Exhibit 10.1
FOURTH AMENDMENT TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (the "Amendment") dated as of April 26, 2002, 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 JPMorgan Chase Bank (formerly known as 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, as further amended by that certain Second Amendment
to the Second Amended and Restated Credit Agreement dated as of October
20, 2000, and as further amended by that certain Third Amendment to the
Second Amended and Restated Credit Agreement dated as of October 26,
2001 (the "Credit Agreement"), pursuant to which Lenders have made
revolving credit commitments to Borrower in the amount of up to
$160,000,000.
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 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:
"Adjusted Net Income" shall mean, for any Measurement Period,
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the consolidated net income (loss) of Borrower and its Consolidated
Subsidiaries (excluding the net income or loss of each of the
Unrestricted Subsidiaries, except to the extent specified in clause (c)
below) calculated on a consolidated basis in accordance with GAAP,
adjusted by excluding (to the extent taken into account in the
calculation of such consolidated net income (loss)) the effect of
(a) gains for such period from Dispositions (including Excluded
Dispositions), other than the Disposition of inventory and equipment in
the ordinary course of business, and the tax consequences thereof;(b)
any non-recurring or extraordinary items of income and the non-cash
portion of any extraordinary item of expense for such period; (c) the
portion of net income (loss) of any Person (other than a Restricted
Subsidiary) in which Borrower or any Subsidiary has an ownership
interest, except to the extent of the following (subject to clause (e)
below): (i) Adjusted Net Income shall include a portion of the net
income (loss) of any such Person other than an Unrestricted Subsidiary
in the amount of cash dividends or other cash distributions actually
paid by such Person to Borrower or any Restricted Subsidiary during the
applicable period, provided that such payment is made in the United
States and is not reinvested in such Person, and (ii) after cash
dividends and other cash distributions actually paid by the
Unrestricted Subsidiaries, or any of them, to Borrower or any
Restricted Subsidiary after April 26, 2002 exceed $2,000,000 in the
aggregate, Adjusted Net Income shall include that portion of the net
income of the Restricted Subsidiaries in the aggregate amount of such
cash dividends and other cash distributions in excess of such
$2,000,000 amount to the extent such cash dividends or other cash
distributions are actually paid by the Unrestricted Subsidiaries, or
any of them, to Borrower or any Restricted Subsidiary during the
applicable period, and provided that such payment is made in the United
States and is not reinvested in any Unrestricted Subsidiary; (d) the
net income (loss) of any Person combined with Borrower or any
Subsidiary on a "pooling of interests" basis attributable to any period
prior to the date of combination; and (e) the net income of any
Subsidiary to the extent that the declaration or payment of dividends
or similar distribution by such Subsidiary was not for the relevant
period permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Subsidiary
or its stockholders.
"Consolidated EBITDA" shall mean, for any Measurement Period,
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the remainder of (a) the sum (without duplication) of the amounts for
such period of (i) Adjusted Net Income, (ii) income tax expense
(including reserves for deferred taxes not payable currently) to the
extent deducted in determining Adjusted Net Income for such period,
(iii) interest expense to the extent deducted in determining Adjusted
Net Income for such period, (iv) depreciation expense and amortization
expense (including, but not limited to, amortization of intangibles and
goodwill) to the extent deducted in determining Adjusted Net Income for
such period, and (v) the non-cash component of any item of expense to
the extent deducted in determining Adjusted Net Income for such period,
other than to the extent requiring an accrual or reserve for future
cash expenses, minus (b) the amount for such period of interest income
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to the extent included in determining Adjusted Net Income for such
period, all as determined on a consolidated basis for Borrower and its
Consolidated Subsidiaries (excluding Unrestricted Subsidiaries except
to the extent provided in the definition of Adjusted Net Income). Prior
to the first such time as there shall have been delivered pursuant to
Section 9.01 financial statements of Borrower for four full fiscal
quarters of Borrower after the date of consummation of any Acquisition,
Consolidated EBITDA for any Measurement Period shall be adjusted on a
pro forma basis consistent with GAAP to give effect to such Acquisition
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as if it had occurred on the first day of such Measurement Period.
"Consolidated Interest Expense" shall mean, for any period,
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for Borrower and its Consolidated Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP, but
excluding Unrestricted Subsidiaries), all cash interest expense in
respect of
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Indebtedness during such period (whether or not actually paid during
such period), including the interest component under the Permitted
Receivables Financing.
"Consolidated Net Worth" shall mean at a particular date, the
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sum (without duplication) of all amounts which would be included under
shareholders' equity on a consolidated balance sheet of Borrower and
its Consolidated Subsidiaries (excluding Unrestricted Subsidiaries)
determined on a consolidated basis in accordance with GAAP as at such
date.
"Consolidated Rental Payments" shall mean, for any period, the
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aggregate amount of all rents paid or incurred under all operating
leases of Borrower and its Consolidated Subsidiaries (excluding
Unrestricted Subsidiaries) as lessees (net of sublease income).
"Maintenance Capital Expenditures" shall mean Capital
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Expenditures of Borrower or any Restricted Subsidiary (i) for the
replacement and maintenance of existing fixed or capital assets of
Borrower or any Restricted Subsidiary or (ii) for new fixed or capital
assets of Borrower or any Restricted Subsidiary that Borrower or such
Restricted 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.
"Taking" shall mean any taking of any Mortgaged Real Property
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or Real Property of any Obligor or any of its Subsidiaries or any part
thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of any Mortgaged Real Property or
Real Property of any Obligor or any of its Subsidiaries or any part
thereof, by any Governmental Authority, civil or military. Taking shall
not include any Casualty Event.
"VAW-IMCO" shall mean VAW-IMCO Xxxx und Recycling GmbH, a
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company formed under the laws of the Federal Republic of Germany.
2.2 Amendment to Definition of "Affiliate". The last sentence of
the definition of "Affiliate" set forth in Section 1.01 of the Credit Agreement
is hereby amended to read as follows:
Notwithstanding the foregoing, solely for purposes of Section 9.16,
Borrower shall not be deemed an Affiliate of any Restricted Subsidiary
which is both a Wholly Owned Subsidiary and an Obligor, and no
Restricted Subsidiary which is both a Wholly Owned Subsidiary and an
Obligor shall be deemed an Affiliate of Borrower nor an Affiliate of
any other Restricted Subsidiary which is both a Wholly Owned Subsidiary
and an Obligor.
2.3 Amendment to Subsidiary References in Certain Definitions.
Each reference to the term "Subsidiary" appearing in the definitions of
"Disposition Event," "Dividend Payment," "Equity Interests," "Material Adverse
Effect," "Net Available Proceeds," "Net Award," "Net Cash Payments," "Net
Proceeds," "Restricted Indebtedness," "Synthetic Purchase Agreement" and "Total
Debt" set forth in Section 1.01 of the Credit Agreement is hereby amended to
read "Restricted Subsidiary", and each reference to the term "Subsidiaries"
appearing in such definitions is hereby amended to read "Restricted
Subsidiaries".
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2.4 Addition of New Defined Terms. Section 1.01 of the Credit
Agreement is hereby amended to add the following definitions, such definitions
to read in their respective entireties as follows:
"IMCO Brazil" shall mean IMCO Brazil Holding, Ltda., a Brazil
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corporation and a Subsidiary of Borrower formed for the purpose of
acquiring Recipar.
"Recipar" shall mean Recipar-Reciglagem de Materiais
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Industria e Comercio Ltda., a Brazil corporation in the business of
aluminum recycling.
"Restricted Subsidiaries" shall mean the Subsidiaries of the
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Borrower other than the Unrestricted Subsidiaries.
"Unrestricted Subsidiaries" shall mean VAW-IMCO (but only from
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and after the date VAW-IMCO becomes a Subsidiary of the Borrower), IMCO
Brazil, MetalChem Handel GmbH, and the respective successors and
Subsidiaries of the foregoing entities, except any such successors or
Subsidiaries that are not Foreign Subsidiaries.
2.5 Amendment to Section 2.10. Each reference to the term
"Subsidiary" appearing in Section 2.10 of the Credit Agreement is hereby amended
to read "Restricted Subsidiary", and each reference to the term "Subsidiaries"
appearing in such Section 2.10 is hereby amended to read "Restricted
Subsidiaries". Further, subsection (ii) of such Section 2.10 is hereby amended
to read in its entirety as follows:
(ii) Equity Issuance; Debt Issuance. On the date on which
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Borrower or any Restricted Subsidiary receives any Net Available
Proceeds from any Equity Issuance or any Debt Issuance on or after
October 26, 2001, in an aggregate principal amount equal to 25% of the
Net Available Proceeds received by Borrower or such Restricted
Subsidiary from such Equity Issuance or 100% of the Net Available
Proceeds received by Borrower or such Restricted Subsidiary from such
Debt Issuance, as the case may be.
2.6 Amendments to Section 8. Section 8 of the Credit Agreement is
hereby amended as follows:
(a) Each reference to the term "Subsidiary" appearing in
Sections 8.01, 8.03, 8.04, 8.08, 8.09, 8.10, 8.12, 8.20 and 8.21 of the
Credit Agreement is hereby amended to read "Restricted Subsidiary", and
each reference to the term "Subsidiaries" appearing in such sections is
hereby amended to read "Restricted Subsidiaries".
(b) The last sentence of Section 8.13 of the Credit
Agreement is hereby amended to read as follows:
On and after the date hereof, Borrower will use drawings under
the Revolving Credit Commitments for (i) ongoing working
capital and general corporate requirements of Borrower and its
Restricted Subsidiaries, including the issuance of Letters of
Credit; and (ii) the financing of permitted Acquisitions.
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(c) The last sentence of Section 8.14 of the Credit
Agreement is amended to read as follows:
No Restricted Subsidiary and no such partnership or joint
venture has issued any securities convertible into shares of
its capital stock (or other evidence of ownership) or any
Equity Rights to acquire such shares (or other evidence of
ownership) or securities convertible into such shares (or
other evidence of ownership). The outstanding stock and
securities (or other evidence of ownership) of each of the
Restricted Subsidiaries, partnerships or joint ventures set
forth in Schedule 8.14 are owned by Borrower and the
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Restricted Subsidiaries free and clear of all Liens and Equity
Rights of others of any kind whatsoever, except (i) as set
forth on Schedule 8.14, and (ii) for Liens pursuant to the
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Security Documents.
2.7 Amendment to Section 9.01. Section 9.01 of the Credit
Agreement is hereby amended as follows:
(a) Clause (a) is amended to read in its entirety as
follows:
(a) as soon as available and in any event
within 45 days after the end of each of the first
three quarterly fiscal periods of each fiscal year,
consolidated statements of income and cash flow and
consolidating statements of income of (i) Borrower
and its Consolidated Subsidiaries, (ii) Borrower and
the Restricted Subsidiaries, and (iii) all of the
Unrestricted Subsidiaries, for such period and for
the period from the beginning of the respective
fiscal year to the end of such period, the related
consolidated and consolidating balance sheets of (1)
Borrower and its Consolidated Subsidiaries, (2)
Borrower and the Restricted Subsidiaries, and (3) all
of the Unrestricted Subsidiaries, as at the end of
such period, setting forth in each case (other than
consolidating statements) in comparative form the
corresponding consolidated statement of income for
the corresponding period in the preceding fiscal
year, accompanied by a certificate of a senior
financial officer of Borrower, which certificate
shall state that said consolidated financial
statements fairly present the consolidated financial
condition and results of operations of Borrower and
its Consolidated Subsidiaries and such consolidating
financial statements fairly present the
non-consolidated financial condition and results of
operations of the Borrower and each of its
Consolidated Subsidiaries in accordance with GAAP,
consistently applied, as at the end of, and for, such
period (subject to normal year-end audit
adjustments);
(b) Clause (b) is amended to read in its entirety as
follows:
(b) as soon as available and in any event
within 120 days after the end of each fiscal year,
(i) consolidated statements of income, stockholders'
equity and cash flow of Borrower and its Consolidated
Subsidiaries for such year and the related
consolidated balance sheet of Borrower and its
Consolidated Subsidiaries as at the end of such year,
setting forth in each case in comparative form the
corresponding consolidated figures as of the end of
and for the preceding fiscal year, and accompanied by
an opinion, without material qualification, thereon
of independent certified public accountants of
recognized
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national standing, which opinion shall state that
said consolidated financial statements fairly present
the consolidated financial condition and results of
operations of Borrower and its Consolidated
Subsidiaries as at the end of, and for, such fiscal
year in accordance with GAAP, and a certificate of
such accountants stating that, in making the
examination necessary for their opinion, they
obtained no knowledge of any Default, and (ii)
consolidating statements of income of (i) Borrower
and its Consolidated Subsidiaries, (ii) Borrower and
the Restricted Subsidiaries, and (iii) all of the
Unrestricted Subsidiaries, for such year and related
consolidating balance sheets of (1) Borrower and its
Consolidated Subsidiaries, (2) Borrower and the
Restricted Subsidiaries, and (3) all of the
Unrestricted Subsidiaries, as of the end of such
year;
(c) Each reference to the term "Subsidiary" appearing in
clauses (c), (f), (g) and (k) of Section 9.01 of the Credit Agreement
is amended to read "Restricted Subsidiary", and each reference to the
term "Subsidiaries" appearing in such clauses is amended to read
"Restricted Subsidiaries".
2.8 Amendment to Section 9.05. Section 9.05 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.05 Issuance or Disposals of Capital Stock of
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Subsidiaries. No Restricted Subsidiary shall issue, sell, assign,
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transfer or otherwise dispose of any shares (or other ownership
interests) of any class of its capital stock or equity ownership
interests or of any Equity Rights to purchase its capital stock or
equity ownership interests or of other securities exchangeable for or
convertible into its capital stock or equity ownership interests,
except (a) to Borrower or a Restricted Subsidiary that is a Wholly
Owned Subsidiary, and (b) directors' qualifying shares as required by
law. Neither Borrower nor any Restricted Subsidiary shall effect the
Disposition of any capital stock of any Subsidiary unless all capital
stock owned by Borrower and the Restricted Subsidiaries is sold
pursuant thereto and such sale is otherwise permitted herein.
2.9 Amendment to Section 9.06. Section 9.06 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.06 Fundamental Changes; Acquisitions; Dispositions. No
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Obligor or Restricted Subsidiary shall, directly or indirectly, (1)
enter into any transaction of merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), (2) acquire any business or Property from, or capital
stock of, or be a party to any acquisition of, any Person, or effect
any Acquisition, or (3) effect any Disposition or convey, sell, lease,
assign, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or a substantial part of its business or
Property, whether now owned or hereafter acquired, including
receivables and leasehold interests. Notwithstanding the foregoing
provisions of this Section 9.06, each of the following shall be
permitted:
(a) purchases of inventory and other Property to be sold
or used in the ordinary course of business;
(b) Acquisitions permitted by Section 9.09(k), (u) (v) or
(y) and other Investments permitted by Section 9.09;
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(c) any Restricted Subsidiary may be merged or
consolidated or dissolved or liquidated with or into: (i) Borrower if
Borrower shall be the continuing or surviving corporation or (ii) any
Wholly Owned Subsidiary which is an Obligor if such Wholly Owned
Subsidiary which is an Obligor shall be the continuing or surviving
corporation;
(d) any Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its Property (upon voluntary
liquidation or otherwise) to Borrower or to any Wholly Owned Subsidiary
which is an Obligor;
(e) any Restricted Subsidiary which is both a Wholly
Owned Subsidiary and a Foreign Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to another Restricted Subsidiary which is
both a Wholly Owned Subsidiary and a Foreign Subsidiary;
(f) Dispositions of used, worn out, obsolete or surplus
equipment or other Property by Borrower or any Restricted Subsidiary,
all in the ordinary course of business; provided, however, that the
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proceeds thereof are reinvested in the business of Borrower or any
Restricted Subsidiary within one year of such Disposition;
(g) any Restricted Subsidiary which is a Foreign
Subsidiary may be merged or consolidated with or into any one or more
Restricted Subsidiaries that are both Wholly Owned Subsidiaries and
Foreign Subsidiaries (provided that a Restricted Subsidiary that is
both a Wholly Owned Subsidiary and a Foreign Subsidiary shall be the
continuing or surviving corporation);
(h) Borrower or any Restricted Subsidiary may sell or
discount, in each case without recourse, accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof;
(i) the sale by any Restricted Subsidiary which is a
Foreign Subsidiary of its accounts receivable; provided, however, that
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the terms of each such sale are satisfactory in form and substance to
the Administrative Agent;
(j) Dispositions for fair market value not to exceed
$15,000,000 in the aggregate after the date of this Agreement;
provided, however, that the Net Available Proceeds therefrom are
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reinvested as specified in Section 2.10(a)(iii) or applied to the
prepayment of the Revolving Credit Loans as specified in Section
2.10(a);
(k) the sale of all or substantially all of the capital
stock and/or equity interests in or assets of IMCO Recycling of
California, Inc., a Subsidiary, owned by Borrower or any Subsidiary;
provided, however, that the Net Available Proceeds therefrom are
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reinvested as specified in Section 2.10(a)(iii) or applied to the
prepayment of the Revolving Credit Loans as specified in Section
2.10(a);
(l) Dispositions of assets pursuant to the Commonwealth
Option or the Commonwealth Right of First Refusal; provided, however,
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that the Net Available Proceeds therefrom are applied to the prepayment
of the Revolving Credit Loans as specified in Section 2.10(a);
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(m) provided that the initial proceeds of the Permitted
Receivables Financing shall be applied to pay in full all amounts
payable under Section 2.10(c) in connection with the simultaneous
reduction of the Revolving Credit Commitments pursuant to Section
2.10(a)(vi), (i) the Borrower and the Restricted Subsidiaries shall be
permitted to sell the Transferred Assets to the SPS in connection with
the Permitted Receivables Financing, and (ii) the SPS shall be
permitted to sell an ownership interest in the Transferred Assets to
the Receivables Financier in connection with the Permitted Receivables
Financing; and
(n) 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.
To the extent the Majority Lenders waive the provisions of this Section
9.06 with respect to the sale or other disposition of any Collateral,
or any Collateral is sold or otherwise disposed of as permitted by this
Section 9.06 (and such Collateral is released (or permitted to be
released) from the Liens created by the respective Security Document),
such Collateral in each case shall be sold or otherwise disposed of
free and clear of the Liens created by the Security Documents and the
Administrative Agent shall take such actions as are appropriate in
connection therewith. Without in any way limiting the foregoing, the
Administrative Agent shall release its security interest in the
Transferred Assets concurrently with the closing of the Permitted
Receivables Financing, provided that the initial proceeds of the
Permitted Receivables Financing shall be applied to pay in full all
amounts payable under Section 2.10(c) in connection with the
simultaneous reduction of the Revolving Credit Commitments pursuant to
Section 2.10(a)(vi). The Administrative Agent and the Obligors shall
execute, deliver and file appropriate documents to effectuate and
reflect such release by the Administrative Agent of its security
interest in the Transferred Assets, including UCC partial releases and
an amendment to the Security Agreement.
2.10 Amendment to Section 9.08. Section 9.08 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.08 Indebtedness. No Obligor or Restricted Subsidiary
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shall, directly or indirectly, create, incur or suffer to exist or be
or become liable for any Indebtedness, except (each of which shall be
given independent effect):
(a) Indebtedness under the Basic Documents;
(b) Indebtedness outstanding on the date hereof and
specified on Schedule 9.08 to remain outstanding after the date hereof,
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and any refinancings, refundings, renewals or extensions thereof on
financial and other terms, in the reasonable judgment of Borrower, no
more onerous to Borrower or any Restricted Subsidiary in the aggregate
than the financial and other terms of such Indebtedness; provided,
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however, that the amount of such Indebtedness is not increased at the
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time of such refinancing, refunding, renewal or extension and such
Indebtedness shall not have a stated maturity or an average life
shorter than that of the Indebtedness being refinanced;
(c) Indebtedness of Borrower or of any Restricted
Subsidiary which is a Wholly Owned Subsidiary owing to Borrower or any
Wholly Owned Subsidiary which is an Obligor; provided, however, that
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such Indebtedness shall not be held by any Person other than Borrower
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or a Wholly Owned Subsidiary which is an Obligor and shall not be
subordinate to any other Indebtedness or other obligation of the
Obligor other than the Revolving Credit Loans;
(d) Indebtedness of Borrower and the Restricted
Subsidiaries secured by Liens permitted under Section 9.07(h) or (m)
not exceeding in the aggregate $15,000,000 at any one time outstanding;
(e) Indebtedness arising from honoring a check, draft or
similar instrument against insufficient funds; provided, however, that
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such Indebtedness is extinguished within two Business Days of its
incurrence;
(f) Obligations under operating leases permitted by
Section 9.22 and Contingent Obligations permitted by Section 9.24;
(g) Unsecured Indebtedness incurred by any Restricted
Subsidiary which is a Foreign Subsidiary not to exceed $15,000,000 in
the aggregate for all Restricted Subsidiaries which are Foreign
Subsidiaries at any time outstanding;
(h) Unsecured Indebtedness of Borrower or of any
Restricted Subsidiary which is an Obligor in an aggregate principal
amount not to exceed, together with Contingent Obligations (without
duplication) under Section 9.24(d), $15,000,000 for Borrower and the
Restricted Subsidiaries collectively at any time outstanding;
(i) Unsecured Indebtedness in an amount not to exceed
$10,000,000 incurred pursuant to certain solid waste disposal bonds or
industrial revenue bonds issued after the date hereof by the City of
Morgantown, Kentucky or any other governmental entity in a location in
which Borrower or any Restricted Subsidiary owns any equipment,
property, or other assets;
(j) Indebtedness represented by amounts declared, payable
as, or set apart for, Dividend Payments permitted by Section 9.10 and
Swap Contracts entered into in the ordinary course of business and
designed to protect the Obligors against fluctuations in interest
rates, currency exchange rates, commodity prices or similar risks; and
(k) Obligations in connection with the Permitted
Receivables Financing.
All intercompany debt shall be unsecured and subordinate in right of
payment to the Obligations. 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 Restricted Subsidiary, as permitted
by this Section 9.08, shall have a stated maturity after December 31,
2003.
2.11 Amendment to Section 9.09. Section 9.09 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.09 Investments. No Obligor or Restricted Subsidiary
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shall, directly or indirectly, make or permit to remain outstanding any
Investments, except:
(a) operating deposit accounts and certificates of
deposit with banks in the ordinary course of business;
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(b) Permitted Investments;
(c) Investments by Borrower or any Restricted Subsidiary
in any Restricted Subsidiary that is both a Wholly Owned Subsidiary and
an Obligor and Investments by any Restricted Subsidiary in Borrower;
(d) Investments outstanding on the date hereof and
identified with particularity in Schedule 9.09 and any renewals,
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extensions, modifications and replacements thereof that do not increase
the amount thereof;
(e) Investments that constitute Indebtedness permitted
under Section 9.08 or Contingent Obligations permitted under Section
9.24;
(f) Investments by Borrower in Swap Contracts entered
into as bona fide xxxxxx and not for speculative purposes;
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(g) advances, loans or extensions of credit by Borrower
or any Restricted Subsidiary to employees of Borrower or any Restricted
Subsidiary; provided, however, that the aggregate amount of all such
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loans, advances and extensions of credit shall not at any time exceed
in the aggregate $5,000,000 (without giving effect to any write-down or
write-off thereof);
(h) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods
or services in the ordinary course of business;
(i) pledges or deposits required in the ordinary course
of business in connection with workmen's compensation, unemployment
insurance and other social security or similar legislation;
(j) pledges or deposits in connection with (i) the
nondelinquent performance of bids, trade contracts (other than for
borrowed money), leases or statutory obligations, (ii) contingent
obligations on surety or appeal bonds, and (iii) other non-delinquent
obligations of a like nature, in each case incurred in the ordinary
course of business;
(k) Investments made in order to consummate any
Acquisitions of any Person other than an Unrestricted Subsidiary with
the 75% portion of Net Available Proceeds from any Equity Issuance
remaining after compliance with Section 2.10; provided, however, that
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(v) no Default or Event of Default exists or will result therefrom, (w)
on a pro forma basis, after giving effect to such Acquisition(s),
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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 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 (it being understood
that such Net Available Proceeds shall not be used to finance hostile
acquisitions);
10
(l) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(m) Borrower and the Restricted Subsidiaries may hold
additional Investments in any non-Wholly Owned Subsidiary or Foreign
Subsidiary to the extent that such Investments reflect an increase in
Borrower's or any Subsidiary's interest in the stockholders' equity of
such Subsidiary resulting from retained earnings of such Subsidiary;
(n) any Restricted Subsidiary which is a Foreign
Subsidiary may make Investments in or to any other Restricted
Subsidiary which is a Foreign Subsidiary;
(o) Capital Expenditures permitted by Section 9.11(f) and
provided that no Default or Event of Default will exist or result
therefrom;
(p) Investments by Borrower or any Restricted Subsidiary
(i) in any Restricted Subsidiary which is not a Wholly Owned
Subsidiary, (ii) in any Restricted Subsidiary which is not an Obligor
(including Restricted Subsidiaries which are Foreign Subsidiaries), or
(iii) in any Unrestricted Subsidiary; provided that (1) each such
--------
investment shall be made in the ordinary course to fund or support the
ordinary course operations of such Subsidiary, (2) no Event of Default
shall have occurred and be continuing, (3) the amount of all such
Investments made pursuant to this clause (p) (including without
limitation Investments in Unrestricted Subsidiaries) shall not exceed
$14,000,000 in the aggregate outstanding at any time (without giving
effect to any write-down or write-off thereof), (4) the amount of such
Investments in any and all Unrestricted Subsidiaries shall not exceed
$2,000,000 in the aggregate outstanding at any time (without giving
effect to any write-down or write-off thereof), (5) 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, and (6)
neither the Borrower nor any Restricted Subsidiary shall merge or
consolidate with or into any Unrestricted Subsidiary;
(q) Investments for the creation of any Wholly Owned
Foreign Subsidiary which is a foreign sales corporation consisting of
de minimis capitalization;
-- -------
(r) Investments by Borrower or any Restricted Subsidiary
in the SPS in connection with the Permitted Receivables Financing;
(s) Investments consisting of non-cash consideration
received in the form of securities, notes or similar obligations in
connection with a Disposition permitted by Section 9.06 (j); provided,
--------
however, that (i) the aggregate amount of such non-cash consideration
-------
received in connection with any such Disposition shall not exceed 10%
of the total consideration received in connection with such Disposition
and (ii) such non-cash consideration is pledged pursuant to the
appropriate Security Document;
(t) Investments by Restricted Subsidiaries which are
Foreign Subsidiaries in high quality investments of the type similar to
Permitted Investments made outside the United States;
11
(u) Investments made to consummate any Acquisition of any
Person other than an Unrestricted Subsidiary with the Net Available
Proceeds of any Disposition effected in accordance with Section 9.06(j)
to the extent such Net Available Proceeds have not been used to effect
Capital Expenditures otherwise expended by Borrower or any Restricted
Subsidiary; provided, however, that (x) no Default or Event of Default
-------- -------
exists or would result therefrom, (y) on a pro forma basis, immediately
--- -----
after giving effect to any such Acquisition, Borrower would be in
compliance with the financial covenants set forth in Section 9.11 on
the last day of the most recently ended fiscal quarter (assuming, for
purposes of Section 9.11, that such Acquisition has 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 the Lenders at least 10 days prior to the consummation of
such Acquisition, and (z) such Acquisition shall be effected through
Borrower or a Wholly Owned Subsidiary which is an Obligor (it being
understood that such Net Available Proceeds shall not be used to
finance hostile acquisitions);
(v) Acquisition of Recipar for a purchase price estimated
to be approximately $12,000,000, payable by the assumption by IMCO
Brazil of a portion of the existing Indebtedness of Recipar, provided
that no Obligor or Restricted Subsidiary shall have any obligation or
liability in respect of such Indebtedness;
(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, provided that any and all amounts so reinvested shall not be
included in Adjusted Net Income or Consolidated EBITDA;
(x) Borrower or any Restricted Subsidiary may hold the
capital stock, partnership interests or other ownership or equity
interest therein of any Subsidiary existing on the Original Closing
Date or created or acquired thereafter in accordance with the
provisions hereof and any additional capital stock, partnership
interests or ownership or equity interests issued in exchange therefor
or as a dividend thereon; and
(y) Acquisition of the 50% interest of VAW-IMCO owned by
VAW aluminium AG, by means of redemption of such interest by VAW-IMCO
for a redemption price to be paid solely with cash of VAW-IMCO and
Indebtedness of VAW-IMCO, provided that no Obligor or Restricted
Subsidiary shall have any obligation or liability in respect of such
Indebtedness.
2.12 Amendment to Section 9.10. Section 9.10 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.10 Restricted Payments. (1) No Obligor or Restricted
-------------------
Subsidiary shall, directly or indirectly, prepay, purchase, redeem or
retire any Indebtedness, except (i) prepayment of the Obligations, (ii)
any discharge of other Indebtedness that does not involve the payment
or transfer of any cash, Property or services, and (iii) other
prepayments in an aggregate amount not to exceed $1,000,000; and (2) no
Obligor or Restricted Subsidiary shall, directly or indirectly, declare
or make any Dividend Payment at any time, except that:
(a) (i) VAW-IMCO shall be permitted to purchase the 50%
interest of VAW-IMCO owned by VAW aluminium AG, pursuant to the
exercise of redemption rights, for a redemption price to be paid solely
with cash of VAW-IMCO and Indebtedness of VAW-IMCO;
12
(ii) Borrower shall be permitted to repurchase approximately 231,800
shares of common stock of Borrower from its employees for an aggregate
purchase price not to exceed $2,500,000, payable solely by cancellation
of loans made by Borrower to such employees secured by such shares
under the Borrower's Executive Option Exercise Loan Program; and (iii)
Borrower shall be permitted to acquire shares of common stock of
Borrower in connection with any surrender and delivery of such shares
to Borrower in payment of the exercise price or to pay withholding
obligations by employees, directors and consultants in connection with
their exercise of stock options and similar rights under the Borrower's
equity compensation or benefit plans as in effect from time to time;
and
(b) From and after such time as the Leverage Ratio is
equal to or less than 3.00 to 1.00, as shown on 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
dividends 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 such dividend
is declared or paid nor would result therefrom, and provided further
that Borrower's right to declare and pay such cash dividends shall
terminate at any time thereafter that the Leverage Ratio exceeds 3.00
to 1.00.
2.13 Amendment to Section 9.11. Section 9.11 of the Credit
Agreement is hereby amended as follows:
(a) Clause (c) is amended to read in its entirety as
follows:
(c) Minimum Consolidated Net Worth.
------------------------------
Borrower shall not permit Consolidated Net Worth at
any time to be less than (i) $154,600,000, plus (ii)
the sum of (x) 50% of consolidated net income of
Borrower and the Consolidated Subsidiaries (excluding
net income of Unrestricted Subsidiaries except to the
extent included in Adjusted Net Income), determined
in accordance with GAAP for each such fiscal quarter
(if positive) occurring after June 30, 1999, and (y)
100% of the Net Available Proceeds of all Equity
Issuances occurring after the date hereof, minus
-----
(iii) 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, and minus (iv)
-----
from and after the date VAW-IMCO becomes an
Unrestricted Subsidiary, the value of the 50%
interest in VAW-IMCO included as an asset on the
consolidated balance sheet of Borrower and its
Consolidated Subsidiaries most recently delivered or
required to be delivered to the Lenders in accordance
with Section 9.01(a) or (b) on or before such date.
(b) Clause (f) is amended to read in its entirety as
follows:
(f) Capital Expenditures. Borrower shall
--------------------
not permit the aggregate Capital Expenditures of
Borrower and the Restricted 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
Restricted Subsidiaries which are 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
13
foreign operations of Borrower and the Restricted
Subsidiaries for such fiscal year.
2.14 Amendment to Section 9.16. Section 9.16 of the Credit
Agreement is hereby amended to read in its entirety as follows:
9.16 Transactions with Affiliates. No Obligor or
----------------------------
Restricted Subsidiary shall, directly or indirectly: enter into or
permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any Property, the rendering of any
service, or a merger or consolidation), with any Unrestricted
Subsidiary or other Affiliate (an "Affiliate Transaction"), unless such
---------------------
Affiliate Transaction is otherwise not prohibited under this Agreement,
is in the ordinary course of the Obligor's or Restricted Subsidiary's
business and is on fair and reasonable terms that are not less
favorable to the Obligor or Restricted Subsidiary than those that would
be obtainable at the time in an arm's-length transaction with a Person
who is not such an Affiliate.
2.15 Amendments to Sections 9.22 through 9.24. Sections 9.22, 9.23
and 9.24 of the Credit Agreement are hereby amended to read in their respective
entireties as follows:
9.22 Restriction on Leases. No Obligor or Restricted
---------------------
Subsidiary shall become liable in any way, whether directly or by
assignment or as a guarantor or other surety, for the obligations of
the lessee under any operating lease, unless, immediately after giving
effect to the incurrence of liability with respect to such lease, the
Consolidated Rental Payments at the time in effect shall not exceed
$10,000,000 per annum.
--- -----
9.23 Sale or Discount of Receivables. No Obligor or
-------------------------------
Restricted Subsidiary shall, directly or indirectly, sell, with or
without recourse, or discount, or otherwise sell for less than the face
value thereof, notes or accounts receivables, other than in connection
with trade discounts in the ordinary course of business or consistent
with past practice and other than as permitted by Section 9.06(h), (i)
or (m).
9.24 Contingent Obligations. No Obligor or Restricted
----------------------
Subsidiary shall, directly or indirectly, create or become or be liable
with respect to any Contingent Obligation, except:
(a) pursuant to Section 6;
(b) Contingent Obligations in respect of operating leases
to the extent permitted under Section 9.22;
(c) Contingent Obligations of Borrower or any Restricted
Subsidiary in respect of Indebtedness or other liabilities of Borrower
or any Wholly Owned Subsidiary which is an Obligor to the extent that
the existence of such Indebtedness or other liabilities is not
prohibited under this Agreement;
(d) other Contingent Obligations which, together with the
amount of Indebtedness incurred under Section 9.08(h) (but without
duplication), does not exceed $15,000,000 in the aggregate at any time
outstanding;
(e) endorsements for collection or deposit in the
ordinary course of business;
14
(f) Contingent Obligations of Borrower and the Restricted
Subsidiaries existing as of the date hereof and listed in Schedule 8.02
-------------
and renewals, extensions, modifications and replacements thereof that
do not increase the amount thereof or provide for terms materially less
favorable to Borrower or any Restricted Subsidiary;
(g) Swap Contracts entered into in the ordinary course of
business and designed to protect the Obligors against fluctuations in
interest rates, currency exchange rates, commodity prices or similar
risks; and
(h) Contingent Obligations in connection with
Dispositions permitted under Section 9.06, arising in connection with
indemnification and other agreements in respect of any contract
relating to such Disposition, not to exceed the consideration received
by Borrower or any Restricted Subsidiary in connection with such sale
and excluding in all cases any Contingent Obligation with respect to
any obligation of any third person incurred in connection with the
acquisition of the Property which is the subject of such Disposition.
2.16 Other Amendments to Section 9. Each reference to the term
"Subsidiary" appearing in Sections 9.02, 9.03, 9.04, 9.07, 9.14, 9.15, 9.17,
9.18, 9.20, 9.23 and 9.26 of the Credit Agreement is hereby amended to read
"Restricted Subsidiary", and each reference to the term "Subsidiaries" appearing
in such sections is hereby amended to read "Restricted Subsidiaries".
2.17 Amendment to Correct Schedule 9.08. The parties wish to make a
correction to Schedule 9.08 of the Credit Agreement to reflect the letters of
credit supporting certain bond indebtedness described in such schedule.
Accordingly, effective as of the date of the Credit Agreement, Schedule 9.08 to
the Credit Agreement is hereby amended to add the following phrase to the end of
each of items 6 and 7 of such schedule, which phrase shall read as follows:
and reimbursement obligations to Bank One, N.A. with respect to
related letters of credit to provide credit support to such bonds.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
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
-------------
Administrative Agent, for the account of each Lender that executes and
delivers this Amendment on or before April 25, 2002, an amendment fee
in an amount equal to the Revolving Credit Commitment of each such
Lender multiplied by 0.125%.
(b) 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).
15
(c) No Default. No Default or Event of Default shall
----------
have occurred and be continuing.
(d) Corporate Matters. All corporate proceedings taken in
-----------------
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 Liddell & Xxxx LLP.
(e) Additional Documentation. The Administrative Agent
------------------------
shall have received such additional approvals, opinions, or documents
as the Administrative Agent or its legal counsel, Xxxxx Liddell & Xxxx
LLP, may reasonably request.
(f) Fees, Costs and Expenses. Borrower shall have paid
------------------------
any and 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
---------------------------------------------
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 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), and (c) no Default or Event of Default
has occurred and is continuing.
16
ARTICLE V
Miscellaneous
-------------
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 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.
17
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]
18
EXECUTED as of the date first written above.
OBLIGORS:
IMCO RECYCLING INC.
By:______________________________________
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: ____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President of each of
the above-named entities
19
IMCO INDIANA PARTNERSHIP L.P.
By IMCO Energy Corp., its General Partner
By:_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
IMCO MANAGEMENT PARTNERSHIP, L.P.
By IMCO Recycling Inc., its General Partner
By:_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
LENDERS:
JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank, successor by merger to
Chase Bank of Texas, National Association),
as Administrative Agent and a Lender
By:__________________________________________
Xxxxx X. Xxxx
Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and a Lender
By:__________________________________________
Name:___________________________________
Title:__________________________________
20
XXXXXXX XXXXX CAPITAL CORPORATION
as a Lender
By:_________________________________
Name:_________________________
Title:________________________
BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By:_________________________________
Name:_________________________
Title:________________________
By:_________________________________
Name:_________________________
Title:________________________
BANK ONE, NA (formerly known as The
First National Bank of Chicago) (Main
Office Chicago), as a Lender
By:_________________________________
Name:_________________________
Title:________________________
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and a Lender
By:_________________________________
Name:_________________________
Title:________________________
21
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, AG, as a Lender
By:_________________________________
Name:_________________________
Title:________________________
By:_________________________________
Name:_________________________
Title:________________________
AMSOUTH BANK (successor in interest
by merger to First American National
Bank), as a Lender
By:_________________________________
Name:_________________________
Title:________________________
NATIONAL CITY BANK, as a Lender
By:_________________________________
Name:_________________________
Title:________________________
COMERICA BANK, as a Lender
By:_________________________________
Name:_________________________
Title:________________________
22
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as a Lender
By:_________________________________
Name:_________________________
Title:________________________
BANK HAPOALIM B.M., NEW YORK BRANCH,
as a Lender
By:_________________________________
Name:_________________________
Title:________________________
By:_________________________________
Name:_________________________
Title:________________________
23
