Exhibit 10.1
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THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment") is dated as of July 21, 2004, effective as of June 30, 2004,
and made 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) CI HOLDINGS, LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("CI Holdings") and formerly known as CI Holdings, Inc. and as Alflex
Corporation;
(3) COMMONWEALTH ALUMINUM, LLC, a limited liability company
duly organized and validly existing under the laws of the State of
Delaware ("CAC") and formerly known as Commonwealth Aluminum
Corporation;
(4) ALFLEX CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Delaware ("New
Alflex");
(5) CA LEWISPORT, LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("Old Lewisport") and formerly known as CA Lewisport, Inc. and as
Commonwealth Aluminum Lewisport, Inc. and as Commonwealth Aluminum
Corporation;
(6) COMMONWEALTH ALUMINUM LEWISPORT, LLC, a limited liability
company duly formed and validly existing under the laws of the state of
Delaware ("New Lewisport");
(7) COMMONWEALTH ALUMINUM METALS, LLC, a limited liability
company duly formed and validly existing under the laws of the State of
Delaware ("Metals");
(8) COMMONWEALTH ALUMINUM CONCAST, INC. (formerly named Barmet
Aluminum Corporation) a corporation duly organized and validly existing
under the laws of the State of Ohio ("CACI" and, together with CAC, CI
Holdings, Old Lewisport, New Lewisport, Metals and New Alflex, each a
"Revolving Credit Borrower" and, collectively, the "Revolving Credit
Borrowers");
(9) each of the Subsidiaries of the Parent identified under
the caption "SUBSIDIARY GUARANTORS" on the signature pages hereto
(each, a "Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors");
(10) each of the lenders that is a signatory hereto
(individually, a "Lender" and, collectively, the "Lenders");
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and
(11) PNC BANK, NATIONAL ASSOCIATION, as administrative agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
This Amendment amends that certain Third Amended and Restated Credit
Agreement, dated as of March 21, 2002, as amended by a First Amendment thereto
dated as of October 14, 2003, and a Second Amendment thereto dated as of
February 2, 2004 (collectively, the "Credit Agreement").
WITNESSETH:
WHEREAS, Parent, Revolving Credit Borrowers and Subsidiary Guarantors
have requested Lenders, subject to the terms and conditions herein, to amend the
Credit Agreement to modify the definition of "EBITDA" contained therein.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements herein contained and intending to be legally bound
hereby, covenant and agree as follows:
1. Recitals. The foregoing recitals are true and correct and incorporated herein
by reference.
2. Definitions. Capitalized terms not otherwise defined in this Amendment have
the meanings given to them in the Credit Agreement.
3. Amendment of Credit Agreement. The following definition set forth in Section
1.01 of the Credit Agreement is hereby amended and restated as follows:
"EBITDA" shall mean the sum, for the Parent and its Subsidiaries
(determined on a consolidated basis without duplication in accordance
with GAAP), of the following: (a) net income for such period, plus (b)
the amount of Total Interest Expense for such period, plus (c) income
tax expense during such period, plus (d) depreciation and amortization
for such period, plus (e) extraordinary losses for such period, plus
(f) for any period that includes the calendar quarter ended December
31, 2001, nonrecurring losses recognized during the fiscal quarter
ended December 31, 2001, related to asset impairment, goodwill
reduction, termination of the Parent's executive incentive plan, and
provision for uncollectable accounts (all as previously disclosed to
the Administrative Agent), but not in excess of $179,000,000 in the
aggregate, plus (g) in the case of any period during calendar year
2002, an amount equal to the amount deducted, on account of impairment
of goodwill, in calculating net income for such period in accordance
with GAAP, plus (h) in the case of any period from and after October 1,
2003, an amount equal to the non-cash charge taken with respect to
reduction of goodwill for New Alflex, plus (i) in the case of any
period from and after April 1, 2004, an amount equal to all costs,
expenses and charges incurred in connection with the Agreement and Plan
of Merger among IMCO Recycling Inc., Silver Fox Acquisition Company and
the Parent, dated as of June 16, 2004 (as amended, the "Merger
Agreement"), and all transactions contemplated by the Merger Agreement,
plus (j) all costs, expenses and charges incurred in connection with
the shut-down of the aluminum tube operations of Commonwealth Aluminum
Tube Enterprises, LLC, plus (k) in the case of any period from and
after April 1, 2004, an amount equal to all costs, expenses and charges
incurred pursuant to corporate employee severance, including those
related to the separation agreement dated as of June 10, 2004 with Mark
V. Kaminski, the separation agreement dated as of June 25, 2004 with
Greg Givan and the separation agreement dated as of June 25, 2004 with
Lenna R. Macdonald, plus (l) the loss on the disposal of Alflex
Corporation, minus (m) extraordinary gains for such period; provided
that the maximum amount of all costs, expenses and charges that may be
counted pursuant to clauses (i), (j), (k) and (l) shall not exceed $25
million in the aggregate.
4. Conditions Precedent. The Parent, the Revolving Credit Borrowers, the
Subsidiary Guarantors, the Lenders and the Administrative Agent acknowledge that
this Amendment shall not be effective until each of the following conditions
precedent has been satisfied (such date is referred to herein as the "Effective
Date"):
(a) The Parent, the Revolving Credit Borrowers, the Subsidiary Guarantors, the
Required Lenders and the Administrative Agent shall have executed this
Amendment;
(b) The Parent shall have delivered to the Administrative Agent a closing
certificate certifying to the accuracy of representations and warranties,
compliance with covenants and conditions and absence of any Default or Event of
Default under the Credit Agreement;
(c) No Material Adverse Effect shall have occurred with respect to the Parent,
the Revolving Credit Borrowers or the Subsidiary Guarantors;
(d) The Parent, the Revolving Credit Borrower and the Subsidiary Guarantors
shall have obtained all approvals and consents necessary to consummate the
transactions contemplated by this Amendment; and
(e) All legal details and proceedings in connection with the transactions
contemplated by this Amendment and all other Credit Documents shall be in form
and substance satisfactory to the Administrative Agent.
5. Incorporation into Credit Agreement. This Amendment shall be incorporated
into the Credit Agreement by this reference.
6. Full Force and Effect. Except as expressly modified by this Amendment, all of
the terms, conditions, representations, warranties and covenants of the Credit
Agreement and the other Credit Documents are true and correct and shall continue
in full force and effect without modification.
7. Reimbursement of Expenses. The Borrowers unconditionally agree sto pay and
reimburse the Administrative Agent and save the Administrative Agent harmless
against liability for the payment of reasonable out-of-pocket costs, expenses
and disbursements, including swithout limitation, fees and expenses of counsel
incurred by the Administrative Agent in connection with the development,
preparation, execution, administration, interpretation or performance of this
Amendment and all other documents or instruments to be delivered in connection
herewith.
8. Counterparts. This Amendment may be executed by different parties hereto in
any number of separate counterparts, each of which, when so executed and
delivered, shall be an original and all such counterparts shall together
constitute one and the same instrument.
9. Entire Agreement. This Amendment sets forth the entire agreement and
understanding of the parties with respect to the transactions contemplated
hereby and supersedes all prior understandings and agreements, whether written
or oral, between the parties hereto relating to the subject matter hereof. No
representation, promise, inducement or statement of intention has been made by
any party which is not embodied in this Amendment, and no party shall be bound
by or liable for any alleged representation, promise, inducement or statement of
intention not set forth herein.
10. Governing Law. This Third Amendment shall be deemed to be a contract under
the laws of the State of New York and for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to its conflict of laws principles.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
THE PARENT
COMMONWEALTH INDUSTRIES, INC.
By: /s/ SEAN M. STACK
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Name: Sean M. Stack
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Title: Vice President and Treasurer
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[SIGNATURE PAGE 2 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
THE REVOLVING CREDIT BORROWERS
COMMONWEALTH ALUMINUM, LLC
By: Commonwealth Aluminum Concast, Inc., its sole member
By: /s/ SEAN M. STACK
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Name:
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Title:
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ALFLEX CORPORATION
By: /s/ SEAN M. STACK
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Name:
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Title:
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COMMONWEALTH ALUMINUM CONCAST, INC.
By: /s/ SEAN M. STACK
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Name:
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Title:
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CA LEWISPORT, LLC
By: Commonwealth Industries, Inc., its sole member
By: /s/ SEAN M. STACK
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Name:
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Title:
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[SIGNATURE PAGE 3 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
CI HOLDINGS, LLC
By: Commonwealth Industries, Inc., its sole member
By: /s/ SEAN M. STACK
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Name:
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Title:
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COMMONWEALTH ALUMINUM LEWISPORT, LLC
By: CA Lewisport, Inc., its managing member
By: /s/ SEAN M. STACK
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Name:
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Title:
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COMMONWEALTH ALUMINUM METALS, LLC
By: Commonwealth Aluminum Lewisport, LLC, its sole member
By: CA Lewisport, Inc., its managing member
By: /s/ SEAN M. STACK
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Name:
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Title:
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[SIGNATURE PAGE 4 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
SUBSIDIARY GUARANTORS
COMMONWEALTH ALUMINUM SALES CORPORATION
By: /s/ SEAN M. STACK
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Name:
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Title:
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COMMONWEALTH ALUMINUM TUBE ENTERPRISES, LLC
By: Commonwealth Aluminum Concast, Inc., its sole member
By: /s/ SEAN M. STACK
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Name:
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Title:
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[SIGNATURE PAGE 5 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent and a Lender
By: /s/ RICHARD C. MUNSICK
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Name: Richard C. Munsick
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Title: Managing Director
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[SIGNATURE PAGE 6 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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[SIGNATURE PAGE 7 OF 7 TO THIRD AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
NATIONAL CITY BANK OF KENTUCKY
By: /s/ WILLIAM FORBES
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Name: William Forbes
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Title: Senior Vice President
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