet; provided, that, if an Event of Default
specified in Section 8.07 shall occur, the result which would occur upon the
giving of written notice by the Agent to any Credit Party, as specified in
clauses (i) and (ii) above, shall occur automatically without the
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giving of any such notice; and (iii) exercise any rights or remedies under the
Security Documents. As long as any Letter of Credit shall remain outstanding,
any amounts described in clause (ii) above with respect to Letters of Credit,
when received by the Agent, shall be deposited in a cash collateral account as
cash collateral for the obligations of Intermet under Article II of this
Agreement in the event of any drawing under a Letter of Credit, and upon
drawing under any outstanding Letter of Credit in respect of which the Agent
has deposited in the cash collateral account any amounts described in clause
(ii) above, the Agent shall pay such amounts to itself to reimburse itself for
the amount of such drawing.
ARTICLE IX.
THE AGENT AND CO-AGENTS
SECTION 9.01. APPOINTMENT OF AGENT. Each Lender hereby designates
SunTrust as Agent to administer all matters concerning the Loans and Letters of
Credit and to act as herein specified. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of a Note shall be
deemed irrevocably to authorize, the Agent to take such actions on its behalf
under the provisions of this Agreement, the other Credit Documents, and all
other instruments and agreements referred to herein or therein, and to exercise
such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through their agents or
employees.
SECTION 9.02. AUTHORIZATION OF AGENT WITH RESPECT TO THE SECURITY
DOCUMENTS.
(a) Each Lender hereby authorizes the Agent to enter into each of the
Security Documents substantially in the form attached hereto, and to take all
action contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Agent for the benefit of the Agent and the
Lenders and the other beneficiaries thereof upon the terms thereof. The
Lenders further agree that the Agent may assign its rights and obligations
under any of the Security Documents to any affiliate of the Agent or to any
trustee, if necessary or appropriate under applicable law, which assignee in
each such case shall (subject to compliance with any requirements of applicable
law governing the assignment of such Security Documents) be entitled to all the
rights of the Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any Security
Document, the Agent shall have the right to grant or withhold any consent,
exercise any remedy, make any determination or direct any action by the Agent
under such Security Document, the Agent shall act in respect of such consent,
exercise of remedies, determination or action, as the case may be, with the
consent of and at the direction of the Required Lenders; provided,
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however, that no such consent of the Required Lenders shall be required with
respect to any consent, determination or other matter that is, in the Agent's
judgment, ministerial or administrative in nature. In each circumstance where
any consent of or direction from the Required Lenders is required, the Agent
shall send to the Lenders a notice setting forth a description in reasonable
detail of the matter as to which consent or direction is requested and the
Agent's proposed course of action with respect thereto. The Lenders shall
endeavor to respond promptly to such request but in the event the Agent shall
not have received a response from any Lender within five (5) Business Days
after such Lender's receipt of such notice, such Lender shall be deemed not to
have agreed to the course of action proposed by the Agent.
SECTION 9.03. NATURE OF DUTIES OF AGENT. The Agent shall have no duties
or responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. None of the Agent nor any of its respective officers,
directors, employees or agents shall be liable for any action taken or omitted
by it as such hereunder or in connection herewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Agent shall
be ministerial and administrative in nature; the Agent shall not have by reason
of this Agreement a fiduciary relationship in respect of any Lender; and
nothing in this Agreement, express or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein.
SECTION 9.04. LACK OF RELIANCE ON THE AGENT.
(a) Independently and without reliance upon the Agent, each Lender, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Credit
Parties in connection with the taking or not taking of any action in connection
herewith, and (ii) its own appraisal of the creditworthiness of the Credit
Parties, and, except as expressly provided in this Agreement, the Agent shall
have no duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any
time or times thereafter.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements, the Pledge Agreement, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, the Notes, the
Guaranty Agreements, the Pledge Agreements or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or the
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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
6.07, the Agent shall deliver or cause to be delivered such information to such
Lender.
SECTION 9.05. CERTAIN RIGHTS OF THE AGENT. If the Agent shall request
instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Agent
shall be entitled to refrain from such act or taking such act, unless and until
the Agent shall have received instructions from the Required Lenders; and the
Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
SECTION 9.06. RELIANCE BY AGENT. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message, cable
gram, radiogram, order or other documentary, teletransmission or telephone
message believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person. The Agent may consult with legal counsel
(including counsel for any Credit Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 9.07. INDEMNIFICATION OF AGENT. To the extent the Agent is not
reimbursed and indemnified by the Credit Parties, each Lender will reimburse
and indemnify the Agent, ratably according to the respective amounts of the
Loans outstanding under all Facilities (or if no amounts are outstanding,
ratably in accordance with the aggregate Commitments), in either case, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or the other
Credit Documents; provided that no Lender shall be liable to the Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct.
SECTION 9.08. THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
obligation to lend under this Agreement, the Loans made by it and the Notes
issued to it, the Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Note and may exercise the same as though it were
not performing the duties specified herein; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust, financial advisory or other business with the Consolidated
Companies or any affiliate of the
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Consolidated Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Consolidated
Companies for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed with
the Agent. Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
SECTION 9.10. SUCCESSOR AGENT.
(a) The Agent may resign at any time by giving written notice thereof to
the Lenders and Intermet and may be removed at any time with or without cause
by the Required Lenders; provided, however, the Agent may not resign or be
removed until a successor Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Agent subject to Intermet's prior written
approval. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent subject to Intermet's prior written
approval, which shall be a bank which maintains an office in the United States,
or a commercial bank organized under the laws of the United States of America
or any State thereof, or any Affiliate of such bank, having a combined capital
and surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article IX shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
an Agent under this Agreement.
SECTION 9.11. CO-AGENTS. Each Lender hereby designates NBD and First
Union as the Co-Agents. The Co-Agents, in such capacity, shall have no duties
or obligations whatsoever under this Agreement or any other Credit Document.
ARTICLE X.
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MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
telecopy or similar teletransmission or writing) and shall be given to such
party at its address or applicable teletransmission number set forth on the
signature pages hereof, or such other address or applicable teletransmission
number as such party may hereafter specify by notice to the Agent and Intermet.
Each such notice, request or other communication shall be effective (i) if
given by telex, when such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and
the appropriate confirmation is received, or (iv) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; provided that notices to the Agent shall
not be effective until received.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the other Credit 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 Intermet and 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 Intermet and all the Lenders do
any of the following: (i) waive any of the conditions specified in Section
4.01 or 4.02, (ii) increase the Commitments or other contractual obligations to
Intermet under this Agreement, (iii) reduce the principal of, or interest on,
the Notes or any fees hereunder, (iv) postpone any date fixed for the payment
in respect of principal of, or interest on, the Notes or any fees hereunder,
(v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number or identity of Lenders which shall
be required for the Lenders or any of them to take any action hereunder, (vi)
agree to release any of the Pledged Stock from the Lien of the Security
Documents to the extent securing the Obligations or to release any Guarantor
from its obligations under any Guaranty Agreement except in connection with an
Asset Sale permitted pursuant to Section 7.04(c) above where no consent of the
Lenders shall be required for such release, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 10.02. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by Intermet and the Agent in addition to the Lenders required hereinabove to
take such action, affect the rights or duties of the Agent under this Agreement
or under any other Credit Document.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Agent, the Co-Agents, 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, the Co-Agents,
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
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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, the Co-Agents, 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 Co-Agents, the Lenders or the holder of any Note to any other or
further action in any circumstances without notice or demand.
SECTION 10.04. PAYMENT OF EXPENSES, ETC. Intermet shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Agent in the administration (both before and after the execution hereof
and including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agent and the Lenders with
respect thereto) of, and in connection with the preparation, execution
and delivery of, preservation of rights under, enforcement of, and, after
a Default or Event of Default, refinancing, renegotiation or
restructuring of, this Agreement and the other Credit Documents and the
documents and instruments referred to therein, and any amendment, waiver
or consent relating thereto (including, without limitation, the
reasonable fees actually incurred and disbursements of counsel for the
Agent), and in the case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel), for any of the Co-Agents
and the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.07(b), pay and hold each of the Agent, the
Co-Agents and 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 of the
Lenders 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, the Co-Agents 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
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other Credit Documents, including, without limitation, the reasonable
fees actually incurred and disbursements of counsel (including foreign
counsel) incurred in connection with any such investigation, litigation
or other proceeding; provided, however, Intermet shall not be obligated
to indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct;
(iv) In addition to amounts payable elsewhere provided in this
Agreement, without duplication, indemnify, pay and save the Agent
harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and reasonable expenses (including
reasonable attorney's fees and disbursements) which the Agent may incur
or be subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit for the account of Intermet, other than
as a result of the gross negligence or willful misconduct of the Agent;
(ii) the failure of the Agent to honor a drawing under any Letter of
Credit due to any act or omission (whether rightful or wrongful) of any
present or future de jure or de facto government or governmental
authority; or (iii) any confirmation of any Letter of Credit obtained by
the Agent with the consent of Intermet;
(v) without limiting the indemnities set forth above, indemnify each
Indemnitee for any and all expenses and costs (including without
limitation, remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses, claims (including
claims for contribution or indemnity and including the cost of
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 Agent, the Co-Agents, or their nominees
or designees, as a result of their acquisition of Pledged Stock pursuant
to exercise of remedies under the Pledge Agreements).
If and to the extent that the obligations of Intermet under this Section 10.04
are unenforceable for any reason, Intermet hereby agrees to make the maximum
contribution to the payment and
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satisfaction of such obligations which is permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in limitation of
all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the
occurrence of any Event of Default and whether or not such Lender or such
holder has made any demand or any Credit Party's obligations are matured, have
the right to appropriate and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit Documents, all deposits of any
Credit Party (general or special, time or demand, provisional or final) then or
thereafter held by and other indebtedness or property then or thereafter owing
by such Lender or other holder to any Credit Party, whether or not related to
this Agreement or any transaction hereunder. Each Lender shall promptly notify
Intermet of any offset hereunder.
SECTION 10.06. BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto,
provided that Intermet may not assign or transfer any of its interest hereunder
without the prior written consent of the Lenders.
(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 or, in the case of Intermet, unless an
Event of Default has occurred and is continuing, (ii) the amount of the
Commitments or Loans or Letter of Credit Obligations, of the assigning Lender
subject to each assignment (determined as of the date the assignment and
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 10(g) thereof. Intermet
shall not be responsible for such processing and recordation fee or any costs
or expenses incurred by any Lender or the Agent in connection with such
assignment. From and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, the assignee thereunder shall be a party hereto and to
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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 $20,000,000
(unless the Lender is assigning its entire Commitment); provided, however, no
such minimum amount shall be required with respect to any such assignment made
at any time there exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the Assignment and Acceptance,
Intermet, at its own expense, shall execute and deliver to the Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes to the order of
such assignee in a principal amount equal to the applicable Commitments assumed
by it pursuant to such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or Commitments. Such
new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated
the date of the surrendered Note or Notes which they replace, and shall
otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Intermet or the Agent, sell
participations to one or more banks or other entities in all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitments, the Letter of Credit Obligations and the Loans owing to it and
the Notes held by it), provided, however, that (i) no Lender may sell a
participation in its aggregate Commitments (after giving effect to any
permitted assignment hereof) in an amount in excess of fifty percent (50%) of
such aggregate Commitments, provided, however, sales of participations to an
Affiliate of such Lender shall not be included in such calculation; provided,
however, no such maximum amount shall be applicable to any such participation
sold at any time there exists an Event of Default hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, and (iv) the participating bank or other entity shall not
be entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article III of this Agreement, and (v)
Intermet and the Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the obligations of Intermet
relating to the Loans and to approve any amendment, modification or waiver of
any provisions of this Agreement. Any Lender selling a participation hereunder
shall provide prompt written notice to Intermet of the name of such
participant.
(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Intermet or the other Consolidated
Companies furnished to such Lender by or on behalf of Intermet or any other
Consolidated Company. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed 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
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and not to use the information in any manner prohibited by any law, including
without limitation, the securities laws of the United States. The proposed
participant or assignee shall agree not to disclose any of such information
except (i) to directors, employees, auditors or counsel to whom it is necessary
to show such information, each of whom shall be informed of the confidential
nature of the information, (ii) in any statement or testimony pursuant to a
subpoena or order by any court, governmental body or other agency asserting
jurisdiction over such entity, or as otherwise required by law (provided prior
notice is given to Intermet and the Agent unless otherwise prohibited by the
subpoena, order or law), and (iii) upon the request or demand of any regulatory
agency or authority with proper jurisdiction. The proposed participant or
assignee shall further agree to return all documents or other written material
and copies thereof received from any Lender, the Agent or Intermet relating to
such confidential information unless otherwise properly disposed of by such
entity.
(f) Any Lender may at any time assign all or any portion of its rights in
this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release the Lender from any of its obligations
hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b) have been levied or
imposed so as to require withholdings or deductions by Intermet and payment by
Intermet of additional amounts to any Lender as a result thereof, (ii) any
Lender shall make demand for payment of increased costs or reduced rate of
return pursuant to Section 3.10 or any Lender determines that LIBOR is
unascertainable or illegal pursuant to Section 3.08 or Section 3.09, or any
Lender makes a claim for increased costs or determines that its participation
in any Letter of Credit is illegal pursuant to Section 3.09, or (iii) any
Lender shall decline to consent to a modification or waiver of the terms of
this Agreement or the other Credit Documents requested by Intermet, then and in
such event, upon request from Intermet delivered to such Lender and the Agent,
such Lender shall assign, in accordance with the provisions of Section
10.06(c), all of its rights and obligations under this Agreement and the other
Credit Documents to another Lender or an Eligible Assignee selected by
Intermet, in consideration for the payment by such assignee to the Lender of
the principal of, and interest on, the outstanding Loans accrued to the date of
such assignment, and the assumption of such Lender's Commitment hereunder,
together with any and all other amounts owing to such Lender under any
provisions of this Agreement or the other Credit Documents accrued to the date
of such assignment; provided, however, Lenders subject to this Section 10.06
shall be treated in a substantially identical manner.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF
THE STATE OF
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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 CSC/PRENTICE HALL, INC., 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 Co-Agent, any
Lender, any holder of a Note or any Credit Party to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Intermet in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in
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any proceeding for such purpose.
SECTION 10.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent pursuant to Section 10.01 or, in the case of the Lenders, shall have
given to the Agent written or telex notice (actually received) that the same
has been signed and mailed to them.
(b) The obligations of Intermet under Sections 3.07(b), 3.12, 3.10, 3.13,
10.04 and 10.15 hereof shall survive the payment in full of the Notes and all
other Obligations after the Maturity Date. All representations and warranties
made herein, in the certificates, reports, notices, and other documents
delivered pursuant to this Agreement shall survive the execution and delivery
of this Agreement, the other Credit Documents, and such other agreements and
documents, the making of the Loans hereunder, and the execution and delivery of
the Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or obligation
under this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS.
If (i) any preparation of the financial statements referred to in Section 6.07
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions) (other than changes mandated by FASB 106)
result in a material change in the method of calculation of financial
covenants, standards or terms found in this Agreement, (ii) there is any change
in Intermet's fiscal quarter or fiscal year,
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or (iii) there is a material change in federal tax laws which materially
affects any of the Consolidated Companies' ability to comply with the financial
covenants, standards or terms found in this Agreement, Intermet and the
Required Lenders agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating any of the Consolidated Companies' financial
condition shall be the same after such changes as if such changes had not been
made. Unless and until such provisions have been so amended, the provisions of
this Agreement shall govern.
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of
the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the 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.
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<PAGE> 87
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
5445 Corporate Drive By:___________________________________
Suite 200 Doretha J. Christoph
Troy, Michigan 48098 Vice President-Finance
Attn: Doretha J. Christoph Attest:_______________________________
Telephone: (810) 952-2500 James W. Rydel
Telecopy: (810) 952-2501 Secretary
[CORPORATE SEAL]
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<PAGE> 88
Address for Notices: SUNTRUST BANK, ATLANTA,
AS AGENT
One Park Place, N.E.
Atlanta, Georgia 30303 By:_________________________________
Attention: C. Wes Burton, Jr. C. Wes Burton, Jr.
Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By:_________________________________
Name:____________________________
Title:___________________________
Payment Office:
One Park Place, N.E.
Atlanta, Georgia 30303
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Address for Notices: SUNTRUST BANK, ATLANTA,
One Park Place, N.E.
Atlanta, Georgia 30303 By:_________________________________
Attention: C. Wes Burton, Jr. C. Wes Burton, Jr.
Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By:_________________________________
Name:____________________________
Title:___________________________
One Park Place, N.E.
Atlanta, Georgia 30303
COMMITMENT: $100,000,000
PRO RATA SHARE OF
COMMITMENTS: 50%
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<PAGE> 90
Address for Notices: NBD BANK, INDIVIDUALLY AND AS CO-AGENT
611 Woodward Avenue
Detroit, Michigan 48226 By:________________________________
Attention: William C. Goodhue Name:______________________________
Vice President Title:_____________________________
Telex No.: 164177
Answerback: NATIONSBANK DET
Telecopy No.: (313) 226-0855
Lending Office and Payment Office:
611 Woodward Avenue
Detroit, Michigan 48226
COMMITMENT: $50,000,000
PRO RATA SHARE OF
COMMITMENTS: 25%
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Address for Notices: FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, INDIVIDUALLY
AND AS CO-AGENT
One First Union Center
TW-19
Charlotte, NC 28288-0745 By:___________________________________
Attn: Glenn Edwards Mark M. Harden
Vice President
Telex No.:
Answerback:
Telecopy: (703) 374-2802
Lending Office and Payment Office:
One First Union Center, TW19
Charlotte, NC 28288-0745
COMMITMENT: $50,000,000
PRO RATA SHARE OF
COMMITMENTS: 25%
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EXHIBIT A
FORM OF
REVOLVING CREDIT NOTE
U.S. $________________ November __, 1996
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned INTERMET CORPORATION, a Georgia
corporation (herein called "Intermet"), hereby promises to pay to the order of
_______________________________, a _____________________ (herein, together with
any subsequent holder hereof, called the "Lender"), for the account of its
applicable Lending Office, the lesser of (i) the principal sum of
_____________________________________ AND NO/100 UNITED STATES DOLLARS
($_______________) and (ii) the outstanding principal amount of the Advances
made by Lender to Intermet as Syndicated Loans pursuant to the terms of the
Credit Agreement referred to below on the Maturity Date of the Credit
Agreement. Intermet likewise promises to pay interest on the outstanding
principal amount of each such Advance, at such interest rates, payable at such
times, and computed in such manner, as are specified for such Advance in the
Credit Agreement in strict accordance with the terms thereof.
The Lender shall record all Advances made pursuant to its Commitment under
the Credit Agreement and all payments of principal of such Advances and, prior
to any transfer hereof, shall endorse such Advances and payments on the
schedule annexed hereto and made a part hereof, or on any continuation thereof
which shall be attached hereto and made a part hereof or on the books and
records of the Lender, which endorsement shall constitute prima facie evidence
of the accuracy of the information so endorsed; provided, however, that delay
or failure of the Lender to make any such endorsement or recordation shall not
affect the obligations of Intermet hereunder or under the Credit Agreement with
respect to the Advances evidenced hereby.
Any principal or, to the extent not prohibited by applicable law, interest
due under this Revolving Credit Note that is not paid on the due date therefor,
whether on the Maturity Date, or resulting from the acceleration of maturity
upon the occurrence of an Event of Default, shall bear interest from the date
due to payment in full at the rate as provided in Section 3.03(c) of the Credit
Agreement.
All payments of principal and interest shall be made in lawful money of
the United States of America in immediately available funds at the Payment
Office of the Agent specified in the Credit Agreement.
This Revolving Credit Note is issued pursuant to, and is one of the
Revolving Credit Notes referred to in, the Third Amended and Restated Credit
Agreement dated as of
<PAGE> 93
November __, 1996 among Intermet, SunTrust Bank, Atlanta as Agent, NBD Bank and
First Union National Bank of North Carolina as Co-Agents, and the other lenders
set forth on the signature pages thereof (as the same may be further amended,
modified or supplemented from time to time, the "Credit Agreement") and each
assignee thereof becoming a "Lender" as provided therein, and the Lender is and
shall be entitled to all benefits thereof and all Security Documents executed
and delivered to the Lenders or the Agent in connection therewith. Terms
defined in the Credit Agreement are used herein with the same meanings. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events and for
mandatory prepayments upon the occurrence of certain events.
Intermet agrees to make payments of principal on the Advances outstanding
hereunder on the dates and in the amounts specified in the Credit Agreement for
such Advances in strict accordance with the terms thereof.
This Revolving Credit Note may be prepaid in whole or in part in
accordance with the terms and conditions of the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal
of and all accrued interest on this Revolving Credit Note may automatically
become, or be declared, due and payable in the manner and with the effect
provided in the Credit Agreement. Intermet agrees to pay, and save the Lender
harmless against any liability for the payment of, all reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees actually incurred,
arising in connection with the enforcement by the Lender of any of its rights
under this Revolving Credit Note or the Credit Agreement.
This Revolving Credit Note has been executed and delivered in Georgia and
the rights and obligations of the Lender and Intermet hereunder shall be
governed by and construed in accordance with the laws (without giving effect to
the conflict of law principles thereof) of the State of Georgia.
Intermet expressly waives any presentment, demand, protest or notice in
connection with this Revolving Credit Note, now or hereafter required by
applicable law. TIME IS OF THE ESSENCE OF THIS REVOLVING CREDIT NOTE.
-2-
<PAGE> 94
IN WITNESS WHEREOF, Intermet has caused this Revolving Credit Note to be
executed and delivered under seal by its duly authorized officers as of the
date first above written.
INTERMET CORPORATION
By:______________________________________
Name:
Title:
Attest:__________________________________
Name:
Title:
[CORPORATE SEAL]
-3-
<PAGE> 95
Revolving Credit Note (cont'd)
ADVANCES AND PAYMENTS OF PRINCIPAL
Last Day of
Amount of Applicable Notation
Amount of Interest Prepaid Interest Made
Date Advance Rate Principal Period By
-4-
<PAGE> 96
EXHIBIT B
FORM OF BID FACILITY NOTE
U.S. $100,000,000.00 November __, 1996
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned INTERMET CORPORATION, a Georgia
corporation (herein called "Intermet"), hereby promises to pay to the order of
_______________________________, a _____________________ (herein, together with
any subsequent holder hereof, called the "Lender"), for the account of its
applicable Lending Office, the lesser of (i) the principal sum of ONE HUNDRED
MILLION AND NO/100 UNITED STATES DOLLARS ($100,000,000.00) and (ii) the
outstanding principal amount of the Bid Rate Advances made by Lender to
Intermet as Bid Rate Loans pursuant to the terms of the Credit Agreement
referred to below on the Maturity Date of the Credit Agreement. Intermet
likewise promises to pay interest on the outstanding principal amount of each
such Bid Rate Advance, at such interest rates, payable at such times, and
computed in such manner, as are specified for such Bid Rate Advance in strict
accordance with the terms of the Credit Agreement.
The Lender shall record all Bid Rate Advances made pursuant to the Credit
Agreement and all payments of principal of such Advances and, prior to any
transfer hereof, shall endorse such Advances and payments on the schedule
annexed hereto and made a part hereof, or on any continuation thereof which
shall be attached hereto and made a part hereof or on the books and records of
the Lender, which endorsement shall constitute prima facie evidence of the
accuracy of the information so endorsed; provided, however, that delay or
failure of the Lender to make any such endorsement or recordation shall not
affect the obligations of Intermet hereunder or under the Credit Agreement with
respect to the Bid Rate Advances evidenced hereby.
Any principal or, to the extent not prohibited by applicable law, interest
due under this Bid Facility Note that is not paid on the due date therefor,
whether on the Maturity Date, or resulting from the acceleration of maturity
upon the occurrence of an Event of Default, shall bear interest from the date
due to payment in full at the rate as provided in Section 3.03(c) of the Credit
Agreement.
All payments of principal and interest shall be made in lawful money of
the United States of America in immediately available funds at the Payment
Office of the Agent specified in the Credit Agreement.
This Bid Facility Note is issued pursuant to, and is one of the Bid
Facility Notes referred to in, the Third Amended and Restated Credit Agreement
dated as of November __, 1996 among Intermet, SunTrust Bank, Atlanta as Agent,
NBD Bank and First Union National Bank of North
<PAGE> 97
Carolina as Co-Agents, and the other lenders set forth on the signature pages
thereof (as the same may be further amended, modified or supplemented from time
to time, the "Credit Agreement") and each assignee thereof becoming a "Lender"
as provided therein, and the Lender is and shall be entitled to all benefits
thereof and all Security Documents executed and delivered to the Lenders or the
Agent in connection therewith. Terms defined in the Credit Agreement are used
herein with the same meanings. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and for mandatory prepayments upon the occurrence of
certain events.
Intermet agrees to make payments of principal on the Bid Rate Advances
outstanding hereunder on the dates and in the amounts specified in the Credit
Agreement for such Bid Rate Advances in strict accordance with the terms
thereof.
This Bid Facility Note may be prepaid in whole or in part in accordance
with the terms and conditions of the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal
of and all accrued interest on this Bid Facility Note may automatically become,
or be declared, due and payable in the manner and with the effect provided in
the Credit Agreement. Intermet agrees to pay, and save the Lender harmless
against any liability for the payment of, all reasonable out-of-pocket costs
and expenses, including reasonable attorneys' fees actually incurred, arising
in connection with the enforcement by the Lender of any of its rights under
this Bid Facility Note or the Credit Agreement.
This Bid Facility Note has been executed and delivered in Georgia and the
rights and obligations of the Lender and Intermet hereunder shall be governed
by and construed in accordance with the laws (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
Intermet expressly waives any presentment, demand, protest or notice in
connection with this Bid Facility Note, now or hereafter required by applicable
law. TIME IS OF THE ESSENCE OF THIS BID FACILITY NOTE.
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<PAGE> 98
IN WITNESS WHEREOF, Intermet has caused this Bid Facility Note to be
executed and delivered under seal by its duly authorized officers as of the
date first above written.
INTERMET CORPORATION
By:____________________________________
Name:
Title:
Attest:________________________________
Name:
Title:
[CORPORATE SEAL]
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<PAGE> 99
Bid Facility Note (cont'd)
ADVANCES AND PAYMENTS OF PRINCIPAL
Last Day of
Amount of Applicable Notation
Amount of Interest Prepaid Interest Made
Date Advance Rate Principal Period By
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<PAGE> 100
EXHIBIT C
FORM OF LETTER OF CREDIT APPLICATION
<PAGE> 101
EXHIBIT D
FORM OF BID REQUEST LETTER
SunTrust Bank, Atlanta, as
Agent for
the Lenders referred to below,
25 Park Place
Atlanta, Georgia 30303
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, INTERMET CORPORATION (the "Borrower"), refers to the
Third Amended and Restated Credit Agreement dated as of November __, 1996 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, the financial institutions party thereto as
Lenders, SunTrust Bank, Atlanta, as Agent, and NBD Bank and First Union
National Bank of North Carolina, as Co-Agents. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement. The Borrower hereby gives you notice pursuant to
Section 2.08(a) of the Credit Agreement that it requests a Bid Rate Loan or Bid
Rate Loans under the Credit Agreement, and in that connection sets forth below
the terms on which such Bid Rate Loan or Bid Rate Loans is or are requested to
be made:
(A) Date of Bid Rate Loan
(which is a Business Day) ______ ______
(B) Interest Period and the last
day thereof (1) ______ ______
(C) Principal Amount of
Bid Rate Loan (2) ______ ______
Upon acceptance of any or all of the Bid Rate Advances offered by the
Lenders in response to this request, the Borrower shall be deemed to have
represented and warranted that the
____________________
(1) Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
(2) Not less than $1,000,000 (and in integral multiples of $100,000) nor
greater than the lesser of (1) the amount by which $100,000,000 exceeds the
aggregate outstanding amount of Bid Rate Loans and (2) the amount by
which the sum of the Commitments exceeds the sum of the outstanding
principal amount of the Loans.
<PAGE> 102
conditions to lending specified in Section 4.02 of the Credit Agreement have
been satisfied.
Very truly yours,
INTERMET CORPORATION
By:____________________________________
Title: [Responsible Officer]
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<PAGE> 103
EXHIBIT E
FORM OF BID REQUEST INVITE LETTER
[Name of Lender]
[Address]
[Date]
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Credit Agreement dated
as of November __, 1996 (as it may be amended, modified, extended or restated
from time to time, the "Credit Agreement"), among INTERMET CORPORATION (the
"Borrower"), the financial institutions party thereto as Lenders, SunTrust
Bank, Atlanta, as Agent, and NBD Bank and First Union National Bank of North
Carolina, as Co-Agents. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower made a Bid Rate Bid Request on __________ ___, 19__ ,
pursuant to Section 2.08(a) of the Credit Agreement, and in that connection you
are invited to submit a Bid Rate Bid or Bid Rate Bids by [Date]/[Time].(1) Each
of your Bid Rate Bids must comply with Section 2.08(b) of the Credit Agreement
and the terms set forth below on which the Bid Rate Bid Request was made:
(A) Date of Bid Rate Loan
(which is a Business Day) ______ ______
(B) Interest Period and the last
day thereof ______ ______
(C) Principal Amount of
Bid Rate Loan $_____ $_____
(E) Interest rate ______% ______%
Very truly yours,
SUNTRUST BANK, ATLANTA, as
Agent
By:__________________________
Title:
______________________
(1) Each Bid Rate Bid must be received by the Agent not later than 12:00
noon, Atlanta, Georgia time, on the Business Day of a proposed Bid Rate Loan.
<PAGE> 104
EXHIBIT F
FORM OF BID RATE BID LETTER
SunTrust Bank, Atlanta, as
Agent for
the Lenders referred to below,
25 Park Place
Atlanta, Georgia 30303
[Date]
Attention:
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Third Amended and
Restated Credit Agreement dated as of November __, 1996 (as it may hereafter be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among INTERMET CORPORATION (the "Borrower"), the financial
institutions party thereto as Lenders, SunTrust Bank, Atlanta, as Agent, and
NBD Bank and First Union National Bank of North Carolina, as Co-Agents.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned
hereby makes a Bid Rate Bid or Bid Rate Bids, as the case may be, pursuant to
Section 2.08(b) of the Credit Agreement, in response to the Bid Rate Bid
Request made by the Borrower on _____________, 19___, and in that connection
sets forth below the terms on which such Bid Rate Bid or Bid Rate Bids is or
are made:
(A) Interest Period and last
day thereof ______ ______
(B) Principal Amount (1) $_____ $_____
(C) Bid Rate ______ ______
[In the event bids are accepted for more than one Interest Period in
respect of which bids are set forth above, the aggregate principal amount of
Bid Rate Advances made pursuant to Bid Rate Bids submitted hereby shall not
exceed $_______ (2)].
______________________
(1) Not less than $1,000,000 or greater than the requested Bid Rate Loan
and in integral multiples of $100,000. Multiple bids will be accepted by the
Agent not to exceed two.
(2) Not less than $1,000,000 and in integral multiples of $100,000.
<PAGE> 105
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.08(d)
of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:______________________________
Title:
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<PAGE> 106
EXHIBIT G
FORM OF BID ACCEPT/REJECT LETTER
SunTrust Bank, Atlanta, as
Agent for
the Lenders referred to below
25 Park Place
Atlanta, Georgia 30303
Attention:
Ladies and Gentlemen:
The undersigned, INTERMET CORPORATION (the "Borrower"), refers to the
Third Amended and Restated Credit Agreement dated as of November __, 1996 (as
it may hereafter be amended, modified, extended or restated from time to time,
the "Credit Agreement"), among the Borrower, the financial institutions party
thereto as Lenders, SunTrust Bank, Atlanta, as Agent, and NBD Bank and First
Union National Bank of North Carolina, as Co-Agents. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
In accordance with Section 2.08(c) of the Credit Agreement, we have
received a summary of bids in connection with our Bid Rate Bid Request dated
_______ ___, 19__ and in accordance with Section 2.08(d) of the Credit
Agreement, we hereby accept the following bids for the Interest Periods
specified below:
1. Interest Period commencing [date] and ending [date]
Aggregate Principal Amount of Bids Accepted, if in Excess of Aggregate
Amount Requested in Bid Rate Bid Request, is $_______.(1)
Accepted Bids:
Principal Amount Interest Rate Lender
$ __%
$ __%
[2. Interest Period commencing [date] and ending [date]
______________________
(1) Must be prorated amongst Lenders as provided in Section 2.08(d).
<PAGE> 107
Aggregate Principal Amount of Bids Accepted, if in Excess of Aggregate
Amount Requested in Bid Rate Bid Request, is $_________.(2)
Accepted Bids:
Principal Amount Interest Rate Lender
$ __%
$ __%
]
All Bid Rate Bids received but not listed above as accepted are hereby
deemed rejected.
[Insert special instructions, if any, with respect to the apportionment of
the Borrower's acceptance among bids by a Lender for different Interest
Periods]
Very truly yours,
INTERMET CORPORATION
By:_______________________________
Name:
Title:
______________________
(2) Must be prorated amongst Lenders as provided in Section 2.08(d).
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<PAGE> 108
EXHIBIT H
AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT
This AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT (this "Guaranty"),
dated as of November __, 1996, made by LYNCHBURG FOUNDRY COMPANY, a corporation
organized and existing under the laws of the Commonwealth of Virginia, IRONTON
IRON, INC., a corporation organized and existing under the laws of the State of
Ohio, NORTHERN CASTINGS CORPORATION, a corporation organized and existing under
the laws of the State of Georgia, INTERMET INTERNATIONAL, INC., a corporation
organized and existing under the laws of the State of Georgia, ALEXANDER CITY
CASTINGS COMPANY, INC. a corporation organized and existing under the laws of
the State of Alabama, and NEW RIVER CASTINGS COMPANY, a corporation organized
and existing under the laws of the State of Delaware (the foregoing
corporations individually a "Guarantor" and collectively the "Guarantors"), in
favor of SUNTRUST BANK, ATLANTA, a Georgia banking corporation (formerly known
as Trust Company Bank; the "Agent"), in its capacity as agent for banks and
other lending institutions parties to the Credit Agreement (as hereinafter
defined) and each assignee thereof becoming a "Lender" as provided therein (the
"Lenders"), and NBD BANK and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, in
their capacities as co-agents for the Lenders (the "Co-Agents"); the Lenders,
the Agent and the Co-Agents being collectively referred to herein as the
"Guaranteed Parties");
W I T N E S S E T H:
WHEREAS, Intermet Corporation, a corporation organized and existing under
the laws of the State of Georgia ("Intermet"), the Lenders, the Agent and
certain other financial institutions entered into that certain Amended and
Restated Credit Agreement dated as of August 21, 1995 as further amended and
restated pursuant to that Second Amended and Restated Credit Agreement dated as
of February 23, 1996 (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
and to amend certain other provisions thereof and to change the lending group
thereunder;
WHEREAS, Intermet, the Lenders, the Co-Agents and the Agent have entered
into that certain Third Amended and Restated Credit Agreement dated as of
November __, 1996 (as the same may hereafter be amended, restated, supplemented
or otherwise modified from time to time, and including all schedules, riders,
and supplements thereto, the "Credit Agreement";
<PAGE> 109
terms defined therein and not otherwise defined herein being used herein as
therein defined)
WHEREAS, Intermet owns, directly or indirectly, all or a majority of the
outstanding capital stock of each of the Guarantors;
WHEREAS, Intermet and Guarantors share an identity of interest as members
of a consolidated group of companies engaged in substantially similar
businesses with Intermet providing certain centralized financial, accounting
and management services to each of the Guarantors;
WHEREAS, the Guarantors have previously executed and delivered on Amended
and Restated Guaranty in favor of the Lenders and the Agent dated as of
February 23, 1996 guaranteeing the obligations of Intermet under the Prior
Credit Agreement to the Lenders, the Agent and the other financial institutions
party thereto;
WHEREAS, consummation of the transactions pursuant to the Credit Agreement
will enhance the overall financial strength and stability of Intermet's entire
corporate group, including the Guarantors;
WHEREAS, it is a condition precedent to the Lenders' obligations to enter
into the Credit Agreement and to make extensions of credit thereunder that
Guarantors execute and deliver this Guaranty, and Guarantors desire to execute
and deliver this Guaranty to satisfy such condition precedent;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to enter into and perform their obligations under the Credit
Agreement, the Guarantors hereby jointly and severally agree as follows:
SECTION 1. GUARANTY. The Guarantors hereby jointly and severally,
irrevocably and unconditionally, guarantee the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Loans and all
other Obligations owing by Intermet to the Lenders or the Agent, or any of
them, under the Credit Agreement, the Notes and the other Credit Documents,
including, without limitation, all renewals, extensions, modifications and
refinancings thereof, now or hereafter owing, whether for principal, interest,
fees, expenses or otherwise, and any and all reasonable out-of-pocket expenses
(including reasonable attorneys' fees actually incurred and expenses) incurred
by the Agent in enforcing any rights under this Guaranty and the Letter of
Credit Obligations (collectively, the "Guaranteed Obligations"), including
without limitation, all interest which, but for the filing of a petition in
bankruptcy with respect to Intermet, would accrue on any principal portion of
the Guaranteed Obligations. Any and all payments by the Guarantors hereunder
shall be made free and clear of and without deduction for any set-off,
counterclaim, or withholding so that, in each case, each Guaranteed Party will
receive, after giving effect to any Taxes (as such term is defined in the
Credit Agreement, but excluding Taxes imposed on overall net income of the
Guaranteed Party to the same extent as excluded pursuant to the Credit
Agreement), the full amount that it would otherwise be entitled to receive with
respect to the Guaranteed Obligations (but without
<PAGE> 110
duplication of amounts for Taxes already included in the Guaranteed
Obligations). The Guarantors acknowledge and agree that this is a guarantee of
payment when due, and not of collection, and that this Guaranty may be enforced
up to the full amount of the Guaranteed Obligations without proceeding against
Intermet, against any security for the Guaranteed Obligations, against any
other Guarantor or under any other guaranty covering any portion of the
Guaranteed Obligations.
SECTION 2. GUARANTY ABSOLUTE. The Guarantors guarantee that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Credit Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Guaranteed Party with respect thereto. The liability of each
Guarantor under this Guaranty shall be absolute and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without limitation,
the following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) any change in the time, place or manner of payment of, or in
any other term of, all or any of the Guaranteed Obligations, any waiver,
indulgence, renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action or inaction
under or in respect of the Credit Agreement, the other Credit Documents,
or any other documents, instruments or agreements relating to the
Guaranteed Obligations or any other instrument or agreement referred to
therein or any assignment or transfer of any thereof;
(b) any lack of validity or enforceability of the Credit Agreement,
the other Credit Documents, or any other document, instrument or
agreement referred to therein or any assignment or transfer of any
thereof;
(c) any furnishing to the Guaranteed Parties of any additional
security for the Guaranteed Obligations, or any sale, exchange, release
or surrender of, or realization on, any security for the Guaranteed
Obligations;
(d) any settlement or compromise of any of the Guaranteed
Obligations, any security therefor, or any liability of any other party
with respect to the Guaranteed Obligations, or any subordination of the
payment of the Guaranteed Obligations to the payment of any other
liability of Intermet;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
any Guarantor or Intermet, or any action taken with respect to this
Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
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<PAGE> 111
(f) any nonperfection of any security interest or lien on any
collateral, or any amendment or waiver of or consent to departure from
any guaranty or security, for all or any of the Guaranteed Obligations;
(g) any application of sums paid by Intermet or any other Person
with respect to the liabilities of Intermet to the Guaranteed Parties,
regardless of what liabilities of Intermet remain unpaid;
(h) any act or failure to act by any Guaranteed Party which may
adversely affect a Guarantor's subrogation rights, if any, against
Intermet to recover payments made under this Guaranty; and
(i) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Guarantor.
If claim is ever made upon any Guaranteed Party for repayment or recovery of
any amount or amounts received in payment or on account of any of the
Guaranteed Obligations, and any Guaranteed Party repays all or part of said
amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Guaranteed Party or any of its
property, or (b) any settlement or compromise of any such claim effected by the
Guaranteed Party with any such claimant (including Intermet or a trustee in
bankruptcy for Intermet), then and in such event the Guarantors agree that any
such judgment, decree, order, settlement or compromise shall be binding on it,
notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, the other Credit Documents, or any other instrument evidencing any
liability of Intermet, and the Guarantors shall be and remain liable to the
Guaranteed Party for the amounts so repaid or recovered to the same extent as
if such amount had never originally been paid to the Guaranteed Party.
SECTION 3. WAIVER. The Guarantors hereby waive notice of acceptance
of this Guaranty, notice of any liability to which it may apply, and further
waive presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the
Guaranteed Parties against, and any other notice to, Intermet or any other
party liable with respect to the Guaranteed Obligations (including the
Guarantors or any other Person executing a guaranty of the obligations of
Intermet).
SECTION 4. WAIVER OF SUBROGATION; CONTRIBUTION. No Guarantor will
exercise any rights against the Intermet which it may acquire by way of
subrogation or contribution, by any payment made hereunder or otherwise and
each of the Guarantors hereby expressly waives any claim, right or remedy which
the Guarantors may now have or hereafter acquire against the Intermet that
arises hereunder and/or from the performance by the Guarantors hereunder,
including, without limitation, any claim, right or remedy of any Guaranteed
Party against the Intermet or any security which any Guaranteed Party now has
or hereafter acquires, whether or not such claim, right or remedy arises in
equity, under contract, by statute, under
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<PAGE> 112
color of law or otherwise unless and until the Guaranteed Obligations have been
indefeasibly paid in full.
In the event that any Guarantor (the "Funding Guarantor") shall make any
payment or payments under this Guaranty or shall suffer any loss as a result of
any realization upon any collateral granted by it to secure its obligations
hereunder, each other Guarantor (each, a "Contributing Guarantor") hereby
agrees to contribute to the Funding Guarantor an amount equal to such
Contributing Guarantor's pro rata share of such payment or payments made, or
losses suffered, by such Funding Guarantor determined by reference to the ratio
of (a) the dollar amount of the percentage of each such Contributing
Guarantor's Net Assets (without giving effect to any right to receive any
contribution or subrogation or obligation to make any contribution hereunder),
to (b) the sum of the Net Assets of all Guarantors (including the Funding
Guarantor) hereunder (without giving effect to any right to receive
contribution or subrogation hereunder or any obligation to make any
contribution hereunder); provided, that the Contributing Guarantor shall not be
obligated to make any such payment to the Funding Guarantor if the Contributing
Guarantor is not solvent at the time of such contribution or if the
Contributing Guarantor would be rendered not solvent as a result thereof.
Nothing in this Section shall affect each Guarantor's several liability for the
entire amount of the Guaranteed Obligations, subject only to the limitations
set forth in Section 15. For the purposes of this Section 4, (x) the "Net
Assets" of any Guarantor shall mean the highest amount, as of any Determination
Date, by which (A) the aggregate present fair saleable value of the assets of
such Guarantor exceeds (B) the amount of all the debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of such Guarantor hereunder), and
(y) "Determination Date" shall mean each of (1) the Closing Date, (2) the date
of commencement of a case under the Bankruptcy Code in which a Guarantor is a
debtor, and (3) the date enforcement hereunder is sought with respect to such
Guarantor. Each Funding Guarantor covenants and agrees that its right to
receive any contribution from any Contributing Guarantor hereunder shall be
subordinated and junior in right of payment in full of all of the Guaranteed
Obligations.
SECTION 5. SEVERABILITY. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by a Guarantor therefrom shall in
any event be effective unless the same shall be in writing executed by the
Agent.
SECTION 7. NOTICES. All notices and other communications provided
for hereunder shall be given in the manner specified in the Credit Agreement
(i) in the case of the Agent, at the address specified for the Agent in the
Credit Agreement, and (ii) in the case of the Guarantors, at the respective
addresses specified for such Guarantors in this Guaranty.
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<PAGE> 113
SECTION 8. NO WAIVER; REMEDIES. No failure on the part of the Agent
or other Guaranteed Parties to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. No notice to or demand on any Guarantor in
any case shall entitle such Guarantor to any other further notice or demand in
any similar or other circumstances or constitute a waiver of the rights of the
Agent or other Guaranteed Parties to any other or further action in any
circumstances without notice or demand. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9. RIGHT OF SET OFF. In addition to and not in limitation of
all rights of offset that the Agent or other Guaranteed Parties may have under
applicable law, the Agent or other Guaranteed Parties shall, upon the
occurrence of any Event of Default and whether or not the Agent or other
Guaranteed Parties have made any demand or the Guaranteed Obligations are
matured, have the right to appropriate and apply to the payment of the
Guaranteed Obligations, all deposits of any Guarantor (general or special, time
or demand, provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by the Agent or other
Guaranteed Parties to any Guarantor, whether or not related to this Guaranty or
any transaction hereunder. The Guaranteed Parties shall promptly notify the
relevant Guarantor of any offset hereunder.
SECTION 10. CONTINUING GUARANTY; TRANSFER OF OBLIGATIONS. This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect
until payment in full of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the termination of the Total Commitments, (ii)
be binding upon each Guarantor, its successors and assigns, and (iii) inure to
the benefit of and be enforceable by the Agent, its successors, transferees and
assigns, for the benefit of the Guaranteed Parties.
SECTION 11. GOVERNING LAW; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS;
SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE
OF GEORGIA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR
OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE SUPERIOR COURT OF FULTON COUNTY
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 GUARANTY, EACH
GUARANTOR HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
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<PAGE> 114
JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS
RIGHTS OR THE RIGHTS OF THE AGENT AND OTHER GUARANTEED PARTIES WITH RESPECT TO
THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH GUARANTOR HEREBY
IRREVOCABLY DESIGNATES CSC/PRENTICE HALL, INC. AS THE DESIGNEE, APPOINTEE AND
AGENT OF SUCH GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF SUCH GUARANTOR,
SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED HERETO AND SUCH SERVICE SHALL
BE DEEMED COMPLETED THIRTY DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS
UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF PROCESS BY MAIL TO THE
RESPECTIVE GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF SUCH
GUARANTOR TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. EACH GUARANTOR
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 ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS GUARANTY OR ANY
DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER
JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER
CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
SECTION 12. SUBORDINATION OF INTERMET'S OBLIGATIONS TO THE
GUARANTORS. As an independent covenant, each Guarantor hereby expressly
covenants and agrees for the benefit of the Agent and other Guaranteed Parties
that all obligations and liabilities of Intermet to such Guarantor of
whatsoever description including, without limitation, all intercompany
receivables of such Guarantor from Intermet ("Junior Claims") shall be
subordinate and junior in right of payment to all obligations of Intermet to
the Agent and other Guaranteed Parties under the terms of the Credit Agreement
and the other Credit Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event of
Default shall have been cured, waived, or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities by setoff or otherwise)
shall be made by Intermet to any Guarantor on
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<PAGE> 115
account of or in any manner in respect of any Junior Claim except such payments
and distributions the proceeds of which shall be applied to the payment of
Senior Claims.
In the event of a Proceeding (as hereinafter defined), all Senior Claims
shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim except such payments and distributions the proceeds of which shall be
applied to the payment of Senior Claims. For the purposes of the previous
sentence, "Proceeding" means Intermet or any Guarantor shall commence a
voluntary case concerning itself under the Bankruptcy Code or any other
applicable bankruptcy laws; or any involuntary case is commenced against
Intermet or any Guarantor; or a custodian (as defined in the Bankruptcy Code or
any other applicable bankruptcy laws) is appointed for, or takes charge of, all
or any substantial part of the property of Intermet or any Guarantor, or
Intermet or any Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Intermet or any Guarantor, or any such
proceeding is commenced against Intermet or any Guarantor, or Intermet or any
Guarantor is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or Intermet or any
Guarantor suffers any appointment of any custodian or the like for it or any
substantial part of its property; or Intermet or any Guarantor makes a general
assignment for the benefit of creditors; or Intermet or any Guarantor 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 Intermet or any Guarantor shall
call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; or Intermet or any Guarantor shall by any act or
failure to act indicate its consent to, approval of or acquiescence in any of
the foregoing; or any corporate action shall be taken by Intermet or any
Guarantor for the purpose of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to a
Guarantor in contravention of this Section 12, such payment or distribution
shall be deemed received in trust for the benefit of the Agent and other
Guaranteed Parties and shall be immediately paid over to the Agent for
application against the Guaranteed Obligations in accordance with the terms of
the Credit Agreement.
Each Guarantor agrees to execute such additional documents as the Agent
may reasonably request to evidence the subordination provided for in this
Section 12.
SECTION 13. JUDGMENT CURRENCY. (a) The Guarantors' obligations
hereunder 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 results in the
effective receipt by the Guaranteed Parties of the full amount of the
Obligation Currency expressed to be payable under this Guaranty or the Credit
Agreement. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in
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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, at 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 Guarantors covenant and agree to pay, or cause to be paid, such
additional 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 prevailing 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.
(d) If the Obligation Currency is U.S. Dollars, the currency equivalent
shall be the Dollar Equivalent.
SECTION 14. AUTOMATIC ACCELERATION IN CERTAIN EVENTS. Upon the
occurrence of an Event of Default specified in Section 10.07 of the Credit
Agreement, all Guaranteed Obligations shall automatically become immediately
due and payable by the Guarantors, without notice or other action on the part
of the Agent or other Guaranteed Parties, and regardless of whether payment of
the Guaranteed Obligations by Intermet has then been accelerated. In addition,
if any event of the types described in Section 10.07 of the Credit Agreement
should occur with respect to any Guarantor, then the Guaranteed Obligations
shall automatically become immediately due and payable by such Guarantor,
without notice or other action on the part of the Agent or other Guaranteed
Parties, and regardless of whether payment of the Guaranteed Obligations by
Intermet has then been accelerated.
SECTION 15. SAVINGS CLAUSE. (a) It is the intent of each Guarantor
and the Guaranteed Parties that each Guarantor's maximum obligations hereunder
shall be, but not in excess of:
(i) in a case or proceeding commenced by or against such Guarantor
under the Bankruptcy Code on or within one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount which
would not otherwise cause the Guaranteed Obligations (or any other
obligations of such Guarantor to the Guaranteed Parties) to be avoidable
or unenforceable against such Guarantor under (A) Section 548
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of the Bankruptcy Code or (B) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such Guarantor
under the Bankruptcy Code subsequent to one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount which
would not otherwise cause the Guaranteed Obligations (or any other
obligations of the Guarantor to the Guaranteed Parties) to be avoidable
or unenforceable against such Guarantor under any state fraudulent
transfer or fraudulent conveyance act or statute applied in any such case
or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the Bankruptcy
Code (including, without limitation, any other bankruptcy,
reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum
amount which would not otherwise cause the Guaranteed Obligations (or any
other obligations of such Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against such Guarantor under such law, statute
or regulation including, without limitation, any state fraudulent
transfer or fraudulent conveyance act or statute applied in any such case
or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 15(a), but only to the extent
that the Guaranteed Obligations would otherwise be subject to avoidance
under the Avoidance Provisions if such Guarantor is not deemed to have
received valuable consideration, fair value or reasonably equivalent
value for the Guaranteed Obligations, or if the Guaranteed Obligations
would render the Guarantor insolvent, or leave the Guarantor with an
unreasonably small capital to conduct its business, or cause the
Guarantor to have incurred debts (or to have intended to have incurred
debts) beyond its ability to pay such debts as they mature, in each case
as of the time any of the Guaranteed Obligations are deemed to have been
incurred under the Avoidance Provisions and after giving effect to
contribution as among Guarantors, the maximum Guaranteed Obligations for
which such Guarantor shall be liable hereunder shall be reduced to that
amount which, after giving effect thereto, would not cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Guaranteed
Parties), as so reduced, to be subject to avoidance under the Avoidance
Provisions. This Section 15(b) is intended solely to preserve the rights
of the Guaranteed Parties hereunder to the maximum extent that would not
cause the Guaranteed Obligations of any Guarantor to be subject to
avoidance under the
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Avoidance Provisions, and neither such Guarantor nor any other Person
shall have any right or claim under this Section 15 as against the
Guaranteed Parties that would not otherwise be available to such Person
under the Avoidance Provisions.
(c) None of the provisions of this Section 15 are intended in any
manner to alter the obligations of any holder of Subordinated Debt or the
rights of the holders of "senior indebtedness" as provided by the terms
of the Subordinated Debt. Accordingly, it is the intent of each of the
Guarantors that, in the event that any payment or distribution is made
with respect to the Subordinated Debt prior to the payment in full of the
Guaranteed Obligations by virtue of the provisions of this Section 15, in
any case or proceeding of the kinds described in clauses (i)-(iii) of
Section 15(a), the holders of the Subordinated Debt shall be obligated to
pay or deliver such payment or distribution to or for the benefit of the
Guaranteed Parties. Furthermore, in respect of the Avoidance Provisions,
it is the intent of each Guarantor that the subrogation rights of the
holders of Subordinated Debt with respect to the obligations of the
Guarantor under this Guaranty, be subject in all respects to the
provisions of Section 15(b).
SECTION 16. INFORMATION. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of Intermet's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of
the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Guaranteed Parties will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 17. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents
and warrants as to itself that all representations and warranties relating to
it contained in Sections 5.01 through 5.06 of the Credit Agreement are true
and correct.
SECTION 18. SURVIVAL OF AGREEMENT. All agreements, representations
and warranties made herein shall survive the execution and delivery of this
Guaranty and the Credit Agreement, the making of the Loans and the execution
and delivery of the Notes and the other Credit Documents.
SECTION 19. COUNTERPARTS. This Guaranty and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
SECTION 20. CURRENCY OF PAYMENT. All payments to be made by the
Guarantors hereunder shall be made in the relevant currency or currencies in
which the Guaranteed Obligations are denominated in immediately available
funds. If any Guarantor is unable for any reason to effect payment of any of
the Guaranteed Obligations in the currency in
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which such Guaranteed Obligations are denominated, the Guaranteed Parties may,
at their option, require such payment to be made in the Dollar Equivalent of
such currency. If in any case where any of the Guarantors shall make any such
payment in the Dollar Equivalent, the Guarantors agree to hold the Guaranteed
Parties harmless from any loss incurred by the Lenders arising from any change
in the value of Dollars in relation to such currency between the date such
payment became due and the date of payment thereof.
SECTION 21. ADDITIONAL GUARANTORS. Upon execution and delivery by
any Subsidiary of Intermet of an instrument in the form of Annex 1, such
Subsidiary of Intermet shall become a Guarantor hereunder with the same force
and effect as if originally named a Guarantor herein (each an "Additional
Guarantor"). The execution and delivery of any such instrument shall not
require the consent of any Guarantor hereunder. The rights and obligations of
each Guarantor hereunder shall remain in full force and effect notwithstanding
the addition of any Additional Guarantor as a party to this Guaranty.
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IN WITNESS WHEREOF, each Guarantor and the Agent have caused this Guaranty
to be duly executed and delivered by their respective duly authorized officers
as of the date first above written.
Address for Notices: LYNCHBURG FOUNDRY COMPANY
(a "Guarantor")
c/o Intermet Corporation
5445 Corporate Drive
Suite 200 By:
Troy, Michigan 48098 Title:
Attn: Doretha J. Christoph
Attest:
Title:
[CORPORATE SEAL]
Address for Notices: IRONTON IRON, INC.
(a "Guarantor")
c/o Intermet Corporation
5445 Corporate Drive
Suite 200 By:
Troy, Michigan 48098 Title:
Attn: Doretha J. Christoph
Attest:
Title:
[CORPORATE SEAL]
Address for Notices: NORTHERN CASTINGS CORPORATION
(a "Guarantor")
c/o Intermet Corporation
5445 Corporate Drive
Suite 200 By:
Troy, Michigan 48098 Title:
Attn: Doretha J. Christoph
Attest:
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<PAGE> 121
Title:
[CORPORATE SEAL]
Address for Notices: INTERMET INTERNATIONAL, INC.
(a "Guarantor")
c/o Intermet Corporation
5445 Corporate Drive
Suite 200 By:
Troy, Michigan 48098 Title:
Attn: Doretha J. Christoph
Attest:
Title:
[CORPORATE SEAL]
Address for Notices: ALEXANDER CITY CASTINGS COMPANY,
INC. (a "Guarantor")
c/o Intermet Corporation
5445 Corporate Drive
Suite 200 By:
Troy, Michigan 48098 Title:
Attn: Doretha J. Christoph
Attest:
Title:
Address for Notices: NEW RIVER CASTINGS COMPANY
(a "Guarantor")
c/o Intermet Corporation
5445 Corporate Drive
Suite 200 By:
Troy, Michigan 48098 Title:
Attn: Doretha J. Christoph
Attest:
Title:
[CORPORATE SEAL]
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<PAGE> 122
SUNTRUST BANK, ATLANTA
("Agent")
By:
Title:
By:
Title:
SECTION 12 OF THE
FOREGOING GUARANTY
ACKNOWLEDGED AND
AGREED TO:
INTERMET CORPORATION
By:
Title:
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<PAGE> 123
ANNEX 1
SUPPLEMENT
TO AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
THIS SUPPLEMENT TO AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT
(this "Supplement to Guaranty Agreement"), dated as of ___________, 19__, made
by ______________________, a ________ corporation (the "Additional Guarantor"),
in favor of SUNTRUST BANK, ATLANTA, a Georgia banking corporation (the
"Agent"), in its capacity as agent for banks and other lending institutions
parties to the Credit Agreement (as hereinafter defined) and each assignee
thereof becoming a "Lender" as provided therein (the "Lenders") and NBD BANK
and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, in their capacities as
co-agents for the Lenders (the "Co-Agents"; the Lenders, the Agent and the
Co-Agents, being collectively referred to herein as the "Guaranteed Parties").
W I T N E S S E T H:
WHEREAS, Intermet Corporation ("Intermet"), the Lenders, the Agent and the
Co-Agents are parties to that certain Third Amended and Restated Credit
Agreement, dated as of November __, 1996 (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") pursuant to which the Lenders have made commitments to make loans
to Intermet;
WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of Intermet
have executed and delivered that certain Amended and Restated Subsidiary
Guaranty Agreement dated as of November __, 1996 (the "Subsidiary Guaranty")
pursuant to which the Subsidiary Guarantors have agreed to guarantee all of the
obligations of Intermet under the Credit Agreement and the other Credit
Documents (as defined in the Credit Agreement);
WHEREAS, Intermet, the Subsidiary Guarantors and the Additional Guarantor
share an identity of interests as members of a consolidated group of companies
engaged in substantially similar businesses; Intermet provides certain
centralized financial, accounting and management services to the Additional
Guarantor; and the making of the loans will enhance the overall financial
strength and stability of the Intermet's corporate group, including the
Additional Guarantor;
WHEREAS, it is a condition subsequent to the Lenders' obligation to make
loans to Intermet under the Credit Agreement that the Additional Guarantor
execute and deliver to the Agent this Supplement to Guaranty Agreement, and the
Additional Guarantor desires to execute
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and deliver this Supplement to Guaranty Agreement to satisfy such condition
subsequent;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make the loans to Intermet under the Credit Agreement, the
Additional Guarantor hereby agrees as follows:
1. DEFINED TERMS. Capitalized terms not otherwise defined herein which are
used in the Subsidiary Guaranty are used herein with the meanings specified for
such terms in the Credit Agreement.
2. ADDITIONAL GUARANTOR. The Additional Guarantor agrees that it shall be
and become a Guarantor for all purposes of the Subsidiary Guaranty and shall be
fully liable thereunder to the Agent and other Guaranteed Parties to the same
extent and with the same effect as though the Additional Guarantor had been one
of the Guarantors originally executing and delivering the Subsidiary Guaranty.
Without limiting the foregoing, the Additional Guarantor hereby jointly and
severally (with respect to the guaranties made by the Subsidiary Guarantors
under the Subsidiary Guaranty), irrevocably and unconditionally, guarantees the
punctual payment when due, whether at stated maturity by acceleration of
otherwise, of the Borrowings and all other Obligations (as defined in the
Credit Agreement, and including all renewals, extensions, modifications and
refinancings thereof, now or hereafter existing, whether for principal,
interest, fees, expenses or otherwise, and any and all expenses (including
reasonable attorneys' fees actually incurred and reasonable out-of-pocket
expenses) incurred by the Agent and other Guaranteed Parties in enforcing any
rights under the Subsidiary Guaranty (as supplemented hereby), subject,
however, to the limitations expressly provided in the Subsidiary Guaranty in
Section 15 thereof. All references in the Subsidiary Guaranty to "Guarantors"
or any "Guarantor" shall be deemed to include and to refer to the Additional
Guarantor.
3. GOVERNING LAW; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS;
SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS SUPPLEMENT TO GUARANTY AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT TO
GUARANTY AGREEMENT RELATED HERETO MAY BE BROUGHT IN THE SUPERIOR COURT OF
FULTON COUNTY 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
SUPPLEMENT TO GUARANTY AGREEMENT, THE ADDITIONAL GUARANTOR HEREBY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID
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<PAGE> 125
COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS OF THE
AGENT OR OTHER GUARANTEED PARTIES WITH RESPECT TO THIS SUPPLEMENT TO GUARANTY
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE ADDITIONAL GUARANTOR HEREBY
IRREVOCABLY DESIGNATES __________________________________________________
________________, AS THE DESIGNEE, APPOINTEE AND AGENT OF THE ADDITIONAL
GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF THE ADDITIONAL GUARANTOR, SERVICE OF
PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS SUPPLEMENT TO GUARANTY AGREEMENT OR ANY DOCUMENT RELATED HERETO AND SUCH
SERVICE SHALL BE DEEMED COMPLETED THIRTY (30) DAYS AFTER MAILING THEREOF TO
SAID AGENT. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT
WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF PROCESS BY
MAIL TO THE ADDITIONAL GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, BUT THE
FAILURE OF THE ADDITIONAL GUARANTOR TO RECEIVE SUCH COPY SHALL NOT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. THE ADDITIONAL GUARANTOR 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 ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN
RESPECT OF THIS SUPPLEMENT TO GUARANTY AGREEMENT OR ANY DOCUMENT RELATED
THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL GUARANTOR
HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS SUPPLEMENT TO
GUARANTY AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN
CONNECTION HEREUNDER OR THEREUNDER.
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<PAGE> 126
IN WITNESS WHEREOF, the Additional Guarantor has caused this Supplement to
Guaranty to be duly executed and delivered under seal by its duly authorized
officers as of the date first above written.
Address for Notices: ADDITIONAL GUARANTOR:
____________________________________
By:_________________________________
Title:___________________________
Attest:_____________________________
Title:_______________________
[CORPORATE SEAL]
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<PAGE> 127
EXHIBIT I
FORM OF CLOSING CERTIFICATE
CLOSING CERTIFICATE
Pursuant to Section 4.01 of the Third Amended and Restated Credit
Agreement dated as of November __, 1996 (the "Credit Agreement") among INTERMET
CORPORATION, a Georgia corporation ("Intermet"), SUNTRUST BANK, ATLANTA, a
Georgia banking corporation, as Agent, NBD BANK and FIRST UNION BANK OF NORTH
CAROLINA, as Co-Agents, and the other banks and lending institutions listed on
the signature pages thereto, the undersigned in their respective capacities as
officers, directors, or authorized signatories of Intermet hereby certify to
the Lenders, the Agent and the Co-Agents as follows (capitalized terms used
herein having the same meanings as assigned to such terms in the Credit
Agreement):
1. All representations and warranties contained in the Credit Agreement are
true and correct in all material respects on and as of the date hereof.
2. After giving effect to the Loans to be made or deemed to be made to Intermet
pursuant to the Credit Agreement on the date hereof, no Default or Event of
Default has occurred and is continuing.
3. Since the date of the audited financial statements of the Consolidated
Companies described in Section 5.14 of the Credit Agreement, there has been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect.
4. Except as may be described on Schedule 5.05 of the Credit Agreement, no
action or proceeding has been instituted or is 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 businesses or assets, where such portion or
portions of such businesses or assets, as the case may be, constitute a
material portion of the total businesses or assets of the Consolidated
Companies.
5. The Loans to be made on the date hereof are being used solely for the
purposes provided in the Credit Agreement, and such Loans and use of proceeds
thereof will not contravene, violate or conflict with, or involve the Agent or
any Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority, applicable
to Intermet.
6. The conditions precedent set forth in Sections 4.01 and 4.02 of the Credit
Agreement have been or will be satisfied (or have been waived pursuant to the
terms of the Credit Agreement) prior to or concurrently with the making of the
Loans under the Credit Agreement
<PAGE> 128
on the date hereof.
7. 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.
8. 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 consents or authorization of, or
filing with, any Person (including, 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.
This Certificate executed and delivered on behalf of Intermet this ____
day of November, 1996.
Name:
Title:
<PAGE> 129
EXHIBIT J-1
FORM OF OPINION OF DICKINSON, WRIGHT, MOON, VAN DUSEN & FREEMAN
<PAGE> 130
EXHIBIT J-2
FORM OF OPINION OF KILPATRICK & CODY,
SPECIAL GEORGIA COUNSEL
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<PAGE> 131
EXHIBIT K
FORM OF AMENDED AND RESTATED ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Third Amended and Restated Credit
Agreement dated as of November __, 1996 (as may be amended, modified or
supplemented to the date hereof, the "Credit Agreement"), among INTERMET
CORPORATION as Borrower, the lenders listed on the signature pages thereof
("Lenders"), SUNTRUST BANK, ATLANTA, as Agent, and NBD BANK and FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, as Co-Agents. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. Assignor (as identified below) hereby sells and assigns to Assignee (as
identified below), without recourse against Assignor, and Assignee hereby
purchases and assumes from Assignor, without recourse against Assignor,
effective as of the Effective Date hereinafter set forth, the interests
set forth below (collectively, the "Assigned Interest"), in Assignor's
rights and obligations under the Credit Agreement, including without
limitation, the below specified [Revolving Loan Commitment] on the
Effective Date, and the below specified [Revolving Loans] [Letter of
Credit Obligations] [Bid Rate Loans] owing to Assignor that are
outstanding on the Effective Date, together with unpaid interest accrued
on the assigned Loans to the Effective Date, and the amount (if any) set
forth below of the fees referred to in Section 3.05(b) and (c) of the
Credit Agreement accrued to the Effective Date for the account of
Assignor. From and after the Effective Date, (a) Assignee shall be a
party to and be bound by the provisions of the Credit Agreement, and to
the extent of the interest assigned by this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and under the
Credit Documents (except for any such obligations that are due and payable
on, or that become due and payable before, the effectiveness of this
Assignment and Acceptance), and (b) Assignor shall, to the extent of its
interest assigned by this Assignment and Acceptance and otherwise to the
extent set forth in the foregoing clause (a), relinquish its rights and be
released from its obligations under the Credit Agreement and the Credit
Documents.
2. Each of the Assignor and the Assignee represents, warrants and agrees to
and with the other and the Agent as follows: (i) Assignor warrants that it
is the legal and beneficial owner of the interest being assigned hereby
free and clear of any adverse claim and that its [Revolving Loan
Commitment], and the outstanding balances of its [Loans] [Letter of Credit
Obligations] under each Facility, in each case, without giving effect to
assignments thereof which have not become effective, are as set forth
below, (ii) except as set forth in (i), Assignor makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
Credit Document or any instrument or documents furnished pursuant
thereto, or the financial condition of
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Intermet or any other Credit Party or the performance or observance by
any Credit Party of any of its obligations under the Credit Documents;
(iii) the Assignee represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (iv) Assignee confirms that
it has received a copy of the Credit Agreement, such financial statements
and other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (v) Assignee agrees that it will perform its obligations as a
Lender under the Credit Documents as required by the terms thereof; and
(vi) Assignee appoints and authorizes the Agent to take such actions as
agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Agent by
the terms of the Credit Agreement and the other Credit Documents,
together with such powers as are reasonably incidental thereto.
3. This Assignment and Acceptance is being delivered to the Agent, together
with (i) the Notes evidencing the Loans included in the Assigned Interest,
and (ii) a copy of the Assignment and Acceptance after it is duly executed
by each of the Assignee and the Assignor.
4. This Assignment State of Georgia, without regard to the conflict of shall
be governed laws principles thereof.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address (Including Telex and Telecopy Numbers) for Notices:
Assignee's Lending Office:
Effective Date of Assignment (may not be fewer than five (5) Business Days
after the date of the Assignment):
PERCENTAGE OF
PRINCIPAL AMOUNT COMMITMENT
FACILITY ASSIGNED ASSIGNED
- -------- ---------------- -------------
Revolving
Loan Facility $ %
-6-
<PAGE> 133
Letter of Credit
Facility $ "
Bid Rate
Facility $ "
Immediately after giving effect to this Assignment:
(a) The aggregate amount of the Revolving Loan Commitment of Assignor is
______________; or
(b) The aggregate amount of the Letter of Credit Obligations of the
Assignor is ____________________; or
(c) The aggregate amount of the Bid Rate Loans of the Assignor is
____________________.
The terms set forth herein are
hereby agreed to by
________________________, as Assignor.
By: _________________________________
Name:
Title:
As Assignor
The terms set forth herein are
hereby agreed to by
________________________, as Assignee.
By: _________________________________
Name:
Title:
As Assignee
-7-
<PAGE> 134
CONSENTED TO:
SUNTRUST BANK, ATLANTA, AS AGENT
By: _______________________________
Name:
Title:
INTERMET CORPORATION
By: _______________________________
Name:
Title:
-8-
<PAGE> 135
EXHIBIT L
FORM OF COMPLIANCE CERTIFICATE
SunTrust Bank, Atlanta, as Agent,
NBD Bank and First Union National
Bank of North Carolina, as Co-Agents,
and each of the Lenders party
to the Credit Agreement referenced
below
Re: Intermet Corporation
Gentlemen:
The undersigned, ______________________, being the chief financial officer
or principal accounting officer of Intermet Corporation, a Georgia corporation
(the "Borrower"), hereby delivers this Compliance Certificate to the Agent, the
Co-Agents and the Lenders as required by the terms of that certain Third
Amended and Restated Credit Agreement dated as of November ___, 1996 by and
among SunTrust Bank, Atlanta, individually and as Agent, NBD Bank and First
Union National Bank of North Carolina, individually and as Co-Agents, the
Borrower and the Lenders party thereto (the "Credit Agreement"). All terms
used herein without definition shall have the meaning set forth in the Credit
Agreement.
1. The undersigned is duly authorized to execute and deliver this
certificate on behalf of the Borrower.
2. The calculations set forth in Attachment 1 hereto are true and accurate
computations of the financial covenants and the other provisions identified on
such Attachment in accordance with the terms of the Credit Agreement.
[Add for quarterly reports: 3. The consolidated financial statements of
the Consolidated Companies attached hereto for the fiscal quarter ending
____________________ 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).
4. Based upon a review of the activities of Consolidated Companies and the
financial statements attached hereto during the period covered thereby, there
exists no Event of Default or Default under the Credit Agreement.
<PAGE> 136
Name:
Title:
-10-
<PAGE> 137
Attachment No. 1 to Compliance Certificate
The Compliance Certificate attached hereto is as of ____________ and
pertains to the period from ____________ to ____________.
[To be provided in the customary format.]
-11-
<PAGE> 1
Exhibit 4.15
MASTER ASSIGNMENT AND ACCEPTANCE
THIS MASTER ASSIGNMENT AND ACCEPTANCE AGREEMENT (this
"Agreement"), dated as of December 9, 1996, by and among SUNTRUST BANK,
ATLANTA, NBD BANK and FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(collectively, the "Assignors"), COMERICA BANK, ABN AMRO BANK N.V., CHICAGO
BRANCH, THE BANK OF NOVA SCOTIA, HARRIS TRUST AND SAVINGS BANK and
LANDESBANK SAAR GIROZENTRALE (the "Assignees") and INTERMET
CORPORATION, a Georgia corporation (the "Borrower").
WITNESSETH:
WHEREAS, the Assignors and the Borrower are parties to that certain Third
Amended and Restated Credit Agreement, dated as of November 14, 1996, by and
among the Borrower, SunTrust Bank, Atlanta, as Agent, First Union National Bank
of North Carolina and NED Bank, as Co-Agents and the Assignors (the "Credit
Agreement") providing for credit facilities to the Borrower in an aggregate
amount of $200,000,000;
WHEREAS, the Assignors wish to assign a portion of their commitments and
outstanding loans and letter of credit obligations pursuant to the Credit
Agreement to the Assignees and the Assignees wish to purchase the same upon the
terms and conditions set forth herein;
WHEREAS, for ease of administration, the parties hereto wish to accomplish
such assignment and acceptance pursuant to this Agreement;
NOW THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto, intending to be
legally bound, agree as follows:
1. Definitions. All terms used herein without definition shall have the
meanings set forth in the Credit Agreement.
2. Effective Date. The transactions provided for in Sections 3 and 4 hereof
shall be consummated on the Effective Date (as hereinafter defined). The
"Effective Date" shall be December 9, 1996 or such later date as of which all
the conditions set forth or referred to in Sections 4 and 6 shall have been
satisfied.
3. Assignment. (a) On and as of the Effective Date, subject to the
conditions referred to in Sections 4 and 6 below, the Assignors shall assign to
the Assignees, and the Assignees shall purchase from the Assignors, at the
principal amount thereof, a portion of the Commitments,
<PAGE> 2
Syndicated Loans and Letter of Credit Obligations of the Assignors outstanding
on such date, so that, after giving effect to all such assignments and
purchases, the Commitments, the Syndicated Loans and the Letter of Credit
Obligations will be held by the Assignors and the Assignees ratably in
accordance with the percentages set forth on the signature pages to this
Agreement. Such assignments and purchases shall be without recourse,
representation or warranty of any kind (except as to title as set forth in
subsection (d) below).
(b) On the Effective Date, (i) each Assignee shall pay the purchase price for
the total amount of the interests being purchased by it pursuant to this
Agreement, if any Syndicated Loans are outstanding on such date, by wire
transfer of immediately available funds to the Agent not later than 12:00 Noon
(Atlanta, Georgia time), and (ii) the Agent will, promptly after its receipt
thereof, pay to the Assignors the respective amounts due them in respect of the
Syndicated Loans sold hereunder.
(c) Intermet hereby consents to the assignments and purchases provided for in
paragraphs (a) and (b) above and agrees that each Assignee shall have all the
rights of a Lender under the Credit Agreement with respect to the interests
purchased by it pursuant to such paragraphs. From and after the Effective Date,
(i) each Assignee shall be a party to and be bound by the provisions of the
Credit Agreement, and to the extent of the interest assigned by this Agreement,
have the rights and obligations of a Lender thereunder and under the Credit
Documents (except for any such obligations that are due and payable on, or that
become due and payable before, the effectiveness of this Agreement), and (b)
each Assignor shall, to the extent of its interest assigned by this Agreement
and otherwise to the extent set forth in the foregoing clause (a), relinquish
its rights and be released from its obligations under the Credit Agreement and
the Credit Documents.
(d) Each of the Assignors and the Assignees represents, warrants and agrees to
and with the other and the Agent as follows: (i) each Assignor warrants that it
is the legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, (ii) except as set forth in (i), Assignor makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other Credit
Document or any instrument or documents furnished pursuant thereto, or the
financial condition of Intermet or any other Credit Party or the performance or
observance by any Credit Party of any of its obligations under the Credit
Documents; (iii) each Assignee represents and warrants that it is legally
authorized to enter into this Agreement; (iv) each Assignee confirms that it
has received a copy of the Credit Agreement, such financial statements and
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement; (v) each Assignee
agrees that it will perform its obligations as a Lender under the Credit
Documents as required by the terms thereof; and (vi) each Assignee appoints and
authorizes the Agent to take such actions as agent on its behalf and to
exercise such powers under the Credit Agreement and the other Credit
2
<PAGE> 3
Documents as are delegated to the Agent by the terms of the Credit Agreement
and the other Credit Documents, together with such powers as are reasonably
incidental thereto.
4. New Notes. On the Effective Date, Intermet shall execute and deliver to
the Agent for the account of each Assignor and Assignee a new Revolving Credit
Note in the amount of each such Lender's Commitment and, in the case of the
Assignees, a new Bid Facility Note that each such Lender is entitled to receive
pursuant to the Credit Agreement in the respective forms set forth as exhibits
thereto (the "New Notes"). Upon the effectiveness of the assignments referred
to in Section 3 of this Agreement, the Assignors shall cancel and deliver to
Intermet the Revolving Credit Notes delivered to them on the Closing Date and
the Agent shall deliver the New Notes to the Assignors and the Assignees.
5. Accrued Interest: Fees. The Assignors shall be entitled to receive all fees
and interest accrued to and including the Effective Date with respect to the
Credit Agreement.
6. Closing Fee. On the Effective Date, the Agent shall pay to each of the
Assignors and Assignees, from funds previously paid by Intermet to the Agent
and in satisfaction of the amounts previously agreed to be paid to the
Assignors, a closing fee equal to 5 basis points (0.05%) multiplied by the
Commitment of each Lender as set forth on the signature pages hereof.
7. Effectiveness. This Agreement shall become effective when copies hereof
which, when taken together, bear the signatures of each of the parties hereto,
shall have been received by the Agents for each of the Assignors and the
Assignees. This Agreement may not be amended nor may any provision hereof be
waived except pursuant to a writing signed by each of the Agent, the Assignors
and the Assignees.
8. Notices. All notices hereunder to the Assignors and the Assignees shall be
given in accordance with the provisions of Section 10.01 of the Credit
Agreement at the addresses set forth for such Lenders on the signature pages
hereof. The Lending Offices of each of the Lenders is set forth on the
signature pages hereof.
9. Intercreditor Agreement. By execution of this Agreement, each of the
Assignors and Assignees agree to be bound by the terms of the Intercreditor
Agreement.
10. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
11. Counterparts. This Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
3
<PAGE> 4
12. Headings. Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
[SIGNATURES SET FORTH ON NEXT PAGE]
4
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized of ricers, all as of the date and year
first above written.
Address for Notices: SUNTRUST BANK, ATLANTA
One Park Place, N.E.
Atlanta, Georgia 30303
Attention: C. Wes Burton, Jr. C. Wes Burton, Jr.
Vice President
Telex No.: 542210
Answerback: TRUSCOINTATL
Telecopy No.: 404/588-8833 By:
Name: David W. Penter
Title: Group Vice President
Lending Office and Payment Office:
One Park Place, N.E.
Atlanta, Georgia 30303
COMMITMENT: $45,500,000
PRO RATA SHARE OF
COMMITMENTS: 22.75%
5
<PAGE> 6
Address for Notices: NBD BANK
611 Woodward Avenue
Detroit, Michigan 48226 By:
Attention: William C. Goodhue Name: WILLIAM C. GOODHUE
Vice President -------------------------
Title: Vice President
Telex No.: 164177
Answerback: NATIONSBANKDET
Telecopy No.: (313) 226-0855
Lending Office and Payment Office:
611 Woodward Avenue
Detroit, Michigan 48226
COMMITMENT: $32,500,000
PRO RATA SHARE OF
COMMITMENTS: 16.25%
6
<PAGE> 7
Address for Notices: FIRST UNION NATIONAL
BANK OF NORTH CAROLINA
One First Union Center
Charlotte NC 28288-0745 By:
Attn: Glenn Edwards Mark M. Harden
Vice President
Telex No.:
Answerback:
Telecopy: (703) 374-2802
Lending Office and Payment Office:
One First Union Center, TW19
Charlotte, NC 28288-0745
COMMITMENT: $32,500,000
PRO RATA SHARE OF
COMMITMENTS: 16.25%
7
<PAGE> 8
Address for Notices: COMERICA BANK
500 Woodward Avenue, 9th Floor By:
Detroit, MI 48275-3265 Mark B. Grover
Attention: Vice President
Telex No.:
Answerback:
Telecopy No.: (313) 222-3776
Lending Office and Payment Office:
500 Woodward Avenue, 9th Floor
Detroit, MI 48275-3265
Attention: Susan M. Boyd
Customer Assistant
COMMITMENT: $24,000,000
PRO RATA SHARE OF
COMMITMENTS: 12%
8
<PAGE> 9
Address for Notices: ABM AMRO BANK N.V.,
135 S. LaSalle Street CHICAGO BRANCH
Chicago, Illinois 60674
Attention: Nancy Capecci
Name: Laurie D. Flom
Title: Vice President
Telex No:
Name: David C. Sagers
Telecopy No.: (312) 606-8425 Title: Vice President
Lending Office and Payment Office:
135 S. LaSalle Street
Chicago, Illinois 60674
COMMITMENT: $18,500,000
PRO RATA SHARE OF
COMMITMENTS: 9.25%
9
<PAGE> 10
Address for Notices: THE BANK OF NOVA SCOTIA
181 W. Madison
Suite 3700 By:
Chicago, IL 60602 Name: F.C.H. Ashby
Attention: David B. Scott Title: Senior Manager Loan Operations
Telex No.: Answerback:
Telecopy: (312) 201-4108
Lending Office and Payment Office:
Mr. Claude Ashby
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
(404)877-1500
(404) 888-8998 (Fax)
COMMITMENT: $18,500,000
PRO RATA SHARE OF
COMMITMENTS: 9.25%
10
<PAGE> 11
Address for Notices: HARRIS TRUST AND SAVINGS BANK
111 West Monroe, F2W
Chicago, Illinois 60603 Name: Peter J. Dancy
Attention: Peter J. Dancy Title: Vice President
Telex No.:
Answerback:
Telecopy: (312) 461-2591
Lending Office and Payment Office:
111 West Monroe, F2W
Chicago, Illinois 60603
COMMITMENT: $18,500,000
PRO RATA SHARE OF
COMMITMENTS: 9.25%
11
<PAGE> 12
Address for Notices: LANDESBANK SAAR GIROZENTRALE
Ursulinenstrasse 2 By:
66111 Saarbrucken Dr. Georg Grasel
Germany Member of the Board
Attention: Dr. Georg Grasel
Dr. Ingrid Wager
Teletex: 681986 = SaarLB
Dr. Ingrid Walter
Executive Vice President
Telecopy: 681 3831208
Lending Office and Payment Office:
For Base Rate, Overnight Rate and Eurodollar Advances:
Lending Office: Ursulinenstrasse 2, 6611 I Saarbrucken, Germany
Payment Office: Account of Landesbank Saar Girozentrale with
Bayerische Landesbank, New York, Account No.: 10 23 27 00 01
COMMITMENT: $10,000,000
PRO RATA SHARE OF
COMMITMENTS: 5.0%
12
<PAGE> 13
CONSENTED TO:
SUNTRUST BANK, ATLANTA, as Agent
By:
C. Wes Burton, Jr.
Vice President
INTERMET CORPORATION
By:
Name:
Title:
13
<PAGE> 14
CONSENTED TO:
SUNTRUST BANK, ATLANTA, as Agent
By:
C. Wes Burton, Jr.
Vice President
INTERMET CORPORATION
By:
Name: Doretha J. Christoph
Title: Vice President-Finance
14
<PAGE> 1
Exhibit 4.17
January 31, 1997
Intermet Corporation
5445 Corporate Drive
Troy, Michigan 48098
Attention: Ms. Doretha J. Christoph
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Note Agreement
dated as of March 21, 1996 (as amended from time to time, the "Note Agreement")
between Intermet Corporation, a Georgia corporation (the "Company") and The
Prudential Insurance Company of America ("Prudential"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Note Agreement.
Pursuant to the request of the Company and in accordance with paragraph
11C of the Note Agreement, the parties hereto agree as follows:
SECTION 1. Amendment. From and after the date this letter becomes
effective in accordance with its terms, the Note Agreement is amended as
follows:
1.1 Paragraph 5A of the Note Agreement is amended to delete in its
entirety clause (v) thereof and to substitute therefor the following: "(v)
Intentionally left blank;".
1.2 Paragraph 5K of the Note Agreement is deleted in its entirety and the
following is hereby substituted therefor:
"5K ADDITIONAL GUARANTORS AND COLLATERAL. Unless the Required
Holder(s) otherwise agree in writing, promptly after (i) the formation or
acquisition (provided that nothing in this paragraph shall be deemed to
authorize the acquisition of any entity not otherwise permitted
hereunder) of any Subsidiary not listed on Schedule 5K, (unless such
Subsidiary holds no assets and conducts no business), (ii) the
domestication of any Foreign Subsidiary, or (iii) the occurrence of any
other event creating a new Subsidiary, the Company shall execute and
deliver, and cause to be executed and delivered (x) in the case of a
Foreign Subsidiary, if, in the reasonable opinion of the Company's
accountants, delivery of a Guaranty Agreement would cause the Company to
be subject to tax on the undistributed earnings and profits of such
Subsidiary
<PAGE> 2
Intermet Corporation
January 31, 1997
Page 2
pursuant to Subpart F of Part III, Subchapter N of the Internal Revenue
Code, a Pledge Agreement with respect to 49% of the capital stock of such
Subsidiary if it is a Foreign Subsidiary directly owned by the Company or
a Subsidiary that is not, and is not directly or indirectly controlled
by, a Foreign Subsidiary, (y) a Guaranty Agreement from each such
Subsidiary that is not a Foreign Subsidiary whose stock has been pledged
to the extent and in accordance with subsection (x) hereof and (z) a
Contribution Agreement from each such Subsidiary, together with related
documents with respect to such new Subsidiary (or the pledgor of its
stock) of the kind described in Attachment 1 attached hereto and
incorporated herein, all in form and substance satisfactory to the
Required Holder(s)."
1.3 Paragraph 6A of the Note Agreement is amended to delete in its
entirety clause (ii) thereof and to substitute therefor the following:
"(ii) the Leverage Ratio to exceed 60%; provided, that in the event the
Company consummates an Acquisition after November 14, 1996 which affects
its compliance with this clause (ii) of paragraph 6A, the maximum
Leverage Ratio permitted hereunder shall be 72.5% for each of the fiscal
quarters ending during the twelve-month period immediately succeeding
such Acquisition and the maximum Leverage Ratio permitted hereunder shall
be reduced to 60% on the next fiscal quarter end thereafter and shall
remain a maximum ratio of 60% regardless of any other Acquisitions
occurring thereafter; or".
1.4 Paragraph 6B of the Note Agreement (i) is amended to delete in its
entirety clause (c) thereof and to substitute therefor the following:
"(c) Indebtedness of the Company pursuant to the Bank Agreement and
secured by Liens which are pari passu with the Liens on such collateral
in favor of the holders of the Notes securing the Notes and the other
Obligations hereunder and governed by the terms of the Intercreditor
Agreement,"
and (ii) is further amended to delete in its entirety clauses (d) and (g)
thereof and to substitute therefor the following in appropriate alphabetical
order:
"(d) Investments in the form of intercompany loans permitted by paragraph
6G hereof;"
"(g) purchase money Indebtedness to the extent secured by a Lien
permitted pursuant to clause (f) of paragraph 6C; and"
"(h) additional Indebtedness of the Company which is pari passu in all
material respects with the Notes and the other Obligations, without
limiting the foregoing, such Indebtedness will not have the benefit of
any security or guaranties not
<PAGE> 3
Intermet Corporation
January 31, 1997
Page 3
benefiting the Notes and the other Obligations and will have
representations and warranties, covenants, events of default and other
conditions to borrowing which are not more restrictive than the Bank
Agreement as in effect on November 14, 1996 and as modified from time to
time in accordance with paragraph 6M."
1.5 Paragraph 6C of the Note Agreement is amended to delete in its
entirety clauses (e) and (f) thereof and to substitute therefor the following:
"(e) Liens permitted by clause (c) or (h) of paragraph 6B hereof;
(f) Intentionally Left Blank; and
(g) Liens (other than those permitted by paragraphs (a) through (f) of
this paragraph 6C) encumbering assets having an Asset Value not greater
than five percent (5%) of Consolidated Net Worth of the Company in the
aggregate at any one time."
1.6 Paragraph 6D of the Note Agreement is deleted in its entirety and the
following is hereby substituted therefor:
"6D. MERGERS, ACQUISITIONS, DIVERSTITURES. The Company covenants
that it will not and not permit any Subsidiary to:
(a) merge or consolidate with any other Person,
except that the foregoing restriction shall not be applicable
to:
(i) mergers or consolidations of (x) any Subsidiary with
any other Subsidiary which is a Guarantor or (y) any
Subsidiary with the Company; or
(ii) mergers or consolidations which result in Acquisitions
of Persons engaged in businesses in which the Company was
engaged on November 14, 1996 or substantially related
thereto and as otherwise permitted by paragraph 6K of this
Agreement where the surviving corporation is a wholly-owned
Subsidiary of the Company (or will become a wholly-owned
Subsidiary within six (6) months of such Acquisition) and
such Acquisition is in compliance with subsection (c) of
this paragraph 6D;
provided, that, before and after giving effect to any such merger or
consolidation, (w) the Company is in compliance with paragraph 6A hereof
(as demonstrated by delivery of pro forma financial covenants
calculations prepared in compliance with clause (c) hereof), (x) no other
Default or Event of Default exists hereunder;
<PAGE> 4
Intermet Corporation
January 31, 1997
Page 4
(y) in the event of such merger or consolidation, the surviving Person is
a Consolidated Company and complies with paragraph 5K hereof, if
applicable, and (z) the Company is the surviving corporation in
connection with any merger or consolidation to which it is a party;
(b) sell or otherwise dispose of the capital stock
of a Subsidiary of the Company except as permitted pursuant
to clause (c) of paragraph 6E hereof; or
(c) make or permit any Acquisition other than an
Acquisition of Persons engaged in businesses in which the
Company is engaged on November 14, 1996 or substantially
related thereto and as otherwise permitted pursuant to
paragraph 6K of this Agreement; provided that:
(i) after giving effect to such Acquisition, assets
comprising such Acquisition are owned by the Company or a
wholly-owned Subsidiary of the Company, or, in the case of
a stock purchase, such Person is a wholly-owned Subsidiary
of the Company or is merged into the Company or a
wholly-owned Subsidiary of the Company;
(ii) prior to the consummation of such Acquisition,
the Company provides to the holders of the Notes
calculations evidencing the Company's compliance on a pro
forma basis with the financial covenants set forth in
paragraph 6A hereof on the last day of the immediately
preceding fiscal quarter of the Company, calculated with
respect to the immediately preceding four fiscal quarters
of the Company as if the Acquisition had been consummated
on the first day of such period;
(iii) such Acquisition shall have been approved in
advance by a majority of the board of directors of the
seller; and
(iv) no Default of Event of Default shall exist
hereunder or shall result therefrom and the Company shall
comply with the provisions of paragraph 5K hereof."
1.7 Paragraph 6F of the Note Agreement is amended to delete in its
entirety clause (ii) thereof and to substitute therefor the following:
"(ii) cash dividends declared and paid and all other Restricted Payments
made, after November 14, 1996 in an aggregate amount not to exceed the
sum of (x)
<PAGE> 5
Intermet Corporation
January 31, 1997
Page 5
$25,000,000, plus (y) fifty percent of Consolidated Net Income earned
during the period commencing on June 30, 1996 and ending on the last day
of the most recently ended fiscal quarter of the Company (such period to
be treated as one accounting period taking into account 100% of
Consolidated Net Losses during such period);"
1.8 Paragraph 6G of the Note Agreement is amended to delete in its
entirety clause (d) thereof and to substitute therefor the following:
"(d) an Investment outstanding on November 14, 1996 consisting of
Intermet Machining GmbH's 49% interest in IWESA - $6,800,000;
(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 five percent (5%) of Consolidated Net
Worth at any one time outstanding; provided that, Investments in
Subsidiaries which are not Guarantors are expressly prohibited by this
paragraph 6G."
1.9 Paragraph 6K of the Note Agreement is deleted in its entirety and the
following is hereby substituted therefor:
"6K CHANGES IN BUSINESS. The Company covenants that it will not and
not permit any Subsidiary to 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, the Company and the
Consolidated Companies may make Acquisitions of, and Investments in, (to
the extent permitted by this Agreement) Persons engaged in an unrelated
business as long as the total revenues of such Persons resulting from
unrelated businesses (or total revenues generated by such assets used in
unrelated businesses in the case of a purchase of assets), as determined
for the most recently ended four fiscal quarters of such Person in
accordance with GAAP, do not exceed twenty percent (20%) of Total Sales
of the Consolidated Companies for the most recently ended four fiscal
quarters of the Company."
1.10 Paragraph 10B of the Note Agreement is amended to delete the
definition of "Asset Value", "Bank Agreement", "Consolidated EBIT",
"Consolidated Rental Expense", "Guarantors", "Person", "Pledge Agreement" and,
"Pledged Stock" and "Tangible Net Worth" appearing therein and to substitute
therefor the following definitions in appropriate alphabetical order:
"ASSET VALUE" shall mean, with respect to any property or asset of any
Consolidated Company as of any particular date, an amount equal to the
greater
<PAGE> 6
Intermet Corporation
January 31, 1997
Page 6
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 such Consolidated
Company.
"BANK AGREEMENT" shall mean that Third Amended and Restated Credit
Agreement dated as of November 14, 1996 among the Company, SunTrust Bank,
Atlanta as Agent, NBD Bank and First Union National Bank of North
Carolina as Co-Agents and the other lenders listed therein or from time
to time party thereto, as it may be amended, restated, supplemented or
otherwise modified from time to time in accordance with its terms.
"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 deducted in determining such
Consolidated Net Income (Loss), provisions for (i) taxes based on income
and (ii) Consolidated Interest Expense, minus (B) any items of gain (or
plus any items of loss) which were 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 case of (x), (y) or (z), any related provisions
for taxes included in Consolidated Net Income (Loss) with respect
thereto, plus (C) without duplication, the sum of the following items to
the extent not included in Consolidated Net Income (Loss) for such
period:
(1) the net income (or net loss) for such period of any Person which
became a Subsidiary during such period (a "New Subsidiary");
(2) the net income (or net loss) derived during such period from any
assets acquired by any Consolidated Company during such period ("New
Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any New Subsidiary or derived from any New
Assets during such period:
(x) taxes based on income, (y) Consolidated Interest Expense, and
(z) any items of gain (or plus any items of loss) which were
included in determining such net income and were (aa) not realized
in the ordinary course of business (whether or not classified as
"ordinary" by GAAP), (bb) the result of any sale of assets, or
(cc) resulting from minority investments, together in the case of
(aa), (bb) or (cc), any related provision for taxes included in
such net income with respect thereto;
minus (D) the sum of the following items to the extent included in
determining
<PAGE> 7
Intermet Corporation
January 31, 1997
Page 7
Consolidated Net Income (loss) for such period:
(1) the net income (or net loss) for such period of any Person which
ceased to be a Subsidiary (other than due to merger or consolidation with
another Consolidated Company) during such period (an "Old Subsidiary");
(2) the net income (or net loss) derived during such period from any
assets sold or otherwise disposed of by any Consolidated Company during
such period ("Old Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any Old Subsidiary or derived from any Old
Assets during such period:
(x) taxes based on income, (y) Consolidated Interest Expense, and
(z) any items of gain (or plus any items of loss) which were
included in determining such net income and were (aa) not realized
in the ordinary course of business (whether or not classified as
"ordinary" by GAAP), (bb) the result of any sale of assets, or
(cc) resulting from minority investments, together in the case of
(aa), (bb) or (cc), any related provision for taxes included in
such net income with respect thereto;
For purposes of calculating any financial definitions based upon
Consolidated EBIT, the addition or subtraction of any financial
definitions to or from Consolidated EBIT shall be calculated with
appropriate adjustment for New Subsidiaries, New Assets, Old Subsidiaries
and Old Assets as is consistent with this definition.
"CONSOLIDATED RENTAL EXPENSE" shall mean, for any fiscal period of the
Company, the operating lease expense of the Consolidated Companies
determined in accordance with GAAP for leases with an initial 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.
"GUARANTORS" shall mean, collectively, Lynchburg Foundry Company, Ironton
Iron, Inc., Northern Castings Corporation, Intermet International, Inc.,
New River Castings Company, Alexander City Castings Company, Inc. and all
other domestic Subsidiaries formed or acquired after November 14, 1996
unless otherwise agreed by the Required Holders pursuant to paragraph 5K
hereof.
"PERSON" shall mean any individual, limited liability company,
partnership, firm, corporation, association, joint venture, trust or
other entity, or any government or political subdivision or agency,
department or instrumentality thereof.
<PAGE> 8
Intermet Corporation
January 31, 1997
Page 8
"PLEDGE AGREEMENT" shall mean collectively, any pledge agreement
providing for the grant of first priority Liens on the Pledged Stock.
"PLEDGED STOCK" shall mean, collectively, 49% of the issued and
outstanding capital stock, together with all warrants, stock options, and
other purchase and conversion rights with respect to such capital stock,
of all Subsidiaries that are Foreign Subsidiaries directly owned by the
Company and/or owned by one or more other Subsidiaries organized in the
United States (other than Columbus Neunkirchen, Intermet Machining GmbH
and Intermet Holding Deutschland GmbH).
"TOTAL SALES" shall mean for any period of determination, the total
revenues of the Consolidated Companies, determined in accordance with
GAAP.
1.11 The Note Agreement is amended to attach thereto and incorporate as a
part thereof Attachment 1 which is attached hereto.
SECTION 2. Conditions Precedent. This letter shall become effective as
of the date first above written upon the return by the Company to Prudential of
a counterpart hereof duly executed by the Company and Prudential.
SECTION 3. Reference to and Effect on Note Agreement. Upon the
effectiveness of this letter, each reference to the Note Agreement in any other
document, instrument or agreement shall mean and be a reference to the Note
Agreement as modified by this letter. Except as specifically set forth in
Section 1 hereof, the Note Agreement shall remain in full force and effect and
is hereby ratified and confirmed in all respects.
SECTION 4. Governing Law. THIS LETTER SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS OF SUCH STATE.
SECTION 5. Counterparts; Section Titles. This letter may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same instrument. The section titles contained in this letter are and shall be
without substance, meaning or content of any kind whatsoever and are not a part
of the agreement between the two parties hereto.
Very truly yours,
<PAGE> 9
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: _____________________________________
Vice President
Agreed and accepted:
INTERMET CORPORATION
By: _____________________________________
Doretha J. Christoph
Vice President - Finance
<PAGE> 1
Exhibit 10.15
OPERATING COMMITTEE
1997 PROFIT SHARING PLAN
The purpose of this plan is to provide an incentive compensation system which
rewards the corporate operating management proportionally to the profitability
of the Corporation. It is intended that base salaries be held at about 75% of
industry peer group averages, and a large portion of total compensation be
variable depending on corporate earning performance. Stock options should make
the third leg of the compensation plan so that the key operating management of
Intermet is rewarded only when the shareholders are rewarded.
The percentages listed below shall be the profit sharing of Intermet's audited
annual pretax earning before minority interest and corporate profit sharing.
Profit sharing is to be paid not later than three (3) months after the end of
the fiscal year.
Jim Peterson 0.25% (.0025)
Doug Brown 0.20% (.0020)
Doretha Christoph 0.22% (.0022)
John Engeswick 0.20% (.0020)
Dar Marsh 0.20% (.0020)
Jim Rydel 0.20% (.0020)
-----
Total 1.27%
Interim payouts may be made at the end of each fiscal quarter in an amount of
up to 75% of the annual profit sharing entitlement, calculated as of the end of
each fiscal quarter.
Submitted: /s/ John Doddridge
--------------------
Chairman & CEO
Approved: /s/ Vernon R. Alden
--------------------
Chairman, Compensation
Committee
11/27/96
<PAGE> 1
Exhibit 10.24
December 27, 1996
David L. Neilson
1624 Greenleaf
Royal Oak, Michigan 48067
Dear David,
On behalf of Intermet Corporation, we are pleased to offer you the position of
Vice President of Sales & Marketing. The following proposes the conditions of
our Employment Conditions Agreement offer to you:
TITLE & POSITION: Vice President, Sales & Marketing, Corporate Officer and
member of Intermet Operating Committee.
BASE SALARY: $200,000. per year (Two Hundred Thousand Dollars)
PROFIT SHARING: A fiscal year annual profit sharing per "Intermet
designated Sr. Officers Profit Sharing Plan". Your share
will be 0.2% (.0020) of Intermet's audited annual pretax
earnings before minority interest and profit sharing,
payable by April of the following year. (Partial years will
be paid pro-rata.) Further, we guarantee a bonus of
$120,000, (One Hundred & twenty Thousand Dollars), or the
above plan, which ever is higher for your first two
years of employment.
SIGNING BONUS: Stock grant of 2500 Intermet common shares at
commencement of employment and, 7500 restricted
Intermet common shares (in your name) held in escrow, with
full voting rights and dividends, if any, paid directly to
you. The restricted stock will vest at a rate of 2500
shares each employment anniversary. Intermet will gross up
the imputed income to make the signing bonus
transactions tax-free to you.
<PAGE> 2
page 2
Neilson proposal
STOCK OPTIONS: 20,000 shares, priced on the first full day of employment.
EMPLOYMENT CONTRACT: Twenty four (24) months. After the first 12 months the
agreement becomes a one year "Evergreen," i.e., each
additional day you are employed adds another day to the
to the employment contract. (The employment contract is
subject to the additional terms listed in "Attachment
A.")
COUNTRY CLUB: Membership in your name. Company paid initiation fees,
(grossed up if required), at an appropriate Club conducive
to Intermet business interests. Five thousand dollars,
annually, supplement to base salary for dues support. All
other costs, except Intermet business expenses, shall be
your personal obligation. Additionally, Intermet owned
Dearborn TPC club membership privileges will be
available to you.
*COMPANY CAR: Per the Company policy for the Operating Committee.
( American made light vehicle up to equivalent of
Buick Park Avenue Ultra.)
*VACATION TIME: Four weeks annually
*OTHER BENEFITS: All other benefits available to Intermet Sr. Management,
including comprehensive health care; 401(k) with
company match of 50% on the first 4% of employee
salary deferral (subject to tax law limitations); company
paid ESOP, equivalent to 3% of base; and more.
*Note: Asterisked benefits are the same as provided all other operating
committee members.
<PAGE> 3
page 3
Neilson proposal
All of the above is subject to your immediate acceptance of the job and
to-beagreed-to early starting date of full employment. To Accept this offer,
please sign three copies of this offer letter, keep one copy and return two
copies to Intermet. We reserve the right to modify or withdraw this offer at
any time after January 3, 1997, if you have not accepted this offer by
returning the signed copy(s).
We hope the offer, terms, and conditions are satisfactory to you. We think
Intermet has an exciting future, and believe you can make positive impact on
our future, as a part of our management team. We are hopeful that you decide to
start a long relationship with Intermet.
Sincerely,
Attachment: Attachment "A" (five pages)
<PAGE> 4
ATTACHMENT "A"
The following are additional and restrictions to the Employment Guarantee
Agreement:
Termination of Employment
1.1 Termination of Employment for Cause or Other Than for Good Reason.
If, before the end of the Contract Term, the Company terminates the Executive's
employment for Cause or the Executive terminates employment other than for Good
Reason, then the Company shall pay to the Executive in a lump sum immediately
after the Date of Termination that portion of the Executive's Annual Base
Salary which is accrued but unpaid as of such Date of Termination, but the
Executive will not be entitled to receive any other compensation or benefits
under this Agreement.
1.2 Termination of Employment for Death or Disability. If, before the end
of the Contract Term, the Executive's employment terminates due to death or
Disability, the Company shall pay to the Executive (or to the Executive's
Designated beneficiary(s), in accordance to Company policy following the Date
of Termination:
(a) that portion of the Executive's Annual Base Salary which is accrued
but unpaid as of the Date of Termination and
(b) the amount of any Annual Bonus accrued during any period which ended
during the Employment Guarantee Term prior to the Date of
Termination, but which is unpaid as of the Date of Termination
(c) disability, life insurance, and other benefits as provided executives
for Company Benefits Plan.
1.3 Termination of Employment By the Company Without Cause Or By the
Executive for Good Reason. If, before the end of the Employment Agreement
Guarantee, the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason, the Executive shall receive the
following:
(a) In lump sum, that portion of the Executive's Annual Base Salary
and any Guaranteed Annual Bonus which is accrued but unpaid as of the
Date of Termination,
(b) In monthly payments, the amount of the Executive's Annual Base Salary
which would be payable for the period beginning on the Date of
Termination and ending on the last day of the Contract Term,
<PAGE> 5
(c) The prorata of the Executive's Annual Bonus for the remainder of the
Contact Term, payment(s) not later than April following each
applicable fiscal year.
(d) The benefits to which the Executive was entitled during the Contract
Term. The amount of any benefits shall be reduced or eliminated to
the extent the Executive becomes entitled to duplicative benefits by
virtue of his/her subsequent employment after the Date of
Termination.
1.4 Other Termination Benefits. In addition to any amounts or benefits
payable upon termination of employment hereunder and except as otherwise
provided herein, the Executive shall be entitled to any payments or benefits
explicitly provided under the terms of any plan, policy or program of the
Company or as otherwise required by applicable law.
Certain Definitions
2.1 "Contract Term" means Employment Guarantee
2.2 "Disability" means any medically determinable physical or mental
impairment, that can be expected to last for a continuous period of not less
than six (6) months, and renders the Executive unable to perform the duties
required under this Agreement. The date of the determination of Disability is
the date on which the Executive is certified as having incurred a Disability by
a physician acceptable to the Company.
2.3 "Cause" means (a) the Executive's committing any felony or other
crime involving dishonesty; (b) any serious misconduct in the course of the
Executive's employment; or (c) the Executive's habitual neglect of the
Executive's duties (other than on account of Disability), except that (d) Cause
shall not mean:
(1) bad judgment or negligence other than habitual neglect of duty;
(2) any act or omission believed by the Executive in good faith to
have been in or not opposed to the interest of the Company (without intent of
the Executive to gain therefrom, directly or indirectly, a profit to which the
Executive was not legally entitled);
(3) any act or omission with respect to which a determination could
properly have been made that the Executive met the applicable standard of
conduct for indemnification or reimbursement under the By-Laws of the Company,
any applicable indemnification agreement or the laws and regulations under
which the Company is governed, in each case in effect at the time of such act
or omission.
<PAGE> 6
2.4 "Good Reason" means the occurrence of the following events:
(a) assignment to the Executive of any duties materially and adversely
inconsistent with the Executive's position as specified in the
Employment Guarantee (or such other position to which he/she may
be promoted), (but excluding a diminution of title which does not
result in a diminution of status, offices, or responsibilities),
or any other action by the Company which results in a material
and adverse change in such position, status, offices, titles or
responsibilities,
(b) the failure of the Company to assign this Agreement to a
successor to the Company,
(c) any failure by the Company to comply With the Compensation
provisions of the Employment Guarantee
(d) any material adverse change to the terms and conditions of the
Executive's employment under this Agreement;
if the Company fails to cure such event within 30 days after written notice
from the Executive; provided, however, that if the event is intentional,
knowing or repeated, the Executive shall not be required to provide written
notice or an opportunity to cure.
2.5 "Date of Termination" Means the date as of which He Executive's
employment with the Company is terminated by the Company or by the Executive
for any reason Including, but not limited to, death or Disability.
Restrictive Covenants
3.1 Trade Secrets, Confidential and Proprietary Business Information
(a) The Company has advised the Executive and the Executive
acknowledges that it is the policy of the Company to maintain as
secret and confidential all Protected Information (as defined
below), and that Protected Information has been and will be
developed at substantial cost and effort to the Company.
"Protected Information" means trade secrets, confidential and
proprietary business information of the Company, any information
of the Company other than information which has entered the
public domain (unless such information entered the public domain
through the efforts of or on account of the Executive), and all
valuable and unique information and techniques acquired,
developed or used by the Company relating to its business,
operations, employees and customers, which give the Company a
competitive advantage over those who do not know the information
and techniques and which are protected by the Company from
unauthorized disclosure, including but not limited to, customer
lists (including potential customers), sources of supply
processes, plans,
<PAGE> 7
materials, information, internal memoranda, marketing plans,
internal policies, and products and services which may be
developed from time to time by the Company and its agents or
employees.
(b) The Executive acknowledges that the Executive will acquire
Protected Information with respect to the Company and its
successors in interest, which information is valuable, special
and unique asset of the Company's business and operations and
that disclosure of such Protected Information would cause
irreparable damage to the Company.
(c) The Executive shall not, directly or indirectly, divulge,
furnish or make accessible to any person, firm corporation,
association or other entity (otherwise than as may be required in
the regular course of the Executive's employment) nor use in any
manner, either during or after termination of employment by the
Company and Protected Information or cause any such information
of the Company to enter the public domain.
3.2 Non-Competition.
(a) The Executive agrees that the Executive shall not during
the Executive's employment with the Company, and, if the
Executive's employment is terminated for any reason other than
termination of employment without Cause or for Good Reason,
thereafter for a period of one (1) year, directly or indirectly,
in any capacity, engage or participate in or become employed by
or render advisory or consulting or other services in connection
with any Prohibited Business as defined below.
(b) The Executive agrees that the Executive shall not during
the Executive's employment with the Company, and, if the
Executive's employment is terminated for any reason, thereafter
for a period of one (1 ) year, make any financial investment,
whether in the form of equity or debt, or own any interest,
directly or indirectly, in any Prohibited Business. Nothing in
this Section 7.02 shall, however, restrict the Executive from
making any investment in any company whose stock is listed on a
national securities exchange or actively traded in the
over-the-counter market; provided that (i) such investment does
not give the Executive the right or ability to control or
influence the policy decisions of any Prohibited Business, and
(ii) such investment does not create a conflict of interest
between the Executive's duties hereunder and the Executive's
interest in such investment.
(c) "Prohibited Business" shall be defined as any business and
any branch, office or operation thereof, which is a direct and
material competitor of the Company wherever the Company does
business, in the United States or abroad, and which has
established or seeks to establish contact, in whatever
<PAGE> 8
form (including but not limited to solicitation of sales, or the
receipt or submission of bids) with any entity who is at any time
a client, customer or supplier of the Company (including but not
limited to all subdivisions of the federal government.)
3.3 Undertaking Regarding Employees. From the date hereof until two
years after the Executive's Date of Termination, the Executive shall not,
directly or indirectly (a) encourage any employee of the Company or its
successors in interest to leave their employment with the Company or its
successors in interest; or (b) employ, hire, solicit or cause to be employed or
hired or solicited (other than by the Company or its successors in interest),
or establish a business with, or encourage others to hire, any person who
within two (2) years prior thereto was employed by the Company or its
successors in interest to leave their employment with the Company or its
successors in interest.
3.4 Disclosure of Employee-Created Trade Secrets, Confidential and
Proprietary Business Information. The Executive agrees to promptly disclose to
the Company all Protected Information developed in whole or in part by the
Executive during the Executive's employment with the Company and which relate
to the Company's business. Such Protected Information is, and shall remain, the
exclusive property of the Company. All writings created during the Executive's
employment with the Company (excluding writings unrelated to the Company's
business) are considered to be Works-for-hire for the benefit of the Company
and the Company shall own all rights in such writings.
<PAGE> 1
Exhibit 10.25
INTERMET CORPORATION
1997 DIRECTORS' DEFERRED COMPENSATION PLAN
SECTION 1
PURPOSE OF THIS PLAN
The purpose of this Intermet Corporation 1997 Directors' Deferred
Compensation Plan is to enable each present and future non-employee member of
the Board of Directors to defer a portion of his or her fees for future
services as a member of the Board or any of its committees, and to participate
in the growth of the Company as if such deferred fees were invested in Common
Stock. It is intended that this Plan will assist the Company in attracting and
retaining qualified Directors and increase the proprietary interest of the
Directors in the Company. This Plan is intended to be unfunded for tax
purposes.
SECTION 2
DEFINITIONS
(a) "Account" means the book account to be established for the benefit of
each Participant reflecting the value of the benefits deferred under this Plan.
(b) "Board" means the Board of Directors of Intermet Corporation.
(c) "Common Stock" means the common stock, $0.10 par value per share, of
Intermet Corporation.
(d) "Company" means Intermet Corporation, a Georgia corporation, and its
successors.
(e) "Deferral Election" shall have the meaning set forth in Section 3(a)
of this Plan.
(f) "Director" means a non-employee member of the Board of Directors of
the Company.
<PAGE> 2
(g) "Director Fees" means any fees payable to a member of the Board in
compensation for his or her services on the Board or any committees of the
Board, including any retainer, meeting fees, or any other compensation
otherwise payable to a Director in cash for such services.
(h) "Market Value", when used in connection with the Common Stock and a
specified date means the last per share sale price for the Common Stock on such
date as reported on the NASDAQ Stock Market; or if no such sale price is
reported on the NASDAQ Stock Market for such date, then the average of the
closing bid and asked prices on the NASDAQ Stock Market for the Common Stock on
such date; provided that if the Common Stock is not listed for trading on the
NASDAQ Stock Market as of a specified date, and is instead listed for trading
on a national stock exchange, then the Market Value as of such date shall be
the closing price of the Common Stock on such date, on such exchange.
(i) "Participant" means a member of the Board who has elected to defer any
Director Fees under this Plan (including any member of the Board who made such
election while a nominee for election to the Board).
(j) "Permissible Deferral Percentage" shall have the meaning set forth in
Section 3(a) of this Plan.
(k) "Plan" means this Directors' Deferred Compensation Plan, as it may be
amended or restated from time to time.
(l) "Unit" shall have the meaning set forth in Section 4(b) of this Plan.
(m) "Valuation Amount" shall have the meaning set forth in Section 6(a) of
this Plan.
(n) "Valuation Date" shall have the meaning set forth in Section 6(a) of
this Plan.
(o) "Year" means the period between successive annual meetings of the
shareholders of the Company.
-2-
<PAGE> 3
SECTION 3
PARTICIPANTS AND ELECTIONS TO PARTICIPATE
(a) Each Director and each person who has been nominated by the Board to
become a Director may elect in writing prior to the beginning of any Year, to
defer receipt of (i) twenty-five percent (25%), (ii) fifty percent (50%), (iii)
seventy-five percent (75%), or (iv) one hundred percent (100%) (each a
"Permissible Deferral Percentage") of all Director Fees that are to be earned
by him or her during such Year and each subsequent Year (or portion of a Year)
that he or she serves on the Board (each such election, a "Deferral Election").
Each Deferral Election shall be in substantially the form provided by the
Secretary of the Company.
(b) Any Deferral Election may be terminated, or the percentage elected to
be deferred changed to any other Permissible Deferral Percentage, in each case
only with respect to Director Fees not yet earned, by delivery to the Secretary
of the Company of written notice of such termination or change in substantially
the form designated by the Secretary of the Company. However, in no event may
more than one notice of termination or change of a Deferral Election be
delivered by any Participant during any twelve-month period.
(c) A Participant who has terminated a Deferral Election or changed the
applicable Permissible Deferral Percentage may later make a new Deferral
Election pursuant to Section 3(a), or terminate the Deferral Election or change
the Permissible Deferral Percentage pursuant to Section 3(b). However, in no
event may more than one such new Deferral Election, termination or change be
delivered by any Participant during any Year.
(d) Each Deferral Election, termination or change shall become effective
on the first day of the Year following such Deferral Election, termination or
change.
(e) At the time of a Participant's first Deferral Election under this
Plan, the Participant shall make an election whether to receive payments under
Section 6(b) of this Plan in a lump sum or in annual installments over a period
of up to five (5) years, which election shall be irrevocable with respect to
all amounts deferred pursuant to the Plan.
-3-
<PAGE> 4
SECTION 4
ESTABLISHMENT AND CREDITING OF PARTICIPANT ACCOUNTS
(a) The Company will cause an Account to be maintained in the name of each
Participant. The portions of each Participant's Director Fees that are
deferred pursuant to Deferral Elections will be credited to such Participant's
Account as of the date that such Director Fees are otherwise payable. Amounts
credited to the Participant's Account will be treated as though they had been
invested in Common Stock.
(b) As used in this Plan, a "Unit" is a bookkeeping entry to the
Participant's Account that is intended to represent the value of one share of
Common Stock. Units are not actual shares of Common Stock. The Company will
not reserve or otherwise set aside any Common Stock for any Participant in
connection with this Plan and will not actually attribute any shares of Common
Stock to any Account.
(c) Each Account established under this Plan shall be credited with Units
(including fractions thereof) in an amount equal to (i) the dollar amount
credited to the Account from time to time under Section 6(a), divided by (ii)
the Market Value per share of Common Stock on the business day immediately
preceding the date that the applicable amount was credited to the Participant's
Account.
SECTION 5
CASH AND STOCK DIVIDENDS, RECAPITALIZATIONS AND REORGANIZATIONS
(a) Effective as of the payment date for each cash dividend on the Common
Stock, the Account of each Participant shall be credited with a number of Units
(including fractions thereof) determined by dividing (i) the dollar value of
the dividend payable on a single share of Common Stock multiplied by the number
of Units held in the Participant's Account on the record date for such
dividend, by (ii) the Market Value of the Common Stock on the business day
immediately preceding the payment date for such cash dividend. This computation
is intended to credit to the Account the aggregate dollar amount the
Participant would have received had Common Stock been held by such Participant
instead of Units.
-4-
<PAGE> 5
(b) Effective as of the payment date for each stock dividend on the Common
Stock, additional Units shall be credited to the Account of each Participant.
The number of Units that shall be credited to the Account of such a Participant
shall equal the number of shares of Common Stock, and fractions of a share,
which the Participant would have received as a stock dividend had he or she
been the owner on the record date for such stock dividend of the number shares
of Common Stock equal to the number of Units held in his or her Account on the
record date for such stock dividend.
(c) In the event of any changes in the outstanding Common Stock of the
Company by reason of any stock split, recapitalization, merger, consolidation,
spin-off, reorganization, combination or exchange of shares, or a similar
corporate change, the Board shall equitably adjust the number of Units held in
each Participant's Account, or the number and valuation of such Units, in such
manner as shall be determined by the Board, in its reasonable discretion.
SECTION 6
AMOUNT, MANNER AND TIMING OF PAYMENTS FROM THE ACCOUNT
(a) A Participant's Account shall be valued as of the date that the
Participant ceases to serve as a member of the Board, whether as a result of
removal, resignation, failure to be reelected, death, disability, or any other
circumstance (the "Valuation Date"). As of such Valuation Date, the Units in
such Participant's Account shall be converted to a cash value (the "Valuation
Amount") by multiplying the number of Units (including fractions thereof) in
the Account by the Market Value of the Common Stock on the business day
immediately preceding the Valuation Date.
(b) The Company shall make payments from a Participant's account,
commencing within thirty (30) days following the Valuation Date either (i) in a
single lump sum, or (ii) in annual installments over a period of up to five (5)
years, as elected by the Participant in his or her applicable Deferral
Election. Payments of a single lump sum shall be in the Valuation Amount.
Payments in annual installments shall be made in substantially equal annual
installments over the number of years elected; however, each installment
payment shall be accompanied by a payment representing the accrued and unpaid
interest that would have accrued on the remaining balance of the cash value of
the Participant's Account (taking into account all prior installment payments
made from the Account), if such cash balance were accruing interest at the rate
of per annum. All payments shall be made from the Accounts solely in cash
(whether effected by check, wire transfer, or other means of cash transfer),
and except as provided for in Section 6(c) of this Plan, shall be made solely
to the Participant.
-5-
<PAGE> 6
(c) If a Participant dies prior to receiving all amounts due to him or her
under this Plan from the Participant's Account, the balance of such amount
shall be paid in a single, lump sum payment to: (i) the beneficiary designated
by the Participant on forms supplied by the Secretary of the Company; or, in
the absence of a valid designation of a beneficiary, or if the beneficiary does
not survive the Participant, (ii) the Participant's estate; in either case
within 30 days after receipt by the Company of written notice of the
Participant's death. No designation or change of a beneficiary shall be valid
unless in writing, signed by the Participant and delivered to the Company.
Beneficiaries may be changed at any time by the Participant without the consent
of any prior beneficiaries.
(d) The Company will withhold, to the extent required by law, or
reasonably deemed appropriate by the Company, all applicable income and other
taxes from amounts deferred or payable under the Plan.
SECTION 7
LIMITED AND UNSECURED RIGHTS OF PARTICIPANTS UNDER THIS PLAN
(a) Nothing contained in this Plan shall be deemed to create a trust of
any kind or create any fiduciary relationship on the part of the Company. The
amounts payable under this Plan shall be paid by the Company out of its general
assets. To the extent that a Participant acquires the right to receive a
payment under this Plan, such right shall be no greater than that of an
unsecured general creditor of the Company.
(b) Neither any Account, nor the right of any Participant or beneficiary
to receive any payment under this Plan, shall be subject in any manner,
directly or indirectly, voluntarily or involuntarily, to any alienation, sale,
transfer, assignment, pledge, or encumbrance (other than transfer by will or
the laws of descent and distribution), and to the extent permitted by law,
neither any Account nor any such right shall be subject to attachment or other
legal process for the debts of a Participant or beneficiary.
(c) No Participant or beneficiary shall have the right to exercise any of
the rights or privileges of a shareholder with respect to Units credited to a
Participant's Account.
(d) Participation in the Plan does not give any Participant any right to
remain a member of, be nominated for, or reelected to, the Board.
-6-
<PAGE> 7
SECTION 8
ADMINISTRATION OF THE PLAN
(a) Full power and authority to construe, interpret, and administer the
Plan shall be vested in the Board. Decisions of the Board shall be final,
conclusive, and binding on all parties (including Participants), absent
manifest error, gross negligence or wilful misconduct.
(b) The Board may delegate some or all of its authority under this Plan to
any committee of the Board, including without limitation, the Compensation
Committee of the Board, subject in all cases to the approval of the Board.
(c) No member of the Board or any committee of the Board, and no officer
or employee of the Company, shall be liable to any person for any action taken
or omitted in good faith in connection with the administration of this Plan
SECTION 9
AMENDMENT OR TERMINATION OF PLAN
The Board may suspend or terminate this Plan at any time. In addition the
Board may, from time to time, amend this Plan in any manner. However, no
amendment, suspension, or termination shall, without the consent of a
Participant, adversely affect such Participant's accrual of Units, Valuation
Amount, or other rights under this Plan, as of the date of such amendment,
suspension, or termination.
SECTION 10
GOVERNING LAW
The provisions of this Plan shall be interpreted, governed, and enforced
in accordance with the laws of the State of Michigan.
-7-
<PAGE> 1
Exhibit 11
INTERMET CORPORATION
Computation of Earnings Per Common Share
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Net Income (Loss) $43,153,000 $25,395,000 $(10,985,000)
Weighted average number of shares outstanding 25,095,122 24,768,578 24,590,873
Add dilutive effect of outstanding warrants and
options 372,292 124,472 --
------------------------------------------------------
Weighted average number of shares and equivalent
shares outstanding 25,467,414 24,893,050 24,590,873
======================================================
Income (loss) per share $1.69 $1.02 $(.45)
</TABLE>
The fully diluted earnings per share calculation has not been presented as the
resulting income (loss) per share does not differ from the above.
<PAGE> 1
Exhibit 13
Management Discussion and Analysis of Financial Information
Results of Operations
1996 Compared to 1995
Sales in 1996 were $7.3 million (1%) lower than in 1995 reflecting the lack of
sales from the divested businesses (about $30 million), the phase out of the
Ford F 150 I-Beam program without replacement and unfavorable foreign exchange
rate. Despite these adverse situations, sales actually increased by
approximately 6% for plants operating in both years as a result of the
relatively stable economic conditions in the automotive market and strong
demand on some of the platforms in that market. Sales of aluminum castings
were lower than expected with the high proportion of development products
lowering the productive capacity of the production line. Looking forward to
1997 sales are expected to increase with the acquisition of Sudbury; without the
acquisition sales would be flat assuming a stable environment in the automotive
industry. Actual results may differ materially.
Gross profit decreased $6.6 million in 1996 over 1995 with a corresponding
decline in the consolidated gross margin from 15.6% of sales to 14.6% in 1996.
Margins remained constant or improved at most plants; however, a reduction in
gross margin was experienced at one plant due to the effect of high fixed costs
and the phase out of the F150 I-Beam program. Margin was further eroded by the
intense development efforts and building expansion at the Company's aluminum
castings facility.
Operating expenses at $21.8 million were reduced by $9.8 million resulting from
the full year impact of decentralization of corporate functions in 1995 as well
as further cost reductions and process improvements put in place in 1996. 1995
also included a one-time charge for the relocation of the Corporate offices
from Atlanta to Detroit.
Operating profit improved $3.3 million (6%) to $56.1 million in 1996 versus
$52.8 million in 1995. These profits include expenses related to acquisition
investigation of $0.6 million. Looking forward, operating results are expected
to improve in 1997 with the addition of Sudbury as a wholly owned subsidiary of
the Company. The Company expects to maintain the impact of the
decentralization and cost reduction programs implemented in 1995 and 1996.
These expectations are based on the assumption that the automotive market
demand will continue near the same level in 1997 as was experienced in 1996;
however there can be no assurance that this will be the case.
Interest expense for 1996 was less than half of that the prior year due to a
lower level of borrowing. For most of the year the Company was in a net debt
free position having more cash on hand than outstanding fixed debt. In
addition, interest income in 1996 at $1.4 million was $1.0 million greater than
in 1995.
The Company recorded a consolidated tax provision of $11.2 million in 1996.
This amount is the net of statutory provisions less reduction in deferred
valuation allowance and utilization of net operating losses (NOL's) and credit
carry forwards. The Management of the Company believed that a consistent
record of profitability had been established; and thus the Company recorded a
reduction in the deferred tax valuation allowance of $11.5 million in
accordance with generally accepted accounting principles. The Company was also
able to utilize $2.1 million of net operating losses and credit carry forwards.
Management continues to pursue the strategies which would enable the Company
to utilize deferred tax assets which are fully reserved at December 31, 1996.
1
<PAGE> 2
1995 Compared to 1994
Record sales in 1995 were $40.5 million (8%) higher than in 1994 and reflected
the relatively strong economy in North America, the strengthening economy in
Europe and favorable exchange rate changes. The Company utilized the
additional capacity gained earlier in the year by going to three-shift foundry
operation as well as the new production line which had started up at the
Company's New River Castings plant in late 1994 to meet customer demand. This
increase occurred despite the decline in sales resulting from the sale of two
businesses. Sales actually increased 13% for plants operating in both years,
although the automotive market was weaker in 1995 compared to 1994.
Gross profit increased $42 million in 1995 over 1994. The consolidated gross
margin also improved substantially, rising to 15.6% of sales from 8.5% in 1994
(10.3% before fourth quarter 1994 adjustments of $8.9 million for equipment
write-downs and write-off of goodwill related to a 1992 acquisition). Margins
improved at all foundry operations in the Company, especially the Company's New
River Castings foundry in Virginia. This improvement stemmed from operational
improvements and focused cost reduction programs addressing yield rates, scrap,
and procurement procedures.
Operating expenses were $31.6 million in 1995 compared to $40.7 million in
1994. The majority of previously performed corporate functions were
decentralized or eliminated during 1995.
Expenses were lowered $5.8 million from reduction in staffing and targeted
corporate cost reduction programs despite the one-time expense of relocating
the Corporate offices from Atlanta to Detroit. The remaining decline in
operating expense resulted from the fourth quarter 1994 charge of $7.3 million
for retirement payments for the Company's former Chairman and Vice-Chairman;
severance pay and benefits per planned terminations due to a reorganization;
and a joint venture write-off.
Operating profit improved to $52.8 million versus the 1994 operating profit of
$1.7 million ($18 million before the adjustments described above) despite the
Company's purchasing and beginning operation of an aluminum castings business
in fourth quarter 1995 and the unexpected costs of handling the G.W.M., Inc.
and Kelso & Company, L.P acquisition proposal ($0.6 million). The
reorganization efforts allowed the Company to post much stronger profit levels.
Interest expense for 1995 was $0.5 million less than in the prior year, due to
lower level of borrowing and decreasing interest rates toward the end of the
current year. In addition, only $88 thousand of interest was capitalized for
1995 versus the $0.7 million in capitalized interest in 1994 related to the New
River expansion.
The Company recorded a consolidated income tax provision of $20.1 million in
1995 which reflects a return to profitable domestic operations after three
years of reported losses. The consolidated tax rate is higher than the
domestic income tax rates due to the higher foreign tax rates on related
earnings. No U.S. federal income tax benefit related to consolidated
domestic loss was recognized in 1994.
2
<PAGE> 3
Liquidity and Capital Resources
On December 20, 1996, the Company completed a cash tender offer for the
outstanding stock of Sudbury, Inc. With the Company effectively owning 95.2%
of Sudbury as of December 31, the results for Sudbury were consolidated into
Intermet's results. The acquisition does not materially effect Intermet's
operations in 1996; however, the impact on the consolidated balance sheet of
the Company at December 31, 1996 is significant. During this discussion,
information will be segregated to illustrate the impact of the Sudbury
acquisition. Listed below are summarized balance sheet information at December
31, 1996 for the Company.
<TABLE>
<CAPTION>
Intermet Consolidated
Pre-Sudbury Sudbury Elimination Intermet
------------ --------- ----------- ------------
<S> <C> <C> <C> <C>
Assets:
Current Assets $143.3 $ 86.6 $( 40.6) $189.3
Net PP&E 142.7 80.1 222.8
Other Assets 28.5 85.7 114.2
------ ------- ------- ------
Total $314.5 $ 252.4 $( 40.6) $526.3
====== ======= ======= ======
Liabilities & Equity:
Current Liabilities $ 92.4 $ 80.4 $( 1.4) $171.4
Long Term Debt 30.8 0.3 118.4 149.5
Other Liabilities 50.2 14.1 - 64.3
Shareholders Equity 141.1 157.6 (157.6) 141.1
------ ------- ------- ------
Total $314.5 $ 252.4 $( 40.6) $526.3
====== ======= ======= ======
</TABLE>
Certain balance sheet data is summarized below (in millions of dollars):
<TABLE>
<CAPTION>
1996
----------------------
Pre- Post-
December 31 1993 1994 1995 Sudbury Sudbury
- ----------- ------ ------ ------ -------- --------
<S> <C> <C> <C> <C> <C>
Funded debt $106.6 $107.4 $35.3 $ 33.0 $162.0
Shareholders' equity 75.5 68.0 98.0 141.1 141.1
Net working capital 31.2 29.1 14.3 50.9 18.0
</TABLE>
Outstanding debt was reduced throughout 1996 to a low of $33 million before
the purchase of Sudbury. The Company through its improved operating results
was in a net zero debt position until the last week in December. At the end of
October the Company purchased a 49% interest in IWESA, a German machining
company, using internally generated funds. 1996 capital expenditures for the
Company were slightly less than the level of depreciation. As a result, the
Company improved its debt-to-capital ratio to 19% before rising to 53% at
December 31, 1996 as a result of borrowing $118 million to fund the Sudbury
acquisition. An additional $22 million of borrowings will be required in
January to complete the transaction.
Shareholders' equity increased $43 million from $98 million at December 31,
1995 to $141 million at December 31, 1996 surpassing any previous level
attained by the Company. The Company reinstituted a quarterly dividend midyear
at 4 cents per share.
3
<PAGE> 4
The 1996 activity in the Lower Basin restructuring reserve established in 1993
reduced the Company's cash flows by $4 million, while $2 million was charged
against the reserve in 1995. The 1995 charges were funded by the sale of
obsolete equipment and savings from ongoing operations. Most of the foundry
equipment and supplies inventory were removed and disposed of during 1995. The
Company completed most all of the above-mentioned restructuring, consisting
primarily of the demolition of the foundry and severance in 1996. There are
still some costs for demolition of buildings and environmental matters
remaining.
The Company recorded an accrual in 1994 for retirement pay and severance costs
related to additional planned terminations. Operations in 1996 funded
approximately $0.7 million of the amount accrued in 1994. In addition, the
Company funded the $1.7 million accrued at December 31, 1995 for the
headquarter relocation out of cash generated in 1996 from operations.
At December 31, 1996 the Company and its subsidiaries had approximately $94
million of unused borrowing capacity under various revolving credit agreements.
The Company also has recurring costs related to environmental concerns,
particularly the management and disposition of waste (principally non-hazardous
waste) generated as part of ongoing operations. In 1996 and 1995 such costs
totaled approximately $9 million in each year. Although the Company continues
to take various steps to control these costs, they are expected to increase in
the future. In addition, a portion of the Company's capital expenditures are
regularly incurred to limit or monitor pollution, principally for ventilation
and dust control equipment. Such expenditures were approximately $2.6 million
in 1996 and $2.0 million in 1995. The Company expects to spend $5.8 million in
capital in this area in 1997. The forward looking statement will be influenced
by revenue increases and available engineering resources.
The newly acquired Sudbury subsidiary is party to a number of lawsuits and
claims arising out of the conduct of its business, including those relating to
commercial transactions, product liability and environmental, safety and health
matters.
The Sudbury subsidiary, using historical trends, actuarially calculates the
estimated amount of its current exposure for product liability. Sudbury is
insured for amounts in excess of established aggregate annual deductibles which
total $2.5 million and accrues for the estimated liability described above up
to the limits of the deductibles. Other claims and lawsuits are handled on a
case-by-case basis. Three subsidiaries of Sudbury are self-insured for health
care to an aggregate annual amount of $7.8 million and workers' compensation up
to $0.4 million per incident, above which third party insurance applies.
All operating locations acquired by Sudbury since 1984 operate in a variety of
locations where environmental situations could exist based on current or past
operations. Certain operating and non-operating subsidiaries of Sudbury have
been named as potentially responsible parties liable for cleanup of known
environmental conditions. For known environmental situations, Sudbury, with
the assistance of environmental engineers and consultants, has accrued $3.4
million to cover estimated future environmental expenditures. Sudbury has
initiated corrective action and/or preventative environmental projects that are
intended to provide for the safe and lawful operation of its facilities There
could exist, however, more extensive or unknown environmental situations at
existing or previously owned businesses for which the future cost is not known
or accrued at December 31, 1996.
While the ultimate result of the above contingencies cannot be predicted with
certainty, management does not expect these matters to have a material adverse
effect on the consolidated financial position or results of operations of the
Company.
4
<PAGE> 5
Consolidated Financial Statements
Intermet Corporation
Years ended December 31, 1996, 1995 and 1994
with Report of Independent Auditors
5
<PAGE> 6
Report of Independent Auditors
The Board of Directors and Shareholders
Intermet Corporation
We have audited the accompanying consolidated balance sheets of Intermet
Corporation as of December 31, 1996 and 1995, and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
three years in the period ended December 31, 1996. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Intermet
Corporation at December 31, 1996 and 1995, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
Detroit, Michigan
January 30, 1997
6
<PAGE> 7
Intermet Corporation
Consolidated Statements of Operations
<TABLE>
<CAPTION>
Years ended December 31,
1996 1995 1994
-------------------------------------------------
(In Thousands of Dollars, Except Per Share Data)
<S> <C> <C> <C>
Net sales $534,478 $541,749 $501,269
Cost of sales 456,618 457,337 458,823
-------------------------------------------------
Gross profit 77,860 84,412 42,446
Operating expenses:
Selling 3,646 4,957 5,520
General and administrative 18,111 26,640 35,198
-------------------------------------------------
Operating profit 56,103 52,815 1,728
Other income and expenses:
Interest income 1,403 382 149
Interest expense (3,056) (6,461) (6,952)
Other, net (128) (1,216) (14)
(1,781) (7,295) (6,817)
-------------------------------------------------
Income (loss) before income taxes 54,322 45,520 (5,089)
Provision for income taxes 11,169 20,125 5,896
-------------------------------------------------
Net Income (loss) $ 43,153 $ 25,395 $(10,985)
=================================================
Income (loss) per common share - Primary $ 1.69 $ 1.02 $ (.45)
=================================================
</TABLE>
See accompanying notes.
7
<PAGE> 8
Intermet Corporation
Consolidated Balance Sheets
<TABLE>
<CAPTION>
December 31,
1996 1995
-----------------------
(In Thousands of Dollars)
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 23,485 $ 11,173
Accounts receivable:
Trade, less allowance for doubtful accounts of
$949 in 1996 and $1,267 in 1995 87,049 49,814
Other 4,642 5,298
-----------------------
91,691 55,112
Inventories:
Finished goods 13,530 5,616
Work in process 13,408 3,989
Raw materials 11,679 3,975
Supplies and patterns 17,430 15,575
-----------------------
56,047 29,155
Deferred income tax 13,242 3,774
Other current assets 4,829 3,858
-----------------------
Total current assets 189,294 103,072
Property, plant and equipment, at cost:
Land 5,260 3,585
Buildings and improvements 88,459 77,649
Machinery and equipment 335,003 254,140
Construction in progress 7,982 8,914
-----------------------
436,704 344,288
Less:
Foreign industrial development grants, net of
amortization 4,804 5,469
Accumulated depreciation and amortization 209,118 189,625
-----------------------
Net property, plant and equipment 222,782 149,194
Goodwill, net of amortization 88,223 6,090
Other noncurrent assets 26,013 15,715
$526,312 $274,071
=======================
</TABLE>
See accompanying notes.
8
<PAGE> 9
Intermet Corporation
Consolidated Balance Sheets
<TABLE>
<CAPTION>
December 31,
1996 1995
-------------------------
(In Thousands of Dollars)
<S> <C> <C>
Liabilities and shareholders' equity
Current liabilities:
Accounts payable $ 54,721 $ 28,640
Accrued wages, severance and benefits 26,697 19,432
Accrued Sudbury acquisition costs 37,299 -
Accrued restructuring costs 3,402 7,334
Income taxes payable 15,198 16,000
Other accrued liabilities 21,375 14,750
Long-term debt due within one year 12,676 2,596
-----------------------
Total current liabilities 171,368 88,752
Noncurrent liabilities:
Long-term debt due after one year 149,477 32,675
Retirement benefits 53,421 46,067
Other noncurrent liabilities 8,107 5,712
-----------------------
Total noncurrent liabilities 211,005 84,454
Minority interest 2,837 2,837
Shareholders' equity:
Preferred stock; 5,000,000 shares authorized; none issued
Common stock, $.10 par value; 50,000,000 shares authorized;
25,165,374 and 25,050,374 shares issued in 1996 and
1995, respectively 2,517 2,505
Capital in excess of par value 57,308 56,431
Retained earnings 78,267 37,125
Accumulated translation adjustments 3,548 3,765
Minimum pension liability adjustment (485) (1,636)
Unearned restricted stock (53) (162)
-----------------------
Total shareholders' equity 141,102 98,028
-----------------------
$526,312 $274,071
=======================
</TABLE>
See accompanying notes.
9
<PAGE> 10
Intermet Corporation
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Years ended December 31,
1996 1995 1994
-----------------------------------------
(In Thousands of Dollars)
<S> <C> <C> <C>
Operating activities
Net income (loss) $ 43,153 $ 25,395 $(10,985)
Adjustments to reconcile net income (loss) to
cash provided by operating activities:
Depreciation and amortization 26,853 28,115 29,035
Loss on sale of subsidiaries - 1,272 -
Write down equipment and goodwill - - 8,945
Write off investment in joint venture - - 2,001
Loss on sale of assets, other 552 219 26
Deferred income taxes (6,364) 3,234 (800)
Changes in operating assets and liabilities
excluding the effects of acquisitions and
dispositions:
Accounts receivable 279 13,474 (18,877)
Inventories (5,225) 1,533 5,204
Accounts payable and accrued liabilities 5,133 (2,586) 12,521
Other assets and liabilities 6,750 12,615 565
------- --------- ---------
Cash provided by operating activities 71,131 83,271 27,635
Investing activities
Additions to property, plant and equipment (26,025) (24,442) (24,873)
Purchase of Alexander City Castings - (2,704) -
Purchase of Sudbury, net of cash acquired (146,676) - -
Purchase of minority interest in IWESA (6,780) - -
Proceeds from sales of plant, property & equipment 3,516 4,462 965
Proceeds from sale of subsidiaries - 9,750 -
Other, net (105) (3,759) (833)
-------- -------- --------
Cash used in investing activities (176,070) (16,693) (24,741)
Financing activities
Increase in revolving credit facility 118,400 - 5,203
Reduction in debt (2,337) (64,159) (5,197)
Issuance of common stock 889 903 127
Dividends paid (2,011) - -
Net decrease in note payable - (7,656) -
Other, net - - (30)
-------- -------- --------
Cash provided by (used in) financing activities 114,941 (70,912) 103
Effect of exchange rate changes on cash 2,310 1,789 (519)
-------- -------- --------
Net increase (decrease) in cash and cash equivalents 12,312 (2,545) 2,478
Cash and cash equivalents at beginning of year 11,173 13,718 11,240
-------- -------- --------
Cash and cash equivalents at end of year $ 23,485 $ 11,173 $ 13,718
======== ======== ========
</TABLE>
See accompanying notes.
10
<PAGE> 11
Intermet Corporation
Consolidated Statements of Shareholders' Equity
<TABLE>
<CAPTION>
Years ended December 31,
1996 1995 1994
--------------------------------------
(In Thousands of Dollars)
<S> <C> <C> <C>
Common stock
Beginning balance $ 2,505 $ 2,464 $ 2,457
Exercise of options to purchase 114,500;
124,500 and 22,500 shares of common stock in
1996, 1995 and 1994, respectively 12 12 2
Exercise of options purchased with common stock - (2) -
Issuance of 310,000 shares of common stock - 31 -
Issuance of 50,000 shares of common stock - - 5
--------------------------------------
Ending balance 2,517 2,505 2,464
Capital in excess of par value
Beginning balance 56,431 52,150 51,742
Exercise of options to purchase 114,500;
124,500 and 22,500 shares of common stock in
1996, 1995 and 1994, respectively 877 891 125
Exercise of options purchased with common stock - (265) -
Issuance of 310,000 shares of common stock - 3,655 -
Issuance of 50,000 shares of common stock - - 283
--------------------------------------
Ending balance 57,308 56,431 52,150
Retained earnings
Beginning balance 37,125 11,730 22,715
Net income (loss) 43,153 25,395 (10,985)
Cash dividends (2,011) - -
--------------------------------------
Ending balance 78,267 37,125 11,730
Accumulated translation adjustments
Beginning balance 3,765 2,959 1,499
Translation adjustments (344) 1,321 2,640
Related income tax effect 127 (515) (1,180)
--------------------------------------
Ending balance 3,548 3,765 2,959
Minimum pension liability adjustment
Beginning balance (1,636) (1,164) (2,881)
Adjustment 1,887 (774) 2,815
Related income tax effect (736) 302 (1,098)
--------------------------------------
Ending balance (485) (1,636) (1,164)
Unearned restricted stock
Beginning balance (162) (168) -
Issuance of 10,000 and 50,000 shares of
common stock in 1995 and 1994, respectively - (86) (173)
Amortization 109 92 5
--------------------------------------
Ending balance (53) (162) (168)
--------------------------------------
Total shareholders' equity $141,102 $98,028 $ 67,971
======================================
</TABLE>
See accompanying notes.
11
<PAGE> 12
Intermet Corporation
Notes to Consolidated Financial Statements
Years ended December 31, 1996, 1995, and 1994
1. Summary of Significant Accounting Policies
Basis of Presentation
The accompanying consolidated financial statements, presented in conformity
with generally accepted accounting principles (GAAP), include the accounts of
Intermet Corporation ("Intermet") and its subsidiaries (collectively, the
"Company"). All significant intercompany transactions and balances have been
eliminated in consolidation.
Use of Estimates
The preparation of the financial statements in conformity with GAAP requires
management to make estimates and assumptions that affect the amounts reported
in the financial statements and accompanying notes. Actual results could
differ from those estimates.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined on
the last-in, first-out (LIFO) method as to 40% and 17% of the December 31,
1996 and 1995 inventories, respectively. Certain raw materials and supplies
inventories are valued on a weighted average cost basis; average production
cost is used for certain work in process and finished goods inventories and
other inventories are valued by the first-in, first-out (FIFO) method. The
specific identification method is used for pattern inventories. If LIFO
inventories were valued using the same cost methods used for other
inventories, their carrying values would have increased by $1,310,000 and
$1,504,000 at December 31, 1996 and 1995, respectively.
Property, Plant and Equipment
The provision for depreciation and amortization of property, plant and
equipment is determined on the basis of estimated useful lives using the
straight-line method. Certain industrial development grants provided by the
federal and state governments of Germany are included as reductions of
property, plant and equipment and are being amortized over the period the
related assets are being depreciated.
Intangible Assets
Intangible assets consist principally of costs in excess of net assets
acquired of $88,223,000 and $6,090,000 (net of accumulated amortization of
$1,837,000 and $1,372,000) at December 31, 1996 and 1995, respectively. Such
costs are being amortized using the straight-line method over periods ranging
from ten to forty years.
12
<PAGE> 13
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
1. Summary of Significant Accounting Policies (continued)
Fair Value of Financial Instruments
The carrying amounts reported in the consolidated balance sheets for cash and
cash equivalents, accounts receivable, accounts payable and current portion of
long-term debt approximate fair values. The fair value of the Company's
long-term debt approximates the reported amounts in the accompanying 1996
consolidated balance sheet as their respective interest rates approximate the
December 31, 1996 market rates for similar debt instruments.
Income (Loss) Per Common Share
Net income (loss) per common share amounts are based on the weighted average
number of shares outstanding during the period, after giving effect to the
exercise of options (see Note 7) and assuming the repurchase, at fair market
value, of shares using the proceeds from such exercise, unless the effect is
antidilutive.
Stock-Based Compensation
The Company grants stock options for a fixed number of shares to employees and
directors with an exercise price equal to the fair value of the shares at the
date of grant. The Company accounts for stock option grants in accordance with
APB Opinion No. 25, Accounting for Stock Issued to Employees, and, accordingly,
recognizes no compensation expense for the stock option grants.
2. Acquisitions and Dispositions
In December, 1996, the Company acquired for cash substantially all of the
outstanding stock of Sudbury, Inc. for $182,434,000, including cost of
$5,277,000 directly related to the acquisition. The accompanying balance
sheet includes as a current liability accrued acquisition costs of
$37,299,000 which principally represents the purchase cost of employee stock
options and participation certificates. The transaction has been accounted
for as a purchase, and, accordingly, the purchase price has been allocated to
the assets purchased and the liabilities assumed based upon the fair values
at the date of acquisition. The excess of the purchase price over the fair
values of tangible net assets acquired was $82,598,000 and has been recorded
as goodwill, which is being amortized on a straight-line basis over 40 years.
The results of operations of Sudbury from the date of acquisition to December
31, 1996, were not significant. Sudbury, Inc. and its subsidiaries
manufacture high-quality industrial products. The products are used
primarily in the automotive, appliance and construction markets providing
iron, aluminum and zinc castings; applications of custom coatings; cranes,
truck bodies and related equipment; and precision machined components.
13
<PAGE> 14
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
2.Acquisitions and Dispositions (continued)
In November, 1996, the Company purchased for cash a minority interest in
IWESA GmbH, for 4,000,000 DM. The Company also purchased a newly issued
share from IWESA for 374,000 DM bringing its share interest to 49% and
contributed 6,000,000 DM to the capital reserves of IWESA in support of new
capital expansion projects. The Company's total investment in IWESA amounts
to 10,374,000 DM ($6,780,000 at then current exchange rates) and is
accounted for on the equity method. The results of operations of IWESA since
acquisition have not been significant. IWESA is a precision machining and
engineering company located in Saarbrucken, Germany, producing parts for the
commercial motor vehicle and industrial markets.
In November, 1995, the Company acquired certain operating assets and the
aluminum foundry businesses of Bodine Robinson and Robinson Foundry, Inc.
The aggregate purchase price of $6,304,000 was funded by a cash payment of
$2,704,000 and 300,000 shares of Intermet common stock. These assets form
the base of the Company's wholly-owned subsidiary, Alexander City Castings,
Inc. ("Alexander City"). This transaction has been accounted for as a
purchase. The consolidated financial statements include the results of
operations of Alexander City since the date of acquisition.
In September and October 1995 the Company sold substantially all the
operating assets of its subsidiaries, PBM Industries, Inc. ("PBM") and
InterMotive Technologies, Inc. ("InterMotive"), respectively, in exchange for
an aggregate of $9,750,000 in cash and a $2,500,000 note and recognized a
pre-tax loss of $1,432,000.
The following represents the unaudited pro forma consolidated results of
operations for the Company for the years ended December 31, 1996 and 1995,
assuming the acquisitions and dispositions described throughout Note 2
occurred on January 1, 1995 (in thousands of dollars, except for per share
data):
1996 1995
-------- --------
Net sales $837,880 $848,790
Net income $ 47,326 $ 35,072
Income per common share $ 1.85 $ 1.41
These pro forma results are presented for comparative purposes only. They are
not necessarily indicative of what would have occurred had the acquisitions
actually been made on January 1, 1995, or of future results of operations.
3. Restructuring
In August 1993 the Company decided to close its oldest plant, the Lower Basin
foundry in Virginia. The Lower Basin foundry incurred operating losses prior
to its closing in 1994 of approximately $3,700,000 which were charged against
an accrual established for restructuring. Most of the foundry equipment and
supplies inventories were removed and disposed of during 1995. Demolition and
sales of the buildings continued in 1996. The restructuring liabilities
include $3,402,000, and $7,334,000 in current liabilities at December 31,
1996 and 1995, respectively. The restructuring liability at December 31,
1996 relates principally to environmental matters and at December 31, 1995
amounts are also provided for severance and demolition cost.
14
<PAGE> 15
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
4. Joint Venture and Minority Interest
The Company and an Australian company had, through subsidiaries, formed a
joint venture, ICA Castings ("ICA"). ICA constructed a pilot casting line in
Kentucky for the manufacture of aluminum automotive castings. The Company
accounted for its 50% interest in ICA under the equity method which was
written off in 1994. The charge to earnings of $2,001,000 is included in
general and administrative expenses in the 1994 consolidated statements of
operations. During 1995 the Company transferred its interest in ICA to the
other partner in the joint venture in exchange for $750,000 in cash.
In 1988, the Company purchased all of the common stock of Ironton Iron, Inc.
("Ironton"), a foundry company in Ohio. As a part of the transaction, the
previous common stockholders of Ironton received an equivalent number of shares
of Ironton's new 5% cumulative preferred stock with an aggregated par value of
$2,337,000. The preferred shares are to be retired at par value from net
income of Ironton, if available. No shares have been retired and no dividends
have been accrued or paid to date since Ironton has incurred a cumulative net
loss since 1988. The preferred shares are included in minority interest in the
consolidated balance sheet.
5. Cash Flow Information
All short-term investments with original maturities of less than 90 days are
deemed to be cash equivalents for purposes of the statements of cash flows.
There were no noncash investing and financing activities in 1994. Such
activities in 1996 and 1995 were as follows (in thousands of dollars):
1996 1995
---------------------
Fair value of assets acquired $175,687 $3,625
Costs in excess of net assets acquired 82,598 2,736
Less:
Liabilities assumed 100,687 57
Common stock of the Company - 3,600
Cash acquired in acquisition 10,922 -
---------------------
Net cash paid for acquisition $146,676 $2,704
=====================
6. Debt
Columbus Neunkirchen Foundry GmbH (Neunkirchen), a wholly owned subsidiary of
the Company, has various revolving note agreements which are payable on demand.
These notes provide for borrowings up to DM 18,998,000 (approximately
$12,267,000) at December 31, 1996. There were no outstanding borrowings under
these agreements as of December 31, 1996 and approximately $13,000 was
outstanding at December 31, 1995.
15
<PAGE> 16
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
6. Debt (Continued)
Long-term debt consists of the following (in thousands of dollars):
<TABLE>
<CAPTION>
1996 1995
------------------
<S> <C> <C>
Intermet:
Revolving credit facility $118,400 $ -
Prudential term loan 25,000 25,000
Subsidiaries:
Sudbury subordinated notes 9,831 -
Sudbury PIK Notes 666 -
Lynchburg revenue bonds 5,025 5,700
Neunkirchen term notes 2,446 3,664
IMI promissory notes 258 907
Other 527 -
------------------
Total $162,153 $35,271
------------------
Less long-term debt due within one year 12,676 2,596
------------------
Long-term debt due after one year $149,477 $32,675
=================
</TABLE>
The Company has an unsecured revolving credit agreement with a bank consortium
which was refinanced in November 1996. The agreement, which expires in
November 1999, provides for loans up to $200,000,000. The borrowing limit is
reduced by certain standby letters of credit. At December 31, 1996 such
standby letters of credit totaled $3,375,000. The revolving credit agreement
provides the Company with several interest rate pricing mechanisms ranging from
6.025% to 8.25% at December 31, 1996. The Company must also pay a fee at an
annual rate of .15% on any unused portion of the loan commitment. The
revolving credit agreement requires the Company to maintain certain financial
ratios and imposes limitations on certain activities.
The Company has an unsecured term loan agreement with The Prudential Insurance
Company of America. The loan bears interest at an annual rate of 8.05% payable
quarterly. Principal amounts are to be repaid in five equal annual
installments beginning in December 1998. The term loan agreement requires the
Company to maintain certain financial ratios and imposes limitations on certain
activities.
As a result of the acquisition of Sudbury, Inc., the Company assumed the
outstanding subordinated notes of Sudbury. These notes are due September 1997
and bear interest at an annual rate of 8.6%. Prior to Sudbury refinancing its
bank debt in May 1993, the Subordinated Notes provided that interest payments
would be made through the issuance of additional promissory notes in the
aggregate principal of the amount of interest owed ("PIK Notes"). The terms
and conditions of the PIK Notes are identical to the Subordinated Notes. The
Company has notified the trustee for the bondholders that it is redeeming all
of the notes prior to maturity, at par, and expects this redemption to be
completed by February 21, 1997.
16
<PAGE> 17
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
6. Debt (Continued)
Lynchburg Foundry Company (Lynchburg), a wholly owned subsidiary of the
Company, issued $4,400,000 of 6.25% Pollution Control Revenue Bonds Series 1973
maturing in December 1998 and $4,800,000 of 7% Industrial Development Revenue
Bonds maturing in June 2006. Principal amounts to be repaid under the
pollution control revenue bonds are $530,000 in 1997 with a final payment at
maturity of $570,000. Principal amounts to be repaid under the industrial
development revenue bonds are $175,000 in 1997 with further mandatory
redemption prior to maturity of $2,100,000 with annual payments ranging from
$175,000 to $350,000 with a final payment at maturity of $1,650,000. The bonds
are also subject to optional redemption prior to maturity.
The Neunkirchen term notes mature at various times beginning in September 1998
through March 2003 and bear interest at rates ranging from 5% to 7.3%.
Mandatory payments are required. Approximately 38.2% of the notes are required
to paid in both 1997 and 1998 with the remaining 23.6% to be repaid in 1999
through 2003 in substantially equal payments. These borrowings are secured by
property, plant and equipment with net book values aggregating to $25,085,000
at December 31, 1996.
Sudbury has a credit agreement with National City Bank and Star Bank for
$805,000 to support letters of credit which are outstanding for the same amount
as the credit agreement. The letters of credit are at an annual rate of .75%
payable on a quarterly basis.
Long Term Debt Maturities
Maturities of long-term debt at December 31, 1996 are as follows (in
thousands of dollars):
1997 $ 12,676
1998 6,883
1999 123,733
2000 5,334
2001 5,312
Thereafter 8,215
--------
Total $162,153
========
Interest paid totaled $3,048,000, $6,485,000 and $7,693,000 in 1996, 1995 and
1994, respectively.
The Company is in compliance with the terms and restrictions of its various
loan and credit agreements. At December 31, 1996, approximately $43,513,000
of the Company's retained earnings were restricted and unavailable for the
payment of dividends under these agreements.
17
<PAGE> 18
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
7. Shareholders' Equity
The Company has a Key Individual Stock Option Plan ("Individual Plan") and a
Directors Stock Option Plan ("Directors Plan"). The Company has also granted
options to purchase common stock to certain individuals that are not covered
under these two plans. The Individual Plan, which provided for the granting
of options for 1,440,000 shares of common stock, expired in 1994 except as to
options still outstanding. A new plan was approved April 27, 1995 which
provided for granting of options for 1,500,000 shares of common stock. The
Directors Plan provides for the granting of options to purchase 100,000
shares of common stock. Options granted under the Individual Plan vest over a
four-year period. All other options granted were exercisable at the grant
date. At December 31, 1996 options for 660,000 shares were exercisable, while
837,500 shares were available for future grants.
In October, 1995, the Financial Accounting Standards board issued Statement
of Financial Accounting Standards (SFAS) No. 123, "Accounting for Stock-Based
Compensation." This new standard defines a fair value based method of
accounting for an employee stock option or similar equity instrument.
The fair value of the Company's stock options were estimated as of the date
of grant using a Black-Scholes option pricing model with the following
weighted-average assumptions for 1996 and 1995: risk-free interest rates of
6.4%; a dividend yield of 1.0%; volatility factors of the expected market
price of the Company's common stock of .34; and a weighted-average expected
life of the options of 6 years.
The Black-Scholes option valuation model was developed for use in estimating
the fair value of traded options which have no vesting restrictions and are
fully transferable. In addition, option valuation models require the input
of highly subjective assumptions including the expected stock price
volatility. Because the Company's employee stock options have
characteristics significantly different from those of traded options, and
because changes in the subjective input assumptions can materially affect the
fair value estimate, in management's opinion, the existing models do not
necessarily provide a reliable single measure of the fair value of its
employee stock options.
For purposes of the pro forma disclosures required under Statement 123, the
estimated fair value of the options is amortized to expense over the options'
vesting period. For 1996 and 1995, net income and earnings per share on a
pro forma basis does not differ significantly from that determined under APB
25.
18
<PAGE> 19
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
7. Shareholders' Equity (continued)
A summary of the Company's stock option activity, and related information for
the years ended December 31, 1995 and 1994 are as follows:
<TABLE>
<CAPTION>
Exercise Number of
Price Range Options
------------ --------
<S> <C> <C>
Outstanding at December 31, 1993 $5.69-$12.62 983,000
Granted 5.75-10.11 426,000
Exercised 5.69 (22,500)
Canceled or expired 5.69-10.75 (137,500)
---------
Outstanding at December 31, 1994 5.69-12.62 1,249,000
Granted 8.56-9.00 391,000
Exercised 5.69-10.75 (124,500)
Canceled or expired 5.69-11.83 (323,000)
---------
Outstanding at December 31, 1995 5.69-12.62 1,192,500
=========
</TABLE>
A summary of the Company's 1996 stock option activity, including related
Statement 123 disclosures, are as follows:
<TABLE> Weighted
<CAPTION> Average
Number of Exercise Exercise
Options Price Price Range
--------- -------- --------------
<S> <C> <C> <C>
Outstanding at December 31, 1995 1,192,500 $ 8.74
Granted 381,500 13.03 $12.75-$13.81
Exercised (114,500) 8.44 5.69-10.75
Forfeited (69,500) 10.12 9.00-12.75
--------- ------
Outstanding at December 31, 1996 1,390,000 $ 9.87
========= ======
Exercisable at December 31, 1996 660,000 $ 8.48
Weighted-average fair value of
options granted during 1996 $ 5.33
</TABLE>
Exercise prices for options outstanding as of December 31, 1996 ranged from
$5.69 to $13.81. The weighted-average remaining contractual life of those
options is 7.4 years.
The Company has an Employee Stock Ownership Plan ("ESOP") for certain of its
United States employees who are not covered by collective bargaining
agreements. The ESOP requires contributions by the Company equal to 3% of the
annual compensation of the ESOP participants. The Company may, at its
discretion, make additional contributions within specified limits.
Contributions to the Plan of $665,000, $685,000 and $719,000 were expensed in
1996, 1995 and 1994, respectively.
19
<PAGE> 20
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
7. Shareholders' Equity (continued)
On October 6, 1995 the Company's Board of Directors declared a dividend of one
Right for each share of Intermet Common Stock held of record at the close of
business on October 17, 1995, pursuant to a Shareholder Protection Rights
Agreement dated October 6, 1995. The Rights are generally not exercisable
until 10 days after an announcement by the Company that a person, as defined
(excluding, with certain limitations, any current 10% or more shareholders who
do not acquire additional shares, any of the Company's ESOP's or benefit plans,
and the Company or any of its wholly-owned subsidiaries), has acquired 10% of
the Company's Common Stock or announces a tender offer which could result in
the ownership of 10% or more of the Company's Common Stock. Each Right, should
it become exercisable, will entitle the owner to buy 1/100th of a share of
Participating Preferred Stock, a new series of the Company's Preferred Stock,
at an exercise price of $40.
In the event the Rights become exercisable as a result of the acquisition of
shares, each Right will entitle the owner, other than the acquiring person, to
buy at the Rights' then current exercise price a number of shares of Common
Stock with a market value equal to twice the exercise price. In addition,
unless the acquiring person owns more than 50% of the outstanding shares of
Common Stock, the Board of Directors may elect to exchange all outstanding
Rights (other than those owned by such acquiring person or affiliates thereof)
at an exchange ratio of one share of Common Stock per Right. Unless the
Company merges with another company under certain conditions or redeems or
exchanges the Rights before October 6, 2005, the Rights will expire on such
date.
8. Commitments and Contingencies
Future minimum rental payments required under building and equipment operating
leases that have initial or remaining non-cancelable lease terms in excess of
one year at December 31, 1996 are as follows (in thousands of dollars):
<TABLE>
<S> <C>
1997 $ 5,308
1998 4,189
1999 3,022
2000 2,217
2001 1,789
Thereafter 2,058
-------
$18,583
=======
</TABLE>
Total rental expense under operating leases aggregated $2,833,000, $2,671,000
and $2,938,000 in 1996, 1995 and 1994, respectively.
At December 31, 1996 the Company had commitments for the purchase of equipment
totaling approximately $7,746,000.
Certain operating and non-operating subsidiaries of the Company have been
named as potentially responsible parties liable for cleanup of known
environmental conditions. For known environmental situations, the Company,
with the assistance of environmental engineers and consultants, has accrued
reserves to cover estimated future environmental expenditures. Environmental
reserves at December 31, 1996 and 1995 approximated $5,400,000 and $1,600,000
respectively. The Company has initiated corrective action and/or preventative
environmental projects to ensure the safe and lawful operation of its
facilities. There could exist, however, more extensive or unknown
environmental situations at existing or previously owned businesses for which
the future cost is not known or exceeds amounts accrued at December 31, 1996.
20
<PAGE> 21
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
8. Commitments and Contingencies (continued)
The Company is also engaged in various legal proceedings and other matters
incidental to its normal business activities. The Company does not believe
any of these above-mentioned proceedings or matters will have a material
adverse effect on the Company's consolidated financial position or results of
operations.
9. Retirement Plans and Benefits
The Company maintains several noncontributory defined benefit pension plans
for certain of its U.S. employees covered by collective bargaining
agreements. The benefits are based on years of service. The Company's policy
is to fund amounts as required under applicable laws and regulations.
Net pension expense included the following components (in thousands of
dollars):
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Service cost $ 842 $ 693 $ 685
Interest cost on projected benefit obligations 1,805 1,709 1,554
Return on plan assets (3,886) (2,842) (381)
Net amortization and deferral 2,494 1,847 (409)
------- ------- ------
$ 1,255 $ 1,407 $1,449
======= ======= ======
</TABLE>
The reconciliation of the plans' funded status to the amounts reported in the
Company's consolidated balance sheets at December 31, 1996 and 1995 is as
follows (in thousands of dollars):
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Actuarial present value of accumulated benefit obligations:
Vested $47,533 $22,668
Nonvested 3,416 2,009
------- -------
Total accumulated benefit obligations $50,949 $24,677
======= =======
Projected benefit obligations $50,949 $24,677
Plan assets at fair value 47,435 17,895
Excess of projected benefit obligations over assets 3,514 6,782
Unrecognized prior service cost (1,228) (1,382)
Unrecognized net actuarial loss (795) (2,682)
Unrecognized transition obligation (276) (328)
Additional minimum liability 2,299 4,392
------- -------
Pension liabilities included in consolidated balance sheets $ 3,514 $ 6,782
======= =======
</TABLE>
The discount rate used in determining the actuarial present value of the
projected benefit obligations was 7.625% in 1996 and 7.5% in 1995. The
expected long-term rate of return on assets used in determining net pension
expense was 9% in 1996, 1995 and 1994. Plan assets consist of publicly traded
stocks and bonds, cash equivalents and insurance contracts.
21
<PAGE> 22
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
9. Retirement Plans and Benefits (continued)
The Company maintains several defined contribution plans for certain hourly
employees. Contributions to these plans are accrued based on hours worked by
each employee, and totaled $724,000, $635,000 and $597,000 in 1996, 1995 and
1994, respectively. Some of the plans allow participants to make pretax
contributions, as a percentage of their compensation.
The Company also maintains defined contribution plans for domestic salaried
employees. The Company contributes a specified percentage of the annual
compensation of participants. Participants are also allowed to make pretax
contributions to the plans, as a percentage of their compensation. The
Company matches participant contributions, up to a specified limit. The
Company accrued contributions to the plans of $991,000, $1,023,000 and
$1,077,000 in 1996, 1995 and 1994, respectively.
In addition to providing pension benefits, the Company provides health care
and life insurance benefits to certain retired U.S. employees and their
dependents. Salaried employees can become eligible for retiree health care
benefits at age 55 depending on years of service. Certain hourly employees
currently can become eligible for retiree health care benefits at age 60
depending on years of service. Retirees receive substantially the same
health care benefits as active employees. The medical plans generally pay 80%
of most medical expenses less deductible amounts. Salaried employees also
contribute to the cost of dependent coverage. The salaried employee coverage
converts to a Medicare supplement at age 65, while most hourly employee
coverage ceases at age 65. Net postretirement benefit expense for 1996, 1995
and 1994 included the following components (in thousands of dollars):
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Service cost $1,073 $ 909 $1,151
Interest cost on accumulated benefit obligation 2,425 2,414 2,426
Amortization (496) (715) 31
------ ------ ------
$3,002 $2,608 $3,608
====== ====== ======
</TABLE>
The reconciliation of the postretirement benefit plans' funded status to the
amounts reported in the Company's consolidated balance sheets at December 31,
1996 and 1995 is as follows (in thousands of dollars):
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Present value of accumulated postretirement benefit obligation:
Retirees $21,055 $15,081
Fully eligible active participants 3,126 2,373
Other active participants 14,771 16,291
------- -------
38,952 33,745
Unrecognized net gain 10,955 5,540
Postretirement benefit liability included in consolidated ------- -------
balance sheets $49,907 $39,285
======= =======
</TABLE>
22
<PAGE> 23
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
9. Retirement Plans and Benefits (continued)
The discount rate used in determining the present value of the accumulated
postretirement benefit obligation was 7.625% at December 31, 1996 and 7.5% at
December 31, 1995. The assumed health care cost trend rate used in measuring
the accumulated postretirement benefit obligation was 7.5% to 11% in 1996,
declining by 0.5% per year to an ultimate rate of 5.5% to 6% for the applicable
employee age groups. Certain subsidiaries providing a dental benefit assumed a
7.0% cost trend rate for dental in 1996, declining to 5.5% in 1998. If the
assumed health care cost trend rate were increased 1% in all future years, the
accumulated postretirement benefit obligation would increase by $2,582,000 and
postretirement benefit expense would increase by $360,000.
10. Income Taxes
The provision (benefit) for income taxes consists of the following (in
thousands of dollars).
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Current:
Federal $ 6,642 $ 7,436 $ 651
State 2,448 2,058 1,629
Foreign 8,443 7,397 4,416
------- ------- ------
17,533 16,891 6,696
Deferred:
Federal (5,280) 3,288 (651)
State (1,748) 96 -
Foreign 664 (150) (149)
------- ------- ------
(6,364) 3,234 (800)
------- ------- ------
$11,169 $20,125 $5,896
======= ======= ======
</TABLE>
Income taxes paid were approximately $17,380,000, $8,407,000 and $3,067,000
in 1996, 1995 and 1994, respectively.
23
<PAGE> 24
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
10. Income Taxes (continued)
The provision (benefit) for income taxes differs from the amount computed by
applying statutory U.S. federal income tax rates to income before income
taxes for the following reasons (in thousands of dollars):
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Provision (benefit) for income taxes
at U.S. statutory rate $ 19,013 $15,932 $(1,781)
Losses with no tax effect - 2,517 3,683
Difference between U.S. and
foreign tax rates 3,734 3,081 998
Utilization of NOL and credit
carryforwards (2,137) (3,608) -
State income taxes, net of federal
income tax benefits 455 1,400 1,059
Reduction in deferred valuation
allowance (11,513) - -
Other 1,617 803 1,937
-------- ------- -------
$ 11,169 $20,125 $ 5,896
======== ======= =======
</TABLE>
The tax effects of the types of temporary differences and carryforwards which
give rise to deferred income tax assets (liabilities) at December 31, 1996
and 1995 are as follows (in thousands of dollars):
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Compensation and benefit items,
primarily related to SFAS 106 $ 27,514 $ 21,653
Operating loss, capital loss, foreign tax credit and
AMT credit carryforwards 19,253 13,269
Other temporary differences 13,050 4,901
-------- ----------
Gross deferred income tax assets 59,817 39,823
Depreciation and related items (22,103) (10,863)
Other temporary differences (11,884) (2,798)
-------- ---------
Gross deferred income tax liabilities (33,987) (13,661)
-------- ----------
Net deferred tax asset 25,830 26,162
Valuation allowance (14,819) (26,332)
-------- ----------
Net deferred income taxes $ 11,011 $ (170)
======== ==========
</TABLE>
These amounts are included in the consolidated balance sheets as follows (in
thousands of dollars):
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Current assets $13,242 $ 3,774
Other noncurrent assets 4,136 1,260
Other noncurrent liabilities (6,367) (5,204)
------- -------
$11,011 $ (170)
======= =======
</TABLE>
24
<PAGE> 25
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
10. Income Taxes (continued)
Financial Accounting Standard Board Statement No. 109 "Accounting For Income
Taxes ("Statement No. 109") requires the reduction of the deferred tax asset
by a valuation allowance, based on the weight of available evidence, if it is
more likely than not that a portion or all of the deferred tax asset will not
be realized. For the year ended December 31, 1996 the Company reduced its
valuation allowance by $11,513,000, due to the increased viability of
anticipated future income. The company has continued to provide a valuation
allowance in the amount of $14,819,000 for capital losses, foreign tax credits
and operating loss carryforwards, the utilization of which is presently
uncertain.
There are certain limitations on the use of most of the tax loss and credit
carryforwards noted above. Tax loss and credit carryforwards with a value of
approximately $19,253,000 expire in various amounts between 1997 and 2010.
11. Geographic Area and Major Customer Information
The Company produces iron castings, principally for automotive manufacturers
in North America and Europe and effective with the acquisition of Sudbury,
Inc. (See Note 2) the Company supplies applications of custom coatings;
cranes, truck bodies and related equipment; and precision machine components.
All sales are to unaffiliated customers. Revenue and income amounts for the
three years ended December 31, 1996, and identifiable assets at the end of
each year, were as follows for U.S. and foreign operations (in thousands of
dollars):
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Net sales:
U.S. $441,942 $448,447 $433,067
Foreign 92,536 93,302 68,202
Operating profit (loss):
U.S. 38,338 36,763 (9,051)
Foreign 17,765 16,052 10,779
Income (loss) before income taxes:
U.S. 36,960 30,394 (14,476)
Foreign 17,362 15,126 9,387
Identifiable assets:
U.S. 469,359 220,548 250,498
Foreign 63,003 53,523 55,766
</TABLE>
Net sales to customers exceeding 10% of consolidated net sales were as
follows (as a percentage of consolidated net sales):
<TABLE>
<S> <C> <C> <C>
1996 1995 1994
Customer ---- ---- ----
Chrysler 23% 20% 23%
Ford 19 18 23
General Motors 12 18 14
</TABLE>
25
<PAGE> 26
Intermet Corporation
Notes to Consolidated Financial Statements (continued)
11. Geographic Area and Major Customer Information (continued)
Credit is extended based on an evaluation of the customer's financial
condition, and generally collateral is not required. Credit losses are
provided for in the financial statements and consistently have been within
management's expectation.
12. Quarterly Data and Share Information (Unaudited)
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter
------------------------------------------------
(In Thousands of Dollars, Except Per Share Data)
<S> <C> <C> <C> <C>
1996
Net sales $134,158 $143,782 $130,279 $126,259
Gross profit 19,777 24,277 17,830 15,976
Net income 8,810 10,814 6,786 16,743
Net income per common share .35 .42 .27 .65
Share prices (NASDAQ):
High 13.375 17.625 14.375 16.25
Low 9.75 12.00 10.375 10.125
1995
Net sales $153,278 $149,035 $117,331 $122,105
Gross profit 21,650 27,460 12,727 22,575
Net income 6,520 9,537 3,377 5,961
Net income per common share .26 .39 .14 .24
Share prices (NASDAQ):
High 8.125 9.75 12.625 14.125
Low 6.25 7.625 9.50 9.50
</TABLE>
Third and fourth quarter sales are usually lower than the first and second
quarter sales due to plant closings by automotive manufacturers for vacations
and model changeovers. The above share price information represents
inter-dealer transactions in The NASDAQ National Market without retail markup,
markdown or commission.
26
<PAGE> 1
Exhibit 21 Subsidiaries of the Company
NAME OF SUBSIDIARY INCORPORATION OR PLACE OF ORGANIZATION
Alexander City Casting Company, Inc. Alabama
Cast-Matic Corporation Michigan
Columbus Neunkirchen Foundry, GmbH Germany
Frisby P.M.C., Inc. Illinois
Industrial Powder Coatings, Inc. Ohio
Intermet International, Inc. Georgia
Iowa Mold Tooling Co., Inc. Iowa
Ironton Iron, Inc. Ohio
Lower Basin, Inc. Delaware
Lynchburg Foundry Company Virginia
New River Castings Company Delaware
Northern Castings Corporation Georgia
PBM Industries, Inc. Delaware
Pennsylvania Castings Corporation Georgia
Sudbury, Inc. Delaware
Transnational Indemnity Company Vermont
Wagner Castings Company Delaware
Wagner Havana, Inc. Delaware
Western Capital Corporation Nebraska
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 23,485
<SECURITIES> 0
<RECEIVABLES> 87,998
<ALLOWANCES> 949
<INVENTORY> 56,047
<CURRENT-ASSETS> 189,294
<PP&E> 436,704
<DEPRECIATION> 209,118
<TOTAL-ASSETS> 526,312
<CURRENT-LIABILITIES> 171,368
<BONDS> 0
0
0
<COMMON> 2,517
<OTHER-SE> 138,585
<TOTAL-LIABILITY-AND-EQUITY> 526,312
<SALES> 534,478
<TOTAL-REVENUES> 534,478
<CGS> 456,618
<TOTAL-COSTS> 478,375
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,056
<INCOME-PRETAX> 54,322
<INCOME-TAX> 11,169
<INCOME-CONTINUING> 43,153
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 43,153
<EPS-PRIMARY> 1.69
<EPS-DILUTED> 1.69
</TABLE>
