AMENDMENT No. 1 TO LOAN AND SECURITY AGREEMENT
AMENDMENT
No. 1 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT No. 1 TO LOAN AND
SECURITY AGREEMENT (this “Amendment”), dated as
of February 22, 2007, is entered into among the Lenders party hereto, the
Borrowers party hereto, and Bank of America, N.A., in its capacity as Agent (the
“Agent”), under
that certain Loan and Security Agreement, dated as of September 19, 2005, among
the Agent, the Lenders party thereto from time to time, and the Borrowers (as
amended, restated, supplemented, or otherwise modified from time to time, the
“Loan
Agreement”). Capitalized terms used in this Amendment and not
otherwise specifically defined herein have the meanings assigned to them in the
Loan Agreement.
WHEREAS,
pursuant to the Loan Agreement and subject to the terms and conditions set forth
therein, the Lenders have agreed to make the Loans and other financial
accommodations to the Borrowers;
WHEREAS,
subsection 8.2.2 of the Loan Agreement provides, among other things, that the
Borrowers shall not, unless otherwise consented to by Majority Lenders in
writing in accordance with subsection 12.2.1 of the Loan Agreement, create,
incur, assume, or suffer to exist any Indebtedness, except as permitted by
subsection 8.2.2;
WHEREAS,
Borrower Representative has informed Agent that it believes that clause (x) of
subsection 8.2.2 contains a drafting error and that the Loan Agreement should be
amended to accurately reflect the agreement of the parties to the Loan
Agreement; and
WHEREAS,
the Lenders are willing to amend the Loan Agreement on the terms and subject to
the conditions set forth herein;
NOW,
THEREFORE, on the terms and subject to the conditions set forth herein, the
Lenders, the Borrowers, and the Agent hereby agree as follows:
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1.
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Clause
(x) of subsection 8.2.2 of the Loan Agreement is hereby deleted and
replaced in its entirety as
follows:
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“Indebtedness
to the extent not included in clauses (i) through (ix) above, which is permitted
“Debt” under Section 4.06 of the Indenture as in effect on the date of this
Agreement; and”
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2.
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This
Amendment shall be effective as of the date hereof (the “Effective
Date”), but only upon the satisfaction of the following conditions
precedent:
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(a)
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Agent
shall have received a duly executed copy of this Amendment from each of
the Borrowers and the Majority
Lenders.
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(b)
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The
representations and warranties of the Borrowers and Guarantors set forth
in each of the Loan Documents shall be true and correct in all material
respects on and as of the Effective Date with the same effect as though
made on and as of such date (except to the extent such representations and
warranties by their terms expressly relate to an earlier date, in which
case such representations and warranties shall have been true and correct,
in all material respects, as of such earlier
date).
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(c)
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No
Default or Event of Default shall have occurred and be continuing as of
the Effective Date.
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(d)
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The
Borrowers shall have paid the costs, fees and expenses referred to in
Section 3
hereof.
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3.
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The
Borrowers jointly and severally agree to reimburse the Agent upon demand
for all reasonable and documented costs, fees and expenses (including the
reasonable fees and expenses of counsel to the Agent) incurred in
connection with the preparation, execution and delivery of this
Amendment.
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4.
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The
amendments set forth herein are effective solely for the purposes set
forth herein and shall be limited precisely as written, and shall not be
deemed to (i) be a consent to, or acknowledgment of, any amendment, waiver
or modification of any other term or condition of the Loan Agreement or of
any other instrument or agreement referred to herein or therein or (ii)
prejudice any right or remedy which the Agent or any other party may now
have or may have in the future under or in connection with the Loan
Agreement as amended hereby or any other instrument or agreement referred
to therein. This Amendment is a Loan Document executed pursuant
to the Loan Agreement and shall be construed in connection with and as
part of the Loan Agreement, and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Agreement, each
other Loan Document and each other instrument or agreement referred to
therein, except as herein amended, are hereby ratified and confirmed and
shall remain in full force and effect. Neither this Amendment
nor the replacement of the terms of the Loan Agreement by the terms of
this Amendment shall extinguish the obligations for the payment of money
outstanding under the Loan Agreement or discharge or release the Lien or
priority of any security agreement, pledge agreement, or other security
therefor. Nothing herein contained shall be construed as a
substitution or novation of the Obligations outstanding under the Loan
Agreement or instruments securing the same, which shall remain in full
force and effect, except as modified
hereby.
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5.
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To
induce Agent and each Lender to enter into this Amendment, Borrowers
represent and warrant to Agent and each Lender, on a joint and several
basis, that: (a) the execution, delivery and performance by each Borrower
of this Amendment have been duly authorized by all necessary corporate or
other relevant action and do not and will not: (i) contravene,
violate or result in a breach of or default under (A) any Borrower’s
charter, articles or certificate of incorporation, certificate of
formation, bylaws, limited liability company or partnership agreement, or
other organizational documents (as the case may be), (B) any provision of
any law, rule, regulation, order of any Governmental Authority, writ,
judgment, injunction, decree, determination or award in effect having
applicability to such Borrower, the violation of which would reasonably be
expected to have a Material Adverse Effect, or (C) any indenture or loan
or credit agreement or any other agreement, lease or instrument binding on
a Loan Party or its Properties, the breach of or default under which would
reasonably be expected to have a Material Adverse Effect; or (ii) result
in, or require, the creation or imposition of any Lien (other than
Permitted Liens) upon or with respect to any of the Collateral now owned
or hereafter acquired by such Loan Party; and (b) this Amendment and the
Loan Agreement as amended hereby are legal, valid and binding obligations
of each Borrower, enforceable against it in accordance with its respective
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, or
fraudulent transfer laws, or other similar laws affecting creditors’
rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
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6.
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This
Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same
instrument.
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7.
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Wherever
possible, each provision of this Amendment shall be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Amendment shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this
Amendment.
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8.
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[REMAINDER
OF PAGE INTENTIONALLY BLANK]
IN
WITNESS WHEREOF, this Amendment has been duly executed on the day and year
specified at the beginning hereof.
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BORROWERS
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NSA
GNERAL PARTNERSHIP
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By:
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CENTURY
KENTUCKY INC.
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Its:
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General
Partner
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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By:
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SKYLINER
LLC
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Its:
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General
Partner
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By:
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/s/ Xxxxxxxx Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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CENTURY
ALUMINUM COMPANY
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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BERKELEY
ALUMINUM INC.
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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CENTURY
ALUMINUM OF WEST VIRGINIA, INC.
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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CENTURY
KENTUCKY, INC.
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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CENTURY
ALUMINUM OF KENTUCKY GENERAL PARTNERSHIP
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By:
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METALSCO
LLC
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Its:
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General
Partner
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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By:
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SKYLINER
LLC
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Its:
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General
Partner
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By:
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/s/ Xxxxxxxx
Xxxx
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Name:
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Xxxxxxxx
Xxxx
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Title:
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VP
& Treasurer
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BANK
OF AMERICA N.A.
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as Agent and
as a Lender
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By:
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/s/
Xxxxxx X.
Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Senior
Vice President
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CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
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By:
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/s/ Xxxxx
Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Director
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Associate
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CITIBANK,
N.A.
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as Agent and
as a Lender
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By:
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/s/ Xxxxxxx X.
Xxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Vice
President
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JPMORGAN
CHASE BANK, N.A.
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By:
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/s/ Xxxx
Xxxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxxx
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Title:
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Vice
President
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WACHOVIA
CAPITAL FINANCE CORPORATION (WESTERN)
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as Agent and
as a Lender
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By:
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/s/ X.X.
Xxxxxxxx
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Name:
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X.X.
Xxxxxxxx
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Title:
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Managing
Director
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By:
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/s/ X.X.
Xxxxxxxx
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Name:
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X.X.
Xxxxxxxx
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Title:
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Managing
Director
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