Exhibit 4.45
FIRST AMENDMENT TO
POST-PETITION CREDIT AGREEMENT AND POST-PETITION PLEDGE AND
SECURITY AGREEMENT
AND CONSENT OF GUARANTORS
This FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND
POST-PETITION PLEDGE AND SECURITY AGREEMENT AND CONSENT OF GUARANTORS (this
"Amendment") is dated as of March 21, 2002 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 "Borrower"), 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 FOOTHILL CAPITAL CORPORATION ("Foothill"), as
Co-Syndication Agent (GE Capital, CIT and Foothill, collectively, the
"Co-Agents").
RECITALS
WHEREAS, the Parent Guarantor, the Borrower, the Lenders, and
the Agent have entered into that certain Post-Petition Credit Agreement dated as
of February 12, 2002 (the "Credit Agreement"; capitalized terms used in this
Amendment without definition shall have the meanings given such terms in the
Credit Agreement); and
WHEREAS, the Agent has appointed the Co-Agents to serve in the
capacities set forth above; and
WHEREAS, the parties hereto wish to amend the Credit
Agreement, on the terms and conditions set forth in this Amendment;
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the Parent Guarantor, the Borrower, the Lenders,
and the Agent agree as follows:
1. 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:
1.1 AMENDMENTS TO SECTION 1.1 (DEFINITIONS). (a) The
following definition is added to Section 1.1 of the Credit Agreement in proper
alphabetical order:
"Stores Inventory" means all goods (purchased, manufactured,
or transferred in) in the nature of supply items which are not directly used in
the manufacturing (production) or shipping (distribution) process and which are
classified by the Debtors as "stores" consistent with past practice and the
Debtors' Controller's Policy Manual.
(b) The definition of "Borrowing Base" is amended to add the
following before the final semicolon of clause (c) of such definition:
"; provided further that, so long as the Company has by March
31, 2002 (i) approved the engagement by the Agent of an appraiser to perform
such appraisals and (ii) provided to the Agent such information regarding
Hazardous Materials and other environmental matters as the Agent requires in
order to initially establish an Environmental Compliance Reserve with respect to
the OLV In-Place Value (as contemplated under the definition thereof) of
Eligible Fixed Assets, the PPE Subcomponent shall not be reduced to zero (as a
result of the failure to deliver and approve such appraisals and environmental
reports) until July 1, 2002".
(c) The definition of "Collateral" is amended to add the
following at the end of such definition: "The proceeds of any disposition of any
equity interests in any Unsecured Guarantor, KAAC, QAL, KJBC, or the Mining JV,
except to the extent noncash proceeds constitute Excluded Assets, shall
constitute Collateral, even though the equity interests themselves are not
Collateral."
(d) The definition of "Eligible Account" is amended to add
"and each Lender" in the first sentence thereof after the words "after
consultation with the Company".
(e) The definition of "Eligible Inventory" is amended to
delete clause (d) and to replace it with the following: "(d) is not Stores
Inventory, Tolling Inventory, or Inventory delivered to the Company, KAII or
Kaiser Bellwood on consignment;"
1.2 AMENDMENT TO SECTION 2.1.2(A). Section 2.1.2(a) of
the Credit Agreement is amended to delete the first sentence and to replace it
with the following:
"From time to time on any Business Day occurring during the
period commencing on the Initial Borrowing Date and continuing to (but not
including) the Revolving Commitment Termination Date, (i) so long as no Default
or Event of Default has occurred and is continuing, Agent will make a portion of
the Revolving Credit Commitment available to the Company by making Loans to the
Company in an aggregate amount not to exceed $25,000,000 outstanding at any time
and (ii) if a Default or Event of Default has occurred and is continuing, the
Agent may, subject to Section 7.4, make a portion of the Revolving Credit
Commitment available to the Company by making Loans to the Company in an
aggregate amount not to exceed $15,000,000 outstanding at any time (Loans made
under this Section 2.1.2(a)(i) and (ii) "Swingline Loans"), in each case
notwithstanding the fact that such Swingline Loans may exceed the Agent's
Revolving Credit Commitment; provided, however, that the Agent shall not make
any Swingline Loan in an amount that would exceed the Revolving Commitment
Availability. The Commitment of the Agent to make Swingline Loans from time to
time under clause (i) above is herein referred to as its "Swingline
Commitment"."
1.3 AMENDMENT TO SECTION 2.1.3. Section 2.1.3 of the
Credit Agreement is amended to add after the phrase "Agent shall not be required
to make" the parenthetical "(and may not make)".
1.4 AMENDMENT TO SECTION 2.5(A). Section 2.5(a) of the
Credit Agreement is amended to add the following proviso at the end of such
Section:
"provided that the Agent and the Lenders shall seek payment of
the Obligations from proceeds of any preferences, fraudulent
conveyances, and other avoidance powers, claims and recoveries arising
under Section 544, 545, 546, 547, 548, 549, 550 or 553 of the
Bankruptcy Code only after all Collateral proceeds and other funds of
the Obligors available for the payment of the Obligations have been
exhausted;"
1.5 AMENDMENT TO SECTION 2.5(C). Section 2.5(c) of the
Credit Agreement is amended to delete the phrase "all property of the Debtors"
and to replace it with "all Property of the Debtors and their estates of every
kind or type whatsoever, tangible, intangible, real, personal and mixed, whether
now owned or hereafter acquired or arising, wherever located, and including
without limitation, all property of the estates of each of the Debtors within
the meaning of section 541 of the Bankruptcy Code and all proceeds, rents and
products of the foregoing and all distributions thereon,".
1.6 AMENDMENT TO SECTION 3.3. Section 3.3 of the Credit
Agreement is amended to add a new Section 3.3.4 as follows:
"SECTION 3.3.4. APPLICATION OF PAYMENTS. Except as
required by Section 3.3.1 or 3.3.2 (and notwithstanding any other provision in
any other Loan Document governing the application of proceeds of Collateral, at
any time during the continuance of an Event of Default), all amounts received by
the Agent in respect of the Obligations, other than in respect of (i) principal
of or interest then due on the Loans, (ii) reimbursements of Reimbursement
Obligations, or (iii) specific fees or expenses or other amounts then due to the
Agent and Lenders, shall be applied first, to pay any fees, indemnities or
expense reimbursements then due to the Agent, costs and expenses of any
realization on the Collateral and payments of advances made by the Agent in
accordance with the Loan Documents; second, to pay any fees, indemnities or
expense reimbursements then due to the Lenders from the Borrower; third, to pay
interest then due in respect of Swingline Loans and Revolving Loans; fourth, to
pay or prepay Swingline Loans; fifth, to pay or prepay principal of Revolving
Loans and unpaid Reimbursement Obligations; sixth, to the extent required by
Section 5.7, deposited in the L/C Collateral Account; and seventh, to the
payment of all other Obligations, including Bank Product Obligations. Payments
made to, or deposits in, the Concentration Account or other deposit accounts of
Borrower maintained with Bank of America shall not constitute payments received
by the Agent for purposes of this Section 3.3.4. If an Event of Cash Dominion
has occurred and is continuing, but only so long as no Event of Default has
occurred and is continuing, this Section 3.3.4 shall not apply and Section 3.3.2
shall be applicable; provided, however, that this Section 3.3.4 shall apply at
all times during the continuance of an Event of Default."
1.7 AMENDMENT TO SECTION 4.7(A). Section 4.7(a) of the
Credit Agreement is amended to delete the first clause in the fifth sentence and
to replace it with "If the Agent fails to remit such funds to such Lender due to
an inadvertent delay of no more than 3 Business Days,".
1.8 AMENDMENT TO SECTION 7.4. Section 7.4 of the Credit
Agreement is amended to delete the second sentence thereof and to replace it
with the following:
"Notwithstanding the foregoing, the Lenders acknowledge and
agree that during the continuance of a Default, unless and until the
Agent receives written instructions from the Required Lenders during
the continuance of a Default to cease making Swingline Loans and
Revolving Loans and to cease instructing Issuer Banks to issue Letters
of Credit, (a) if the Agent has determined, in the exercise of its
reasonable business judgment, that it is in the best interests of the
Lenders to continue to make Loans or issue Letters of Credit for the
account of the Borrower, the Agent may waive the conditions of this
Section 7.4 (other than 7.4.4) and continue to make Swingline Loans and
instruct the applicable Issuer Bank to issue Letters of Credit
notwithstanding the existence of a Default; provided, however, that the
Agent may not make any Swingline Loan or cause to be issued any Letter
of Credit in an amount that would exceed the Revolving Commitment
Availability and that the Swingline Loans made and the Letters of
Credit issued while such Default exists shall not exceed $15,000,000 at
any time outstanding and (b) the Lenders shall be obligated to continue
to make Revolving Loans and to reimburse the Agent for Swingline Loans
made in accordance with clause (a) and shall be deemed to have
purchased and received an undivided interest in Letters of Credit
issued in accordance with clause (a)."
1.9 AMENDMENTS TO SECTION 9.1.3. Section 9.1.3 of the
Credit Agreement is amended to add the following at the end of such Section:
"; provided, however, that if the Borrower or any of
its Subsidiaries fails to maintain its assets, as required by clause
(a) (without giving effect to the three lines preceding this proviso),
the condition of such assets may be taken into consideration in
determining the OLV in Place Value of Eligible Fixed Assets for
purposes of determining the PPE Subcomponent of the Borrowing Base or
the establishment of Reserves with respect thereto (but only to the
extent that such assets have been included in the PPE Subcomponent of
the Borrowing Base), as the Agent determines in its commercially
reasonable judgment."
1.10 AMENDMENT TO SECTION 9.2.2(B), SECTION 9.2.2(B) is
amended to delete clause (i) and to replace it with the following:
"(i) Indebtedness of a Debtor in an aggregate amount for all
Debtors not to exceed $30,000,000, such Indebtedness to have terms and
conditions satisfactory to the Required Lenders in their sole
discretion and to be subordinated to the Obligations on terms
satisfactory to the Required Lenders in their sole discretion;"
1.11 AMENDMENT TO SECTION 9.2.3, SECTION 9.2.3 is amended
to delete clause (r) and to replace it with the following:
"(r) Liens on Property of a Debtor (other than Excluded
Assets) securing Indebtedness permitted under Section 9.2.2(b)(i),
provided that any such Liens which encumber the Collateral shall be
subordinated on terms satisfactory to the Required Lenders in their
sole discretion to the Liens granted pursuant to the Loan Documents and
shall be subject to intercreditor arrangements on terms satisfactory to
the Required Lenders in their sole discretion;"
1.12 AMENDMENT TO SECTION 9.2.6. Section 9.2.6 of the
Credit Agreement is amended to add the following after the words "except that"
at the end of the introduction to clause (a):
"to the extent permitted under the Bankruptcy Code or by order
of the Bankruptcy Court"
1.13 AMENDMENT TO SECTION 9.2.11. Section 9.2.11 of the
Credit Agreement is amended to add the following sentence at the end of such
Section:
"Further, notwithstanding the foregoing, or the provisions of
Sections 9.2.10 or 9.2.18, the Company will not, and will not permit AJI or KJC
to, sell any of the assets of AJI or KJC, including any partnership interests in
ALPART, or liquidate, or dissolve AJI or KJC, or consolidate or merge AJI or KJC
with any other entity, nor will it permit AJI or KJC or ALPART to sell any of
the assets of ALPART, other than sales of Inventory in the ordinary course of
business or liquidate or dissolve ALPART or merge or consolidate ALPART with any
other entity."
1.14 AMENDMENT TO SECTION 10.1. Section 10.1 of the Credit
Agreement is amended to add the following as Section 10.1.11:
"SECTION 10.1.11. ACTIONS AGAINST UNSECURED GUARANTORS. Any creditor of
any Unsecured Guarantor takes any action to collect or otherwise enforce any
Indebtedness of any Unsecured Guarantor, or any rights, remedies or obligations
under any documents creating or evidencing such Indebtedness, at law or in
equity, including without limitation, making any demand for payment, bringing
suit in any court or before any tribunal, seeking to attach property, perfect
Liens or otherwise assert any security interests, Liens or claims (by setoff or
otherwise), filing any involuntary petition against any Unsecured Guarantor
under the Bankruptcy Code or taking any equivalent action under any other law
affecting the rights of creditors, seeking to attach any assets of any Unsecured
Guarantor, exercising any right of offset, or seeking any injunction under
applicable laws."
1.15 ADDITION OF SECTION 11.11. A new Section 11.11 is
added to the Credit Agreement to read as follows:
"SECTION 11.11. THE CO-AGENTS. None of the Co-Agents shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders in their capacities as
Lenders hereunder. Without limiting the foregoing, none of the Co-Agents shall
be deemed to have a fiduciary relationship with any Lender or the Agent. Each
Lender which becomes a party to this Agreement acknowledges that it has not
relied, and will not rely, on any of the Co-Agents in deciding to enter into
this Agreement or in taking or not taking action hereunder."
1.11 DELETION OF SECTION 12.1(B). Section 12.1(b) of the
Credit Agreement is deleted in its entirety.
2. AMENDMENTS TO SECURITY AGREEMENT. Subject to the
conditions and upon the terms set forth in this Amendment, the Security
Agreement is hereby amended as follows:
2.1 AMENDMENT TO SECTION 14(A)(III). Section 14(a)(iii) of
the Security Agreement is hereby amended to delete paragraph "Third" and to
replace it with the following:
"Third, toward the satisfaction of the Secured Obligations
(not including Bank Product Obligations) in respect of principal and
Reimbursement Obligations, including the deposit of available funds in
an amount equal to the then aggregate Letter of Credit Outstandings in
the L/C Collateral Account in accordance with the Credit Agreement;"
3. REPRESENTATIONS AND WARRANTIES OF PARENT GUARANTOR AND THE
BORROWER. Each of the Parent Guarantor and the Borrower 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,
Borrower 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. 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. Each of the
representations and warranties contained in the Loan Documents is and will be
true and correct in all material respects on and as of the date hereof and as of
the effective date of this Amendment, except to the extent that such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects as of such
earlier date.
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall be effective only if and when signed by, and when counterparts
hereof shall have been delivered to the Agent (by hand delivery, mail or
telecopy) by, the Parent Guarantor, the Borrower and the Required Lenders, and
counterparts of the Consent have been delivered to the Agent by the Parent
Guarantor and each Subsidiary Guarantor and this Amendment has been approved by
the Bankruptcy Court in the Chapter 11 Cases, if such approval is required.
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 or the Security
Agreement shall mean the Credit Agreement or the Security Agreement, as
applicable, each 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
Borrower 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 First Amendment to Post-Petition Credit Agreement and Post-Petition Pledge
and Security 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
"BORROWER" 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/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Sr. V.P.
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /S/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /S/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: AVP
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /S/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of the Borrower 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
Title: Assistant Treasurer
ALPART JAMAICA INC.
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINA AUSTRALIA CORPORATION
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINIUM INTERNATIONAL, INC.
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, INC.
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM TECHNICAL
SERVICES, INC.
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX FINANCE CORPORATION
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
KAISER JAMAICA CORPORATION
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX SIERRA MICROMILLS, LLC
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX TEXAS SIERRA MICROMILLS, LLC
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX TEXAS MICROMILL HOLDINGS, LLC
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC.
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM CORPORATION
By /S/ Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
