JOINDER AGREEMENT AND
AMENDMENT TO CREDIT AGREEMENT
This Joinder Agreement and Amendment to Credit Agreement (the "Joinder
Agreement") is made and entered into as of December 31, 2000, 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) CA Lewisport, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware and formerly known as Commonwealth
Aluminum Lewisport, Inc., and as Commonwealth Aluminum Corporation ("Old
Lewisport");
(3) CI Holdings, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware and formerly known as Alflex Corporation
("CI Holdings");
(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, Old Lewisport and CI Holdings is sometimes hereafter referred to as a
"Borrower" and collectively as the "Borrowers");
(6) The Subsidiaries of the Parent identified by the caption "Subsidiary
Guarantors" on the signature pages hereto (the "Subsidiary Guarantors");
(7) Alflex Corporation, a corporation duly organized and validly existing
under the laws of the State of Delaware ("New Alflex");
(8) Commonwealth Aluminum Lewisport, LLC, a limited liability company duly
formed and validly existing under the laws of the State of Delaware ("New
Lewisport");
(9) Commonwealth Aluminum Metals, LLC, a limited liability company duly
formed and validly existing under the laws of the State of Delaware ("Metals";
together with New Alflex and New Lewisport, the "New Borrowers"; and, together
with the Parent, the Subsidiary Guarantors and the Borrowers, the "Obligors");
(10) Bank One, Indiana, NA, for itself and as administrative agent for the
Lenders (as hereafter defined) (the "Administrative Agent");
(11) PNC Bank, National Association ("PNC");
(12) ABN AMRO Bank N.V. ("ABN AMRO");
(13) Bank of Montreal ("Montreal");
(14) Credit Agricole Indosuez ("Indosuez");
(15) Mellon Bank, N.A. ("Mellon Bank");
(16) The Industrial Bank of Japan, Limited ("IBJ"); and
(17) 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, a Joinder Agreement dated as of October 29,
1999, a Joinder Agreement dated as of December 31, 1999, and a letter agreement
dated as of December 27, 2000 (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, by a Joinder Agreement dated as of October 29, 1999, and by a
Joinder Agreement dated as of December 31, 1999 (as amended, the "Pledge
Agreement").
C. Certain of the Obligors have caused the formation of the New Borrowers,
and the Borrowers have requested that the Lenders agree to allow the New
Borrowers to join as Borrowers under the Credit Agreement.
D. Each of Old Lewisport and CI Holdings has changed its name, and each has
requested that the Lenders consent to such change of name.
E. The Obligors have requested that the Lenders restate their agreement to
amend Section 9.10(b) of the Credit Agreement in certain respects.
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. Each of the New Borrowers hereby executes and delivers this
Agreement to the Lenders, pursuant to which each New Borrower joins as a
"Borrower" (as defined in the Credit Agreement), and becomes liable as an
Borrower under, each of the documents to which the Borrowers are parties
(including without limitation the Credit Agreement, each of the Revolving Credit
Notes, each of the Swingline Notes, and the Pledge Agreement), jointly and
severally liable with all other Borrowers under and with respect to such
documents. Each of the other Borrowers consents to the joinder of each of the
New Borrowers.
2. Consent of Lenders. Each of the Lenders hereby (i) consents to the
change of Old Lewisport's name from "Commonwealth Aluminum Lewisport, Inc.," to
"CA Lewisport, Inc.," (ii) consents to the change of CI Holdings' name from
"Alflex Corporation" to "CI Holdings, Inc.," and (iii) consents to the addition
of each of the New Borrowers as, and agrees that each of the New Borrowers shall
be, a "Borrower" under the Credit Agreement, the Revolving Credit Notes, the
Swingline Notes, the Pledge Agreement and each of the other documents to which
the Borrowers are parties.
3. Amendment to Section 9.10(b). Section 9.10(b) of the Credit Agreement is
hereby modified and amended so that, as modified and amended, it shall read in
its entirety as follows:
"(b) Interest Coverage Ratio.
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The Parent will not permit the Total Interest
Coverage Ratio to be less than the following respective ratios
at any time during the following respective periods:
Period Ratio
From the Restatement Effective Date
through December 30, 1998 2.00 to 1.00
From December 31, 1998
through September 29, 1999 2.25 to 1.00
From September 30, 1999
through December 30, 1999 2.50 to 1.00
From December 31, 1999
through December 30, 2000 3.00 to 1.00
From December 31, 2000
through December 30, 2001 2.75 to 1.00
From December 31, 2001
and at all times thereafter 3.00 to 1.00"
4. Affirmation of Representations and Warranties. Each of the Obligors
(including each of the New Borrowers) 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 each of the New Borrowers) 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 Borrowers') 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 Borrowers) is a
party or by which any of the Obligors (including the New Borrowers) 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 Borrowers), except
as provided by this Joinder Agreement (in the case of the New Borrowers).
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.
5. 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 Borrowers. 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.
6. 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 Borrowers) and the
Lenders in all respects on and as of the effective date of this Joinder
Agreement. Each of the Obligors (including the New Borrowers) 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.
7. 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 Authorization. The Administrative Agent shall
have received the following:
(i) for each of the New Borrowers, a copy of charter documents, limited
liability company agreement and resolutions relating to such New Borrower's
execution and delivery of this Joinder Agreement, all certified as true, correct
and complete by a member or manager of such New Borrower; 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) Chattel Search Results. The Administrative Agent shall
have received 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 each of the New Borrowers are first and prior perfected
security interests.
(d) Legal Opinions. The Administrative Agent shall have received the legal
opinions of the law firms of:
(i) Sullivan & Cromwell, substantially in the form of Exhibit A attached
hereto and incorporated herein by this reference,
(ii) Womble, Carlisle, Sandridge & Rice, PLLC, substantially in the form of
Exhibit B attached hereto and incorporated herein by this reference,
(iii) Taft, Stettenius & Hollister LLP, substantially in the form of
Exhibit C attached hereto and incorporated herein by this reference,
(iv) Morrison & Foerster, LLP, substantially in the form of Exhibit D
attached hereto and incorporated herein by this reference
(v) Wyatt, Tarrant & Combs, LLP, substantially in the form of Exhibit E
attached hereto and incorporated herein by this reference
(e) 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 each of the New
Borrowers under the Pledge Agreement and to reflect the changes of the names of
CI Holdings and Old Lewisport.
(f) 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.
8. General Provisions.
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(a) Entire Agreement. This Agreement, the Credit Agreement, the Pledge Agreement
and the other documents to which the Obligors (including the New Borrowers) 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 Borrowers, 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.
(i) Letter Agreement. This Agreement amends, restates and
supersedes that certain letter agreement dated as of December 27, 2000, by and
among the Lenders and the Borrowers, which letter agreement is hereby terminated
and of no further force or effect.
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.
"Parent" Commonwealth Industries, Inc.
By:
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Title:
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"Borrowers" CA Lewisport, Inc.
By:
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Title:
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CI Holdings, Inc.
By:
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Title:
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Commonwealth Aluminum Concast, Inc.
By:
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Title:
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Commonwealth Aluminum Corporation
By:
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Title:
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"Subsidiary Guarantors" Commonwealth Aluminum Sales Corporation
By:
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Title:
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Alflex E1 LLC, by its sole
member, CI Holdings, Inc.
By:
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Title:
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"New Borrowers" Alflex Corporation
By:
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Title:
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Commonwealth Aluminum Lewisport, LLC
By:
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Title:
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Commonwealth Aluminum Metals, LLC
By:
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Title:
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"Lenders" Bank One, Indiana, NA
By:
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Title:
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PNC Bank, National Association
By:
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Title:
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ABN AMRO Bank N.V.
By:
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Title:
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Bank of Montreal
By:
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Title:
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Credit Agricole Indosuez
By:
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Title:
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Mellon Bank, N.A.
By:
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Title:
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The Industrial Bank of Japan, Limited
By:
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Title:
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Firstar Bank, NA
By:
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Title:
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