Exhibit 4.1
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COMMONWEALTH INDUSTRIES, INC.,
THE SUBSIDIARY GUARANTORS NAMED
IN THE INDENTURE REFERRED TO BELOW
and
BNY MIDWEST TRUST COMPANY,
as TRUSTEE
_____________________________________
Fifth Supplemental Indenture
Dated as of November 19, 2004
To Indenture
Dated as of September 20, 1996
_____________________________________
10-3/4% Senior Subordinated Notes due 2006
FIFTH SUPPLEMENTAL INDENTURE, dated as of November 19, 2004
(the "Fifth Supplemental Indenture"), by and among COMMONWEALTH INDUSTRIES,
INC., a Delaware corporation, as issuer (the "Company"), each of the SUBSIDIARY
GUARANTORS NAMED IN THE INDENTURE REFERRED TO BELOW (the "Subsidiary
Guarantors"), and BNY MIDWEST TRUST COMPANY, an Illinois trust company
organized, existing and authorized to accept and execute trusts by virtue of the
laws of the State of Illinois, as successor trustee to Harris Bank and Trust
Company, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the
Trustee are parties to an Indenture, dated as of September 20, 1996 (as
supplemented prior to the date hereof, the "Indenture"), providing for the
issuance of $125,000,000 principal amount of 10-3/4% Senior Subordinated Notes
due 2006 of the Company (the "Securities");
WHEREAS, the Indenture has heretofore been amended and
supplemented by a First Supplemental Indenture, dated as of November 12, 1996, a
Second Supplemental Indenture, dated as of October 16, 1998, a Third
Supplemental Indenture, dated as of December 31, 1999, and a Fourth Supplemental
Indenture, dated as of December 31, 2000;
WHEREAS, this Fifth Supplemental Indenture is being executed
pursuant to an Offer to Purchase and Consent Solicitation Statement of the
Company, dated October 21, 2004 (the "Statement"), and the related Consent and
Letter of Transmittal;
WHEREAS, Section 902 of the Indenture provides that the
Company, the Subsidiary Guarantors and the Trustee may change in any manner or
eliminate any of the provisions of the Indenture with the consent of the Holders
of not less than a majority in aggregate principal amount of the Securities then
outstanding, subject to certain exceptions specified in Section 902 of the
Indenture;
WHEREAS, the parties hereto are entering into this Fifth
Supplemental Indenture to, among other things, (i) eliminate certain definitions
contained in Section 101 of the Indenture, (ii) eliminate certain provisions
contained in Section 401 of the Indenture, (iii) eliminate certain Events of
Default contained in Article Five of the Indenture, (iv) eliminate certain
restrictive provisions contained in Section 801 of the Indenture, (v) eliminate
certain restrictive covenants contained in Article Ten of the Indenture, (vi)
amend Sections 1103 and 1105 of the Indenture to make certain changes in the
provisions related to redemption of the Securities, (vii) modify the "Form of
Reverse of Security" contained in Section 203 of the Indenture in accordance
with preceding clauses (i) through (vi), and (viii) eliminate all references in
the Indenture to sections to be deleted in accordance with the preceding clauses
(i) through (vii) (collectively, the "Proposed Amendments");
WHEREAS, the execution and delivery of this Fifth Supplemental
Indenture and the adoption of the Proposed Amendments by the Company, the
Subsidiary Guarantors and the Trustee has been authorized by the written consent
of the holders of a majority in aggregate principal amount of the Securities
outstanding as of the date hereof;
WHEREAS, the execution and delivery of this Fifth Supplemental
Indenture by the Company has been authorized by Board Resolutions of the Company
and the Subsidiary Guarantors and, subject to the conditions set forth in the
Statement, all acts, conditions and requirements necessary to make this Fifth
Supplemental Indenture a valid and binding agreement in accordance with its
terms and for the purposes herein set forth have been done and taken, and the
execution and delivery of this Fifth Supplemental Indenture have been in all
respects duly authorized;
NOW THEREFORE, in consideration of the above premises, each
party hereto agrees, for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Securities, as follows:
SECTION 1. Definitions.
(a) For all purposes of this Fifth Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires, the terms used
herein shall have the respective meanings assigned to them in the Indenture.
(b) The definitions of all terms defined in Section 101 of the Indenture that
appear only in Sections 801(3), 801(4), 801(5) and 1006 through 1015 of the
Indenture are hereby deleted from Section 101.
SECTION 2. Elimination of Certain Provisions
of Section 401 of the Indenture.
The last paragraph of Section 401 of the Indenture is amended in its entirety
to read as follows:
Notwithstanding the satisfaction and discharge of this Indenture, in the case
of either clause (1)(A) or (1) (B) the obligations of the Company to the Trustee
under Section 607 and, in the case of (1) (B) the obligations of the Company
under Section 311 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 3. Elimination of Certain Provisions
of Section 501 of the Indenture.
Subsections (3), (4), (5), (6) and (7) of Section 501 of the Indenture entitled
"Events of Default" are hereby deleted in their entirety, together with any
references thereto in the Indenture.
SECTION 4. Elimination of Certain Provisions
of Section 801 of the Indenture.
Subsections (3), (4) and (5) of Section 801 of the Indenture entitled
"Consolidation, Merger and Sale of Assets" are hereby deleted in their entirety,
together with any references thereto in the Indenture.
SECTION 5. Elimination of Certain Provisions
of Article IV of the Indenture.
(a) Section 1006 of the Indenture entitled "Maintenance of Properties;
Insurance" is hereby deleted in its entirety, together with any references
thereto in the Indenture.
(b) Section 1007 of the Indenture entitled "Payment of Taxes and Other Claims"
is hereby deleted in its entirety, together with any references thereto in the
Indenture.
(c) Section 1008 of the Indenture entitled "Limitation on Indebtedness" is
hereby deleted in its entirety, together with any references thereto in the
Indenture.
(d) Section 1009 of the Indenture entitled "Limitation on Restricted Payments"
is hereby deleted in its entirety, together with any references thereto in the
Indenture.
(e) Section 1010 of the Indenture entitled "Limitation on Dividends and Other
Payment Restrictions Affecting Restricted Subsidiaries" is hereby deleted in its
entirety, together with any references thereto in the Indenture.
(f) Section 1011 of the Indenture entitled "Limitation on Issuance of Capital
Stock of Restricted Subsidiaries" is hereby deleted in its entirety, together
with any references thereto in the Indenture.
(g) Section 1012 of the Indenture entitled "Limitation on Asset Sales" is
hereby deleted in its entirety, together with any references thereto in the
Indenture.
(h) Section 1013 of the Indenture entitled "Limitation on Transactions with
Stockholders and Affiliates" is hereby deleted in its entirety, together with
any references thereto in the Indenture.
(i) Section 1014 of the Indenture entitled "Change of Control" is hereby
deleted in its entirety, together with any references thereto in the Indenture.
(j) Section 1015 of the Indenture entitled "Provision of Financial Information"
is hereby deleted in its entirety, together with any references thereto in the
Indenture.
SECTION 6. Amendment of Sections 1103
and 1105 of the Indenture.
(a) Section 1103 of the Indenture entitled "Election to Redeem; Notice to
Trustee" is hereby amended to delete the words ", at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee)," in the first sentence thereof.
(b) Section 1105 of the Indenture entitled "Notice of Redemption" is hereby
amended to (i) delete the words "less than 30 nor" in the first sentence thereof
and (ii) to add the following sentence at the end of the first sentence thereof:
Any such notice may, at the Company's discretion, be subject to the
satisfaction of one or more conditions precedent.
SECTION 7. Amendments to Section 203
of the Indenture.
(a) Section 203 of the Indenture entitled "Form of Reverse of Security" is
hereby amended as follows:
(i) by deleting the words "not less than 30 days' nor" from the first sentence
of the third paragraph thereof;
(ii) by deleting the fourth paragraph thereof;
(iii) by deleting the words "or purchase pursuant to an "Offer to Purchase"
from the fifth paragraph thereof; and
(iv) by removing the "Option of Holder to Elect Purchase" therefrom.
SECTION 8. Operation of Fifth Supplemental Indenture.
This Fifth Supplemental Indenture, and the Proposed Amendments, will become
effective upon the purchase by the Company, by acceptance for payment, of all
Securities that are validly tendered (and not withdrawn) pursuant to the
Statement and the related Consent and Letter of Transmittal.
SECTION 9. Concerning the Trustee.
The Trustee accepts the trusts of the Indenture, as supplemented by this Fifth
Supplemental Indenture, and agrees to perform the same, but only upon the terms
and conditions set forth in the Indenture, as supplemented by this Fifth
Supplemental Indenture, to which the parties hereto and the Holders from time to
time of the Securities agree and, except as expressly set forth in the
Indenture, as supplemented by this Fifth Supplemental Indenture, shall incur no
liability or responsibility in respect thereof. Without limiting the generality
of the foregoing, the Trustee assumes no responsibility for the correctness of
the recitals herein contained, which shall be taken as the statements of the
Company. The Trustee makes no representation and shall have no responsibility as
to the validity or sufficiency of this Fifth Supplemental Indenture.
SECTION 10. Miscellaneous.
(a) Except as hereby expressly amended, the Indenture is in all respects
ratified and confirmed and all the terms, provisions and conditions thereof
shall be and remain in full force and effect.
(b) All agreements of the Company and the Subsidiary Guarantors in this Fifth
Supplemental Indenture shall bind their respective successors. All agreements of
the Trustee in this Fifth Supplemental Indenture shall bind its successors.
(c) THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK.
(d) If and to the extent that any provision of this Fifth Supplemental
Indenture limits, qualifies or conflicts with another provision that is required
to be included in this Fifth Supplemental Indenture or in the Indenture by the
Trust Indenture Act, the required provision shall control.
(e) The titles and headings of the sections of this Fifth Supplemental
Indenture have been inserted for convenience of reference only, and are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
(f) This Fifth Supplemental Indenture may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall represent one and the same agreement.
(g) In case any provision of this Fifth Supplemental Indenture shall be
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof or of the Indenture shall not
in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date and year first above
written.
COMMONWEALTH INDUSTRIES, INC.
COMMONWEALTH ALUMINUM CONCAST, INC.
COMMONWEALTH ALUMINUM SALES CORPORATION
By: /s/ Sean M. Stack
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Name: Sean M. Stack
Title: Vice President and Treasurer
Attest:
By: /s/ Christopher R. Clegg
COMMONWEALTH ALUMINUM, LLC
By: COMMONWEALTH ALUMINUM CONCAST, INC., its sole member
By: /s/ Sean M. Stack
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Name: Sean M. Stack
Title: Vice President and Treasurer
Attest:
By: /s/ Christopher R. Clegg
CA LEWISPORT, LLC
By: COMMONWEALTH INDUSTRIES, INC., its sole member
By: /s/ Sean M. Stack
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Name: Sean M. Stack
Title: Vice President and Treasurer
Attest:
By: /s/ Christopher R. Clegg
CI HOLDINGS, LLC
By: COMMONWEALTH INDUSTRIES, INC., its sole member
By: /s/ Sean M. Stack
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Name: Sean M. Stack
Title: Vice President and Treasurer
Attest:
By: /s/ Christopher R. Clegg
COMMONWEALTH ALUMINUM LEWISPORT, LLC
By: CA LEWISPORT, LLC, its Managing Member
By: COMMONWEALTH INDUSTRIES, INC., its sole member
By: /s/ Sean M. Stack
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Sean M. Stack
Name:
Vice President and Treasurer
Title:
Attest:
By: /s/ Christopher R. Clegg
COMMONWEALTH ALUMINUM METALS, LLC
By: COMMONWEALTH ALUMINUM LEWISPORT, LLC, its sole member
By: CA LEWISPORT, LLC, its Managing Member
COMMONWEALTH INDUSTRIES, INC., its sole
By: member
/s/ Sean M. Stack
By:
Sean M. Stack
Name:
Vice President and Treasurer
Title:
Attest:
By: /s/ Christopher R. Clegg
BNY MIDWEST TRUST COMPANY, as trustee
By: /s/ Judith Bartolini
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Name: Judith Bartolini
Title: Vice President
Attest:
By: /s/ M Callahan
COMMONWEALTH OF KENTUCKY
COUNTY OF JEFFERSON
On the 19th day of November, 2004, before me personally came
Sean M. Stack, to me known, who, being by me duly sworn, did depose and say that
he is Vice President and Treasurer of each of Commonwealth Industries, Inc.,
Commonwealth Aluminum Concast, Inc. and Commonwealth Aluminum Sales Corporation,
corporations described in and which executed the foregoing instrument; that he
knows the seals of said corporations; that the seals affixed to said instrument
are such corporate seals; that they were so affixed by authority of the Boards
of Directors of said corporations, and that he signed his name thereto by like
authority.
My Commission expires: Sept 12, 2008.
/s/ Dawn Ostertag
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Notary Public
COMMONWEALTH OF KENTUCKY
COUNTY OF JEFFERSON
On the 19th day of November, 2004, before me personally came
Sean M. Stack, to me known, who, being by me duly sworn, did depose and say that
he is Vice President and Treasurer of Commonwealth Industries, Inc., a
corporation described in and which executed the foregoing instrument as sole
member of CA Lewisport, LLC, a Delaware limited liability company and CI
Holdings, LLC, a Delaware limited liability company; that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
My Commission expires: Sept 12, 2008.
/s/ Dawn Ostertag
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Notary Public
COMMONWEALTH OF KENTUCKY
COUNTY OF JEFFERSON
On the 19th day of November, 2004, before me personally came
Sean M. Stack, to me known, who, being by me duly sworn, did depose and say that
he is Vice President and Treasurer of Commonwealth Aluminum Concast, Inc., a
corporation described in and which executed the foregoing instrument as sole
member of Commonwealth Aluminum, LLC, a Delaware limited liability company; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
My Commission expires: Sept 12, 2008.
/s/ Dawn Ostertag
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Notary Public
STATE OF ILLINOIS
COUNTY OF COOK
On the 19th day of November, 2004, before me personally came
Judith Bartolini, to me known, who, being by me duly sworn, did depose and say
that she is a Vice President of BNY Midwest Trust Company, one of the
corporations described in and which executed the foregoing instrument; that she
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that she signed her name thereto by like
authority.
My Commission expires: 7-6-08.
/s/ A. Hernandez
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Notary Public