Exhibit 4.2
CONSENT AND FIFTH AMENDMENT TO
POST-PETITION CREDIT AGREEMENT
AND CONSENT OF GUARANTORS
This CONSENT AND FIFTH AMENDMENT TO POST-PETITION CREDIT
AGREEMENT AND CONSENT OF GUARANTORS (this "Amendment") is dated as of June 6,
2003 and entered into by and among XXXXXX ALUMINUM CORPORATION, a Delaware
corporation, as debtor and debtor-in-possession (the "Parent Guarantor"), XXXXXX
ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation, as debtor and
debtor-in-possession (the "Company"), the banks and other financial institutions
signatory hereto that are parties as Lenders to the Credit Agreement referred to
below (the "Lenders"), BANK OF AMERICA, N.A., as administrative agent and
collateral agent (in such capacity, the "Agent") for the Lenders, GENERAL
ELECTRIC CAPITAL CORPORATION ("GE Capital") as Documentation Agent, THE CIT
GROUP/BUSINESS CREDIT, INC. ("CIT"), as Co-Syndication Agent, and XXXXX FARGO
FOOTHILL, INC. (FKA FOOTHILL CAPITAL CORPORATION) ("Foothill"), as
Co-Syndication Agent (GE Capital, CIT and Foothill, collectively, the
"Co-Agents").
RECITALS
WHEREAS, the Parent Guarantor, the Company, the Lenders, and
the Agent have entered into that certain Post-Petition Credit Agreement dated as
of February 12, 2002 (as amended and modified to date, the "Credit Agreement";
capitalized terms used in this Amendment without definition shall have the
meanings given such terms in the Credit Agreement);
WHEREAS, on October 2, 2002, the Debtors filed their Motion
for Order (A) According Superpriority Administrative Status to Certain Potential
Claims in Respect of Their Australian Joint Venture, (B) Authorizing the
Assumption of Certain Related Joint Venture Agreements and (C) Authorizing Entry
into Related Agreement (the "QAL Motion");
WHEREAS, on October 28, 2002, the Agent, on behalf of itself
and the Lenders, filed a Limited Objection to Motion for Order (A) According
Superpriority Administrative Status to Certain Potential Claims in Respect of
Their Australian Joint Venture, (B) Authorizing the Assumption of Certain
Related Joint Venture Agreements and (C) Authorizing Entry into Related
Agreement (the "QAL Objection");
WHEREAS, as a result of the QAL Objection, on or about
November 20, 2002, the Agent, on behalf of itself and the Lenders, entered into
a side-letter agreement with the Debtors which provided, among other things,
that the Debtors would not request a hearing on the QAL Motion or otherwise
proceed with the QAL Motion without the prior written consent of the Agent;
WHEREAS, the Agent and the Lenders have been working with the
Debtors and other parties-in-interest to the QAL Motion (most notably, the
Debtors' joint-venturers in QAL) to reach an agreement on an agreed form of
order to present to the Court;
WHEREAS, the Agent and the Lenders have now agreed to a form
of order (as attached hereto as Exhibit A, the "QAL Order") that resolves the
issues addressed in the QAL Objection;
WHEREAS, as a condition to the Agent providing written consent
to the Debtors to present the QAL Order to the Court, the Agent and the Lenders
are requiring that certain amendments be made to the Credit Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the Parent Guarantor, the Company, the Lenders, and
the Agent agree as follows:
1. CONSENT TO ENTRY OF QAL ORDER. Notwithstanding any
provision of the Credit Agreement or any other Loan Document to the contrary,
the Agent and the Lenders hereby consent to the entry of the QAL Order;
provided, however, that, this consent shall be limited precisely as written and
shall not be deemed or otherwise construed to constitute a waiver of any Default
or Event of Default, amend or modify any provision of any Loan Document (except
as expressly set forth herein) or constitute a course of dealing or any other
basis for altering the Obligations of any Obligor.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions
and upon the terms set forth in this Amendment, the Credit Agreement is hereby
amended as follows:
2.1 AMENDMENT TO SECTION 1.1 (DEFINITIONS). The definition of
"QAL Agreements" is added in proper alphabetical order:
"QAL Agreements" means all agreements (as the same have been,
or may be, amended or modified from time-to-time) to which any of the Company,
any Guarantor or any of the Subsidiaries of the Parent Guarantor is a party that
relate to QAL, including, without limitation, the Participants Agreement dated
as of July 31, 1964, the Initial Tolling Contract dated as of July 31, 1964, the
First Expansion Tolling Contract dated as of May 23, 1967, the Second Expansion
Tolling Contract dated as of July 1, 1969, the Third Expansion Tolling Contract
dated as of February 26, 1970, the Fourth Expansion Tolling Contract dated as of
November 5, 1981, the Trihydrate Bauxite Supply Agreement dated as of May 17,
1990, the Bauxite Supply Agreement dated as of November 17, 1993, the Financing
Agreement dated as of March 30, 2001 and the Addendum to Financing Agreement to
be entered into after entry by the Bankruptcy Court of that certain order
captioned "Order (a) According Superpriority Administrative Status to Certain
Potential Claims in Respect of the Debtors' Australian Joint Venture, (b)
Authorizing the Assumption of Certain Related Joint Venture Agreements and (c)
Authorizing Entry into Related Agreement".
2.2 AMENDMENT TO SECTION 9.1.1 (FINANCIAL INFORMATION,
REPORTS, NOTICES, ETC.). A new subsection (n) shall be added to Section 9.1.1 of
the Credit Agreement as follows:
(n) within two (2) Business Days after the failure of the
Company, any of the Guarantors or any of the Subsidiaries of the Parent
Guarantor to make any payment required of them under any of the QAL Agreements
as and when due (excluding any otherwise applicable grace period), notice of
such non-payment and a detailed description of the reason for such non-payment.
2.3 AMENDMENT TO ARTICLE X (EVENTS OF DEFAULT). A NEW SECTION
10.1.12 SHALL BE ADDED IMMEDIATELY AFTER SECTION 10.1.11 (ACTIONS AGAINST
UNSECURED GUARANTORS) AS FOLLOWS:
SECTION 10.1.12. NON-PAYMENT OF QAL OBLIGATIONS. Any payment
required to be made by the Company, any of the Guarantors or any of the
Subsidiaries of the Parent Guarantor under any of the QAL Agreements is not made
on or before the thirtieth (30th) day after the date any such payment is due
(excluding any otherwise applicable grace period), whether by acceleration or
otherwise.
3. REPRESENTATIONS AND WARRANTIES OF PARENT GUARANTOR AND THE
COMPANY. Each of the Parent Guarantor and the Company represents and warrants to
each Lender and the Agent that the following statements are true, correct and
complete:
3.1 POWER AND AUTHORITY. Each of the Parent Guarantor, the
Company and each other Obligor has all corporate or other organizational power
and authority to enter into this Amendment and, as applicable, the Consent of
Guarantors attached hereto (the "Consent"), and to carry out the transactions
contemplated by, and to perform its obligations under or in respect of, the
Credit Agreement, as amended hereby.
3.2 DUE AUTHORIZATION, NON-CONTRAVENTION. The execution,
delivery and performance by the applicable Obligor of this Amendment and the
Consent and the performance of the obligations of each Obligor under or in
respect of the Credit Agreement as amended hereby have been duly authorized by
all necessary corporate or other organizational action, and do not (a)
contravene such Obligor's Organic Documents, (b) contravene any contractual
restriction entered into after the Petition Date where such a contravention has
a reasonable possibility of having a Materially Adverse Effect, or contravene
any law or governmental regulation or court order binding on or affecting such
Obligor, or (c) result in, or require the creation or imposition of, any Lien on
any of such Obligor's properties.
3.3 EXECUTION, DELIVERY AND ENFORCEABILITY. This Amendment and
the Consent have been duly executed and delivered by each Obligor which is a
party thereto and constitute the legal, valid and binding obligations of such
Obligor, enforceable in accordance with their terms.
3.4 NO DEFAULT OR EVENT OF DEFAULT. After giving effect to
this Amendment, no event has occurred and is continuing or will result from the
execution and delivery of this Amendment or the Consent that would constitute a
Default or an Event of Default.
3.5 REPRESENTATIONS AND WARRANTIES, ETC. All of the conditions
set forth in Section 7.4 of the Credit Agreement, giving effect to this
Amendment, have been met on and as of the date hereof and as of the effective
date of this Amendment.
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall be effective only if and when (a) this Amendment has been signed
by, and when counterparts hereof shall have been delivered to the Agent (by hand
delivery, mail or telecopy) by, the Parent Guarantor, the Company and the
Required Lenders, and counterparts of the Consent have been delivered to the
Agent by the Guarantors; (b) this Amendment shall have been approved by the
Bankruptcy Court in the Chapter 11 Cases, pursuant to an order in form and
substance satisfactory to the Agent and its counsel and on notice satisfactory
to them, and the Agent shall have received a copy of that order entered by the
Bankruptcy Court; and (c) the Company has paid to the Agent, for the ratable
benefit of the Lenders an amendment fee equal to $600,000.00.
5. EFFECT OF AMENDMENT; RATIFICATION. This Amendment is a Loan
Document. From and after the date on which this Amendment becomes effective, all
references in the Loan Documents to the Credit Agreement shall mean the Credit
Agreement, as amended hereby. Except as expressly amended hereby, the Credit
Agreement and the other Loan Documents, including the Liens granted thereunder,
shall remain in full force and effect, and all terms and provisions thereof are
hereby ratified and confirmed. Each of the Parent Guarantor and the Company
confirms that as amended hereby, each of the Loan Documents is in full force and
effect.
6. APPLICABLE LAW. THE VALIDITY, INTERPRETATIONS AND
ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE,
SHALL BE GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK;
PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
7. COMPLETE AGREEMENT. This Amendment sets forth the complete
agreement of the parties in respect of any amendment to any of the provisions of
any Loan Document. The execution, delivery and effectiveness of this Amendment
do not constitute a waiver of any Default or Event of Default, amend or modify
any provision of any Loan Document except as expressly set forth herein or
constitute a course of dealing or any other basis for altering the Obligations
of any Obligor.
8. CAPTIONS; COUNTERPARTS. The catchlines and captions herein
are intended solely for convenience of reference and shall not be used to
interpret or construe the provisions hereof. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts (including by telecopy), all of which taken together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed
this Consent and Fifth Amendment to Post-Petition Credit Agreement and Consent
of Guarantors as of the date set forth above.
"PARENT GUARANTOR" XXXXXX ALUMINUM CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
"THE COMPANY" XXXXXX ALUMINUM & CHEMICAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
BANK OF AMERICA, N.A.,
as the Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Duly Authorized Signatory
XXXXX FARGO FOOTHILL, INC. (FKA FOOTHILL
CAPITAL CORPORATION), as a Lender
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Asst. Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC., as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Director
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Sha Xxxxxx
Name: Xxxxxx Sha Xxxxxx
Title: Vice President
GMAC COMMERCIAL FINANCE LLC,
AS SUCCESSOR BY MERGER TO GMAC BUSINESS
CREDIT, LLC
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
THE PROVIDENT BANK,
as a Lender
By:
Name:
Title:
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of the Company under
the Credit Agreement and each other Loan Document and hereby (a) consents to the
foregoing Amendment, (b) acknowledges that notwithstanding the execution and
delivery of the foregoing Amendment, the obligations of each of the undersigned
Guarantors are not impaired or affected and the Parent Guaranty and the
Subsidiary Guaranty continue in full force and effect, and (c) ratifies the
Parent Guaranty or the Subsidiary Guaranty, as applicable, and each of the Loan
Documents to which it is a party and further ratifies the Security Interests
granted by it to the Agent for its benefit and the benefit of the Secured
Parties.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this CONSENT OF GUARANTORS as of the date first set forth above.
AKRON HOLDING CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
ALPART JAMAICA INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINA AUSTRALIA CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM & CHEMICAL INVESTMENT, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINIUM INTERNATIONAL, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM TECHNICAL SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX FINANCE CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
KAISER JAMAICA CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX SIERRA MICROMILLS, LLC
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX TEXAS SIERRA MICROMILLS, LLC
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX TEXAS MICROMILL HOLDINGS, LLC
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
ALWIS LEASING LLC
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
KAISER BAUXITE COMPANY
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX CENTER, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX CENTER PROPERTIES
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
KAE TRADING, INC.
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX EXPORT COMPANY
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
