E x e c u t i o n C o p y
NINTH AMENDMENT TO CREDIT AGREEMENT AND ACKNOWLEDGMENT
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THIS NINTH AMENDMENT TO CREDIT AGREEMENT AND
ACKNOWLEDGMENT (this "Amendment"), dated as of April 21, 1997, is
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by and between XXXXXX ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), XXXXXX ALUMINUM CORPORATION, a
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Delaware corporation (the "Parent Guarantor"), the various
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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 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, as amended hereby.
W I T N E S S E T H:
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 Acknowledgment, 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, and the Eighth
Amendment to Credit Agreement, dated as of February 24, 1997 (the
"Credit Agreement"); and
-----------------
WHEREAS, the parties hereto have agreed to amend the
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
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1.1 Amendment to Article I: Definitions.
------------------------ ------------
A. The definition of "Joint Venture Affiliate"
contained in Section 1.1 of the Credit Agreement is hereby
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amended by inserting the phrase "AKW, AKW LLC," after the term
"Furukawa," in the second line thereof.
B. The following definitions are hereby added to
Section 1.1 of the Credit Agreement in the appropriate
-----------
alphabetical order:
"AKW" means AKW L.P., a limited partnership organized
---
under the laws of Delaware.
"AKW LLC" means AKW General Partner L.L.C., a limited
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liability company organized under the laws of the State of
Delaware.
1.2 Amendments to Article IX: Covenants.
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A. Section 9.2.2 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause
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(b)(xix) thereof; and (ii) adding the following as new clause
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(b)(xxi) thereof:
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"(xxi) Indebtedness of the Company in an aggregate
principal amount not to exceed $5,000,000 outstanding at any one
time in respect of AKW and/or AKW LLC; and"
B. Section 9.2.5 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause (r)
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thereof; (ii) deleting the period at the end of clause (s)
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thereof and substituting "; and" therefor; and (iii) adding the
following as new clause (t) thereof:
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"(t) Investments by the Company or any of its
Subsidiaries in AKW and/or AKW LLC of cash, equipment, Inventory,
intellectual property and/or other Property (such Property (other
than cash) to be valued at the fair market value thereof as
determined in good faith by the Board of Directors or the
Executive Committee of the Board of Directors of the Company) in
an aggregate amount outstanding at any one time (net of the
proceeds contemporaneously received by the Company from the sale
of a portion of the equity in AKW) not exceeding $30,000,000."
C. Section 9.2.11 of the Credit Agreement is hereby
--------------
amended by (i) deleting the word "and" at the end of clause (j)
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thereof; (ii) deleting the period at the end of clause (k)
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thereof and substituting a semicolon therefor; and (iii) adding
the following as new clauses (l) and (m) thereof:
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"(l) a sale by the Company of a portion of the equity
in AKW as contemplated by subsection 9.2.5(t); and
"(m) a sale by the Company to AKW or AKW LLC of
Inventory in connection with the formation of AKW and relating to
the business of AKW in an amount not to exceed $10,000,000."
D. Section 9.2.18 of the Credit Agreement is hereby
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amended by (i) deleting the period at the end of clause (vii)
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thereof and substituting "; and" therefor; (ii) amending clause
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(vi) thereof to read in its entirety as follows:
----
"(vi) Investments permitted by Sections 9.2.5(f),
-----------------
9.2.5(n), 9.2.5(o), 9.2.5(q), 9.2.5(r), 9.2.5(s) and 9.2.5(t);"
-------- -------- -------- -------- -------- --------
and (iii) adding the following as new clause (viii) thereof:
"(viii) The Company and AKW may enter into a lease with
respect to a portion of the property owned by the Company located
in Erie, Pennsylvania, in form and substance satisfactory to the
Agent in its sole and absolute discretion; provided that the
Company's interest in such lease is assigned as Collateral to the
Agent on behalf of the Lenders on terms and pursuant to
documentation in form and substance satisfactory to the Agent in
its sole and absolute discretion."
Section 2. Acknowledgment and Consent.
--------------------------
Subject to the terms and conditions set forth herein
and in reliance on the representations and warranties of Company
herein contained, the Lenders hereby (i) acknowledge that the
Property to be contributed by the Company or any of its
Subsidiaries to AKW or AKW LLC pursuant to Section 9.2.5(t)
constitutes Collateral, and hereby consent to the release by the
Agent of the security interest of the Agent, on behalf of the
Lenders, in such Collateral and in the Proceeds of such
Collateral; (ii) consent to the release by the Agent of the
security interest of the Agent, on behalf of the Lenders, in the
capital stock of Akron Holding Corporation, a Subsidiary of the
Company ("Akron"), and in the Intercompany Demand Note issued by
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the Company to Akron; (iii) in accordance with Section 1.15 of
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the Open-End Mortgage with Power of Sale, Assignment of Leases
and Rents, Security Agreement, Fixture Filing and Financing
Statement (recorded February 18, 1994, with the Recorder of
Deeds, Erie County), as amended (the "Erie Mortgage"), consent to
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the entering into of a lease by the Company and AKW with respect
to a portion of the property owned by the Company located in
Erie, Pennsylvania, in a form satisfactory to the Agent in its
sole discretion (the "Lease"); and (iv) authorize the Agent to
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execute and deliver such documents, in form and substance
satisfactory to the Agent, in its sole and absolute discretion,
as may be necessary or appropriate to subordinate the Erie
Mortgage to the interest of AKW in the Lease.
Section 3. Amendments to Collateral Documents.
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The parties agree that, as of the Ninth Amendment
Effective Date, (i) the Parent Security Agreement shall be
amended as set forth in Exhibit A hereto, (ii) the Company
Security Agreement shall be amended as set forth in Exhibit B
hereto, and (iii) the Subsidiary Security Agreement shall be
amended as set forth in Exhibit C hereto. The Required Lenders
hereby approve the forms of such amendments, and hereby authorize
the Agent on their behalf to accept from the Parent Guarantor,
the Company and the Subsidiaries of the Company executing such
amendments, and authorize the Agent to execute and deliver as
Agent, the amendment to the Parent
Security Agreement in substantially the form of such Exhibit A,
the amendment to the Company Security Agreement in substantially
the form of such Exhibit B, and the amendment to the Subsidiary
Security Agreement in substantially the form of such Exhibit C
with such changes, additions or deletions as the Agent, in its
sole and absolute discretion, may approve.
Section 4. Conditions to Effectiveness.
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This Amendment 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, the Agent and each Lender
(the date of satisfaction of such conditions and the giving of
such notice being referred to herein as the "Ninth Amendment
---------------
Effective Date"):
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A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Parent
Guarantor, the Company, the Agent and the Required Lenders (or
notice of the approval of this Amendment by the Required Lenders
satisfactory to the Agent shall have been received by the Agent),
together with counterparts of the Third Amendment to Company
Security Agreement, dated as of April 21, 1997, between the
Company and the Agent (the "Company Security Amendment") and the
--------------------------
Second Amendment to Parent Security Agreement, dated as of
April 21, 1997, between the Parent Guarantor and the Agent (the
"Parent Security Amendment").
-------------------------
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company and the Parent Guarantor
approving and authorizing the execution, delivery and performance
of this Amendment, and the Company Security Amendment or the
Parent Security Amendment, as the case may be, certified by its
corporate secretary or an assistant secretary 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
Amendment and the Company Security Amendment or Parent Security
Amendment, as the case may be;
(3) Copies of the Third Amendment to Subsidiary
Security Agreement, dated as of April 21, 1997, between the
Subsidiaries of the Company parties thereto and the Agent (the
"Subsidiary Security Amendment") duly executed on behalf of such
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Subsidiaries;
(4) Resolutions of the Board of Directors or of
the Executive Committee or other authorized governing body or
entity of each of the Subsidiaries of the Company executing the
Subsidiary Security Amendment approving and authorizing the
execution, delivery and performance of the Subsidiary Security
Amendment, certified by their respective corporate secretaries or
an assistant secretary or other authorized representative as
being in full force and effect without modification or amendment
as of the date of execution hereof by such Subsidiary;
(5) A signature and incumbency certificate of the
officers or other authorized representative of each of the
Subsidiaries of the Company executing the Subsidiary Security
Amendment;
(6) For each Lender an opinion, addressed to the
Agent and each Lender, from Kramer, Levin, Naftalis & Xxxxxxx, in
form and substance satisfactory to the Agent; and
(7) Such other information approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 5. Company's Representations and Warranties.
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In order to induce the Lenders and the Agent to enter
into this Amendment and to amend the Credit Agreement and the
other Loan Documents in the manner provided herein, the Parent
Guarantor and the Company represent and warrant to each Lender
and the Agent that, as of the Ninth Amendment Effective Date
after giving effect to the effectiveness of this Amendment, the
following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
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delivery of this Amendment by the Company and the Parent
Guarantor and the performance of the Credit Agreement as amended
by this Amendment (the "Amended Agreement") by the Company and
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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 and delivery by the
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Company and the Parent Guarantor of this Amendment and the
performance by the Company and the Parent Guarantor of the
Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Subordinated Indenture, the
Senior Indenture, the New Senior Indenture or the Additional New
Senior 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 orany 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 Amendment has been duly
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executed and delivered by the Company and the Parent Guarantor
and this Amendment and the Amended Agreement constitute the
legal, valid and binding obligations of the Company and the
Parent Guarantor, enforceable against the Company and the Parent
Guarantor in accordance with their respective 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 Amendment 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 is true and correct.
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Section 6. Acknowledgment and Consent.
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The Company is a party to the Company Collateral
Documents, in each case as amended through the Ninth Amendment
Effective Date, 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 Ninth
Amendment Effective Date, 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 Ninth Amendment Effective Date, 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",
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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
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Support Documents".
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Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement as
amended by this Amendment and consents to the amendment of the
Credit Agreement effected as of the date hereof pursuant to this
Amendment and the amendment of the other Loan Documents effected
as of the date hereof.
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
Amendment, such Credit Support Party is not required by the terms
of the Credit Agreement or any other Loan Document to consent to
the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments
to the Credit Agreement.
Section 7. Miscellaneous.
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A. Reference to and Effect on the Credit Agreement
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and the Other Loan Documents.
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(1) On and after the Ninth Amendment Effective
Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring
to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment and the other Loan Documents executed as of the date
hereof, 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 AMENDMENT SHALL BE DEEMED TO
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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 Amendment
---------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
D. Counterparts. This Amendment may be executed by
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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 Amendment
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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 Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment 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. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
BANKAMERICA BUSINESS CREDIT, INC. BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:/s/Xxxxxxx X. Xxxxxxxx By:/s/Xxxxxxx X. Xxxxxxxx
---------------------- ----------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL THE CIT GROUP/BUSINESS
TRUST AND SAVINGS ASSOCIATION CREDIT, INC.
By:/s/ Xxxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxxx
---------------------- ----------------------
Name Printed:Xxxxxxx X. Xxxxxx Name Printed: Xxxxxxx X.
Xxxxxx
Its: Managing Director Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION XXXXXX FINANCIAL, INC.
(WESTERN)
By:/s/Xxxxxxxx X. Xxxxxxxxxx By:/s/Xxxx Xxxxxxx
---------------------- ----------------------
Name Printed: Xxxxxxxx X. Xxxxxxxxxx Name Printed:Xxxx Xxxxxxx
Its: Vice President Its: Assistant Vice President
LA SALLE NATIONAL BANK NATIONAL WESTMINSTER BANK
PLC
By: /s/Xxxxxxx X. Xxxxxxxx By:/s/Xxx X. Xxxxxxx
---------------------- ----------------------
Name Printed: Xxxxxxx X. Xxxxxxxx Name Printed: Xxx X. Xxxxxxx
Its: First Vice President Its: Vice President
TRANSAMERICA BUSINESS CREDIT ABN AMRO BANK N.V.
CORPORATION
By:/s/Xxxxxxx X. XxXxxxxx By:/s/Xxxxxxxx X. Xxxxx
---------------------- ----------------------
Name Printed: Xxxxxxx X. XxXxxxxx Name Printed: Xxxxxxxx X.
Xxxxx
Its: Vice President Its: Assistant Vice President
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX ALUMINUM PROPERTIES, INC. XXXXXX ALUMINUM TECHNICAL
SERVICES, INC.
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER BAUXITE COMPANY XXXXXX EXPORT COMPANY
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Treasurer of Xxxxxx Aluminum Its: Treasurer
& Chemical Corporation
XXXXXX TEXAS SIERRA MICROMILLS, LLC XXXXXX TEXAS MICROMILL
HOLDINGS, LLC
By:/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxx X. Xxxxxxxxx
---------------------- ------------------------
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
EXHIBIT A
SECOND AMENDMENT TO PARENT SECURITY AGREEMENT
----------------------------------------------
THIS SECOND AMENDMENT TO PARENT SECURITY AGREEMENT
(this "Amendment"), dated as of April 21, 1997, is by and between
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Xxxxxx Aluminum Corporation, a Delaware corporation (the "Parent
------
Guarantor"), and BankAmerica Business Credit, Inc., a Delaware
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corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
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Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement, as amended
by the Ninth Amendment.
W I T N E S S E T H:
WHEREAS, the Parent Guarantor, Xxxxxx Aluminum &
Chemical Corporation, a Delaware corporation (the "Company"), the
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various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), and the Agent are
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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
Acknowledgment, 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, and the Eighth Amendment to Credit Agreement, dated as
of February 24, 1997 (the "Credit Agreement"); and
-----------------
WHEREAS, as of the date hereof the Parent Guarantor,
the Company, the Lenders and the Agent are entering into a Ninth
Amendment to Credit Agreement (the "Ninth Amendment"); and
---------------
WHEREAS, the Parent Guarantor and the Agent are parties
to the Parent Security Agreement, Financing Statement and
Conditional Assignment of Patents and Trademarks, dated as of
February 15, 1994, as amended by the First Amendment to Parent
Security Agreement, dated as of July 21, 1994 (the "Parent
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Security Agreement"), and have agreed to amend the Parent
------------------
Security Agreement as herein provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Parent Security Agreement.
--------------------------------------
The proviso contained in the first paragraph of
Section 2 of the Parent Security Agreement is hereby amended by
adding the phrase "AKW, AKW LLC," immediately following the
phrase "Furukawa," each time it appears in clause (A) thereof.
Section 2. Parent Guarantor's Representations and
---------------------------------------
Warranties.
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In order to induce the Agent to enter into this
Amendment and to amend the Parent Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the Parent Guarantor
represents and warrants to each Lender and the Agent that, as of
the Ninth Amendment Effective Date (as defined in the Ninth
Amendment) after giving effect to the effectiveness of this
Amendment, the following statements are true and correct in all
material respects:
A. Authorization of Agreements. The execution and
---------------------------
delivery of this Amendment by the Parent Guarantor and the
performance of the Parent Security Agreement as amended by this
Amendment (the "Amended Agreement") by the Parent Guarantor are
-----------------
within the Parent Guarantor's corporate powers and have been duly
authorized by all necessary corporate action on the part of the
Parent Guarantor.
B. No Conflict. The execution and delivery by the
-----------
Parent Guarantor of this Amendment and the performance by the
Parent Guarantor of the Amended Agreement do not:
(1) contravene the Parent Guarantor's Organic
Documents;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture or the
Additional New Senior 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 the Parent Guarantor or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of the Parent Guarantor's
properties, other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by the Parent Guarantor and this Amendment
and the Amended Agreement constitute the legal, valid and binding
obligations of the Parent Guarantor, enforceable against the Parent
Guarantor in accordance with their respective 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
other Person is required for the due execution, delivery or
performance of this Amendment by the Parent Guarantor.
Section 3. Miscellaneous.
-------------
A. Reference to and Effect on the Parent Security
----------------------------------------------
Agreement and the Other Loan Documents.
--------------------------------------
(1) On and after the Ninth Amendment Effective
Date, each reference in the Parent Security Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Parent Security Agreement, and each
reference in the other Loan Documents to the "Parent Security
Agreement", "thereunder", "thereof" or words of like import
referring to the Parent Security Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Parent Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Parent Security Agreement.
B. Applicable Law. THIS AMENDMENT 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 Amendment
--------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
D. Counterparts. This Amendment 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 Amendment
------------
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 Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
XXXXXX ALUMINUM BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By: By:
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Treasurer Its: Vice President
EXHIBIT B
THIRD AMENDMENT TO COMPANY SECURITY AGREEMENT
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THIS THIRD AMENDMENT TO COMPANY SECURITY AGREEMENT
(this "Amendment"), dated as of April 21, 1997, is by and between
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Xxxxxx Aluminum & Chemical Corporation, a Delaware corporation
(the "Company"), and BankAmerica Business Credit, Inc., a
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Delaware corporation, as agent for the Secured Lenders (as
defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
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herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Ninth Amendment.
W I T N E S S E T H:
WHEREAS, the Company, Xxxxxx Aluminum Corporation, a
Delaware corporation (the "Parent Guarantor"), the various
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financial institutions that are or may from time to time become
parties to the Credit Agreement (collectively, the "Lenders" and,
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individually, a "Lender"), and the Agent are parties to the
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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
Acknowledgment, 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, and the Eighth Amendment to Credit Agreement, dated as
of February 24, 1997 (the "Credit Agreement"); and
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WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Ninth
Amendment to Credit Agreement (the "Ninth Amendment"); and
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WHEREAS, the Company and the Agent are parties to the
Company Security Agreement, Financing Statement and Conditional
Assignment of Patents and Trademarks, dated as of February 15,
1994, as amended by the First Amendment to Company Security
Agreement, dated as of July 21, 1994 and Second Amendment to
Company Security Agreement, dated as of December 11, 1995 (the
"Company Security Agreement"), and have agreed to amend the
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Company Security Agreement as herein provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Company Security Agreement.
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The proviso contained in the first paragraph of
Section 2 of the Company Security Agreement is hereby amended by
adding the phrase "AKW, AKW LLC," immediately following the
phrase "Furukawa," each time it appears in clause (A) thereof.
Section 2. Company's Representations and Warranties.
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In order to induce the Agent to enter into this
Amendment and to amend the Company Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the Company represents and
warrants to each Lender and the Agent that, as of the Ninth
Amendment Effective Date (as defined in the Ninth Amendment)
after giving effect to the effectiveness of this Amendment, the
following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
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delivery of this Amendment by the Company and the performance of
the Company Security Agreement as amended by this Amendment (the
"Amended Agreement") by the Company are within the Company's
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corporate powers and have been duly authorized by all necessary
corporate action on the part of the Company.
B. No Conflict. The execution and delivery by the
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Company of this Amendment and the performance by the Company of
the Amended Agreement do not:
(1) contravene the Company's Organic Documents;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture or the
Additional New Senior 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 the Company or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of the Company's properties, other
than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
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executed and delivered by the Company and this Amendment and the
Amended Agreement constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with
their respective 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
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authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by the Company.
Section 3. Miscellaneous.
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A. Reference to and Effect on the Company Security
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Agreement and the Other Loan Documents.
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(1) On and after the Ninth Amendment Effective
Date, each reference in the Company Security Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Company Security Agreement, and each
reference in the other Loan Documents to the "Company Security
Agreement", "thereunder", "thereof" or words of like import
referring to the Company Security Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Company Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Company Security Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
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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 Amendment
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are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
D. Counterparts. This Amendment may be executed by
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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 Amendment
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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 Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
XXXXXX ALUMINUM & CHEMICAL BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By: By:
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Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Treasurer Its: Vice President
EXHIBIT C
THIRD AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
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THIS THIRD AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
(this "Amendment"), dated as of April 21, 1997, is by and among
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Akron Holding Corporation, an Ohio corporation, Xxxxxx Alumina
Australia Corporation, a Delaware corporation, Xxxxxx Aluminium
International, Inc., a Delaware corporation, Xxxxxx Aluminum &
Chemical Investment, Inc., a Delaware corporation, Xxxxxx
Aluminum Properties, Inc., a Delaware corporation, Xxxxxx
Aluminum Technical Services, Inc., a California corporation,
Xxxxxx Finance Corporation, a Delaware corporation, Oxnard Forge
Die Company, Inc., a California corporation, Xxxxxx Micromill
Holdings, LLC, a limited liability company organized under the
laws of Delaware, Xxxxxx Sierra Micromills, LLC, a limited
liability company organized under the laws of Delaware, Xxxxxx
Texas Sierra Micromills, LLC, a limited liability company
organized under the laws of Texas, and Xxxxxx Texas Micromill
Holdings, LLC, a limited liability company organized under the
laws of Texas (collectively, the "Kaiser Subsidiaries" and
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individually, a "Kaiser Subsidiary"), and BankAmerica Business
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Credit, Inc., a Delaware corporation, as agent for the Secured
Lenders (as defined in the Credit Agreement referred to below)
(in such capacity, together with its successors and assigns in
such capacity, the "Agent"). Capitalized terms used, but not
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defined, herein shall have the meanings given to such terms in
the Credit Agreement, as amended by the Ninth Amendment.
W I T N E S S E T H:
WHEREAS, Xxxxxx Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), Xxxxxx Aluminum
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Corporation, a Delaware corporation (the "Parent Guarantor"), the
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various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), and the Agent are
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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 Acknowledgment, 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, and the Eighth Amendment to Credit
Agreement, dated as of February 24, 1997 (the "Credit
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Agreement"); and
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WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Ninth
Amendment to Credit Agreement (the "Ninth Amendment"); and
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WHEREAS, the Kaiser Subsidiaries and the Agent are
parties to the Subsidiary Security Agreement, Financing Statement
and Conditional Assignment of Patents and Trademarks, dated as of
February 15, 1994, as amended by the First Amendment to
Subsidiary Security Agreement, dated as of July 21, 1994 and
Second Amendment to Subsidiary Security Agreement dated as of
December 11, 1995 (the "Subsidiary Security Agreement"), and have
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agreed to amend the Subsidiary Security Agreement as herein
provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Subsidiary Security Agreement.
------------------------------------------
The proviso contained in the first paragraph of
Section 2 of the Subsidiary Security Agreement is hereby amended
by adding the phrase "AKW, AKW LLC," immediately following the
phrase "Furukawa," each time it appears in clause (A) thereof.
Section 2. Kaiser Subsidiaries' Representations and
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Warranties.
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In order to induce the Agent to enter into this
Amendment and to amend the Subsidiary Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, each Kaiser Subsidiary
represents and warrants to each Lender and the Agent that, as of
the Ninth Amendment Effective Date (as defined in the Ninth
Amendment) after giving effect to the effectiveness of this
Amendment, the following statements are true and correct in all
material respects:
A. Authorization of Agreements. The execution and
----------------------------
delivery of this Amendment by such Kaiser Subsidiary and the
performance of the Subsidiary Security Agreement as amended by
this Amendment (the "Amended Agreement") by such Kaiser
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Subsidiary are within such Kaiser Subsidiary's corporate powers
or company powers, as the case may be, and have been duly
authorized by all necessary corporate action or company action,
as the case may be, on the part of such Kaiser Subsidiary.
B. No Conflict. The execution and delivery by such
-----------
Kaiser Subsidiary of this Amendment and the performance by such
Kaiser Subsidiary of the Amended Agreement do not:
(1) contravene such Kaiser Subsidiary's Organic
Documents or the Organizational Agreements;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture or the
Additional New Senior 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 Kaiser Subsidiary or any of
its Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Kaiser Subsidiary's
properties, other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by such Kaiser Subsidiary and this
Amendment and the Amended Agreement constitute the legal, valid
and binding obligations of such Kaiser Subsidiary, enforceable
against such Kaiser Subsidiary in accordance with their
respective 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
other Person is required for the due execution, delivery or
performance of this Amendment by such Kaiser Subsidiary.
Section 3. Miscellaneous.
--------------
A. Reference to and Effect on the Subsidiary Security
--------------------------------------------------
Agreement and the Other Loan Documents.
--------------------------------------
(1) On and after the Ninth Amendment Effective
Date, each reference in the Subsidiary Security Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of
like import referring to the Subsidiary Security Agreement, and
each reference in the other Loan Documents to the "Subsidiary
Security Agreement", "thereunder", "thereof" or words of like
import referring to the Subsidiary Security Agreement shall mean
and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Subsidiary Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
C-3
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Subsidiary Security Agreement.
B. Applicable Law. THIS AMENDMENT 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 Amendment
--------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
D. Counterparts. This Amendment 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 Amendment
-------------
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 Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:
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Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President
C-4
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX ALUMINUM PROPERTIES, INC. XXXXXX ALUMINUM TECHNICAL
SERVICES, INC.
By: By:
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: By:
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: By:
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: By:
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Treasurer of Xxxxxx Aluminum Its: Treasurer
& Chemical Corporation
XXXXXX TEXAS SIERRA MICROMILLS, LLC XXXXXX TEXAS MICROMILL
HOLDINGS, LLC
By: By:
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
