AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as
of August 19, 1999, by and among COMMONWEALTH INDUSTRIES, INC., a corporation
duly organized and validly existing under the laws of the State of Delaware (the
"Parent"); COMMONWEALTH ALUMINUM CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Delaware ("CAC'); ALFLEX
CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware ("Alflex"); COMMONWEALTH ALUMINUM CONCAST, INC., a
corporation duly organized and validly existing under the laws of the State of
Ohio ("CACI"); each of the Subsidiaries of the Parent party thereto (each, a
"Subsidiary Guarantor" and, collectively, the Subsidiary Guarantors"); each of
the lenders that is a signatory hereto (individually, a "Lender" and,
collectively, the "Lenders"); NATIONAL WESTMINSTER BANK PLC (the "Resigning
Agent"); and Bank One, Indiana, N.A. (the "Successor Agent").
RECITALS:
Reference is made to the Second Amended and Restated Credit
Agreement dated as of December 19, 1997 (the "Credit Agreement") between the
Parent, CAC, Alflex, CACI, CI HOLDINGS, INC., the Subsidiary Guarantors, the
Lenders, and the Resigning Agent as administrative agent for the Lenders (in
such capacity, together with its successors in such capacity, the
"Administrative Agent") providing, subject to the terms and conditions thereof,
for loans to be made by said Lenders to the Borrowers in an aggregate principal
or face amount not exceeding $100,000,000.
Section 11.08 of the Credit Agreement provides that the
Administrative Agent may resign by giving notice thereof to the Lenders, the
Parent and the Borrowers.
As set forth herein, the Resigning Agent wishes to resign as
Administrative Agent and Issuing Bank under the Credit Agreement.
Section 11.08 of the Credit Agreement further provides that if
the Administrative Agent shall resign, the Majority Lenders shall have the right
to appoint a successor Administrative Agent.
By virtue of the consent of the Lenders constituting the
Majority Lenders set forth below, such Lenders have consented to the resignation
of the Resigning Agent as Administrative Agent and as Issuing Bank under the
Credit Agreement and to the appointment of the Successor Agent as Administrative
Agent and Issuing Bank thereunder.
Subject to the terms and conditions hereof, the Successor
Agent is willing to accept such appointment.
Accordingly, the Resigning Agent, the Parent, the Borrowers,
the Subsidiary Guarantors, the Lenders and the Successor Agent for and in
consideration of the premises and of other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, consent and agree as follows:
ARTICLE I
THE RESIGNING AGENT
SECTION1.01. Pursuant to Section 11.08 of the Credit Agreement, the
Resigning Agent hereby notifies the Lenders, the Parent and the Borrowers that
it resigns as Administrative Agent and as Issuing Bank under the Credit
Agreement as of the Effective Date.
SECTION 1.02. The Resigning Agent represents and warrants to the
Successor Agent that this Agreement has been duly authorized, executed and
delivered on behalf of the Resigning Agent.
SECTION 1.03. The Resigning Agent assigns, transfers, delivers and
confirms to the Successor Agent the rights, powers and duties of the
Administrative Agent and Issuing Bank under the Credit Agreement and the
Security Documents, and the Successor Agent hereby accepts such rights, powers
and duties. The Resigning Agent and by its execution hereof the Parent, the
Borrowers, the Subsidiary Guarantors and the Lenders, each agrees to execute and
deliver such further instruments and take such actions as the Successor Agent
reasonably may request so as to more fully and certainly vest and confirm in the
Successor Agent all the rights, powers and duties hereby assigned, transferred,
delivered and confirmed to the Successor Agent as the Administrative Agent and
the Issuing Bank and to execute and deliver such further instruments and
documents as the Successor Agent may reasonably request, including, without
limitation, UCC-3 assignments.
SECTION 1.04. The Successor Agent acknowledges receipt from the
Resigning Agent of a copy of the Credit Agreement. The Resigning Agent shall
promptly, and in any event within two Business Days after the Effective Date,
deliver to the Successor Agent after the Effective Date copies as requested of
all other documents delivered to the Resigning Agent in connection with all
prior fundings under the Credit Agreement and originals (as available) of the
Credit Agreement, the Security Documents, the possessory collateral security
delivered to the Resigning Agent under the Pledge and Security Agreement, the
Mortgages and all other documents, resolutions, opinions, and other instruments
delivered in connection with the Credit Agreement.
ARTICLE 2
APPOINTMENT
SECTION 2.01. As a result of the consent of the Lenders set forth
below, the Majority Lenders have consented to the appointment of the Successor
Agent as the Administrative Agent and Issuing Bank under the Credit Agreement
and the Security Documents. Accordingly, there is hereby vested in the Successor
Agent all the rights, powers, duties and obligations of the Resigning Agent
under the Credit Agreement and the Security Documents as of the Effective Date.
ARTICLE 3
THE SUCCESSOR AGENT
SECTION 3.01. The Successor Agent represents and warrants to the
Resigning Agent, the Lenders, the Parent, the Borrowers and the Subsidiary
Guarantors that this Agreement has been duly authorized, executed and delivered
on behalf of the Successor Agent.
SECTION 3.02. The Successor Agent accepts its appointment as successor
Administrative Agent and Issuing Bank under the Credit Agreement and the
Security Documents as of the Effective Date and accepts the rights, powers,
duties and obligations of the Resigning Agent as the Administrative Agent and
Issuing Bank under the Credit Agreement and the Security Documents as of the
Effective Date, upon the terms and conditions set forth therein.
ARTICLE 4
OTHER PROVISIONS
SECTION 4.01. Except as otherwise expressly provided herein or unless
the context otherwise requires, all terms used herein that are defined in the
Credit Agreement shall have the meanings assigned to them in the Credit
Agreement,
SECTION 4.02. This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective as of the close of business on
August 18, 1999 (the "Effective Date").
SECTION 4.03. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 4.04. This Agreement may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 4.05. The Resigning Agent agrees that at any time and from time
to time upon the written request of the Successor Agent, it will execute and
deliver such further documents and do such further acts and things as the
Successor Agent may reasonably request in order to effect the appointment of the
Successor Agent.
SECTION 4.06. The Successor Agent agrees to pay to the Resigning Agent
the Facility Fee, Letter of Credit fee and Swingline interest in the amounts of
$13,650.00, $17,236.00 and $676.48, respectively, as such fees shall be paid in
arrears to the Successor Agent by the Borrowers for the period ending September
1, 1999. Notwithstanding anything in this Agreement to the contrary, the
Successor Agent shall have no obligation to make any payments to the Resigning
Agent under this Section 4.06 unless the Successor Agent has received such
amounts from the Borrowers under the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
THE PARENT
COMMONWEALTH INDUSTRIES, INC.
By: _____________________________________________
Title:
THE BORROWERS
COMMONWEALTH ALUMINUM CORPORATION
By: _____________________________________________
Title:
ALFLEX CORPORATION
By: _____________________________________________
Title:
COMMONWEALTH ALUMINUM CONCAST, INC.
By: _____________________________________________
Title:
SUBSIDIARY GUARANTOR
COMMONWEALTH ALUMINUM SALES CORPORATION
By: _____________________________________________
Title:
NATIONAL WESTMINSTER BANK PLC,
as Resigning Agent
By: _____________________________________________
Name:
Title:
BANK ONE, INDIANA, N.A.,
as Successor Agent
By: _____________________________________________
Name:
Title:
The Lenders under Credit Agreement, hereby consent to the foregoing
Resignation, Appointment and Acceptance.
LENDERS
NATIONAL WESTMINSTER BANK PLC
By: _____________________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By: _____________________________________________
Title:
ABN AMRO BANK N.V.
By: _____________________________________________
Title:
BANK OF MONTREAL
By: _____________________________________________
Title:
CREDIT AGRICOLE INDOSUEZ
By: _____________________________________________
Title:
By: _____________________________________________
Title:
MELLON BANK, N.A.
By: _____________________________________________
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: _____________________________________________
Title:
BANK ONE, INDIANA, N.A.
By: _____________________________________________
Title: