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8-K
Jun 27, 4:19 PM ET
AMPCO PITTSBURGH CORP 8-K
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Contents
40
1.6. Excess Resulting from Exchange Rate Change. If at any time following one or more fluctuations in the exchange rate of: (i) Sterling or Euro against the Dollar, (a) the aggregate outstanding principal balance of Advances to the UK Borrower exceeds the European Sublimit or (b) the aggregate outstanding principal balance of Advances to the UK Borrower exceeds any other limit based on Dollars set forth herein for such UK Obligations, the UK Borrower shall, immediately (y) make the necessary payments or repayments to reduce such UK Obligations to an amount necessary to eliminate such excess or (z) maintain or cause to be maintained with the Agent deposits as continuing collateral security for the Obligations of the UK Borrower in an amount equal to or greater than the amount of such excess, such deposits to be maintained in such form and upon such terms as are acceptable to the Agent; and/or (ii) the Swedish Krona or Euro against the Dollar, (a) the aggregate outstanding principal balance of Advances to the Swedish Borrowers exceeds the lesser of the amount available under the European Sublimit or (b) the aggregate outstanding principal balance of Advances to the Swedish Borrowers exceeds any other limit based on Dollars set forth herein for such Swedish Obligations, the Swedish Borrowers shall, immediately (y) make the necessary payments or repayments to reduce such Swedish Obligations to an amount necessary to eliminate such excess or (z) maintain or cause to be maintained with the Agent deposits as continuing collateral security for the Obligations of the Swedish Borrowers in an amount equal to or greater than the amount of such excess, such deposits to be maintained in
such form and upon such terms as are acceptable to the Agent. Without in any way limiting the foregoing provisions, the Agent shall, weekly or more frequently in the sole discretion of the Agent, make the necessary exchange rate calculations to determine whether any such excess exists on such date and advise the Borrowers if such excess exists.
1.7. Benchmark Replacement Notification; Rates. Section 3.8.4. of this Agreement provides a mechanism for determining an alternative rate of interest in the event that any Benchmark, for any applicable currency, is no longer available or in certain other circumstances. The Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of or calculation of, or any other matter related to, any Benchmark, for any applicable currency, or any component definition thereof or rates referred to in the definition thereof, or any alternative or successor rate thereto, or replacement rate therefor (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its affiliates or other related entities may engage in transactions that affect the calculation of any Benchmark for any applicable currency, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers or any other person or entity. The Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.8. Conforming Changes Relating to Term SOFR Rate, Eurocurrency Rate and Daily Simple RFR. With respect to the Term SOFR Rate, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any Other Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any Other Document; provided that, with respect to any such amendment effected, the Agent shall provide notice to the Borrowers and the Lenders of each such amendment implementing such Conforming Changes reasonably promptly after such amendment becomes effective.
2.25. Currency Fluctuations.
2.26. Periodic Computations of Dollar Equivalent Amount of UK Letter of Credit Obligations and Swedish Letter of Credit Obligations. The Agent will determine the Maximum Undrawn Amount of (i) proposed Letters of Credit to be denominated in an Optional Currency as of the requested date of issuance, as the case may be, and (ii) all outstanding obligations under Letters of Credit denominated in an Optional Currency as of the last Business Day of each month, (each such date under clauses (i) and (ii), a "Computation Date").
2.27. Judgment Currency.
2.28. European Monetary Union.
3.8.1 Unascertainable; Increased Costs; Deposits Not Available. If at any time:
9.10. Borrowing Certificates. Furnish Agent and Lenders within twenty (20) days after the end of each month as and for the prior month a Borrowing Base Certificate, in form and substance satisfactory to Agent (which shall be calculated as of the last day of the prior month and which shall not be binding upon Agent or restrictive of Agent's rights under this Agreement). During any applicable Trigger Period, (i) within three (3) Business Days of the commencement of such applicable Trigger Period, a Borrowing Base Certificate shall be furnished to the Agent and the Lenders based on the most recent calendar week ended five (5) days or more prior to the commencement of such applicable Trigger Period, and (ii) thereafter, within three (3) Business Days after each calendar week until such time as such applicable Trigger Period has ended, a
Borrowing Base Certificate shall be furnished to the Agent and the Lenders based on the most recently ended calendar week.
9.11. Other Reports. Furnish Agent as soon as available, but in any event within ten (10) days after the issuance thereof, (i)with copies of such financial statements, reports and returns as each Loan Party shall send to its stockholders and/or members and (ii) copies of all notices, reports (including Form 8-K), registration statements and prospectuses and other shareholder communications, filed by Ampco-Pitt Corp. with the SEC and not posted to the EDGAR website.
9.12. Additional Information. Furnish Agent with such additional information as Agent shall reasonably request in order to enable Agent to determine whether the terms, covenants, provisions and conditions of this Agreement and the Other Documents have been complied with by the Loan Parties including, without the necessity of any request by Agent, (a) copies of all environmental audits and reviews, (b) at least thirty (30) days prior thereto, notice of any Loan Party's opening of any new office or place of business or any Loan Party's closing of any existing office or place of business, (c) promptly upon any Loan Party's learning thereof, notice of any labor dispute to which any Loan Party may become a party, any strikes or walkouts relating to any of its plants or other facilities, and the expiration of any labor contract to which any Loan Party is a party or by which any Loan Party is bound and (d) promptly upon any Loan Party's learning thereof, notice of any applicable Customer ceasing to be a Designated Customer.
9.13. Projected Operating Budget. Furnish Agent, no later than thirty (30) days after the beginning of each Loan Party's fiscal years commencing with fiscal year 2026, a projected statement of income and cash flow of the Loan Parties and their Subsidiaries on a consolidated basis for such fiscal year and a balance sheet as at the end of the fiscal year, projected sales, operating income and net income on a consolidated basis for each quarter, and projected sales and operating income by operating entity. Such projections to be accompanied by a certificate signed by the Authorized Officer of the Borrowing Agent to the effect that such projections have been prepared on the basis of sound financial planning practice consistent with past budgets and financial statements and that such officer has no reason to question the reasonableness of any material assumptions on which such projections were prepared (it being understood that such projections are and will be subject to significant uncertainties and contingencies, many of which are beyond the Loan Parties' control, and that no assurance can be given that the projections will be realized).
9.14. Variances From Operating Budget. Furnish Agent, concurrently with the delivery of the financial statements referred to in Sections 9.7, 9.8 and 9.9, a written report providing an overview of operating results of each operating entity.
9.15. Notice of Suits, Adverse Events. Furnish Agent with prompt written notice of (i) any lapse or other termination of any Consent issued to any Loan Party by any Governmental Body or any other Person that is material to the operation of any Loan Party's business, (ii) any refusal by any Governmental Body or any other Person to renew or extend any such Consent; and (iii) copies of any periodic or special reports filed by any Borrower or any Guarantor with any Governmental Body or Person, if such reports indicate any material change in the business, operations, affairs or condition of any Borrower or any Guarantor, or if copies thereof are requested by Lender, and (iv) copies of any material notices and other material communications related to
material matters from any Governmental Body or Person which specifically relate to any Borrower or any Guarantor.
9.16. ERISA Notices and Requests. Furnish Agent with prompt written notice in the event that (i) any Loan Party or any member of the Controlled Group knows or has reason to know that a Termination Event has occurred, together with a written statement describing such Termination Event and the action, if any, which such Loan Party or any member of the Controlled Group has taken, is taking, or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, Department of Labor or PBGC with respect thereto, (ii) except for actions or omissions correctable under EPCRS or VFCP and which could not reasonably be expected to result in a Material Adverse Effect any Loan Party or any member of the Controlled Group knows or has reason to know that a non-exempt prohibited transaction (as defined in Sections 406 of ERISA and 4975 of the Code) has occurred together with a written statement describing such transaction and the action which such Loan Party or any member of the Controlled Group has taken, is taking or proposes to take with respect thereto, (iii) a funding waiver request has been filed with respect to any Plan together with all communications received by any Loan Party or any member of the Controlled Group with respect to such request, (iv) subject to the impacts of plan terminations and consolidations and the impact of labor contracts, any increase in the benefits of any existing Plan or the establishment of any new Plan or the commencement of contributions to any Plan to which any Loan Party or any member of the Controlled Group was not previously contributing shall occur, (v) any Loan Party or any member of the Controlled Group shall receive from the PBGC a notice of intention to terminate a Plan or to have a trustee appointed to administer a Plan, together with copies of each such notice, (vi) any Loan Party or any member of the Controlled Group shall receive any favorable or unfavorable determination letter from the Internal Revenue Service regarding the qualification of a Plan under Section 401(a) of the Code, together with copies of each such letter; (vii) any Loan Party or any member of the Controlled Group shall receive a notice regarding the imposition of withdrawal liability, together with copies of each such notice; (viii) any Loan Party or any member of the Controlled Group shall fail to make a required installment or any other required payment under the Code or ERISA on or before the due date for such installment or payment; or (ix) any Loan Party or any member of the Controlled Group has received written notice or otherwise knows that (a) a Multiemployer Plan has been terminated, (b) the administrator or plan sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan, (c) the PBGC has instituted or will institute proceedings under Section 4042 of ERISA to terminate a Multiemployer Plan or (d) a Multiemployer Plan is subject to Section 432 of the Code or Section 305 of ERISA.
9.17. Additional Documents. Execute and deliver to Agent, upon request, such documents and agreements as Agent may, from time to time, reasonably request to carry out the purposes, terms or conditions of this Agreement.
9.18. Updates to Certain Schedules. Deliver to Agent promptly as shall be required to maintain the related representations and warranties as true and correct, updates to Schedules 4.4 (Locations of equipment and Inventory), 5.24 (Equity Interests), and 5.25 (Commercial Tort Claims); provided, that absent the occurrence and continuance of any Event of Default, Loan Party shall only be required to provide such updates on a monthly basis in connection with delivery of a Compliance Certificate with respect to the applicable month. Any such updated Schedules delivered by the Loan Parties to Agent in accordance with this Section 9.17 shall automatically
and immediately be deemed to amend and restate the prior version of such Schedule previously delivered to Agent and attached to and made part of this Agreement.
9.19. Financial Disclosure. Each Loan Party hereby irrevocably authorizes and directs all accountants and auditors employed by such Loan Party at any time during the Term to exhibit and deliver to Agent and each Lender copies of any of such Loan Party's financial statements, trial balances or other accounting records of any sort in the accountant's or auditor's possession, and to disclose to Agent and each Lender any information such accountants may have concerning such Loan Party's financial status and business operations. Each Loan Party hereby authorizes all Governmental Bodies to furnish to Agent and each Lender copies of reports or examinations relating to such Loan Party, whether made by such Loan Party or otherwise; however, Agent and each Lender will attempt to obtain such information or materials directly from such Loan Party prior to obtaining such information or materials from such accountants or Governmental Bodies.
10.8. [Reserved].
10.15. [Reserved].
10.16. Operations. The operations of any Borrower's or any Guarantor's manufacturing facility are interrupted (other than in connection with any regularly scheduled shutdown for employee vacations and/or maintenance in the Ordinary Course of Business) at any time for more than ten (10) consecutive days and to the extent such interruption is reasonably likely to result in a Material Adverse Effect, unless such Borrower or Guarantor shall (i) be entitled to receive for such period of interruption, proceeds of business interruption insurance sufficient to assure that its per diem cash needs during such period is at least equal to its average per diem cash needs for the consecutive three month period immediately preceding the initial date of interruption and (ii) receive such proceeds in the amount described in clause (i) preceding not later than thirty (30) days following the initial date of any such interruption; provided, however, that notwithstanding the provisions of clauses (i) and (ii) of this section, an Event of Default shall be deemed to have occurred if such Borrower or Guarantor shall be receiving the proceeds of business interruption insurance for a period of thirty (30) consecutive days;
10.17. Pension Plans. (i) An event or condition specified in Sections 6.12, 7.16 or 9.16 hereof shall occur or exist with respect to any Plan and, as a result of such event or condition, together with all other such events or conditions, any Loan Party or any member of the Controlled Group shall incur, or in the opinion of Agent be reasonably likely to incur, a liability to a Plan or the PBGC (or each) that could reasonably be expected to result in a Material Adverse Effect, (ii) the Pensions Regulator issues a Financial Support Direction or a Contribution Notice to any Loan Party incorporated in England and Wales, which, in the reasonable judgment of Agent, would have a Material Adverse Effect; or (iii) the occurrence of any Termination Event or any Loan Party's failure to immediately report a Termination Event in accordance with Section 9.16 hereof.
10.18. Anti-Money Laundering/International Trade Law Compliance. Any representation, warranty or covenant contained in Sections 5.28, 5.29, 6.16, 7.18 and 7.19 is or becomes false or misleading at any time.
16.18. [Reserved].
16.19. Limitations on Liability.
16.20. Amendment and Restatement.
(a) This Agreement amends and restates in its entirety the Existing Credit Agreement. All references to the "Agreement" contained in the Other Documents delivered in
connection with the Existing Credit Agreement or this Agreement shall, and shall be deemed to, refer to this Agreement. Notwithstanding the amendment and restatement of the Existing Credit Agreement by this Agreement, the Obligations of the Borrowers and the other Loan Parties outstanding as of the Closing Date under the Existing Credit Agreement and the Other Documents as defined and entered into in conjunction with the Existing Credit Agreement shall remain outstanding and shall constitute continuing Obligations without novation, but subject to any changes in the provisions governing the same under this Agreement and the Other Documents as defined in this Agreement. Such Obligations shall in all respects be continuing and this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of such Obligations.
(b) Each of Davy Roll and the UK Borrower confirms that:
(i) its liabilities and obligations arising under this Agreement shall, to the extent that those liabilities and obligations are UK Obligations, form part of (but do not limit) the Secured Obligations (as defined in the UK Security Document); and
(ii) the security created or expressed to be created in favor of the Agent (for itself and the benefit of the Lenders) by each of Davy Roll and the UK Borrower pursuant to the UK Security Document shall cover (without limitation) the obligations and liabilities under this Agreement, to the extent that those liabilities and obligations are UK Obligations.
(c) Ampco UES confirms that:
(i) its liabilities and obligations arising under this Agreement shall form part of (but do not limit) the Secured Obligations (as defined in the Share Charge); and
(ii) the security created or expressed to be created in favor of the Agent (for itself and the benefit of the Lenders) by Ampco UES pursuant to the Share Charge shall cover (without limitation) the obligations and liabilities under this Agreement.
16.21 Acknowledgment and Consent to Bail-In of EEA Financial Institutions – Contractual Recognition of Bail-In.
16.22. Acknowledgment Regarding any Supported QFCs.