TWENTY-THIRD AMENDMENT TO CREDIT AGREEMENT
THIS TWENTY-THIRD AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of October 24, 2001 is by and between XXXXXX ALUMINUM
& CHEMICAL CORPORATION, a Delaware corporation (the "Company"), XXXXXX
ALUMINUM CORPORATION, a Delaware corporation (the "Parent Guarantor"), the
various financial institutions that are or may from time to time become parties
to the Credit Agreement referred to below (collectively, the "Lenders" and,
individually, a "Lender"), and Bank of America, N.A. (successor to BankAmerica
Business Credit, Inc., a Delaware corporation), as agent (in such capacity,
together with its successors and assigns in such capacity, the "Agent") for the
Lenders. Capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Credit Agreement, 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 Acknowledgement, dated as of July 20, 1995,
the Fourth Amendment to Credit Agreement, dated as of October 17, 1995, the
Fifth Amendment to Credit Agreement, dated as of December 11, 1995, the Sixth
Amendment to Credit Agreement, dated as of October 1, 1996, the Seventh
Amendment to Credit Agreement, dated as of December 17, 1996, the Eighth
Amendment to Credit Agreement, dated as of February 24, 1997, the Ninth
Amendment to Credit Agreement and Acknowledgment, dated as of April 21, 1997,
the Tenth Amendment to Credit Agreement and Assignment, dated as of June 25,
1997, the Eleventh Amendment to Credit Agreement and Limited Waivers, dated as
of October 20, 1997, the Twelfth Amendment to Credit Agreement, dated as of
January 13, 1998, the Thirteenth Amendment to Credit Agreement, dated as of July
20, 1998, the Fourteenth Amendment to Credit Agreement, dated as of December 11,
1998, the Fifteenth Amendment to Credit Agreement, dated as of February 23,
1999, the Sixteenth Amendment to Credit Agreement, dated as of March 26, 1999,
the Seventeenth Amendment to Credit Agreement, dated as of September 24, 1999,
the Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000, the
Nineteenth Amendment to Credit Agreement and Limited Waiver, dated as of
December 27, 2000, the Twentieth Amendment to Credit Agreement, dated as of
January 26, 2001, the Twenty-First Amendment to Credit Agreement and Consent,
dated as of July 18, 2001, and the Twenty-Second Amendment to Credit Agreement,
dated as of October 16, 2001 (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.
1.1 Amendments to Article IX: Covenants
A. Section 9.2.6(b)(iv) of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(iv) redeem, purchase, or defease any Subordinated
Debt, any New Subordinated Debt, any Senior Debt, any New
Senior Debt, any Additional New Senior Debt, the PIK Note or
any Equity Proceeds Note; provided, however, that,
notwithstanding the provisions of Section 9.2.6(b)(ii), the
Company and its Subsidiaries may, at the Company's discretion,
purchase, redeem or defease Senior Notes from time to time
during the period from January 26, 2001 through December 31,
2001; provided that (A) the Company and its Subsidiaries may
not purchase, redeem or defease any Senior Note for a price
greater than its principal amount plus the accrued interest
thereon to the date of purchase, redemption or defeasance; (B)
the aggregate amount paid by the Company and its Subsidiaries
during such period as the price for all such purchases,
redemptions and defeasances of Senior Notes may not exceed
$100,000,000 (exclusive of accrued interest payable on the
aggregate principal amount of any such Senior Notes purchased,
redeemed or defeased); (C) Senior Notes that are acquired by
the Company or its Subsidiaries may, at the Company's
election, either be retired and cancelled, or pledged to the
Agent as part of the Collateral; and (D) the Company and its
Subsidiaries may not transfer Senior Notes purchased, redeemed
or defeased pursuant to this Section 9.2.6(b)(iv), except that
the Company's Subsidiaries may transfer Senior Notes to the
Company, and the Company and its Subsidiaries may pledge
Senior Notes to the Agent as part of the Collateral.
Section 2. Conditions to Effectiveness
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 and each
Lender (the date of satisfaction of such conditions and the giving of such
notice being referred to herein as the "Twenty-Third Amendment Effective Date"):
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Parent Guarantor, the
Company, the Agent and 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).
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of the
Executive Committee of the Board of Directors of the Company
and the Parent Guarantor approving and authorizing the
execution, delivery and performance of this Amendment,
certified by their respective corporate secretaries or
assistant secretaries as being in full force and effect
without modification or amendment as of the date of execution
hereof by the Company or the Parent Guarantor, as the case
may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing
this Amendment;
(3) For each Lender, an opinion, addressed to the
Agent and each Lender, from Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, in form and substance satisfactory to the Agent;
(4) Such other information, approvals, opinions,
documents or instruments as the Agent may reasonably request;
(5) For the pro rata benefit of the Lenders, a fee
in the amount of $250,000; and
(6) For the pro rata benefit of the Lenders, a fee
in the amount of $250,000 less any fees that have already been
paid pursuant to Section 9.2.6(b)(iv) of the Credit Agreement,
as amended by Section 1(1.1)(B) of the Twentieth Amendment to
Credit Agreement, dated as of January 26, 2001.
Section 3. Company's Representations and Warranties.
In order to induce the Lenders and the Agent to enter into
this Amendment and to amend the Credit Agreement in the manner provided herein,
the Parent Guarantor and the Company represent and warrant to each Lender and
the Agent that, as of the Twenty-Third 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
delivery of this Amendment by Company and the Parent Guarantor and the
performance of the Credit Agreement as amended by this Amendment (the "Amended
Agreement") by the Company and the Parent Guarantor are within such Obligor's
corporate powers and have been duly authorized by all necessary corporate action
on the part of the Company and the Parent Guarantor, as the case may be.
B. No Conflict. The execution and delivery by the
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 Senior Indenture, the New Senior
Indenture, the Additional New Senior Indenture, or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or
contravene any law or governmental regulation or court decree
or order binding on or affecting such Obligor or any of its
Subsidiaries; or
(3) result in, or require the creation or imposition
of, any Lien on any of such Obligor's properties or any of the
properties of any Subsidiary of such Obligor, other than
pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
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.
Section 4. Acknowledgement and Consent.
The Company is a party to the Company Collateral Documents, in
each case as amended through the date hereof, pursuant to which the Company has
created Liens in favor of the Agent on certain Collateral to secure the
Obligations. The Parent Guarantor is a party to the Parent Collateral Documents,
in each case as amended through the date hereof, pursuant to which the Parent
Guarantor has created Liens in favor of the Agent on certain Collateral and
pledged certain Collateral to the Agent to secure the Obligations of the Parent
Guarantor. Certain Subsidiaries of the Company are parties to the Subsidiary
Guaranty and/or one or more of the Subsidiary Collateral Documents, in each case
as amended through the date hereof, pursuant to which such Subsidiaries have (i)
guarantied the Obligations and/or (ii) created Liens in favor of the Agent on
certain Collateral. The Company, the Parent Guarantor and such Subsidiaries are
collectively referred to herein as the "Credit Support Parties", and the Company
Collateral Documents, the Parent Collateral Documents, the Subsidiary Guaranty
and the Subsidiary Collateral Documents are collectively referred to herein as
the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement as amended by this
Amendment and consents to the amendment of the Credit Agreement effected as of
the date hereof pursuant to this Amendment.
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 5. Miscellaneous.
A. Reference to and Effect on the Credit Agreement and
the Other Loan Documents.
(1) On and after the Twenty-Third 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,
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 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 CORPORATION XXXXXX ALUMINUM & CHEMICAL
CORPORATION
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
BANK OF AMERICA, N.A. (successor to BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), BankAmerica Business Credit, Inc.)
as Agent
By: /S/ Xxxxxxx X. Xxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
THE CIT GROUP/BUSINESS XXXXXX FINANCIAL, INC.
CREDIT, INC.
By: /S/ Xxxxx Xxxxx By: /S/ Xxxxxxx X. Xxxxxxx
Name Printed: Xxxxx Xxxxx Name Printed: Xxxxxxx X. Xxxxxxx
Its: Vice President Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION TRANSAMERICA BUSINESS CAPITAL
(WESTERN) CORPORATION
By: /S/ Xxxx X. Xxxxxxxxx By: /S/ Xxx Xxxxxx
Name Printed: Xxxx X. Xxxxxxxxx Name Printed: Xxx Xxxxxx
Its: Vice President Its: Vice President
LA SALLE BANK NATIONAL ASSOCIATION
(formerly La Salle National Bank)
By: /S/ Xxxxxxx X. Xxxxxxxx
Name Printed: Xxxxxxx X. Xxxxxxxx
Its: 1st VP
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, XXXXXX ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER BAUXITE COMPANY XXXXXX EXPORT COMPANY
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION
By: /S/ Xxxxx X. Xxxxxxx
Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer
