AMENDMENT NO. 4 TO MASTER EQUIPMENT LEASE
Exhibit 10.61
AMENDMENT NO. 4 TO MASTER EQUIPMENT LEASE
AMENDMENT NO. 4 TO MASTER EQUIPMENT LEASE, dated as of March , 2010 (this “Amendment”), among Wilmington Trust Company, a Delaware banking corporation, not in its individual capacity, but solely as Owner Trustee (“Lessor”); The Employees’ Retirement System of Alabama and The Teachers’ Retirement System of Alabama (collectively, the “Owner Participant”); and Wise Alloys LLC, a Delaware limited liability company (“Lessee”).
RECITALS
A. The Lessee, Lessor and Owner Participant are parties to the Master Equipment Lease dated November 13, 2006, as amended from time to time (the “Lease”).
B. The parties desire to amend the Lease as provided herein.
For valuable consideration (receipt of which is hereby acknowledged), the parties hereto agree to amend the Lease as follows:
Section 1. Definitions. Each capitalized term used herein and not otherwise defined has the meaning assigned thereto in the Lease.
Section 2. Term Extension Fee.
A. Subject to the terms and conditions hereof, as consideration for the Owner Participant’s agreement to enter into this Amendment, Lessee will pay the Owner Participant a fee equal to $41,881.00 (the “Term Extension Fee”).
Section 3. Amendment of Equipment Schedules. Equipment Schedule No. 1, dated as of November 13, 2006, as previously amended, and Equipment Schedule No. 2, dated as of January 3, 2007, as previously amended, will be amended as provided in Exhibit A and Exhibit B hereto, respectively.
Section 4. Closing Conditions.
A. The Owner Participant’s and Lessor’s obligations to amend the Lease and the Equipment Schedules shall be conditioned upon and subject to the receipt by Owner Participant and Lessor on or prior to the date hereof of the following, in form and substance reasonably satisfactory to Owner Participant and Lessor:
(i) a certificate of a Responsible Officer of Lessee dated as of the date hereof, certifying on behalf of Lessee that to the knowledge of such officer, after due inquiry, (a) no Default or Potential Default has occurred and is continuing under the Lease, (b) no event of default or event which with the giving of notice or the passage of time or both would become an event of default has occurred and is continuing under any material agreement, contract, lease, license, instrument or other arrangement to which the Lessee is a party, and (c) Lessor continues
Amendment No. 4 to Master Equipment Lease
to have title to the equipment listed in Equipment Schedule No. 1 and Equipment Schedule No. 2 free and clear of any Liens other than Permitted Liens or, should Lessor’s interest in the equipment be determined to create a security interest in accordance with Section 27(e) of the Lease, continues to have a perfected first priority security interest in the Equipment listed in Equipment Schedule No. 1 and Equipment Schedule No. 2;
(ii) a certificate of a Responsible Officer of Guarantor, dated as of the date hereof, certifying on behalf of Guarantor that the Guaranty remains in full force and effect, that the Guarantor consents to this Amendment and that the Obligations, as defined in the Guaranty, cover all of the obligations of the Lessee under the Lease as amended by this Amendment; and
(iii) all such other documents, instruments and other actions as Owner Participant or Lessor may reasonably request in connection with the consummation of the transactions contemplated herein and consistent with the terms hereof shall be complete and reasonably satisfactory to each of Owner Participant and Lessor.
B. Lessee’s obligations to amend the Lease and the Equipment Schedules shall be conditioned upon and subject to the receipt by Lessee on or prior to the date hereof of the following in form and substance reasonably satisfactory to Lessee:
(i) execution and delivery of this Amendment by Owner Participant and Lessor and execution and delivery of the amendments to the Equipment Schedules described in Section 3 by Lessor; and
(ii) all such other documents, instruments and other actions as Lessee may reasonably request in connection with the consummation of the transactions contemplated herein and consistent with the terms hereof shall be complete and satisfactory to Lessee.
Section 5. Effective Date. The amendments and additions made by this Amendment shall be effective from and after the date first written above.
Section 6. Attorneys’ Fees. Lessee hereby covenants and agrees to pay on demand any and all attorneys’ fees, expenses and costs of Owner Participant in connection with the Owner Participant’s due diligence with respect to, negotiation of and entry into this Amendment and any such fees incurred by Owner Participant in connection with the enforcement of Lessee’s obligations under this Amendment or the Lease.
Section 7. General.
A. Ratification of Lease. Except as expressly modified and superseded by this Amendment, the Lease is ratified and confirmed in all respects and shall continue in full force and effect.
B. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or PDF copy shall be as effective as delivery of a manually executed counterpart of this Amendment.
Amendment No. 4 to Master Equipment Lease
2
C. Successors and Assigns; Third Parties. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. No third party beneficiaries are intended in connection with this Amendment.
D. Severability. If any term or provision of this Amendment shall be deemed prohibited by or invalid under any Applicable Law, such provision shall be invalidated without affecting the remaining provisions of this Amendment or the Lease, respectively.
E. Entire Agreement. This Amendment, together with the Lease, the Equipment Schedules and the other Operative Documents, contains the entire and exclusive agreement of the parties hereto with reference to the matters discussed herein and therein. This Amendment supersedes all prior drafts and communications with respect thereto.
F. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Alabama without regard to the conflict of laws principles thereto.
[Signatures on Following Page]
Amendment No. 4 to Master Equipment Lease
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to Master Equipment Lease to be duly executed as of the day and year first above written.
| WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| THE EMPLOYEES’ RETIREMENT SYSTEM OF ALABAMA | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| THE TEACHERS’ RETIREMENT SYSTEM OF ALABAMA | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| WISE ALLOYS LLC | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
Amendment No. 4 to Master Equipment Lease
4
Exhibit A
Amendment No. 4 to Equipment Schedule No. 1 amending Equipment Schedule No. 1 dated as of November 13, 2006, as previously amended (“Equipment Schedule No. 1”) between Wise Alloys LLC as Lessee (“Lessee”) and Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee (“Lessor”).
Equipment Schedule No. 1 is hereby amended as follows:
A. Section 2 is amended by deleting “May 5, 2010” in the last line thereof and substituting “May 5, 2011” as the last day of the Basic Term.
B. Section 3 is amended by deleting Annex B-1 attached to Equipment Schedule No. 1 and substituting in lieu thereof Annex B-1 attached hereto.
C. Section 7 is amended by deleting Annex B-2 attached to Equipment Schedule No. 1 and substituting in lieu thereof Annex B-2 attached hereto.
DATE OF EXECUTION: March , 2010
| WISE ALLOYS LLC | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
Exhibit A to
Amendment No. 4 to Master Equipment Lease
Annex B-1 to
Amendment No. 4 to
Equipment Schedule No. 1
SCHEDULE OF BASIC RENT
| Rent Payment Date |
% of Lessor’s Cost |
||
| 3/25/2010 |
0.00 | % | |
| 4/25/2010 |
1.77 | % | |
| 5/25/2010 |
1.77 | % | |
| 6/25/2010 |
1.77 | % | |
| 7/25/2010 |
1.77 | % | |
| 8/25/2010 |
1.77 | % | |
| 9/25/2010 |
1.77 | % | |
| 10/25/2010 |
1.77 | % | |
| 11/25/2010 |
1.77 | % | |
| 12/25/2010 |
1.77 | % | |
| 1/25/2011 |
1.77 | % | |
| 2/25/2011 |
1.77 | % | |
| 3/25/2011 |
1.77 | % | |
| 4/25/2011 |
1.77 | % | |
| 5/5/2011 |
88.21 | % | |
| 111.22 | % | ||
Annex B-1
Annex B-2 to
Amendment No. 4 to
Equipment Schedule No. 1
SCHEDULE OF STIPULATED LOSS VALUES
| Rent Payment Date |
Stipulated Loss Value | ||
| 3/25/2010 |
100.00 | % | |
| 4/25/2010 |
99.12 | % | |
| 5/25/2010 |
98.24 | % | |
| 6/25/2010 |
97.34 | % | |
| 7/25/2010 |
96.44 | % | |
| 8/25/2010 |
95.53 | % | |
| 9/25/2010 |
94.61 | % | |
| 10/25/2010 |
93.68 | % | |
| 11/25/2010 |
92.75 | % | |
| 12/25/2010 |
91.81 | % | |
| 1/25/2011 |
90.85 | % | |
| 2/25/2011 |
89.89 | % | |
| 3/25/2011 |
88.93 | % | |
| 4/25/2011 |
87.95 | % | |
| 5/5/2011 |
0.00 | % | |
Annex B-2
Exhibit B
Amendment No. 4 to Equipment Schedule No. 2 amending Equipment Schedule No. 2 dated as of January 3, 2007, as previously amended (“Equipment Schedule No. 2”) between Wise Alloys LLC as Lessee (“Lessee”) and Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee (“Lessor”).
Equipment Schedule No. 2 is hereby amended as follows:
A. Section 2 is amended by deleting “May 5, 2010” in the last line thereof and substituting “May 5, 2011” as the last day of the Basic Term.
B. Section 3 is amended by deleting Annex B-1 attached to Equipment Schedule No. 2 and substituting in lieu thereof Annex B-1 attached hereto.
C. Section 7 is amended by deleting Annex B-2 attached to Equipment Schedule No. 2 and substituting in lieu thereof Annex B-2 attached hereto.
DATE OF EXECUTION: March , 2010
| WISE ALLOYS LLC | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
Exhibit B to
Amendment No. 4 to Master Equipment Lease
Annex B-1 to
Amendment No. 4 to
Equipment Schedule No. 2
SCHEDULE OF BASIC RENT
| Rent Payment Date |
% of Lessor’s Cost |
||
| 3/25/2010 |
0.00 | % | |
| 4/25/2010 |
1.77 | % | |
| 5/25/2010 |
1.77 | % | |
| 6/25/2010 |
1.77 | % | |
| 7/25/2010 |
1.77 | % | |
| 8/25/2010 |
1.77 | % | |
| 9/25/2010 |
1.77 | % | |
| 10/25/2010 |
1.77 | % | |
| 11/25/2010 |
1.77 | % | |
| 12/25/2010 |
1.77 | % | |
| 1/25/2011 |
1.77 | % | |
| 2/25/2011 |
1.77 | % | |
| 3/25/2011 |
1.77 | % | |
| 4/25/2011 |
1.77 | % | |
| 5/5/2011 |
88.21 | % | |
| 111.22 | % | ||
Annex B-1
Annex B-2 to
Amendment No. 4 to
Equipment Schedule No. 2
SCHEDULE OF STIPULATED LOSS VALUES
| Rent Payment Date |
Stipulated Loss Value | ||
| 3/25/2010 |
100.00 | % | |
| 4/25/2010 |
99.12 | % | |
| 5/25/2010 |
98.24 | % | |
| 6/25/2010 |
97.34 | % | |
| 7/25/2010 |
96.44 | % | |
| 8/25/2010 |
95.53 | % | |
| 9/25/2010 |
94.61 | % | |
| 10/25/2010 |
93.68 | % | |
| 11/25/2010 |
92.75 | % | |
| 12/25/2010 |
91.81 | % | |
| 1/25/2011 |
90.85 | % | |
| 2/25/2011 |
89.89 | % | |
| 3/25/2011 |
88.93 | % | |
| 4/25/2011 |
87.95 | % | |
| 5/5/2011 |
0.00 | % | |
Annex B-2