EXHIBIT 10.1
THIRD AMENDMENT TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment") dated as of October 26, 2001, is executed by and among IMCO
Recycling Inc., a Delaware corporation ("Borrower"), the Subsidiary Guarantors
party to the Credit Agreement (hereinafter defined), the Lenders party to the
Credit Agreement and The Chase Manhattan Bank (successor by merger to Chase Bank
of Texas, National Association) in its capacity as Administrative Agent under
the Credit Agreement (in such capacity, "Administrative Agent").
RECITALS
A. Borrower, Subsidiary Guarantors, Lenders and Administrative Agent are
parties to that certain Second Amended and Restated Credit Agreement, dated
as of October 25, 1999, as amended by that certain First Amendment to the
Second Amended and Restated Credit Agreement dated as of January 5, 2000,
and as further amended by that certain Second Amendment to the Second
Amended and Restated Credit Agreement dated as of October 20, 2000 (the
"Credit Agreement"), pursuant to which Lenders have made revolving credit
commitments to Borrower in the amount of up to $175,000,000.
B. Borrower, Subsidiary Guarantors, Lenders and Administrative Agent desire to
amend the Credit Agreement in accordance with the terms hereinafter set
forth pursuant to the amendment procedures specified in Section 12.04 of
the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
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1.1 Defined Terms. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given to such terms
in the Credit Agreement.
ARTICLE II
Amendments
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2.1 Commitment Reduction; Amendment of Annex A. The amount of the
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Revolving Credit Commitments is reduced to $160,000,000 and the respective
Revolving Credit Commitment of each Lender is reduced accordingly as reflected
in Annex A to the Credit Agreement as amended hereby. Accordingly, Annex A to
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the Credit Agreement is hereby amended to read in its entirety as set forth in
Exhibit A hereto.
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2.2 Amendment to Defined Terms. The following definitions set forth
in Section 1.01 of the Credit Agreement are hereby amended to read in their
respective entireties as follows:
"Applicable Margin" shall mean (i) during the period commencing
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on October 26, 2001 and continuing until the Delivery Date, 1.75% per annum
for Alternate Base Rate Loans and 3.25% per annum for LIBOR Loans; and (ii)
thereafter a percentage per annum based on the Leverage Ratio determined
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from the most recently delivered Interest Rate Certificate and financial
statements delivered under Sections 9.01(a), (b) and (e), which percentage
per annum shall be equal to the percentage per annum set forth opposite
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such Leverage Ratio below:
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Alternate
Leverage Ratio Base Rate Loans LIBOR Loans
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(greater than) 4.25:1.00 1.75% 3.25%
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(greater than) 4.00:1.00 and (less than) 4.25:1.0 1.50% 3.00%
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(greater than) 43.75:1.00 and (less than) 4.00:1.00 1.25% 2.50%
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(greater than) 43.50:1.00 and (less than) 3.75:1.00 1.00% 2.25%
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(greater than) 43.00:1.00 and (less than) 3.50:1.00 0.50% 2.00%
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(greater than) 42.25:1.00 and (less than) 3.00:1.00 0.00% 1.75%
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(less than) 2.25:1.00 0.00% 1.50%
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Any change in the Leverage Ratio shall be effective to adjust the
Applicable Margin as of the date of receipt by the Administrative Agent of
the Interest Rate Certificate delivered for any period ending on or after
September 30, 2001, and most recently delivered pursuant to Section
9.01(e). If Borrower fails to deliver the Interest Rate Certificates and
financial statements after September 30, 2001 within the times specified in
Sections 9.01(a), (b) and (e), such ratio shall be deemed to be 4.25 to
1.0 until Borrower delivers such Interest Rate Certificates and financial
statements.
"Delivery Date" shall mean the date an Interest Rate Certificate
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is delivered to the Lenders for the fiscal quarter ended September 30,
2001, as required by Section 9.01(e).
"Dividend Payment" shall mean dividends (in cash, Property or
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obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of Borrower or any Subsidiary, or of any Equity Rights,
including without limitation any payment under a Synthetic Purchase
Agreement relating to any Equity Interests, but excluding dividends payable
in respect of shares of common stock through the issuance of additional
shares of common stock and any redemption or exchange of any capital stock
for common stock.
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"Mortgage" shall mean the various mortgages and deeds of trust
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entered into in connection with this Agreement, each of which evidence a
Lien on Mortgaged Real Property in favor of Administrative Agent for the
benefit of the Lenders, as each may at any time be amended, modified or
supplemented in accordance with the terms thereof and hereof.
"Revolving Credit Commitments" shall mean the aggregate sum of
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the Revolving Credit Commitment of all of the Lenders. The aggregate
principal amount of the Revolving Credit Commitments as of October 26, 2001
is $160,000,000.
"Total Capitalization" shall mean at any date the sum (without
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duplication) of (a) Total Debt plus (b) Consolidated Net Worth plus (c) to
the extent Consolidated Net Worth is reduced thereby, amounts representing
impairment of goodwill as a result of implementing Financial Accounting
Standards Board Statement No. 142.
2.3 Amendment to Definition of "Net Available Proceeds". Clause (iii)
of the definition of "Net Available Proceeds" set forth in Section 1.01 of the
Credit Agreement is hereby amended to read as follows:
(iii) in the case of any Equity Issuance or any Debt Issuance,
the aggregate amount of all cash received by Borrower and the Subsidiaries
in respect thereof net of all reasonable investment and commercial banking
fees, discounts and commissions, original issue discount, placement fees,
legal fees, consulting fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses, actually incurred and
satisfactorily documented in connection therewith;
2.4 Amendment to Definition of "Eligible Person". Clause (iv) of the
definition of "Eligible Person" set forth in Section 1.01 of the Credit
Agreement is hereby amended to read as follows:
(iv) any Lender Affiliate of a Lender;
2.5 Addition of New Defined Terms. Section 1.01 of the Credit
Agreement is hereby amended by adding the following definitions, such
definitions to read in their respective entireties as follows:
"Collateral Due Date" shall mean February 15, 2002, or such later
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date as the Administrative Agent may approve in the exercise of its sole
and absolute discretion.
"Debt Issuance" shall mean the incurrence by any Borrower or any
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Subsidiary of any Indebtedness after October 26, 2001 (other than
Indebtedness permitted by clauses (a), (b), (c), (d), (e), (f) and (j) of
Section 9.08); provided that nothing herein shall limit the covenant set
forth in Section 9.08 and any Indebtedness not permitted by Section 9.08
shall not be incurred without the prior written consent of Majority
Lenders, and provided further that neither the Administrative Agent nor any
Lender has any obligation to, nor has made any representation that it will,
grant any such consent.
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"Equity Interests" shall mean shares of the capital stock,
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partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity interests in the Borrower
or any Subsidiary or any warrants, options or other rights to acquire such
interests.
"Lender Affiliate" shall mean, (a) with respect to any Lender,
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(i) an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b) with respect to
any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"Maintenance Capital Expenditures" shall mean Capital
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Expenditures (i) for the replacement and maintenance of existing fixed or
capital assets or (ii) for new fixed or capital assets that Borrower or a
Subsidiary determines are necessary for the health and safety of its
employees or operations or that are required by applicable law or by any
Governmental Authority, all in an aggregate amount not to exceed
$15,000,000 during any fiscal year.
"Restricted Indebtedness" shall mean Indebtedness of the Borrower
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or any Subsidiary, the payment, prepayment, redemption, repurchase or
defeasance of which is at any time restricted under the terms of this
Agreement.
"Synthetic Purchase Agreement" shall mean any swap, derivative or
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other agreement or combination of agreements pursuant to which the Borrower
or a Subsidiary is or may become obligated to make (i) any payment in
connection with a purchase by any third party from a Person other than the
Borrower or a Subsidiary of any Equity Interest or Restricted Indebtedness
or (ii) any payment (other than on account of a permitted purchase by it of
any Equity Interest or any Restricted Indebtedness ) the amount of which is
determined by reference to the price or value at any time of any Equity
Interest or Restricted Indebtedness; provided that no phantom stock,
performance unit, performance share unit or similar plan or agreement
providing for payments only to current or former directors, officers or
employees of the Borrower or the Subsidiaries (or to their heirs or
estates) shall be deemed to be a Synthetic Purchase Agreement.
2.6 Amendment to Section 2.10. Section 2.10 of the Credit Agreement
is hereby amended by adding subsection (ii) thereto, which subsection (ii) shall
read in its entirety as follows:
(ii) Equity Issuance; Debt Issuance. Upon any Equity Issuance
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or any Debt Issuance on or after October 26, 2001, in an aggregate
principal amount equal to 25% of the Net Available Proceeds of such Equity
Issuance or 100% of the Net Available Proceeds of such Debt Issuance, as
the case may be.
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2.7 Amendment to Section 9.06. Section 9.06 is hereby amended as
follows:
(a) Clause (b) is amended to read as follows:
(b) Acquisitions permitted by Section 9.09 (k) or (u) and
other Investments permitted by Section 9.09;
(b) The word "and" appearing at the end of clause (n) is
deleted, and the period appearing at the end of clause (o) is deleted and
replaced with a semicolon followed by the word "and".
(c) Clause (p) is added immediately following clause (o), which
clause (p) shall read as follows:
(p) the transfer by IMCO Indiana Partnership L.P.
directly or indirectly to IMCO Reciclaje de Mexico, S. de
X.X. de C.V. of certain furnace equipment that is not
currently in use.
2.8 Amendment to Section 9.07. Section 9.07 of the Credit Agreement
is hereby amended by deleting clause (j) thereof in its entirety.
2.9 Amendment to Section 9.08. Section 9.08 of the Credit Agreement
is hereby amended by adding the following sentence to the end thereof, which
sentence shall read in its entirety as follows:
Notwithstanding anything to the contrary contained herein, any and all
Indebtedness (other than the Permitted Receivables Financing and related
obligations) incurred on or after October 26, 2001 by an Obligor or
Subsidiary, as permitted by this Section 9.08, shall have a stated maturity
after December 31, 2003.
2.10 Amendment to Section 9.09. Section 9.09 of the Credit Agreement
is hereby amended as follows:
(a) Clause (k) is amended to read in its entirety as follows:
(k) Investments made in order to consummate any
Acquisitions with the 75% portion of Net Available Proceeds from
any Equity Issuance remaining after compliance with Section 2.10;
provided, however, that (v) no Default or Event of Default exists
or will result therefrom, (w) on a pro forma basis, after giving
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effect to such Acquisition(s), Borrower would have been in
compliance with Section 9.11 on the last day of the most recently
completed fiscal quarter (assuming, for purposes of Section 9.11,
that such Acquisition had occurred on the first day of the
Measurement Period ending on such last day) as evidenced in an
Officers Certificate delivered to the Administrative Agent and
each Lender at least 10 days prior to the consummation thereof,
(x) the aggregate amount of the consideration (which for each
Acquisition shall be measured at the date of
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consummation thereof and which shall include debt incurred or
assumed, working capital deficits and deferred payments) paid for
all such Acquisitions shall not exceed the amount equal to 75% of
the Net Available Proceeds of Equity Issuances, and (y) such
Acquisition shall be effected through Borrower or a Wholly Owned
Subsidiary which is an Obligor;
(b) Clause (o) is amended to read in its entirety as follows:
(o) Capital Expenditures permitted by Section 9.11(f)
and provided no Default or Event of Default exists or will result
therefrom;
(c) Clause (p) is amended to read in its entirety as follows:
(p) investments by Borrower or any Subsidiary in any
non-Wholly Owned Subsidiary or any Subsidiary which is not an
Obligor (including Foreign Subsidiaries), in each case to the
extent made in the ordinary course to fund or support the
ordinary course operations of such Subsidiary so long as no Event
of Default shall have occurred and be continuing; provided,
however, that (x) the amount of such Investments made pursuant to
this clause (p) shall not exceed $15,000,000 in the aggregate
outstanding at any time (without giving effect to any write-down
or write-off thereof) and (y) all such Investments evidenced by
intercompany notes (other than intercompany notes relating to the
Permitted Receivables Financing) shall be pledged to the
Administrative Agent pursuant to the Security Agreement;
(d) Clause (w) is amended to read in its entirety as follows:
(w) investments in VAW-IMCO for Capital Expenditures
and working capital needs, provided that such investments shall
be limited to reinvestments of dividends declared and paid by
VAW-IMCO after October 26, 2001, and in any event shall not
exceed $10,000,000 in the aggregate;
(e) Clauses (v), (bb) and (dd) are hereby deleted in their
entirety.
2.11 Amendment to Section 9.10. Clause (b) of Section 9.10 of the
Credit Agreement is hereby amended to read in its entirety as follows:
(b) From and after such time as the Leverage Ratio is equal to
or less than 3.00 to 1.0, as shown in the Interest Rate Certificate and
financial statements most recently delivered pursuant to Section 9.01(a),
(b) and (e), Borrower may declare and make cash Dividend Payments on its
capital stock not to exceed $8,000,000 in the aggregate in any fiscal year,
provided that no Default or Event of Default shall have occurred and be
continuing at the time of such Dividend Payment nor would result therefrom,
and provided further that Borrower's right to declare and pay such cash
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Dividend Payments shall terminate at any time thereafter that the Leverage
Ratio exceeds 3.00 to 1.0.
2.12 Amendment to Section 9.11. Section 9.11 of the Credit Agreement
is hereby amended to read in its entirety as follows:
9.11 Financial Covenants.
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(a) Maximum Debt to Capitalization Ratio. Borrower shall
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not permit the Debt to Capitalization Ratio for each Measurement Period
specified below to be greater than the ratio set forth opposite such
Measurement Period in the table below:
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Period Ratio
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9/30/2001 and 12/31/2001 0.60:1.0
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3/31/2002, 6/30/2002, 9/30/2002 and 12/31/2002 0.55:1.0
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3/31/2003 and thereafter 0.50:1.0
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(b) Minimum Interest Coverage Ratio. Borrower shall not
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permit the Interest Coverage Ratio for each Measurement Period specified
below to be less than the ratio set forth opposite such Measurement Period
in the table below:
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Measurement Period Ending Ratio
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9/30/2001, 12/31/2001, 3/31/2002, 6/30/2002 1.75:1.0
and 9/30/2002
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12/31/2002 2.00:1.0
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3/31/2003 and thereafter 2.75:1.0
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(c) Minimum Consolidated Net Worth. Borrower shall not
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permit Consolidated Net Worth at any time to be less than $154,600,000 plus
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the sum of (x) 50% of consolidated net income of Borrower determined in
accordance with GAAP for each such fiscal quarter (if positive) occurring
after June 30, 1999 and (y) 100% of the net proceeds of all Equity
Issuances occurring after the date hereof and minus, to the extent
Consolidated Net Worth is reduced thereby, amounts representing impairment
of goodwill as a result of implementing Financial Accounting Standards
Board Statement No. 142.
(d) Leverage Ratio. Borrower shall not permit the Leverage
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Ratio for each Measurement Period specified below to exceed the ratio set
forth opposite such Measurement Period in the table below:
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Measurement Period Ending Ratio
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9/30/2001 and 12/31/2001 5.00:1.0
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3/31/2002 4.75:1.0
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6/30/2002 4.50:1.0
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9/30/2002 and 12/31/2002 4.00:1.0
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3/31/2003 and thereafter 3.00:1.0
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(e) Measurement Dates. The covenants in clauses (a), (b),
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(c) and (d) of this Section 9.11 shall be measured as of the end of each
fiscal quarter, beginning with September 30, 2001.
(f) Capital Expenditures. Borrower shall not permit the
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aggregate Capital Expenditures of the Borrower and the Subsidiaries during
any fiscal year, other than Maintenance Capital Expenditures, to exceed the
sum of (i) the aggregate amount of cash and cash equivalent investments of
the Foreign Subsidiaries as of the beginning of such fiscal year, provided
that such cash and cash equivalent investments represent cash from foreign
operations, plus (ii) cash from operations for the domestic and foreign
operations of Borrower and the Subsidiaries for such fiscal year.
2.13 Amendment of Section 9.12. Section 9.12 of the Credit Agreement
is hereby amended by adding the following paragraph, which paragraph shall read
in its entirety as follows:
On or before the Collateral Due Date, the Borrower shall grant or
cause to be granted to the Administrative Agent, for the pro rata benefit
of the Lenders, a first priority Lien (subject to Permitted Liens) on all
rights, titles and interests of the Borrower and the Subsidiary Guarantors
in all real property described on Schedule 1.01(b) and identified therein
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as "Additional Properties" (herein so called). In connection with the
foregoing, on or before the Collateral Due Date, Borrower shall execute and
deliver or cause to be executed and delivered to the Administrative Agent
appropriate security documents and other documents and instruments, all in
form and substance satisfactory to the Administrative Agent, as the
Administrative Agent in its sole discretion deems necessary or desirable to
create, evidence, preserve, and perfect its Liens in the Additional
Properties and all other Collateral, and shall deliver or cause to be
delivered to the Administrative Agent such information regarding the
Additional Properties as the Administrative Agent in its sole discretion
deems necessary or desirable, including without limitation deeds of trust,
mortgages, assignments, security agreements, Uniform Commercial Code
financing statements, legal opinions, corporate and partnership (and other
applicable entity) documents and certificates, title commitments, title
policies, appraisals, surveys, flood plain certification, and other such
documents and information as the Administrative Agent may require in
connection with such property and Liens. As soon as possible and in any
event before the Collateral Due Date, the Borrower shall deliver or cause
to be delivered to the Administrative Agent all information and reports
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that the Borrower or any Subsidiary has regarding environmental matters in
respect of the Additional Properties. In the event the Administrative
Agent at any time elects (in the exercise of its sole and absolute
discretion) to require any additional environmental assessment of any of
the Additional Properties or other Collateral, the Borrower will and will
cause the Subsidiaries to cooperate in all respects in obtaining such
assessments and pay all related fees, costs and expenses.
2.14 Amendment to Section 9.13. Section 9.13 of the Credit Agreement
is hereby amended by adding clause (c) to the end thereof, which clause (c)
shall read in its entirety as follows:
(c) Without in any way limiting the foregoing provisions of this
Section, each Obligor and each Subsidiary shall execute and deliver or
cause to be executed and delivered to the Administrative Agent such
instruments, documents and information as the Administrative Agent may
require in light of revised Article 9 of the Uniform Commercial Code as in
effect in the State of Texas or any other applicable jurisdiction,
including without limitation any appropriate amendments to the Security
Documents, any information needed for filing new financing statements or
amendments, any additional lien searches, and any and all information
relevant to determining appropriate entity names and jurisdictions for
Uniform Commercial Code searches and filings, and shall take or cause to be
taken any and all actions necessary to cause or maintain the validity,
perfection and priority of the Liens of the Administrative Agent in the
Collateral.
2.15 Amendment to Section 9.24. Section 9.24 is hereby amended by
adding the following sentence to the end thereof, which sentence shall read in
its entirety as follows:
Notwithstanding anything to the contrary contained herein, any
and all Contingent Obligations incurred on or after October 26, 2001 in
respect of any Indebtedness shall have a stated maturity after December 31,
2003.
2.16 Addition of Section 9.26. Section 9 of the Credit Agreement is
hereby amended by adding the following Section 9.26 to the end thereof, which
Section 9.26 shall read in its entirety as follows:
Section 9.26 Synthetic Repurchases. The Borrower will not, and
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will not permit any Subsidiary to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement unless (i) in the case of
any Synthetic Purchase Agreement related to any Equity Interest, the
payments required to be made by the Borrower or its Subsidiaries are
limited to amounts permitted to be paid under Section 9.10, (ii) in the
case of any Synthetic Purchase Agreement related to any Restricted
Indebtedness, the payments required to be made by the Borrower or its
Subsidiaries thereunder are limited to the amounts permitted under this
Agreement to be made in respect of Restricted Indebtedness, and (iii) in
the case of any Synthetic Purchase Agreement, the obligations of the
Borrower and the Subsidiaries thereunder are subordinated to the
Obligations on terms satisfactory to the Administrative Agent.
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2.17 Amendment to Events of Default. Section 10 of the Credit
Agreement is hereby amended as follows:
(a) Clause (n) is amended by replacing the period and the
end of such clause with a semicolon and adding the word "or" immediately
following the semicolon.
(b) The following clause (o) is added immediately following
clause (n), such clause (o) to read in its entirety as follows:
(o) Any termination of the commitment or
availability under the Permitted Receivables Financing, or
any reduction of the total amount of such commitment or
availability by an amount greater than 30% of the total
amount of such commitment or availability as of October 26,
2001.
2.18 Amendment to Section 12.06. Effective as of the date hereof, each
reference to "any Lender's Affiliate" appearing in clauses (i) and (ii) of
Section 12.06(b) of the Credit Agreement is hereby amended to read "any Lender's
Lender Affiliate."
2.19 Amendment to Section 12.11. Effective as of the date hereof,
clause (f) of Section 12.11 of the Credit Agreement is hereby amended to read as
follows:
(f) to any actual or potential transferee or Participant or to
any actual or potential counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower or any Subsidiary and their
respective obligations; provided that such transferee or other party agrees
to comply with the provisions of this Section 12.11.
2.20 Amendment to Schedule 1.01(b). Schedule 1.01(b) to the Credit
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Agreement is hereby amended to read in its entirety as set forth on Exhibit B
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hereto.
ARTICLE III
Conditions Precedent
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3.1 Conditions. The effectiveness of this Amendment is subject to the
satisfaction of the following conditions precedent:
(a) Amendment Fee. Borrower shall have paid to the
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Administrative Agent, for the account of each Lender that executes and
delivers this Amendment on or before October 26, 2001, an amendment fee in
an amount equal to the Revolving Credit Commitment of each such Lender
multiplied by 0.0030.
(b) Collateral Instruments. Borrower shall have delivered or
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caused to be delivered to the Administrative Agent the originals of all
instruments included in the Collateral, including without limitation all
promissory notes evidencing any Investments, endorsed to the order of the
Administrative Agent pursuant to an endorsement in form and substance
satisfactory to the Administrative Agent.
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(c) Representations and Warranties. The representations and
warranties contained herein and in all other Basic Documents, as amended
hereby, shall be true and correct as of the date hereof as if made on the
date hereof (except for those representations and warranties specifically
made as of a particular date or dates, in which case such representations
and warranties shall remain true and correct with respect to the particular
date or dates referred to).
(d) No Default. No Default or Event of Default shall have
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occurred and be continuing.
(e) Corporate Matters. All corporate proceedings taken in
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connection with the transactions contemplated by this Amendment and all
documents, instruments, and other legal matters incident thereto shall be
satisfactory to the Administrative Agent and its legal counsel, Xxxxx
Xxxxxxx & Xxxx LLP.
(f) Additional Documentation. The Administrative Agent shall
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have received such additional approvals, opinions, or documents as the
Administrative Agent or its legal counsel, Xxxxx Liddell & Xxxx LLP, may
reasonably request.
(g) Fees, Costs and Expenses. Borrower shall have paid any and
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all fees, costs and expenses payable pursuant to the Credit Agreement or
any fee letter or agreement entered into by such parties.
ARTICLE IV
Ratifications, Representations and Warranties
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4.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Credit Agreement and the other
Basic Documents are ratified and confirmed and shall continue in full force and
effect. The Obligors agree that the Credit Agreement, as amended hereby, and the
other Basic Documents shall continue to be legal, valid, binding and enforceable
in accordance with their respective terms. The Obligors ratify and confirm that
all guaranties, assurances and Liens granted, conveyed or assigned to
Administrative Agent under the Basic Documents (as they may have been renewed,
extended and amended) are not released, reduced or otherwise adversely affected
by this Amendment and continue to guarantee, assure and secure full payment and
performance of the present and future Obligations, and agree to perform such
acts and duly authorize, execute, acknowledge, deliver, file and record such
additional documents and certificates as Administrative Agent may reasonably
request in order to create, perfect, preserve and protect those guaranties,
assurances and Liens.
4.2 Representations and Warranties. Each Obligor hereby represents
and warrants to the Administrative Agent and the Lenders that (a) the execution,
delivery, and performance by the Obligors of this Amendment and compliance with
the terms and provisions hereof have been duly authorized by all requisite
action on the part of each such Person and do not and will not violate or
conflict with, or result in a breach of, or require any consent under (i) the
articles of
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incorporation, certificate of incorporation, bylaws, partnership agreement,
regulations or other organizational documents of any such Person, (ii) any
applicable law, rule, or regulation or any order, writ, injunction, or decree of
any Governmental Authority, or (iii) any material agreement or instrument to
which any such Person is a party or by which any of them or any of their
property is bound or subject, (b) the representations and warranties contained
in the Credit Agreement, as amended hereby, and any other Basic Document are
true and correct on and as of the date hereof as though made on and as of the
date hereof (except for those representations and warranties specifically made
as of a particular date or dates, in which case such representations and
warranties shall remain true and correct with respect to the particular date or
dates referred to), (c) appropriate UCC financing statements have been filed in
all appropriate filing offices and jurisdictions so as to perfect the security
interests granted to the Administrative Agent under the Security Agreement, and
(d) no Default or Event of Default has occurred and is continuing.
ARTICLE V
Miscellaneous
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5.1 Survival of Representations and Warranties. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Administrative Agent or any
Lender or any closing shall affect the representations and warranties or the
right of the Administrative Agent or any Lender to rely upon them.
5.2 Reference to Credit Agreement. Each of the Basic Documents,
including the Credit Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement as amended hereby, are hereby
amended so that any reference in such Basic Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby.
5.3 Expenses of the Administrative Agent. Borrower agrees to pay on
demand all costs and expenses incurred by the Administrative Agent in connection
with the preparation, negotiation, and execution of this Amendment and any and
all amendments, modifications, and supplements thereto, including without
limitation the costs and fees of the Administrative Agent's legal counsel, and
all costs and expenses incurred by the Administrative Agent in connection with
the enforcement or preservation of any rights under the Credit Agreement, as
amended hereby, or any other Basic Document, including without limitation the
costs and fees of the Administrative Agent's legal counsel.
5.4 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
5.5 APPLICABLE LAW. THIS AMENDMENT SHALL BE DEEMED TO HAVE BEEN MADE
AND TO BE PERFORMABLE IN DALLAS, DALLAS COUNTY, TEXAS
12
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS.
5.6 Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of the Obligors, Lenders, the Syndication Agent, the
Documentation Agent, the Administrative Agent and their respective successors
and assigns, except Obligors shall not assign or transfer any of their
respective rights or obligations hereunder without the prior written consent of
the Administrative Agent.
5.7 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument. This Amendment shall not be effective unless and until the
Administrative Agent, the Lenders which constitute "Majority Lenders" as defined
in the Credit Agreement and the Obligors have each executed and delivered a
counterpart hereof and all conditions to the effectiveness hereof have been
satisfied in full, whereupon this Amendment shall become a binding agreement,
enforceable in accordance with its terms and the amendments effectuated hereby
shall become effective as of the date first above written.
5.8 Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.9 Release of Claims. The Obligors each hereby acknowledge and agree
that none of them has any and there are no claims or offsets against or defenses
or counterclaims to the terms and provisions of or the obligations of any
Obligor created or evidenced by the Credit Agreement or any of the other Basic
Documents, and to the extent any such claims, offsets, defenses or counterclaims
exist, each Obligor hereby waives, and hereby releases the Administrative Agent,
the Syndication Agent, the Documentation Agent and each of the Lenders from, any
and all claims, offsets, defenses and counterclaims, whether known or unknown,
such waiver and release being with full knowledge and understanding of the
circumstances and effects of such waiver and release and after having consulted
legal counsel with respect thereto.
5.10 ENTIRE AGREEMENT. THIS AMENDMENT, THE OTHER BASIC DOCUMENTS AND
ALL OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN
CONNECTION WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS
AMONG THE PARTIES HERETO.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
13
EXECUTED as of the date first written above.
OBLIGORS:
IMCO RECYCLING INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
IMCO INVESTMENT COMPANY
IMCO RECYCLING OF INDIANA INC.
IMCO ENERGY CORP.
IMCO RECYCLING OF ILLINOIS INC.
ALCHEM ALUMINUM, INC.
IMCO RECYCLING OF MICHIGAN, L.L.C.
PITTSBURG ALUMINUM, INC.
INTERAMERICAN ZINC, INC.
IMCO RECYCLING OF CALIFORNIA, INC.
IMCO INTERNATIONAL, INC.
IMCO RECYCLING OF OHIO INC.
IMSAMET, INC.
IMCO RECYCLING OF IDAHO INC.
IMCO RECYCLING OF UTAH INC.
ROCK CREEK ALUMINUM, INC.
U.S. ZINC CORPORATION
GULF REDUCTION CORPORATION
MIDWEST ZINC CORPORATION
WESTERN ZINC CORPORATION
METALCHEM, INC.
U.S. ZINC EXPORT CORPORATION
ALCHEM ALUMINUM SHELBYVILLE INC.
INDIANA ALUMINUM INC.
IMCO RECYCLING SERVICES COMPANY
IMCO OPERATIONS SERVICES COMPANY
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President of each of
the above-named entities
14
IMCO INDIANA PARTNERSHIP L.P.
By IMCO Energy Corp., its General Partner
By: /s/ XXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
IMCO MANAGEMENT PARTNERSHIP, L.P.
By IMCO Recycling Inc., its General Partner
By: /s/ XXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
LENDERS:
THE CHASE MANHATTAN BANK (successor by merger to
Chase Bank of Texas, National Association), as
Administrative Agent and a Lender
By: /s/ XXXXX X. XXXX
-----------------------------------------------
Xxxxx X. Xxxx
Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and a Lender
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
15
XXXXXXX XXXXX CAPITAL CORPORATION
as a Lender
By: /s/ XXXXX X.X. XXXXXX
-----------------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By: /s/ X. XXXXXXX
-----------------------------------------------
Name: X. Xxxxxxx
Title: Vice President
By: /s/ XXXX X. MEANS
-----------------------------------------------
Name: J. Means
Title: VP & Manager
BANK ONE, NA (formerly known as The First National
Bank of Chicago) (Main Office Chicago),
as a Lender
By: /s/ XXXXXX X. XXXXX
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and a Lender
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing
16
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, AG, as a Lender
By: /s/ [ILLEGIBLE]
-----------------------------------------------
Name: [ILLEGIBLE]
Title: Vice President
By: /s/ XXXXX X. XXXXX
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: VP
AMSOUTH BANK (successor in interest by merger to
First American National Bank), as a Lender
By: /s/ E. T. XXXXXX, II
-----------------------------------------------
Name: E. T. Xxxxxx, II
Title: Vice President
NATIONAL CITY BANK, as a Lender
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
COMERICA BANK, as a Lender
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
17
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION, as a
Lender
By: /s/ E. J. D. PINDER
-----------------------------------------------
Name: E. J. D. Pinder
Title: Relationship Manager
BANK HAPOALIM B.M., NEW YORK BRANCH, as a Lender
By: /s/ X. X. XXXXXX
-----------------------------------------------
Name: X. X. Xxxxxx
Title:
By: /s/ XXXXX BREDBART
-----------------------------------------------
Name: Xxxxx Bredbart
Title: Vice President
18
Exhibit A
ANNEX A
Revolving Credit Commitments
----------------------------
Annex A
Revolving Credit Commitments
----------------------------
----------------------------------------------------------------------------------------------------
Revolving Credit
Institution Commitment
----------- ----------
----------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $ 19,200,000
----------------------------------------------------------------------------------------------------
Bank of America, N.A. $ 19,200,000
----------------------------------------------------------------------------------------------------
PNC Bank, National Association $ 19,200,000
----------------------------------------------------------------------------------------------------
Bank One, NA $ 16,000,000
----------------------------------------------------------------------------------------------------
Xxxxx Fargo Bank Texas, National Association $ 16,000,000
----------------------------------------------------------------------------------------------------
Comerica Bank $ 16,000,000
----------------------------------------------------------------------------------------------------
AmSouth Bank $ 13,440,000
----------------------------------------------------------------------------------------------------
Bank of Tokyo - Mitsubishi, Ltd. $ 9,600,000
----------------------------------------------------------------------------------------------------
DG Bank Deutsche Genossenschaftsbank, AG $ 9,600,000
----------------------------------------------------------------------------------------------------
National City Bank $ 9,600,000
----------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Capital Corporation $ 6,400,000
----------------------------------------------------------------------------------------------------
Bank Hapoalim, San Xxxxxxxxx Xxxxxx $ 5,760,000
----------------------------------------------------------------------------------------------------
Total $160,000,000
---------------------------------------------------------------------------------------------
Exhibit B
SCHEDULE 1.01(b)
Mortgaged Real Property; Additional Properties
----------------------------------------------
Schedule 1.01(b)
Mortgaged Real Property
-----------------------
1. Xxxxxxx, Xxxxxxxx County, Indiana
IMCO Indiana Partnership, L.P.
0000 0xx Xxxxxx
Xxxxxxx, XX 00000
2. Chicago Heights, Xxxx County, Illinois
IMCO Recycling of Illinois Inc.
000 X. Xxxxxxx Xxx.
X.X. Xxx 000
Xxxxxxx, XX 00000
3. Morgantown, Xxxxxx County, Kentucky
IMCO Recycling Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxx 0000
Xxxxxxxxxx, XX 00000
4. Post Falls, Kootenai County, Idaho
IMCO Recycling of Idaho Inc.
West 0000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
5. Loudon, Loudon County, Tennessee
IMCO Recycling Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
6. Rockwood, Roane County, Tennessee
IMCO Recycling Inc.
Xxxxxxx 00 Xxxxx
Xxxxxxxx, XX 00000
7. Sapulpa, Creek County, Oklahoma
IMCO Recycling Inc.
0000 Xxxxx 0xx Xxxxxx
Xxxxxxx 00 Xxxxx
Xxxxxxx, XX 00000
Additional Properties
---------------------
8. IMCO Recycling of Ohio
0000 Xxxxxxx Xxxx XX
Xxxxxxxxxxxx, XX
9. Interamerican Zinc, Inc.
000 X. Xxxxxxxx Xxxx
Xxxxxxxxx, XX
10. Alchem Aluminum, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX
11. IMCO Recycling of Michigan
000 X. Xxxxxxxx Xxxx
Xxxxxxxxx, XX
12. Alchem Aluminum, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX
13. Gulf Reduction Corporation
0000 Xxxxxxxx
Xxxxxxx, XX
14. U.S. Zinc Corporation
0000 Xxxxxxxxxx
Xxxxxxx, XX
15. Alchem Aluminum Shelbyville
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
16. Midwest Zinc Corporation
0000 Xxxx Xxxx
Xxxxxxxxxx, XX
17. Midwest Zinc Corporation
000 Xxxxxxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX
18. Rock Creek Aluminum, Inc.
0000 X. Xxxxx Xxxxxx
Xxxx Xxxxx, XX
19. Rock Creek Aluminum, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, XX
