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EXHIBIT 4.01
ALUMAX INC.
FIRST AMENDMENT TO CREDIT AGREEMENT
To each of the Financial
Institutions Signatory Hereto
Gentlemen:
We refer to the Credit Agreement dated as of May 19, 1995 among Alumax
Inc., the Banks party thereto, Royal Bank of Canada, as Agent and Canadian
Imperial Bank of Commerce, as Administrative Agent (the "Credit Agreement").
Capitalized terms used herein without definition have the meanings ascribed to
them in the Credit Agreement. The Company executes and delivers this First
Amendment to Credit Agreement to you for the purpose of amending the Credit
Agreement as hereinafter set forth.
Section 1. Adjustments of the Commitments of the Continuing Banks.
On the Effective Date (as hereinafter defined), the Commitment of each
Bank which is remaining a party to the Credit Agreement (individually
"Continuing Bank" and collectively the "Continuing Banks") shall be adjusted so
as to be in the amount set forth opposite the signature of such Continuing Bank
hereto.
Section 2. Adjustments in Pricing.
(a) Facility Fee. Commencing on the Effective Date, the facility fee
provided for in Section 3.1 of the Credit Agreement shall be computed at
the rate of 0.10% per annum and the percentage "0.125%" appearing therein
shall be replaced with "0.10%".
(b) Applicable Eurodollar Margins. Commencing on the Effective Date,
the definition of "Applicable Eurodollar Margin" in Section 2.2 of the
Credit Agreement shall be amended to read in its entirety as follows:
"Applicable Eurodollar Margin" means for each (a) Committed
Eurodollar Loan: (i) 0.150% per annum for any day Level I Status
exists, (ii) 0.175% per annum for any day Level II Status exists,
(iii) 0.225% per annum for any day Level III Status exists, (iv)
0.325% per annum for any day Level IV Status exists, and (v) 0.525%
per annum for any day Levy V Status exists and (b) for each
Eurodollar Bid Loan the rate per annum agreed to pursuant to Section
1.7 hereof.
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(c) Letter of Credit Usage Fees. Commencing on the Effective Date,
the table of Letter of Credit usage fees in Section 3.4(b) of the Credit
Agreement shall be amended to read as follows:
FINANCIAL PERFORMANCE
LETTERS LETTERS
LEVEL OF CREDIT OF CREDIT
For each day Level I Status exists 0.150% 0.100%
For each day Level II Status exists 0.175% 0.125%
For each day Level III Status exists 0.225% 0.175%
For each day Level IV Status exists 0.325% 0.275%
For each day Level V Status exists 0.525% 0.475%
Section 3. Change in Bank parties to the Credit Agreement.
Upon satisfaction of the conditions precedent to the effectiveness of this
First Amendment to Credit Agreement as set forth in Section 5.1 hereof, the
principal of and interest on all Loans made to the Company under the Credit
Agreement by PNC Bank, National Association, ("PNC") shall be paid in full, PNC
shall be paid any accrued facility or letter of credit fees due it under the
Credit Agreement and PNC shall no longer be a "Bank" party to the Credit
Agreement and, accordingly, shall no longer have any commitment or obligation to
extend credit to the Company pursuant to the Credit Agreement.
Section 4. Extension of the Termination Date.
On the Effective Date the definition of the term "Termination Date"
appearing in Section 8.1 of the Credit Agreement shall be amended by striking
the date "May 19, 2000" currently appearing therein and substituting the date
"May 30, 2002" therefor.
Section 5. Conditions Precedent.
5.1. Conditions to Effectiveness of Amendments. This First Amendment
to Credit Agreement shall become effective on May 30, 1997 (the "Elective
Date"), provided that the following conditions have then been satisfied (subject
to the last paragraph of this Section 5.1):
(a) Counterparts. The Agent shall have received counterparts hereof
which, taken together, bear the signatures of the Company, and the Banks;
(b) Notes. The Agent shall have received, properly executed and
completed, a Committed Note for each Continuing Bank whose Commitment is
adjusted hereby in the amount of its Commitment as modified hereby, each
and all of such notes to constitute "Notes" for all purposes of the Credit
Agreement and the new Committed Notes issued in favor of the Continuing
Banks to be issued in substitution
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and replacement for the Committed Notes heretofore issued to them pursuant
to the Credit Agreement;
(c) Legal Opinions. The Agent shall have received, with a copy for
each Bank, opinions from Sullivan & Cromwell and from the Senior Vice
President and General Counsel of the Company dated the Effective Date,
substantially in the forms of Exhibits A and B hereto;
(d) Resolutions. The Agent shall have received, with a copy for each
Bank, a copy of Resolutions of the Board of Directors of the Company (or
the Executive Committee thereof) authorizing the execution and delivery of
this First Amendment to Credit Agreement and the performance of the Credit
Agreement as amended hereby and the consummation of the transactions
contemplated hereby, certified by the Secretary or an Assistant Secretary
of the Company as of the Effective Date; and such certificate shall state
that the Resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate;
(e) Incumbency Certificate. The Agent shall have received, with a
copy for each Bank, a certificate of the Secretary or an Assistant
Secretary of the Company, dated the Effective Date, as to the incumbency
and signatures of the officers thereof executing this First Amendment to
Credit Agreement and the Notes contemplated hereby and any certificate or
other documents to be delivered by it pursuant hereto, together with
evidence of the incumbency and signature of such Secretary or Assistant
Secretary;
(f) Closing Certificate. The Agent shall have received, with a copy
for each Bank, a signed closing certificate dated as of the Effective Date
in the form annexed hereto as Exhibit C (it being acknowledged that such
certificate shall constitute a certificate furnished by the Company
pursuant to the Credit Agreement for purposes of Section 7.1(c) thereof).
The foregoing to the contrary notwithstanding, if all of the foregoing
conditions other than that specified in paragraph (c) have been satisfied as of
the Effective Date and the condition specified in paragraph (c) is satisfied
within three Business Days after the Effective Date, this First Amendment to
Credit Agreement shall nonetheless become effective and such effectiveness shall
relate back to the Effective Date all as though the condition specified in
paragraph (c) had been satisfied on that date.
5.2. Return of Committed Notes. Promptly upon this First Amendment
to Credit Agreement becoming effective, the Continuing Banks whose Commitments
are adjusted hereby shall return to the Agent the Committed Notes now held by
them marked "cancelled" or "superseded" and PNC shall return its Notes to the
Agent marked "cancelled", and the Agent shall thereupon return such Notes to
the Company, provided that if any of such Notes are lost the Bank to which such
Notes were issued shall instead indemnify the Company from any liability, loss
or cost arising as a result of such loss.
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5.3. Adjustments. If there are Committed Loans outstanding upon this
First Amendment to Credit Agreement becoming effective then on the first day on
which such Committed Loans can be repaid without requiring the Company to make a
payment to the Banks under Section 2.5 of the Credit Agreement, there shall be
such non-ratable borrowings and repayments of the Committed Loans as shall be
necessary so that after giving effect thereto the percentage of the Commitment
of each Bank in use through Committed Loans is identical.
Section 6. Miscellaneous.
Except as specifically amended hereby all of the terms, conditions and
provisions of the Credit Agreement shall remain unchanged and in full force and
effect. No reference to this First Amendment to Credit Agreement need be made in
any Loan Document or in any other instrument or document at any time referring
to the Credit Agreement, a reference to the Credit Agreement in any of such to
be deemed to be a reference to the Credit Agreement as amended hereby. This
First Amendment to Credit Agreement shall be construed in accordance with and
governed by the law of the State of New York and may be executed in counterparts
and by separate parties hereto on separate counterparts, each to constitute an
original but all one in the same instrument. The Company hereby notifies the
Banks pursuant to Section 10.7 of the Credit Agreement that effective June 9,
1997 its address for notices shall be as follows:
3424 Peachtree Road, N.E.
Suite 2100
Atlanta, Georgia 30326
Attention: Thomas L. Gleason, Treasurer
Telecopy: 404-846-4654
Telephone: 404-846-4541
Dated as of the 30th day of May, 1997
ALUMAX INC.
By /s/ Lawrence R. Frost
--------------------------------------
Its Executive Vice President and Chief
Financial Officer
Accepted and agreed as of the date last above written.
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Commitment: ROYAL BANK OF CANADA
$60,000,000 By /s/ J. (John) M. Crawford
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Its Senior Manager
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Commitment: CIBC Inc.
$55,000,000 By /s/ E. Lindsay Gordon
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Its Director
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Commitment: BANK OF AMERICA ILLINOIS
$42,500,000 By /s/ Michelle W. Kacergis
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Its Managing Director
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Commitment: THE CHASE MANHATTAN BANK
$42,500,000 By /s/ James H. Ramage
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Its Vice President
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Commitment: THE FIRST NATIONAL BANK OF CHICAGO
$42,500,000 By /s/ Brett Neubert
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Its Authorized Agent
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Commitment: UNION BANK OF SWITZERLAND
$42,500,000 By /s/ Dieter Hoeppli
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Its Vice President
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By /s/ Samuel Azzizo
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Its Vice President
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Commitment: BANK OF MONTREAL
$32,500,000 By /s/ Joanna S. Bellocq
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Its Director
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Commitment: CREDIT LYONNAISE NEW YORK BRANCH
$32,500,000 By /s/ Robert Ivosevich
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Its Senior Vice President
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CREDIT LYONNAISE CAYMAN ISLAND BRANCH
By /s/ Robert Ivoservich
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Its Senior Vice President
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Commitment: BANQUE NATIONALE DE PARIS
$25,000,000 By /s/ Eva Millas Russo
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Its Vice President
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By /s/ Sally Haswell
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Its Vice President
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Commitment: COMMERZBANK, AG, ATLANTA AGENCY
$25,000,000 By /s/ Andreas K. Bremer
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Its SVP & Manager
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By /s/ Mary B. Smith
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Its AVP
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Commitment: DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
$25,000,000 By /s/ Thomas J. Nadramia
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Its Vice President
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By /s/ Christopher Sarisky
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Its Asst. Treas.
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Commitment: THE FUJI BANK, LIMITED
$25,000,000 By /s/ Toshihiro Mitsui
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Its Vice President & Manager
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Commitment: MELLON BANK, N.A.
$25,000,000 By /s/ Dwayne R. Finney
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Its Assistant Vice President
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Commitment: THE SAKURA BANK, LIMITED
$25,000,000 By /s/ Hiroyasu Imanishi
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Its V.P. & Senior Manager
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Commitment: PNC BANK, NATIONAL ASSOCIATION
$0 By /s/ Dale Stein
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Its Vice President
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CONFORMED COPY
EXHIBIT A
OPINION OF SULLIVAN & CROMWELL -
, 1997
------
To the Financial Institutions party
to the First Amendment to
Credit Agreement referred
to below,
Dear Sirs:
In connection with the First Amendment to Credit Agreement, dated as of
May 30, 1997 (the "First Amendment"), among Alumax Inc., a Delaware corporation
(the "Company"), and the financial institutions signatory thereto (the
"Banks"), we, as counsel for the Company, have examined such corporate records,
certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion. Upon the
basis of such examination, it is our opinion that:
(1) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(2) The First Amendment and the Notes delivered by the Company to the
Banks on the date hereof each has been duly authorized, executed and
delivered by the Company, and the Credit Agreement (as defined in the
First Amendment) as amended by the First Amendment (the "Amended Credit
Agreement") and such Notes each constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
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(3) There are no regulatory consents, authorizations, approvals or
filings required to be obtained or made by the Company under the Federal
laws of the United States, the laws of the State of New York or the
General Corporation Law of the State of Delaware for the execution and
delivery of the First Amendment or the Notes delivered by the Company to
the Banks on the date hereof or for the performance by the Company of its
obligations under the Amended Credit Agreement and such Notes.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law of
the State of Delaware, and we are expressing no opinion as to the effect of the
laws of any other jurisdiction.
With your approval, we have relied as to certain matters on information
obtained from public officials, officers of the Company and other sources
believed by us to be responsible, and we have assumed that the First Amendment
and the Credit Agreement have been duly authorized, executed and delivered by
all parties thereto other than the Company and that the signatures on all
documents examined by us are genuine, assumptions which we have not
independently verified.
The foregoing opinion is rendered as of the date hereof, and we make no
undertaking and expressly disclaim any duty to supplement such opinion if,
after the date hereof, facts and circumstances come to our attention or changes
in the law occur which could affect such opinion.
This opinion is furnished by us as counsel for the Company in
connection with the execution and delivery by the Company of the First
Amendment and is solely for the benefit of the addressees named above and any
Bank that may from time to time become a party to the Amended Credit Agreement.
Very truly yours,
SULLIVAN & CROMWELL
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CONFORMED COPY
EXHIBIT B
OPINION OF R.P. WOLF, ESQ.
(Alumax Letterhead)
,1997
-----
To the Financial Institutions
party to the First Amendment
to Credit Agreement referred
to below
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Alumax Inc., a
Delaware corporation (the "Company"), and in such capacity have overseen and
participated in the provision of legal advice and assistance to the Company in
connection with the negotiation of, and the closing of the transactions
contemplated by, the First Amendment to Credit Agreement (the "First
Amendment"), dated as of May 30, 1997, among the Company and the Banks signatory
thereto. Terms used herein and not defined shall have their respective defined
meanings as set forth in the First Amendment or the Credit Agreement (as
defined in the First Amendment).
In rendering the opinions expressed below, I have examined originals,
conformed copies, or copies otherwise identified to my satisfaction of such
corporate records, agreements, and instruments of the Company, such
certificates of public officials and of officers, employees, and agents of the
Company and such other agreements and documents as I have deemed necessary for
the purpose of expressing the opinions herein. Though I have examined such
matters of law as I deemed necessary for the purpose of expressing the opinions
herein, please note that with respect to the opinion expressed in Paragraph 2
below and the incorporation of the term "applicable" therein, my opinion is
limited to a review of only those laws and regulations that, based upon my
review of the Credit Agreement as amended by the First Amendment (the "Amended
Credit Agreement"), I have considered to be applicable to the transactions
contemplated thereby. Also, for purposes of the opinion expressed in Paragraph
1 below as to the due qualification to transact business as a foreign
corporation in certain jurisdictions, I have relied solely upon a review of a
certificate of the Secretary of State (or other similar official) of each such
jurisdiction.
For purposes of my opinion expressed in Paragraph 2 hereof, I have not
made any independent review or investigation of any agreements or instruments
to which the Company
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is bound, except I have reviewed or caused to be reviewed those agreements and
instruments listed on Schedule I hereto (hereinafter referred to as "Material
Agreements"), and such opinion is based upon the audited consolidated financial
statements of the Company as at and for the year ended December 31, 1996,
without giving effect to any borrowing under the Credit Agreement subsequent to
such date. Schedule I sets forth all agreements and instruments entered into by
the Company or any Restricted Subsidiary and deemed by the Company to be
"material contracts" of the Company under item 601(b)(10)(i) and (ii) of
Regulation S-K ("Regulation S-K") promulgated by the Securities and Exchange
Commission (the "Commission") or otherwise entered into by the Company or any
Restricted Subsidiary and filed by the Company with the Commission as an
exhibit under Item 601(b)(4) of Regulation S-K. Furthermore, for purposes of
my opinion expressed in Paragraph 3 hereof, I have not examined plaintiff or
defendant indexes in any federal, state or other court or any other tribunal.
During the course of all such examinations, I have assumed (i) the
genuineness of all signatures other than those of the Company on the First
Amendment and the Notes delivered by the Company on the date hereof, (ii) the
authenticity of all documents submitted to me as originals, (iii) the
conformity to the original documents of all documents submitted to me as
certified, conformed, facsimile, or photographic copies, and (iv) that
certificates and telephonic and telecopy confirmations given by public
officials have been properly given and are accurate. I have further assumed,
except where this opinion expressly addresses such matters as to the Company,
(i) the power and authority of all parties to enter into the transactions
contemplated by the Amended Credit Agreement and (ii) the due authorization and
valid execution and delivery by such parties of the agreements and instruments
necessary in connection with such transactions.
Based upon and subject to the foregoing and subject to the
qualifications set forth herein, I am of the opinion that:
1. The Company has the necessary corporate power to execute and
deliver the First Amendment and the Notes issued pursuant thereto, to
perform the Amended Credit Agreement and such Notes, and to borrow and
request the issuance of Letters of Credit under the Amended Credit
Agreement. Each of the Restricted Subsidiaries of the Company having a net
worth in excess of $2,000,000 as at March 31, 1997 except for Alumax
Recycling B.V., but including Alumax Engineered Metal Processes, Inc.,
Alumax Warehouse Corporation and Eastalco Aluminum Company (such
Restricted Subsidiaries are listed on Schedule II hereto and are
hereinafter referred to as the "Material Subsidiaries") is an entity duly
incorporated or organized, as applicable, validly existing and in good
standing under the laws of the respective jurisdiction indicated opposite
its name in Schedule II hereto, to the extent such concepts are applicable
and recognized in such jurisdictions. The Company is duly qualified to
transact business in the States of California and Georgia and, to my
knowledge, the Company is duly qualified to transact business in such
other jurisdictions, and the Material Subsidiaries of the Company are duly
qualified to transact business in all such jurisdictions, where the
failure to qualify would have a Material Adverse Effect.
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2. The execution and delivery by the Company of the First Amendment
and the Notes issued pursuant thereto, the performance by the Company of
the Amended Credit Agreement and such Notes, and the borrowing and the
requests for the issuance of Letters of Credit by the Company under the
Amended Credit Agreement (i) do not and will not, to my knowledge, violate
(a) any provision of applicable law or regulation or (b) any order or
decree known to me by which the Company, any of its Restricted
Subsidiaries or any of their respective Properties may be bound, which in
either case (a) or (b) would result in a Material Adverse Effect; (ii)
do not and will not violate any provision of the charter or by-laws of the
Company or any of its Restricted Subsidiaries; and (iii) do not and will
not result in the breach of, or constitute a default or require any
consent under, or result in the creation of any Lien upon any of the
Properties, revenues, or assets of the Company or any of its Restricted
Subsidiaries under any Material Agreement.
3. Except as to the matters disclosed in Section 4.10 of the Credit
Agreement as modified in the manner set forth in the Closing Certificate
delivered by the Company in connection with the First Amendment or
reflected in the Company's filings with the Commission on Form 10-K for
the year ended December 31, 1996 or its Form 10-Q for the quarter ended
March 31, 1997, there are no legal or arbitral proceedings, and no
proceedings by or before any governmental or regulatory authority or
agency, pending or threatened against or affecting the Company, any of its
Restricted Subsidiaries, or any of their respective Properties known to me
the outcome of which I have reasonable cause to believe could be expected
to have a Material Adverse Effect.
This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. Opinions
rendered herein are as of the date hereof, and I make no undertaking and
expressly disclaim any duty to supplement such opinions if, after the date
hereof, facts and circumstances come to my attention or changes in the law
occur which could affect such opinions.
In rendering the foregoing opinions, I am expressing no opinion as to
matters of law other than the General Corporation Law of the State of Delaware
and the federal laws of the United States of America. I am admitted to practice
law only in the Commonwealth of Virginia and before certain federal courts. I
am not licensed to practice law in the State of Georgia, the State of Delaware,
or the State of New York.
This opinion is rendered solely for the benefit of the Banks, the
Administrative Agent, the Agent, their prospective or actual successors and
assigns, and their legal advisors and accountants and only with respect to the
transactions described herein. No further distribution or use of this opinion
is authorized and this opinion may not be quoted in full or in part or
otherwise referred to in any financial statements, nor may it be filed with or
furnished to any governmental agency (other than those examining the Banks, the
Agents, or
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their successors and assigns) or other party without the prior written consent
of the undersigned.
Very truly yours,
R.P. Wolf
Enclosures: Schedule I
Schedule II
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CONFORMED COPY
EXHIBIT C
CLOSING CERTIFICATE
To the Financial Institutions Party
to the First Amendment to
Credit Agreement Referred
to Below,
Gentlemen:
We refer to the First Amendment to Credit Agreement dated as of May 30,
1997 among the undersigned, and the financial institutions signatory thereto
(the "First Amendment"). Capitalized terms used below without definition have
the meanings ascribed to them in the First Amendment or the Credit Agreement as
appropriate. The Company executes and delivers this certificate to you in
connection with and as one of the inducements for the First Amendment becoming
effective.
The Company hereby certifies that each of the representations and
warranties of the Company set forth in Section 4 of the Credit Agreement is
true and correct as of the date hereof all as though made as of such date
except that (i) the representations made in the second and third sentences of
Sections 4.1 shall be deemed to refer to the form of Schedule II attached
hereto and made a part hereof, (ii) the representations made in Section 4.2
shall be deemed to refer to the form of Schedule I attached hereto and made a
part hereof, (iii) the representations contained in Sections 4.3 and 4.10 are
amended to insert the date "December 31, 1996" for the date "December 31, 1994"
wherever such latter date appears in such Sections, (iv) there is excluded from
the representations contained in Section 4.5 any proceedings reflected in the
Company's filings with the Securities and Exchange Commission on Form 10-K for
the year ended December 31, 1996 or its Form 10-Q for the quarter ended March
31, 1997, (v) all references in Section 4 to the "Loan Documents" shall, in the
case of the Credit Agreement as a Loan Document, be deemed to refer to the
Credit Agreement as amended by the First Amendment and, in the case of the
Notes as Loan Documents, be deemed to refer to the Notes to be held by the
Banks on and after the Effective Date of the First Amendment, (vi) all
references to the "date hereof" in Section 4 shall be deemed to be references
to the date of this Certificate and (vii) all references therein to the
sections referred to in the foregoing clauses (i) through (vi) shall be deemed
to refer to such sections after giving effect to the modifications set forth in
such clauses above
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Dated as of the 30th day of May, 1997
ALUMAX INC.
By
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Its Treasurer
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