Exhibit 10.4
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TENTH AMENDMENT
TO RECEIVABLES PURCHASE AGREEMENT
THIS TENTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT, dated as of
July 30, 2004 this "Amendment"), is entered into among COMMONWEALTH FINANCING
CORP., a Delaware corporation (the "Seller"), COMMONWEALTH INDUSTRIES, INC., a
Delaware corporation ("Commonwealth"), MARKET STREET FUNDING CORPORATION, a
Delaware corporation (the "Issuer"), and PNC BANK, NATIONAL ASSOCIATION, as
Administrator (the "Administrator").
RECITALS
1. The Seller, Commonwealth, the Issuer and the Administrator are
parties to the Receivables Purchase Agreement, dated as of September 29, 1997
(as amended through the date hereof, the "Agreement");
2. Alflex Corporation ("Alflex") has ceased to be an originator of
Receivables under the Purchase and Sale Agreement, dated as of September 29,
1997 (as amended, amended and restated, supplemented or modified from time to
time, the "PSA"), among Commonwealth, the Seller and the Originators named
therein; and
2. In furtherance thereof, the parties hereto desire to amend the
Agreement pursuant to Section 5.1 of the Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Certain Defined Terms. Capitalized terms that are used
herein without definition and that are defined in Exhibit I to the Agreement
shall have the same meanings herein as therein defined.
SECTION 2. Amendments to Agreement.
2.1 The definition of "Originator" as set forth in Exhibit I to the
Agreement shall be deemed not to include Alflex.
2.2 Schedule II to the Agreement is hereby amended and restated in its
entirety as set forth on Annex A hereto.
SECTION 3. Representations and Warranties; No Default. Each of
Commonwealth, the Seller and the Servicer hereby represents and warrants to each
of the parties hereto and to the Administrator and the Issuer as follows:
(a) Representations and Warranties. The representations and warranties
of such party contained in the Agreement are true and correct as of the date
hereof.
(b) No Default. Both before and immediately after giving effect to this
Amendment and the transactions contemplated hereby, no Termination Event or
Unmatured Termination Event with respect to such party exists or shall exist.
SECTION 4. Effect of Amendment. All provisions of the Agreement, as
expressly amended and modified by this Amendment, shall remain in full force and
effect and are hereby ratified and confirmed in all respects. After this
Amendment becomes effective, all references in the Agreement (or in any other
Transaction Document) to "this Agreement", "hereof", "herein" or words of
similar effect referring to the Agreement shall be deemed to be references to
the Agreement as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision of
the Agreement other than as set forth herein.
SECTION 5. Effectiveness. This Amendment shall become effective as of
the date hereof upon receipt by the Administrator of counterparts of this
Amendment (whether by facsimile or otherwise) executed by each of the other
parties hereto, in form and substance satisfactory to the Administrator in its
sole discretion.
SECTION 6. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York
(without regard to any otherwise applicable principles of conflicts of law),
except to the extent that the validity or perfection of the interests of the
Issuer in the Receivables or remedies hereunder in respect thereof are governed
by the laws of a jurisdiction other than the State of New York.
SECTION 8. Section Headings. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or interpretation
of this Amendment, the Agreement or any provision hereof or thereof.
(continued on following page)
S-1
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
COMMONWEALTH FINANCING CORP.
By: /S/ XXXXXXX X. FRIDAY
Name: Xxxxxxx X. Friday
Title: Executive Vice President
COMMONWEALTH INDUSTRIES, INC.
By: /S/ XXXXXXX X. FRIDAY
Name: Xxxxxxx X. Friday
Title: Executive Vice President
ANNEX A
X-0
XXXXXX XXXXXX FUNDING CORPORATION,
as Issuer
By: /S/ XXXXXX XXXXXXXXXX
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /S/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Vice President
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box Accounts Lock-Box Number
PNC Bank, National Association 1017291021 643431 (Pittsburgh)
