Exhibit 4.43
EXECUTION COPY
WAIVER AND CONSENT AGREEMENT
THIS WAIVER AND CONSENT AGREEMENT (this "Agreement") is made
and entered into as of the 29th day of January, 2002, by and among Xxxxxx
Aluminum & Chemical Corporation, a Delaware corporation (the "Company"),
Xxxxxx Aluminum Corporation, a Delaware corporation (the "Parent Guarantor"),
the various financial institutions that are or may from time to time become
parties to the Credit Agreement referred to below (collectively, the "Lenders"
and, individually, a "Lender"), and Bank of America, N. A. (successor to
BankAmerica Business Credit, Inc., a Delaware corporation), as agent (in such
capacity, together with its successors and assigns in such capacity, the
"Agent") for the Lenders. Capitalized terms used, but not defined, herein shall
have the meanings given to such terms in the Credit Agreement (defined below).
WHEREAS, the Company, the Parent Guarantor, the Lenders, and
the Agent are parties to the Credit Agreement, dated as of February 15, 1994, as
amended by the First Amendment to Credit Agreement, dated as of July 21, 1994,
the Second Amendment to Credit Agreement, dated as of March 10, 1995, the Third
Amendment to Credit Agreement and Acknowledgement, dated as of July 20, 1995,
the Fourth Amendment to Credit Agreement, dated as of October 17, 1995, the
Fifth Amendment to Credit Agreement, dated as of December 11, 1995, the Sixth
Amendment to Credit Agreement, dated as of October 1, 1996, the Seventh
Amendment to Credit Agreement, dated as of December 17, 1996, the Eighth
Amendment to Credit Agreement, dated as of February 24, 1997, the Ninth
Amendment to Credit Agreement and Acknowledgment, dated as of April 21, 1997,
the Tenth Amendment to Credit Agreement and Assignment, dated as of June 25,
1997, the Eleventh Amendment to Credit Agreement and Limited Waivers, dated as
of October 20, 1997, the Twelfth Amendment to Credit Agreement, dated as of
January 13, 1998, the Thirteenth Amendment to Credit Agreement, dated as of July
20, 1998, the Fourteenth Amendment to Credit Agreement, dated as of December 11,
1998, the Fifteenth Amendment to Credit Agreement, dated as of February 23,
1999, the Sixteenth Amendment to Credit Agreement, dated as of March 26, 1999,
the Seventeenth Amendment to Credit Agreement, dated as of September 24, 1999,
the Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000, the
Nineteenth Amendment to Credit Agreement and Limited Waiver, dated as of
December 27, 2000, the Twentieth Amendment to Credit Agreement, dated as of
January 26, 2001, the Twenty-First Amendment to Credit Agreement and Consent,
dated as of July 18, 2001, the Twenty-Second Amendment to Credit Agreement,
dated as of October 16, 2001, the Twenty-Third Amendment to Credit Agreement,
dated as of October 24, 2001, and the Twenty-Fourth Amendment to Credit
Agreement, dated as of November 15, 2001 (the "Credit Agreement"); and
WHEREAS, the Parent Guarantor and the Company acknowledge that
there currently exist or there may hereafter exist during the Waiver Period (as
hereinafter defined) the Defaults and/or Events of Default set forth on Schedule
A to this Agreement (collectively, the "Scheduled Defaults"); and
WHEREAS, during the Waiver Period, the Company may not be able
to satisfy certain of the conditions precedent to Credit Extensions contained in
the Credit Agreement; and
WHEREAS, the Lenders and the Agent have agreed, during the
Waiver Period, to waive the Scheduled Defaults and to waive certain of the
conditions precedent to Credit Extensions, on the terms and conditions set forth
in this Agreement; and
WHEREAS, pursuant to Section 9.1.13 of the Credit Agreement,
funds are held in Account No. 876636 (the "Cash Collateral Account") maintained
by the Company with Bank of America, N.A.; and
WHEREAS, the Lenders have consented and agreed that the
Company may withdraw all funds in the Cash Collateral Account; and
WHEREAS, the Parent Guarantor and/or the Company may establish
one or more Employee Trusts (as defined below);
NOW THEREFORE, in consideration of the premises, and in
reliance thereon, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. LIMITED WAIVER. Subject to the terms hereof and in
reliance on the representations and warranties of the Company here in contained,
the Lenders hereby waive the Scheduled Defaults during the period (the "Waiver
Period") commencing on the date hereof and ending on the earliest to occur of
(a) Xxxxxx 0, 0000, (x) the date on which any payment of interest or principal
on the Subordinated Debt, the Senior Debt, the New Senior Debt or the Additional
New Senior Debt is made or set apart, (c) the occurrence of any Event of Default
(other than the Scheduled Defaults), (d) the acceleration of the maturity of any
Indebtedness of the Parent Guarantor, the Company or any of their Subsidiaries
or for which any of them is contingently liable having an aggregate principal
amount in excess of $10,000,000, (e) the commencement of any litigation or
administrative proceeding against the Parent Guarantor, the Company or any of
their Subsidiaries by any holder or holders of any Indebtedness of the Parent
Guarantor, the Company or any of their Subsidiaries or for which any of them is
contingently liable seeking to enforce the payment of interest or principal
aggregating in excess of $20,000,000 on any such Indebtedness, and (f) the
failure of the Company to comply with any of the provisions of this Agreement.
Without limiting the generality of the provisions of Section 12.1 of the Credit
Agreement, the waiver set forth in this Section 1 shall be limited precisely as
written and relates solely to the noncompliance by Company with the provisions
of Sections 10.1.6, 10.1.10(a), 9.2.4, 8.15 and 9.1.1(b) of the Credit Agreement
in the manner and to the extent described in Schedule A to this Agreement, and
nothing in this Section 1 shall be deemed to (a) constitute a waiver of
compliance by Company (i) with respect to such Sections of the Credit Agreement
in any other instance or (ii) any other term, provision or condition of the
Credit Agreement or any other instrument or agreement referred to therein or (b)
prejudice any right or remedy that Agent or any Lender may now have or may have
in the future (except to the extent such right or remedy is based upon the
Scheduled Defaults which, upon giving effect to this Agreement, will be deemed
not to exist during the Waiver Period) under or in connection with the Credit
Agreement or any other instrument or agreement referred to therein.
SECTION 2. PERMITTED BORROWINGS DURING THE WAIVER PERIOD. The
Lenders and the Agent hereby waive the conditions precedent to Credit Extensions
set forth in Section 7.2 of the Credit Agreement during the Waiver Period to the
extent provided in Schedule B to this Agreement; provided that (a) all other
conditions precedent to any requested Credit Extension are satisfied, (b) the
Revolving Credit Outstandings at any time during the Waiver Period do not exceed
the lesser of (i) $100,000,000 and (ii) the Borrowing Base then in effect, (c)
the Revolving Commitment Availability is not less than $40,000,000 at any time,
(d) no Default (other than the Scheduled Defaults) shall have occurred and be
continuing, (e) no cash Credit Extensions shall be permitted unless the
unrestricted cash balances of the Parent Guarantor, the Company and their
Subsidiaries (other than VALCO and ALPART) at the time of such Credit Extension
shall be less than $25,000,000, and (f) as part of every Borrowing Request, the
Company represents that the requested funds will not be used to make any
principal or interest payments on the Senior Debt, the New Senior Debt, the
Additional New Senior Debt, or the Subordinated Debt.
SECTION 3. ACKNOWLEDGMENT AND AGREEMENT. The Company and the
Parent Guarantor acknowledge and agree that the Scheduled Defaults have or may
occur and that absent the waivers set forth herein such Scheduled Defaults would
(or, subject to any applicable notice requirements or grace or cure periods,
would) constitute Events of Default that would entitle the Lenders to declare
the Obligations immediately due and payable and to take action to collect the
Obligations. Subject only to the terms of this Agreement and any applicable
notice, grace or cure period, the Agent and the Lenders may exercise any right
or remedy available to them pursuant to the Loan Documents or by applicable law
or in equity, including, without limitation, as the result of an Event of
Default other than a Scheduled Default, and nothing herein shall operate to
restrict, inhibit or prohibit the Agent or the Lenders from exercising any such
right or remedy or from the prosecution or continued prosecution of any action
or proceeding in furtherance of the foregoing. The Company and the Parent
Guarantor acknowledge that neither the Agent nor any of the Lenders have made
any commitment as to how the Scheduled Defaults will be resolved upon the
termination of the Waiver Period. The Company and the Parent Guarantor
acknowledge and agree that at any time on or after the termination of the Waiver
Period any and all Scheduled Defaults will (if then existing) immediately
constitute Events of Default entitling the Lenders, to the extent permitted by
applicable law and in accordance with the Loan Documents, to exercise any and
all of their rights and remedies (including rights and remedies based on the
Scheduled Defaults), whether under the Credit Agreement, the Loan Documents, at
law or in equity, without further notice or demand.
SECTION 4. CONSENT.
A. The Lenders hereby consent and agree that, so long as no
Default exists other than the Scheduled Defaults, the Company may withdraw all
funds in the Cash Collateral Account.
B. Notwithstanding anything to the contrary contained herein,
in the Credit Agreement or in any other Loan Document, the establishment,
existence, funding and operation of one or more trusts to secure and fund (i)
certain indemnification obligations for certain directors, officers, employees
and agents of the Parent Guarantor, the Company or their Subsidiaries and other
similar Persons and (ii) certain retention obligations for certain directors,
officers and employees of the Parent Guarantor, the Company or their
Subsidiaries (the "Employee Trusts") shall not be deemed to violate any
provision of the Credit Agreement or of any other Loan Document, provided that
the amount transferred by the Parent Guarantor, the Company and their
Subsidiaries to the Employee Trusts, together with any amounts paid by the
Parent Guarantor, the Company, or their Subsidiaries for fees and expenses in
connection with the establishment and operation of the Employee Trusts, does not
exceed $10,000,000 in the aggregate.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Agreement shall
become effective as of the date hereof only when the following conditions shall
have been satisfied and notice thereof shall have been given by the Agent to the
Parent Guarantor, the Company and each Lender (the date of satisfaction of such
conditions and the giving of such notice being referred to herein as the
"Agreement Effective Date"):
A. The Agent shall have received for each Lender counterparts
hereof duly executed on behalf of the Parent Guarantor, the Company, the Agent
and each of the Lenders (or notice of the approval of this Agreement by the
Lenders satisfactory to the Agent shall have been received by the Agent).
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of the
Executive Committee of the Board of Directors of the Company and the Parent
Guarantor approving and authorizing the execution, delivery and performance of
this Agreement, certified by their respective corporate secretaries or assistant
secretaries as being in full force and effect without modification or amendment
as of the date of execution hereof by the Company or the Parent Guarantor, as
the case may be;
(2) A signature and incumbency certificate of the officers
of the Company and the Parent Guarantor executing this Agreement;
(3) For each Lender, an opinion, addressed to the Agent and
each Lender, from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, in form and substance
satisfactory to the Agent;
(4) Such other information, approvals, opinions, documents
or instruments as the Agent may reasonably request;
(5) An amount equal to the unpaid legal fees owed to
Agent's counsel; and
(6) For the pro rata benefit of the Lenders, a fee in the
amount of $1,000,000; provided, however, that if any Lender is a party to any
debtor in possession facility entered into by the Company within six months
after the date hereof, one half of the fee received by such Lender hereunder
shall be applied to reduce the fee payable to such Lender in respect of such
financing.
SECTION 6. COMPANY'S REPRESENTATIONS AND WARRANTIES. In order
to induce the Lenders and the Agent to enter into this Agreement, the Parent
Guarantor and the Company represent and warrant to each Lender and the Agent
that, as of the Agreement Effective Date, after giving effect to the
effectiveness of this Agreement, the following statements are true and correct
in all material respects:
A. Authorization of Agreements. The execution, delivery and
performance of this Agreement by the Company and the Parent Guarantor are within
such Obligor's corporate powers and have been duly authorized by all necessary
corporate action on the part of the Company and the Parent Guarantor, as the
case may be.
B. No Conflict. The execution, delivery and performance by the
Company and the Parent Guarantor of this Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Senior Indenture, the New Senior
Indenture, the Additional New Senior Indenture, or the Subordinated Indenture or
contravene any other contractual restriction where such a contravention has a
reasonable possibility of having a Materially Adverse Effect or contravene any
law or governmental regulation or court decree or order binding on or affecting
such Obligor or any of its Subsidiaries; or
(3) result in, or require the creation or imposition of,
any Lien on any of such Obligor's properties or any of the properties of any
Subsidiary of such Obligor, other than pursuant to the Loan Documents.
C. Binding Obligation. This Agreement has been duly executed
and delivered by the Company and the Parent Guarantor and this Agreement
constitutes the legal, valid and binding obligation of the Company and the
Parent Guarantor, enforceable against the Company and the Parent Guarantor in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally and by general principles of equity.
D. Governmental Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other Person is required for the due
execution, delivery or performance of this Agreement by the Company or the
Parent Guarantor.
E. Incorporation of Representations and Warranties from Credit
Agreement. Each of the statements set forth in Section 7.2.1 of the Credit
Agreement (except insofar as such statements relate to Sections 8.6(b), 8.7 and
8.15 of the Credit Agreement) is true and correct.
SECTION 7. ACKNOWLEDGEMENT AND CONSENT. The Company is a party
to the Company Collateral Documents, in each case as amended through the date
hereof, pursuant to which the Company has created Liens in favor of the Agent on
certain Collateral to secure the Obligations. The Parent Guarantor is a party to
the Parent Collateral Documents, in each case as amended through the date
hereof, pursuant to which the Parent Guarantor has created Liens in favor of the
Agent on certain Collateral and pledged certain Collateral to the Agent to
secure the Obligations of the Parent Guarantor. Certain Subsidiaries of the
Company are parties to the Subsidiary Guaranty and/or one or more of the
Subsidiary Collateral Documents, in each case as amended through the date
hereof, pursuant to which such Subsidiaries have (i) guarantied the Obligations
and/or (ii) created Liens in favor of the Agent on certain Collateral. The
Company, the Parent Guarantor and such Subsidiaries are collectively referred to
herein as the "Credit Support Parties", and the Company Collateral Documents,
the Parent Collateral Documents, the Subsidiary Guaranty and the Subsidiary
Collateral Documents are collectively referred to herein as the "Credit Support
Documents".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Agreement and
consents to the execution and delivery of this Agreement.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect. Each Credit Support Party hereby confirms
that each Credit Support Document to which it is a party or otherwise bound and
all Collateral encumbered thereby will continue to guaranty or secure, as the
case may be, the payment and performance of all obligations guaranteed or
secured thereby, as the case may be.
Each Credit Support Party (other than the Company and the
Parent Guarantor) acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Agreement, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the execution and delivery of this Agreement and (ii)
nothing in the Credit Agreement, this Agreement or any other Loan Document shall
be deemed to require the consent of such Credit Support Party to any future
amendments to, or waivers or consents under, the Credit Agreement.
SECTION 8. MISCELLANEOUS.
A. Effect on the Credit Agreement and the Other Loan
Documents. Except as specifically set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
B. Applicable Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO SUCH LAWS RELATING TO CONFLICTS OF LAWS.
C. Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
D. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts and by the different parties on separate
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
E. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provisions in any other
jurisdiction.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered as of the day and year first above written.
XXXXXX ALUMINUM CORPORATION XXXXXX ALUMINUM & CHEMICAL
CORPORATION
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
BANK OF AMERICA, N.A. (successor to BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), BankAmerica Business Credit, Inc.)
as Agent
By: /S/ Xxxxxxx X. Xxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxxx
Name Printed: Xxxxxxx X. Xxxxxxxx Name Printed: Xxxxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
THE CIT GROUP/BUSINESS
CREDIT, INC.
By: /S/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Its: VP - Regional Credit Manager
CONGRESS FINANCIAL CORPORATION
(WESTERN)
By: /S/ Xxxx X. Xxxxxxxxx
Name Printed: Xxxx X. Xxxxxxxxx
Its: Vice President
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, INC. XXXXXX ALUMINUM TECHNICAL
SERVICES, INC.
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER BAUXITE COMPANY XXXXXX EXPORT COMPANY
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION
By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer
SCHEDULE A
SCHEDULED DEFAULTS
1. Any Default or Event of Default described in Section 10.1.6 of the
Credit Agreement arising out of (a) any default in the payment when due of
interest or principal payable on or in respect of the Subordinated Debt
Instruments, the Senior Debt Instruments, the New Senior Debt Instruments,
and/or the Additional New Senior Debt Instruments and/or (b) any default with
respect to the Subordinated Debt, the Senior Debt, the New Senior Debt and/or
the Additional New Senior Debt if the effect of such default is to permit the
holder or holders of any such Indebtedness, or any trustee or agent for such
holders, to cause any such Indebtedness to become due or payable prior to its
expressed maturity.
2. Any Event of Default described in clause (a) of Section 10.1.10 of
the Credit Agreement.
3. Any failure to comply with Section 9.2.4 of the Credit Agreement.
4. Any breach of the representations and warranties set forth in
Section 8.15 of the Credit Agreement.
5. Any failure to comply with Section 9.1.1(b) of the Credit Agreement
arising out of the delivery by the Company of an audit report by Xxxxxx Xxxxxxxx
LLP with respect to the 2001 Fiscal Year containing an Impermissible
Qualification.
SCHEDULE B
1. The condition in Section 7.2.1(a) of the Credit Agreement in respect
the truth and correctness of certain representations and warranties insofar as
such condition relates to the representations and warranties in Sections 8.6(b),
8.7 and/or 8.15 of the Credit Agreement.
2. The condition in Section 7.2.1(c) of the Credit Agreement that no
Default shall have occurred and be continuing insofar as such condition would
not be satisfied by reason of the existence of any or all of the Scheduled
Defaults.
