Exhibit 10.2
------------
FOURTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment") is dated as of July 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");
------ -------
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, a Second Amendment thereto dated as of February 2,
2004 and a Third Amendment thereto dated as of July 21, 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 permit the sale by CI Holdings of all the issued and
outstanding capital stock of New Alflex.
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.
A. The following new definitions are hereby inserted in
Section 1.01 of the Credit Agreement in alphabetical order:
"Alflex Sales Agreement" shall mean that certain Stock
Purchase Agreement dated as of June 4, 2004, between CI Holdings, as
seller, and Southwire, as purchaser, pursuant to which Southwire shall
purchase from CI Holdings all the issued and outstanding capital stock
of New Alflex in consideration for a payment of $63,300,000, subject to
the purchase price adjustments made in accordance with the terms of the
Alflex Sales Agreement.
"Southwire" shall mean Southwire Company, a Delaware
corporation.
B. Section 9.05 of the Credit Agreement is hereby amended and restated
as follows:
"9.05 Prohibition of Fundamental Changes.
(a) The Parent will not, nor will it permit any of its Subsidiaries to,
enter into any transaction of merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution).
(b) The Parent will not, nor will it permit any of its Subsidiaries to,
acquire any business or Property from, or Capital Stock of, or be a
party to any acquisition of, any Person except for:
(i) purchases of inventory and other Property to be sold or used in the
ordinary course of business;
(ii) Investments permitted under Section 9.08 hereof;
(iii) Capital Expenditures permitted under Section 9.11 hereof; and
(iv) Permitted Reinvestment Capital Expenditures.
(c) The Parent will not, nor will it permit any of its Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or
Property, whether now owned or hereafter acquired, including, without
limitation, Receivables and leasehold interests, but excluding:
(i) obsolete or worn-out Property, tools or equipment no longer used or
useful in its business so long as the amount thereof sold in any single
fiscal year by the Parent and its Subsidiaries shall not have a fair
market value in excess of $750,000;
(ii) any inventory sold or disposed of in the ordinary course of business
and on ordinary business terms;
(iii) (x) Receivables Sales pursuant to Permitted Receivables Financings and
(y) sales or transfers of Receivables and Related Assets for purposes
of collection in the ordinary course of business and consistent with
past practices;
(iv) the sale by CI Holdings of the issued and outstanding capital stock of
New Alflex in accordance with the terms of the Alflex Sales Agreement;
provided however, the net proceeds of such sale remaining after any
mandatory payments required under the Receivables Facility Documents
shall be applied to amounts outstanding on the Revolving Credit Loans;
and
(v) other sales of Property for fair market value (as reasonably determined
by the Parent) for cash in an aggregate amount not exceeding $2,000,000
in any fiscal year of the Parent.
(d) Notwithstanding the foregoing provisions of this Section 9.05:
(i) any Subsidiary of the Parent may be merged or consolidated with or
into: (x) the Parent if the Parent shall be the continuing or surviving
corporation or (y) any other such Subsidiary; provided that (1) if any
such transaction shall be between a Subsidiary and a Wholly Owned
Subsidiary, the Wholly Owned Subsidiary shall be the continuing or
surviving corporation and (2) that if any such transaction shall be
between a Subsidiary Guarantor and a Subsidiary not a Subsidiary
Guarantor, and such Subsidiary Guarantor is not the continuing or
surviving corporation, then the continuing or surviving corporation
shall have assumed all of the obligations of such Subsidiary Guarantor
hereunder and under the other Credit Documents in a manner satisfactory
to the Administrative Agent; and
(ii) any Subsidiary of the Parent may sell, lease, transfer or otherwise
dispose of any or all of its Property (upon voluntary liquidation or
otherwise) to the Parent or a Wholly Owned Subsidiary of the Parent;
provided that if any such sale is by a Subsidiary Guarantor to a
Subsidiary of the Parent not a Subsidiary Guarantor, then such
Subsidiary shall have assumed all of the obligations of such Subsidiary
Guarantor hereunder and under the other Credit Documents in a manner
satisfactory to the Administrative Agent."
4. Consent of Lenders and Guarantors. Pursuant to Section 11.09 and
Section 12.04(a), the Lenders hereby consent to: (i) the release of New
Alflex as a Guarantor under the Credit Agreement and other Credit
Documents; and (ii) the release of a Lien in favor of the
Administrative Agent for the benefit of the Lenders on the assets of
New Alflex and on the stock of New Alflex and related ownership
interests pledged by CI Holdings to the Administrative Agent. The
Lenders hereby authorize the Administrative Agent and the
Administrative Agent agrees to execute and deliver and authorize the
filing of such documents as determined by the Administrative Agent and
reasonably satisfactory to Parent to effect the foregoing release of
Liens of the Property of New Alflex and the stock of New Alflex and
related ownership interests pledged by CI Holdings. Pursuant to Section
12.04(d), the Guarantors hereby consent to the release of New Alflex as
a Guarantor pursuant to Section 6 of the Credit Agreement, and each
Guarantor hereby acknowledges and agrees that such release does not in
any manner affect the obligations and liabilities of such Guarantor to
the Administrative Agent and the Lenders and shall not be raised as a
defense to the payment and performance of any such obligations and
liabilities.
5. 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 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, including, without
limitation, any consent required pursuant to the Senior Subordinated
Debt Documents and the Receivables Facility Documents;
(e) The Borrower shall have delivered to the Administrative Agent a final
set of the executed Alflex Sales Agreement the exhibits and schedules
thereto; and
(f) 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.
6. Incorporation into Credit Agreement. This Amendment shall be
incorporated into the Credit Agreement by this reference.
7. 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.
8. Reimbursement of Expenses. The Revolving Credit Borrowers
unconditionally agree to 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 without 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.
9. 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.
10. 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.
11. Governing Law. This 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 FOURTH 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/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
[SIGNATURE PAGE 2 OF 7 TO FOURTH 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/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
ALFLEX CORPORATION
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
COMMONWEALTH ALUMINUM CONCAST, INC.
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
CA LEWISPORT, LLC
By: Commonwealth Industries, Inc., its sole member
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
[SIGNATURE PAGE 3 OF 7 TO FOURTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
CI HOLDINGS, LLC
By: Commonwealth Industries, Inc., its sole member
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
COMMONWEALTH ALUMINUM LEWISPORT, LLC
By: CA Lewisport, Inc., its managing member
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
COMMONWEALTH ALUMINUM METALS, LLC
By: Commonwealth Aluminum Lewisport, LLC, its sole member
By: CA Lewisport, Inc., its managing member
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
[SIGNATURE PAGE 4 OF 7 TO FOURTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
SUBSIDIARY GUARANTORS
COMMONWEALTH ALUMINUM SALES CORPORATION
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
COMMONWEALTH ALUMINUM TUBE ENTERPRISES, LLC
By: Commonwealth Aluminum Concast, Inc., its sole member
By: /S/ MICHAEL D. FRIDAY
Name: Michael D. Friday
Title: Executive Vice President
[SIGNATURE PAGE 5 OF 7 TO FOURTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent and a Lender
By: /S/ RICHARD C. MUNSICK
Name: Richard C. Munsick
Title: Managing Director
[SIGNATURE PAGE 6 OF 7 TO FOURTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By: /S/ DAVID A. WOMBWELL
Name: David A. Wombwell
Title: Sr. Vice President
[SIGNATURE PAGE 7 OF 7 TO FOURTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT]
NATIONAL CITY BANK OF KENTUCKY
By: /S/ WM. FORBES
Name: Wm. Forbes
Title: Senior Vice President