Exhibit 4.20
EXECUTION COPY
FOURTH AMENDMENT TO
POST-PETITION CREDIT AGREEMENT
AND CONSENT OF GUARANTORS
This FOURTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND
CONSENT OF GUARANTORS (this "Amendment") is dated as of March 17, 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 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 by that certain First Amendment to
Post-Petition Credit Agreement and Post-Petition Pledge and Security Agreement
and Consent of Guarantors dated as of March 21, 2002, that certain Second
Amendment to Post-Petition Credit Agreement and Consent of Guarantors dated as
of March 21, 2002, that certain Third Amendment to Post-Petition Credit
Agreement, Second Amendment to Post-Petition Pledge and Security Agreement and
Consent of Guarantors dated as of December 19, 2002 and as further modified by
that certain Waiver and Consent With Respect to Post-Petition Credit Agreement
dated as of October 9, 2002 and that certain Second Waiver and Consent With
Respect to Post-Petition Credit Agreement dated as of January 13, 2003 (the
"Second Waiver") (as so amended and modified, the "Credit Agreement";
capitalized terms used in this Amendment without definition shall have the
meanings given such terms in the Credit Agreement);
WHEREAS, the members of the Controlled Group had an obligation
to make a special liquidity contribution to the trust established under the
Xxxxxx Aluminum Salaried Employees Retirement Plan in the amount of
approximately $17,000,000 on January 15, 2003 (the "January Liquidity
Contribution") and failed to make such payment;
WHEREAS, as a result of the failure to make the January
Liquidity Contribution when due, a Lien in favor of the PBGC would, unless
stayed under the Bankruptcy Code or other applicable law, be imposed under ERISA
and the Code on all of the assets of the members of the Controlled Group;
WHEREAS, on April 15, 2003, and on certain quarterly
contribution dates thereafter, the members of the Controlled Group may have
further obligations to make certain Future Minimum Funding and Liquidity
Contributions (as hereinafter defined) and failure to make such Future Minimum
Funding and Liquidity Contributions would also result in the imposition under
ERISA and the Code of a Lien on all of the assets of the members of the
Controlled Group, unless such Lien were stayed under the Bankruptcy Code or
other applicable law;
WHEREAS, failure to make the January Liquidity Contribution
and the Future Minimum Funding and Liquidity Contributions may result in the
imposition of certain taxes, and failure to pay such taxes would also result in
the creation of a Lien on the assets of the members of the Controlled Group,
unless such Lien were stayed under the Bankruptcy Code or other applicable law;
WHEREAS, since February 12, 2002, and prior to the date the
January Liquidity Contribution was due, certain additional Subsidiaries have
become debtors in cases filed under Chapter 11 of the Bankruptcy Code, which
have been administratively consolidated with the Chapter 11 cases of the Debtors
(the "New Debtors");
WHEREAS, as a result of the automatic stay under section 362
of the Bankruptcy Code, the imposition and perfection of the Liens resulting
from the failure to make the January Liquidity Contribution and the Future
Minimum Funding and Liquidity Contributions and/or to pay the taxes associated
therewith are stayed as to the Debtors and New Debtors;
WHEREAS, pursuant to that certain Stipulation and Order
Extending Automatic Stay to Certain Nondebtor Subsidiaries entered in the
Bankruptcy Cases on January 27, 2003 (the "Stipulation"), the imposition and
perfection of such Liens are also stayed as to Trochus and VALCO through
December 31, 2003;
WHEREAS, the imposition and perfection of such Liens are not
stayed as to members of the Controlled Group that are not Debtors or New Debtors
(with the exception of VALCO and Trochus); and
WHEREAS, as contemplated by the Second Waiver, the parties
hereto wish to amend the Credit Agreement to incorporate certain modifications
to the Credit Agreement contained in the Second Waiver and to make the other
modifications contained herein;
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. 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 definitions of "AJI", "Alwis", "KBC", "KEC", "KJC",
and "Kaiser Canada" are amended to add the following at the end of each such
definition: " as debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code."
(b) The definition of "Bankruptcy Case(s)" is amended to add
at the end thereof "and the Chapter 11 cases filed by the New Domestic Debtors
and the New Canadian Debtors."
(c) The definition of "Debtor" is deleted in its entirety
and replaced with the following:
"Debtor" means each of the Company, each Secured Guarantor,
each New Domestic Debtor and each New Canadian Debtor, and
"Debtors" means all of them collectively.
(d) The definition of "Petition Date" is deleted in its
entirety and replaced with the following:
"Petition Date" means as to any Debtor or any Bankruptcy Case,
the date on which the applicable Bankruptcy Case was commenced
with the Bankruptcy Court.
(e) The definition of "Subsidiary Guaranty" is deleted in
its entirety and replaced with the following:
"Subsidiary Guaranty" means the guaranty executed and
delivered by any Subsidiary of the Company on the Effective
Date, or by the New Domestic Debtors pursuant to the Fourth
Amendment, or by any other Subsidiary pursuant to Section
9.1.10, as amended, supplemented, restated, or otherwise
modified from time to time in accordance with the provisions
hereof or thereof.
(f) The definition of "Unsecured Guarantor" is deleted in
its entirety and replaced with the following:
"Unsecured Guarantor" means each of the New Domestic Debtors
and "Unsecured Guarantors" means all them collectively.
(g) The following definitions are added in the proper
alphabetical order:
"Fourth Amendment" means the Fourth Amendment to Post-Petition
Credit Agreement and Consent of Guarantors dated as of March
17, 2003 among the Parent Guarantor, the Company, the Lenders
and the Agent.
"January Liquidity Contribution" means the special liquidity
contribution required to be made by the members of the
Controlled Group under the Salaried Pension Plan in the amount
of approximately $17,000,000 on January 15, 2003.
"Future Minimum Funding and Liquidity Contributions" means the
minimum funding and additional liquidity contributions which
may be required to be made after January 15, 2003 by the
members of the Controlled Group under ERISA to the trust
established under the Salaried Pension Plan and other defined
benefit plans of the Controlled Group.
"Xxxxxx Center Properties" means Xxxxxx Center Properties, a
California partnership, as debtor and debtor-in-possession
under Chapter 11 of the Bankruptcy Code.
"KAE Trading" means KAE Trading, Inc., a Delaware corporation,
as debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code.
"Kaiser Canada Investment Limited" means Xxxxxx Aluminum &
Chemical Canada Investment Limited, an Ontario corporation, as
debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code.
"KCI" means Xxxxxx Center, Inc., a California corporation, as
debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code.
"New Canadian Debtor" means each of Kaiser Canada, Kaiser
Canada Investment Limited and Texada Mines, and "New Canadian
Debtors" means all of them collectively.
"New Domestic Debtor" means, each of AJI, Xxxxx, XXX Trading,
Xxxxxx Center Properties, KBC, KCI, KEC, and KJC and "New
Domestic Debtors" means all of them collectively.
"Permitted PBGC Liens" means (a) unperfected Liens, if any,
imposed under ERISA and the Code on assets of the Debtors,
Trochus or VALCO as a result of (x) the failure to make the
January Liquidity Contribution and the Future Minimum Funding
and Liquidity Contributions on or before the dates when due or
the failure to pay any taxes imposed in connection therewith
or (y) the termination of any Pension Plan; and (b) perfected
or unperfected Liens imposed under ERISA and the Code on
assets of members of the Controlled Group other than any
Debtor, Trochus or VALCO as a result of (x) the failure to
make the January Liquidity Contribution and the Future Minimum
Funding and Liquidity Contributions on or before the dates
when due or the failure to pay any taxes imposed in connection
therewith or (y) the termination of any Pension Plan.
"Salaried Pension Plan" means the Xxxxxx Aluminum Salaried
Employees Retirement Plan.
"Second Waiver" means that certain Second Waiver and Consent
with Respect to Post-Petition Credit Agreement dated as of
January 13, 2003 among the Company, the Parent Guarantor, the
Lenders and the Agent.
"Texada Mines" means Texada Mines Ltd., a British Columbia
corporation, as debtor and debtor-in-possession under Chapter
11 of the Bankruptcy Code.
1.2 AMENDMENT TO SECTION 8.12 (PENSION AND WELFARE
PLANS). Section 8.12 of the Credit Agreement is deleted in its entirety and
replaced by the following:
"SECTION 8.12 PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the
execution and delivery of this Agreement and prior to the date
of each Credit Extension hereunder, (a) no actions have been
taken by the Parent Guarantor, the Company, any member of
their Controlled Groups, or any other Person (with the
requisite authority to act) to terminate any Pension Plan that
has insufficient assets to satisfy all benefit liabilities
thereunder (within the meaning of section 4001(a)(16) of
ERISA), which termination is sufficient to give rise to a Lien
on assets of any Controlled Group member under section 4068 of
ERISA and (b) no contribution failure has occurred with
respect to any Pension Plan sponsored or maintained by any
Controlled Group member sufficient to give rise to a Lien on
assets of any Controlled Group member under Section 302(f) of
ERISA, other than, with respect to the foregoing clauses (a)
and (b), Permitted PBGC Liens, which failure has not been
cured within 30 days of the applicable due date. Item 7
("Employee Benefit Plans") of the Disclosure Schedule lists
all Welfare Plans of the Parent Guarantor, the Company, or any
of their Domestic Subsidiaries."
1.3 AMENDMENT TO SECTION 9.2.3 (LIENS). Section 9.2.3 of the
Credit Agreement is amended to (a) delete the reference in the first sentence
thereof to "clauses (a), (b), (e) and (h)" and replace it with "clauses (a),
(b), (e), (h) and (y)" and (b) add the following clause (y) at the end of such
Section:
"(y) the Permitted PBGC Liens."
1.4 AMENDMENT TO SECTION 9.2.22 (CHAPTER 11 CLAIMS). Section
9.2.22 is amended to delete the two references to "Secured Guarantors" and to
replace them with "other Debtors".
1.5 AMENDMENT TO SECTION 10.1.8 (PENSION PLANS). Section
10.1.8 is deleted in its entirety and replaced with the following:
SECTION 10.1.8. PENSION PLANS. A contribution failure occurs
with respect to any Pension Plan sufficient to give rise to a
Lien (other than the Permitted PBGC Liens) against any assets
of any Controlled Group member under section 302(f) of ERISA
in an amount in excess of $1,000,000, which failure has not
been completely cured within 30 days of the applicable due
date.
1.5 AMENDMENT TO SECTION 12.9(C). Section 12.9(c) is amended
to change the name of the agent for service of process to "Xxxxx Day, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Attention: Xxxxxxx X. Xxxxxxx)".
2. 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:
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 REPRESENTATIONS AND WARRANTIES, ETC. All of the conditions
set forth in Section 7.4, giving effect to this Amendment, have been met on and
as of the date hereof and as of the effective date of this Amendment.
3. 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 (including each New Domestic Debtor); (b) each New
Domestic Debtor shall have executed and delivered to the Agent, for its benefit
and the benefit of the Lenders, a Subsidiary Guaranty, in form and substance
satisfactory to the Agent (the "New Domestic Debtor Guaranties"); and (c) this
Amendment and the New Domestic Debtor Guaranties, and the granting to the Agent
and the Lenders, of Superpriority Claims against the New Domestic Debtors under
section 364(c)(1) of the Bankruptcy Code, subject only to the Carve Out, 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.
4. 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.
5. 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.
6. 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.
7. 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 Fourth 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. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
"THE COMPANY" XXXXXX ALUMINUM & CHEMICAL
CORPORATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
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
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ E 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: /s/ Xxxx Xxx Xxxxxx
Name: Xxxx Xxx Xxxxxx
Title: Credit Officer
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. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
ALPART JAMAICA INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX ALUMINA AUSTRALIA CORPORATION
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX BELLWOOD CORPORATION
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX ALUMINIUM INTERNATIONAL, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX ALUMINUM PROPERTIES, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX ALUMINUM TECHNICAL
SERVICES, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX FINANCE CORPORATION
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
KAISER JAMAICA CORPORATION
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX MICROMILL HOLDINGS, LLC
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX SIERRA MICROMILLS, LLC
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX TEXAS SIERRA MICROMILLS, LLC
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX TEXAS MICROMILL HOLDINGS, LLC
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
OXNARD FORGE DIE COMPANY, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX ALUMINUM CORPORATION
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
ALWIS LEASING LLC
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
KAISER BAUXITE COMPANY
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX CENTER, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX CENTER PROPERTIES
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
KAE TRADING, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
XXXXXX EXPORT COMPANY
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
