BA235:000BA:104073:LOUISVILLE
030900:1
JOINDER AGREEMENT
This Joinder Agreement (the "Joinder Agreement") is made and entered
into as of December 31, 1999, by and among:
(1) Commonwealth Industries, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware (the "Parent") and the
successor by merger to CI Holdings, Inc.;
(2) Commonwealth Aluminum Lewisport, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware and formerly known
as Commonwealth Aluminum Corporation ("Lewisport");
(3) Alflex Corporation, a corporation duly organized and validly
existing under the laws of the State of Delaware ("Alflex");
(4) Commonwealth Aluminum Concast, Inc., a corporation duly organized
and validly existing under the laws of the State of Ohio ("CACI");
(5) Commonwealth Aluminum Corporation, a corporation duly organized and
validly existing under the laws of the State of Delaware ("CAC"; each of CAC,
CACI, Lewisport and Alflex is sometimes hereafter referred to as a "Borrower"
and collectively as the "Borrowers");
(6) The Subsidiary of the Parent identified by the caption "Subsidiary
Guarantor" on the signature pages hereto (the "Subsidiary Guarantor");
(7) Alflex E1 LLC, a limited liability company duly formed and validly
existing under the laws of the State of Delaware (the "New Subsidiary Guarantor"
and, together with the Parent, the Subsidiary Guarantor and the Borrowers, the
"Obligors");
(8) Bank One, Indiana, NA, for itself and as administrative agent for
the Lenders (as hereafter defined) (the "Administrative Agent");
(9) PNC Bank, National Association ("PNC");
(10) ABN AMRO Bank N.V. ("ABN AMRO");
(11) Bank of Montreal ("Montreal");
(12) Credit Agricole Indosuez ("Indosuez");
(13) Mellon Bank, N.A. ("Mellon Bank");
(14) The Industrial Bank of Japan, Limited ("IBJ"); and
(15) Firstar Bank, NA ("Firstar" and, together with the Administrative
Agent, PNC, ABN AMRO, Montreal, Indosuez, Mellon Bank, and IBJ, the "Lenders").
PRELIMINARY STATEMENTS:
A. Parent, each of the Borrowers, each of the Subsidiary Guarantors and each of
the Lenders are parties to a certain Second Amended and Restated Credit
Agreement dated as of December 19, 1997, as amended by Amendment No. 1 to Credit
Agreement dated December 22, 1998, an Agreement of Resignation, Appointment and
Acceptance dated August 18, 1999, and a Joinder Agreement dated as of October
29, 1999 (as amended from time to time, the "Credit Agreement").
B. Parent, each of the Borrowers, each of the Subsidiary Guarantors and the
Administrative Agent (as successor to National Westminster Bank PLC pursuant to
the Agreement of Resignation, Appointment and Acceptance dated August 18, 1999)
are parties to a certain Amended and Restated Pledge and Security Agreement
dated as of November 29, 1996, as amended by Amendment No. 1 dated as of
December 19, 1997, and by a Joinder Agreement dated as of October 29, 1999 (as
amended, the "Pledge Agreement").
C. New Subsidiary Guarantor has ceased to be an Immaterial Subsidiary (as
defined in the Credit Agreement) and, as required by Section 9.16 of the Credit
Agreement, Parent has expressed its willingness to cause New Subsidiary
Guarantor to:
(i) become a Subsidiary Guarantor (as defined in the Credit
Agreement) and, thereby, an Obligor, and
(ii) pledge and grant a security interest in and to its
Property (as defined in the Credit Agreement) pursuant to the
Security Documents to the Administrative Agent for the benefit
of the Lenders.
NOW THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Joinder. The New Subsidiary Guarantor hereby executes and delivers this
Agreement to the Lenders, pursuant to which the New Subsidiary Guarantor joins
as a "Subsidiary Guarantor" (as defined in the Credit Agreement), and becomes
liable as an Obligor under, each of the documents to which the Subsidiary
Guarantors are parties (including without limitation the Credit Agreement and
the Pledge Agreement), jointly and severally liable with all other Subsidiary
Guarantors under and with respect to such documents. Each of the other Obligors
consents to the joinder of the New Subsidiary Guarantor.
2. Consent of Lenders. Each of the Lenders hereby consents to the
addition of the New Subsidiary Guarantor as, and agrees that the New Subsidiary
Guarantor shall be, a "Subsidiary Guarantor" under the Credit Agreement, the
Pledge Agreement and each of the other documents to which the Subsidiary
Guarantors are parties.
3. Affirmation of Representations and Warranties. Each of the Obligors
(including the New Subsidiary Guarantor) hereby affirms that the representations
and warranties contained in the Credit Agreement and in the Pledge Agreement are
true and accurate as of the Effective Date and as of the date of the execution
and delivery of this Joinder Agreement. Each further represents and warrants
that each has the power to enter into and perform this Joinder Agreement. The
making and performance by the Obligors (including the New Subsidiary Guarantor)
of this Joinder Agreement has been duly authorized by all necessary action and
will not:
(i) violate any provision of law or of any of the Obligors'
(including the New Subsidiary Guarantor's) certificates of
incorporation or formation, or bylaws or limited liability
company agreements,
(ii) result in the breach of, or constitute a default under,
any agreement or instrument to which any of the Obligors
(including the New Subsidiary Guarantor) is a party or by
which any of the Obligors (including the New Subsidiary
Guarantor) or any of their respective property may be bound or
affected, or
(iii) result in the creation of any lien, charge or
encumbrance upon any property or assets of any of the Obligors
(including the New Subsidiary Guarantor), except as provided
by this Joinder Agreement (in the case of the New Subsidiary
Guarantor).
No consent, approval, authorization, declaration, exemption or other action by,
or notice to, any court or governmental or administrative agency or tribunal is
or will be required in connection with the execution, delivery, performance,
validity or enforcement of this Joinder Agreement or any other agreement,
instrument or document to be executed and delivered pursuant hereto.
4. No Impairment and Ratification. Each Guarantor consents to the
entering into of this Joinder Agreement by each of the Borrowers, the other
Guarantors and the New Subsidiary Guarantor. Each of the Obligors agrees that
neither this Joinder Agreement nor anything contained herein or in any other
document or instrument delivered in connection herewith shall diminish or impair
any Guarantor's liability in any respect under its Guaranty. Each Guarantor
further agrees that its Guaranty is, by the execution and delivery of this
Joinder Agreement, ratified, confirmed and reaffirmed in its entirety, and
acknowledged to continue in full force and effect.
5. Ratification. Except as expressly amended by this Joinder Agreement,
the Credit Agreement, the Pledge Agreement and the Guaranties are and shall be
unchanged. All of the terms, provisions, covenants, agreements, conditions,
schedules and exhibits thereof or thereto shall remain and continue in full
force and effect and are hereby incorporated by reference, and hereby ratified,
reaffirmed and confirmed by the Obligors (including the New Subsidiary
Guarantor) and the Lenders in all respects on and as of the effective date of
this Joinder Agreement. Each of the Obligors (including the New Subsidiary
Guarantor) acknowledges and agrees that all liens, security interests, and
pledges heretofore given to the Lenders to secure their respective indebtedness
to the Lenders shall also secure all obligations arising hereunder.
6. Conditions. The Lenders' agreements and consents in this Joinder
Agreement are and shall be subject to the prior satisfaction of the following
conditions precedent:
(a) Execution and Delivery of this Joinder Agreement. All of
the parties to this Joinder Agreement shall have executed and delivered a
counterpart hereof.
(b) Evidence of Existence and Authorzation. The Administrative
Agent shall have received the following:
(i) for the New Subsidiary Guarantor, a copy of
charter documents, limited liability company agreement and resolutions
relating to New Subsidiary Guarantor's execution and delivery of this Joinder
Agreement, all certified as true, correct and complete by the sole member of the
New Subsidiary Guarantor; and
(ii) for all Obligors, copies of resolutions relating
to the execution and delivery of this Joinder
Agreement, all certified as true, correct and complete by the Secretary or an
Assistant Secretary of each Obligor.
(c) Proceedings Satisfactory. All proceedings taken in
connection with the transactions contemplated herein shall be satisfactory to
the Lenders and their counsel. The Lenders and their counsel shall have received
copies of such documents as they may request in connection therewith, all in
form and substance satisfactory to the Lenders and their counsel.
7. Covenants. Each of the Obligors agrees that, by May 8, 2000,
they shall cause to be delivered to the Administrative
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Agent:
(a) Chattel Search Results. Such legal opinions,
UCC-11 Reports or reports from nationally-recognized chattel
search firms and similar information reflecting that the
security interests granted to the Administrative Agent, for
the benefit of the Lenders, by the New Subsidiary Guarantor
are first and prior perfected security interests.
(b) Legal Opinions. The legal opinions of the
law firms of:
(i) Messrs. Sullivan & Cromwell, substantially in the
form of Exhibit A attached hereto and incorporated
herein by this reference, and
(ii) Messrs. Womble, Carlisle, Sandridge & Rice,
substantially in the form of Exhibit B attached
hereto and incorporated herein by this reference.
(c) Financing Statements. All UCC-1 financing
statements and other documents, duly executed, as the
Administrative Agent determines to be necessary to perfect the
security interests intended to be granted by the New
Subsidiary Guarantor under the Pledge Agreement.
Each of the Obligors agrees that the covenants set forth in this Section 7 shall
constitute affirmative covenants, that the failure to comply therewith shall
constitute an Event of Default under the Credit Agreement and that except as set
forth above there shall be no grace or cure period. Each of the Obligors further
agrees that the Lenders shall have the right to pursue the remedies available
under and/or pursuant to the Credit Agreement should the Obligors fail to comply
with any of such affirmative covenants.
8. General Provisions.
(a) Entire Agreement. This Agreement, the Credit Agreement, the Pledge Agreement
and the other documents to which the Obligors (including the New Subsidiary
Guarantor) are parties pursuant to the Credit Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and thereof.
No change, modification, addition or termination of this Agreement shall be
enforceable unless in writing and signed by the party against whom enforcement
is sought.
(b) Definitions. Terms used and not otherwise defined in this Joinder Agreement
shall have the meanings given to them in the Credit Agreement, as amended from
time to time.
(c) Benefit. This Agreement shall be binding upon the Obligors, including the
New Subsidiary Guarantor, and their respective successors and assigns and shall
inure to the benefit of the Lenders and their respective successors and assigns.
(d) Waiver. No waiver of the provisions hereof shall be effective unless in
writing and signed by the party to be charged with such waiver. No waiver shall
be deemed a continuing waiver or a waiver in respect of any breach or default,
whether of a similar or a different nature, unless expressly so stated in
writing.
(e) Governing Law. The validity, construction, interpretation and enforcement of
this Agreement shall be construed in accordance with the laws of the State of
New York without regard to its conflict of laws.
(f) Severability. If any provision of this Agreement or its application shall be
deemed invalid, illegal or unenforceable in any respect, the validity,
construction, interpretation and enforceability of all other applications of
that provision and of all other provisions and applications hereof shall not in
any way be affected or impaired.
(g) Further Assurances. From time to time at another party's request and without
further consideration, the parties shall execute and deliver such further
instruments and documents, and take such other action as the requesting party
may reasonably request, in order to complete more effectively the transactions
contemplated in this Agreement.
(h) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement may be
executed by each party on separate copies, which copies, when combined so as to
include the signatures of all parties, shall constitute a single counterpart of
this Agreement.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement, effective as of the date set out
in the preamble of this Agreement.
Commonwealth Industries, Inc.
By:
Title:
Commonwealth Aluminum Lewisport, Inc.
By:
Title:
Alflex Corporation
By:
Title:
Commonwealth Aluminum Concast, Inc.
By:
Title:
Commonwealth Aluminum Corporation
By:
Title:
"Subsidiary Guarantor" Commonwealth Aluminum Sales Corporation
By:
Title:
"New Subsidiary Guarantor" Alflex E1 LLC, by its sole member,
Alflex Corporation
By:
Title:
Bank One, Indiana, NA
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:
Mellon Bank, N.A.
By:
Title:
The Industrial Bank of Japan, Limited
By:
Title:
Firstar Bank, NA
By:
Title:
10121015.1