Exhibit 4.19
[EXECUTION COPY]
THIRD AMENDMENT TO
POST-PETITION CREDIT AGREEMENT, SECOND
AMENDMENT TO POST-PETITION PLEDGE AND SECURITY AGREEMENT
AND CONSENT OF GUARANTORS
This THIRD AMENDMENT TO POST-PETITION CREDIT AGREEMENT, SECOND AMENDMENT
TO POST-PETITION PLEDGE AND SECURITY AGREEMENT AND CONSENT OF GUARANTORS (this
"Amendment") is dated as of December 19, 2002 and entered into by and among
XXXXXX ALUMINUM CORPORATION, a Delaware corporation, as debtor and
debtor-in-possession (the "Parent Guarantor"), XXXXXX ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation, as debtor and debtor-in-possession (the
"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 (the "First Amendment") and that certain
Second Amendment to Post-Petition Credit Agreement and Consent of Guarantors
dated as of March 21, 2002 and as further modified by that certain Waiver and
Consent with Respect to Post-Petition Credit Agreement dated as of October 9,
2002 (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); and
WHEREAS, the Parent Guarantor, the Company, certain Subsidiaries of the
Company and the Agent have entered into that certain Post-Petition Pledge and
Security Agreement dated as of February 12, 2002, as amended by the First
Amendment (as so amended, the "Security Agreement"); and
WHEREAS, the Company has requested that the Lenders agree to amend
certain provisions of the Credit Agreement and the Security Agreement and the
Lenders signatory to this Amendment are willing to agree to such amendments on
the terms and conditions set forth 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 definition of "Adjusted Net Earnings from Operations" is
amended to (i) delete the word "and" preceding clause (i); (ii) change the
period at the end of such definition to a semicolon; and (iii) add the following
new clauses (j), (k) and (l):
"(j) the Xxxx Charges; (k) non-cash LIFO inventory valuation
charges in aggregate amounts not to exceed $20,000,000; and (l) non-cash
charges incurred as a result of any Permitted Asset Disposition of the
Xxxxxx Center Assets in aggregate amounts not to exceed $25,000,000."
(b) The definition of "Borrowing Base" is amended to delete clause
(c) in its entirety and replace it with the following:
"(c) the lesser of (i) $100,000,000, reducing each month
commencing in February 2003 on a seven year straight line amortization;
provided, that such amount shall be reduced by (x) an amount equal to 50% of
the Net Disposition Proceeds of a Permitted Asset Disposition of the Xxxxxx
Center Assets, (y) an amount equal to 50% of the Net Disposition Proceeds in
excess of $20,000,000 of a Permitted Asset Disposition of the Tacoma Plant,
and (z) an amount equal to 50% of the Net Disposition Proceeds in excess of
$10,000,000 of a Permitted Asset Disposition of the Oxnard Plant, and
following each such reduction, the remaining amount shall amortize on a
straight line basis over the remaining portion of the seven-year
amortization period; and (ii) 50% of the OLV In-Place Value of Eligible
Fixed Assets (such lesser number, the "PPE Subcomponent");"
(c) The definition of "EBITDA" is amended by deleting the number
"$10,000,000" clause (A)(ii) and replacing it with the number "$30,000,000."
(d) The definition of "Eligible Account" is amended to delete clause
(h) in its entirety and to replace it with the following:
"(h) if the aggregate dollar amount of all Accounts owed by the
Account Debtor thereon exceeds 5% ( 15% in respect of (i) Accounts owed by
the Account Debtors identified in Item 11 ("Major Account Debtors") of the
Disclosure Schedule, as such Item may be amended from time to time by the
Agent, in its commercially reasonable judgment, after consultation with
the Company, to add or delete Account Debtors and (ii) Accounts owed by
any other Account Debtor which are secured or payable by a letter of
credit acceptable to the Agent and issued by a financial institution
acceptable to the Agent) of the aggregate amount of all Accounts at such
time, but only to the extent of such excess;"
(e) The following definitions of "Xxxxxx Center Assets," "Xxxx
Charges," "Oxnard Plant," "Permitted Asset Dispositions," "Permitted QAL
Investment Amount," and "Tacoma Plant," are added in proper alphabetical order:
"Xxxxxx Center Assets" means the real property, building, leases,
contracts, licenses, personal property, notes, security interests and other
interests of the Company and its Subsidiaries with respect to that certain
property located in Oakland, California known as the Xxxxxx Center, and more
particularly described on Exhibit F attached hereto.
"Xxxx Charges" means the following charges incurred by the Company in
connection with the curtailment of operations or shutdown of the Company's
facility in Xxxx, Washington: (i) a non-cash impairment charge of up to
$145,000,000 associated with the fixed assets at such facility; (ii)
accounting charges for future retiree medical, pension, and other benefits
of up to $65,000,000 representing amounts that would be paid over an
extended period of time (primarily after the expiration of the term of this
Agreement); and (iii) other accounting charges (e.g. inventory writedowns,
salaried work force restructuring, etc.) which are non-cash or have limited
cash impacts during the term of this Agreement of up to $20,000,000;
provided that, for purposes of calculating Adjusted Net Earnings from
Operations, the aggregate amount of Xxxx Charges which may be excluded shall
not exceed $230,000,000; and the aggregate amount of cash charges, including
cash charges for future retiree medical, pension and other benefits
allocated by the Company in good faith to employees at the Xxxx facility,
which may be excluded shall not exceed $10,000,000.
"Oxnard Plant" means the real property, buildings, equipment,
inventory, leases, contracts, licenses and intangible assets used
exclusively in the Company's fabricated products plant in Oxnard, California
as more particularly described in that certain Asset Purchase and Sale
Agreement dated as of September 12, 2002 between the Company and Aluminum
Precision Products, Inc. and that certain Standard Offer, Agreement and
Escrow Instructions for Purchase of Real Property dated September 12, 2002
between the Company and Aluminum Precision Products, Inc., copies of which
agreements have been filed with the Bankruptcy Court.
"Permitted Asset Dispositions" means any Asset Disposition of (i) the
Xxxxxx Center Assets for which the Company and/or any of its Subsidiaries
receive Net Disposition Proceeds in an amount satisfactory to the Required
Lenders; provided that 50% of such Net Disposition Proceeds are applied to
the Obligations in accordance with Section 3.3.4 and to permanently reduce
the PPE Subcomponent in accordance with the definition of such term; (ii)
the Tacoma Plant; provided, that 50% of all Net Disposition Proceeds of such
Asset Disposition in excess of $20,000,000 are applied to the Obligations
in accordance with Section 3.3.4 and to permanently reduce the PPE
Subcomponent in accordance with the definition of such term; and (iii) the
Oxnard Plant; provided that 50% of all Net Disposition Proceeds of such
Asset Disposition in excess of $10,000,000 are applied to the Obligations in
accordance with Section 3.3.4 and to permanently reduce the PPE Subcomponent
in accordance with the definition of such term. After application of the
Net Disposition Proceeds to the Obligations as required by the foregoing, if
no Event of Cash Dominion has occurred and is continuing and the provisions
of Section 5.7 are not applicable, the remaining portion of such Net
Disposition Proceeds after such application shall be disbursed to the
Company.
"Permitted QAL Investment Amount" means an aggregate amount during the
2002 and 2003 Fiscal Years of $87,000,000, which may consist of any
combination of cash Investments in, and/or Contingent Liabilities incurred
in respect of Indebtedness of, QAL by the Company and/or any Guarantor;
provided that all such cash Investments in, or Contingent Liabilities
incurred in respect of Indebtedness of, QAL shall be made on a ratable basis
with those of the other joint venture participants in QAL, based on the
amount of such Persons' ownership interests in QAL.
"Tacoma Plant" means the real property, buildings and Equipment used
exclusively in connection with the Company's primary aluminum smelter
located at 0000 Xxxxxx Xxx, Xxxxxx, Xxxxxxxxxx.
1.2 AMENDMENT TO SECTION 5.7 (MANDATORY PAYMENT TO AGENT OF LETTER OF
CREDIT OUTSTANDINGS). Section 5.7 of the Credit Agreement is amended to add the
following sentence immediately after the first sentence of that Section:
"In addition, the Company agrees that, on the Stated Maturity Date or
any earlier date on which all Commitments are terminated, it will either pay
to the Agent in Dollars and in immediately available funds for deposit in
the L/C Collateral Account an amount equal to the then aggregate Letter of
Credit Outstandings or provide to the Agent one or more letters of credit,
in form and substance satisfactory to the Agent and from an issuer
satisfactory to the Agent, in an aggregate amount equal to the then
aggregate Letter of Credit Outstandings, which letters of credit may be
drawn by the Agent and the proceeds applied to the Letter of Credit
Outstandings to the extent that any Letter of Credit which is outstanding on
such termination date is drawn.
1.3 AMENDMENT TO SECTION 7.4.1 (COMPLIANCE WITH WARRANTIES, NO
DEFAULT, ETC.). Section 7.4.1 of the Credit Agreement is amended to add the
following new, unlettered paragraph at the end thereof:
"For purposes of the conditions set forth in Sections 7.4.1(a),
7.4.1(b)(ii) and 7.4.1(c), and the representations and warranties set forth
in Sections 8.6(b) and 8.7(b), the adverse decision of the Administrative
Law Judge rendered in May 2002 in connection with allegations of unfair
labor practices in connection with the United Steelworkers of America strike
and subsequent lockout, and any affirmation of such decision on appeal,
shall not be deemed to reasonably be expected to have a Materially Adverse
Effect or have a reasonable possibility of having a Materially Adverse
Effect so long as such decision is subject to further appeal, any judgment
which has been entered is stayed and no amounts are paid by any Obligor
during the term of this Agreement."
1.4 AMENDMENT TO SECTION 9.1.1 (FINANCIAL INFORMATION, REPORTS,
NOTICES, ETC.) Section 9.1.1 of the Credit Agreement is amended to add the
following new subsection (m):
"(m) No later than 5 Business Days prior to filing any
application or motion with the Bankruptcy Court with respect to any
Permitted Asset Disposition or any other proposed Asset Disposition not
permitted under Section 9.2.11 of this Agreement, a written description of
the proposed Asset Disposition, together with a copy of the purchase and
sale agreements and all other material agreements related thereto."
1.5 AMENDMENT TO SECTION 9.2.4 (MINIMUM EBITDA). Section 9.2.4 of
the Credit Agreement is deleted in its entirety and replaced with the following:
(a) The Company and its Subsidiaries, on a consolidated basis, shall
have a minimum EBITDA of not less than the following amounts, measured as of
the last day of each Fiscal Quarter for the periods specified below:
Period EBITDA
Petition Date to 6/30/02 $(45,000,000)
Petition Date to 9/30/02 (48,000,000)
Petition Date to 12/31/02 (82,000,000)
4 Fiscal Quarters ending 3/31/03 (98,000,000)
4 Fiscal Quarters ending 6/30/03 (86,000,000)
4 Fiscal Quarters ending 9/30/03 (45,000,000)
4 Fiscal Quarters ending 12/31/03 10,000,000
(b) If at any time during any month for a period of three (3)
consecutive Business Days (i) the Revolving Credit Outstandings exceed
$100,000,000 or (ii) Revolving Commitment Availability is less than
$75,000,000 (each condition in clause (i) and (ii), a "Trigger Event") then
for that month and each month thereafter in which a Trigger Event occurs,
the Company and its Subsidiaries, on a consolidated basis, shall have a
minimum EBITDA of not less than the following amounts, measured as of the
last day of each month for the period specified below:
Period
Petition Date to 06/30/02 (45,000,000)
Petition Date to 07/31/02 (48,000,000)
Petition Date to 08/30/02 (48,000,000)
Petition Date to 09/30/02 (48,000,000)
Petition Date to 10/31/02 (82,000,000)
Petition Date to 11/30/02 (82,000,000)
Petition Date to 12/31/02 (82,000,000)
Petition Date to 01/31/03 (98,000,000)
Petition Date to 02/28/03 (98,000,000)
12 months ending 03/31/03 (98,000,000)
12 months ending 04/30/03 (94,000,000)
12 months ending 05/31/03 (90,000,000)
12 months ending 06/30/03 (86,000,000)
12 months ending 07/31/03 (72,000,000)
12 months ending 08/31/03 (58,000,000)
12 months ending 09/30/03 (45,000,000)
12 months ending 10/31/03 (27,000,000)
12 months ending 11/30/03 (9,000,000)
12 months ending 12/31/03 10,000,000
12 months ending 01/31/04 10,000,000
12 months ending 02/28/04 10,000,000
1.6 AMENDMENT TO SECTION 9.2.11 (ASSET DISPOSITIONS). Section 9.2.11
of the Credit Agreement is amended to (i) delete the parenthetical phrases "(or
apply to the Bankruptcy Court to do so)" and "(or permit any of its Subsidiaries
to apply to the Bankruptcy Court to)", (ii) delete the phrase "$25,000,000 in
any Fiscal Year" in clause (i) and replace it with "$30,000,000 in the 2002
Fiscal Year or $25,000,000 in any other Fiscal Year;" and (iii) to add a new
clause (j) to read as follows:
"(j) Permitted Asset Dispositions;"
1.7 AMENDMENT TO SECTION 9.2.20 (ADDITIONAL INVESTMENTS IN PERSONS
OTHER THAN DEBTORS). Section 9.2.20 of the Credit Agreement is deleted in its
entirety and replaced with the following:
SECTION 9.2.20. ADDITIONAL INVESTMENTS IN PERSONS OTHER THAN
DEBTORS. Notwithstanding anything to the contrary contained in Sections
9.2.2, 9.2.5 and 9.2.18 hereof, after the date hereof the Company and the
Parent Guarantor shall not (or apply to the Bankruptcy Court to do so), and
will not permit any Guarantor to (or permit any Guarantor to apply to the
Bankruptcy Court to), make any cash Investments in, or incur any Contingent
Liabilities to pay the Indebtedness of, any Person other than a Debtor
except (i) Investments and Contingent Liabilities to the extent reflected in
the Financial Forecast; provided that solely with respect to Investments in,
or Contingent Liabilities with respect to the Indebtedness of, QAL the
Financial Forecast shall be amended to permit the Company and KAAC to make
cash Investments in, and to incur Contingent Liabilities in respect of the
Indebtedness of, QAL in accordance with the definition of and in aggregate
amount for all such cash Investments and Contingent Liabilities not to
exceed the Permitted QAL Investment Amount, (ii) other Investments made in,
or Contingent Liabilities incurred on behalf of, QAL, ALPART, Anglesey or
VALCO in an amount not to exceed $10,000,000 per annum (so long as, after
giving effect to any Investment made or Contingent Liability incurred
pursuant to this clause (ii), an Event of Cash Dominion shall not have
occurred and be continuing by reason thereof), and (iii) Investments in or
Contingent Liabilities in respect of Xxxxxx Aluminum and Chemical of Canada
Limited for the purpose of Capital Expenditures not to exceed $5,000,000 per
annum, in each case to the extent permitted under Section 9.2.7.
1.8 AMENDMENT TO EXHIBIT D-2 (COMPLIANCE CERTIFICATE) The form of
Compliance Certificate attached to the Credit Agreement as Exhibit D-2 is
amended to delete the penultimate paragraph in its entirety and to replace it
with the following:
"The Company hereby also represents and warrants to the Agent, for the
benefit of the Agent and the Lenders, that, except as may have been
previously disclosed to the Agent in writing pursuant to clause (d) of
Section 9.1.1, no Default has occurred and is continuing."
1.9 ADDITION OF NEW EXHIBIT F (XXXXXX CENTER ASSETS). The Credit
Agreement is amended to add Exhibit F in the form attached to this Amendment as
Exhibit 1.
1.10 AMENDMENT TO SCHEDULE XI OF THE CREDIT AGREEMENT (SUBSIDIARIES
HAVING TOTAL ASSETS GREATER THAN $1 MILLION). Schedule XI of the Credit
Agreement is amended to delete the words "set forth on Schedule III, IV or VII"
in the introductory text and to replace them with "that are Guarantors."
1.11 AMENDMENT TO ITEM 4 OF DISCLOSURE SCHEDULE (ONGOING
INDEBTEDNESS). Item 4 of the Disclosure Schedule to the Credit Agreement is
amended to add the following Indebtedness:
Holders of three promissory notes issued by $41,205,849 (as of 11/01/2002)
Xxxxxxx Xxxxx, LLP (formerly known as Kalan
Associates Limited Partnership) in connection
with the August 1983 sale and leaseback
transaction of the Xxxxxx Center and certain
related assets, which promissory notes are
secured on a non-recourse basis by liens on
certain assets of Xxxxxx Center, Inc.
described in Item 5 of the Disclosure
Schedule
1.12 AMENDMENT TO ITEM 5 OF DISCLOSURE SCHEDULE (ONGOING LIENS). Item
5 of the Disclosure Schedule to the Credit Agreement is amended to add the
following Liens:
"5. The Liens granted by Xxxxxx Center, Inc. to secure payment of three
promissory notes (and certain related obligations) issued by Xxxxxxx Xxxxx
LLP (formerly known as Kalan Associates Limited Partnership) in connection
with the August 1983 sale and leaseback transaction of the Xxxxxx Center and
certain related assets. As of November 1, 2002, two of such promissory notes
were held by MLP Holdings, LLC and had an aggregate outstanding principal
balance of $10,929,977. As of November 1, 2002, the third of such promissory
notes was held by the Company and had an outstanding principal balance of
$30,275,872.
6. The Liens granted by Alwis of its rights, as lessor, under its
sublease of the Xxxxxx Center and certain related assets to the Company.
The Liens secure payment and performance by Alwis, as lessee, of its
obligations under a master lease with Xxxxxxx Xxxxx LLP for the Xxxxxx
Center and certain related assets."
2. AMENDMENTS TO SECURITY AGREEMENT. Subject to the conditions and
upon the terms set forth in this Amendment, the Security Agreement is hereby
amended as follows:
2.1 AMENDMENT TO SECTION 5.(O). Section 5.(o) of the Security
Agreement is amended to delete clause (i) in its entirety and replace it with
the following:
"(i) 100% of the issued and outstanding shares of all classes of
capital stock of each Obligor and each Significant Subsidiary which is a
Domestic Subsidiary of the applicable Obligor, other than the capital stock
of the Parent Guarantor, KAAC, AJI and KJC and the securities of the Company
referred to in clause (i) to Section 9.2.6(a) of the Credit Agreement."
2.2 ADDITION OF SCHEDULES VIII (PLEDGED NOTES) AND IX (PLEDGED
SHARES). The Security Agreement is amended to add Schedules VIII and IX in the
forms attached hereto as Schedules VIII and IX.
3. 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:
3.1 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.
3.2 DUE AUTHORIZATION, NON-CONTRAVENTION. The execution, delivery and
performance by the applicable Obligor of this Amendment and the Consent and the
performance of the obligations of each Obligor under or in respect of the Credit
Agreement as amended hereby have been duly authorized by all necessary corporate
or other organizational action, and do not (a) contravene such Obligor's Organic
Documents, (b) contravene any contractual restriction entered into after the
Petition Date where such a contravention has a reasonable possibility of having
a Materially Adverse Effect, or contravene any law or governmental regulation or
court order binding on or affecting such Obligor, or (c) result in, or require
the creation or imposition of, any Lien on any of such Obligor's properties.
3.3 EXECUTION, DELIVERY AND ENFORCEABILITY. This Amendment and the
Consent have been duly executed and delivered by each Obligor which is a party
thereto and constitute the legal, valid and binding obligations of such Obligor,
enforceable in accordance with their terms.
3.4 NO DEFAULT OR EVENT OF DEFAULT. 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.
3.5 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.
4. 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 Parent Guarantor and each Subsidiary Guarantor; (b) this Amendment
has been approved by the Bankruptcy Court in the Chapter 11 Cases and the Agent
has received a copy of the order entered by the Bankruptcy Court; and (c) the
Company has paid to the Agent, for the ratable benefit of the Lenders an
amendment fee equal to $750,000.
5. EFFECT OF AMENDMENT; RATIFICATION. This Amendment is a Loan
Document. From and after the date on which this Amendment becomes effective, all
references in the Loan Documents to the Credit Agreement and the Security
Agreement shall mean the Credit Agreement and the Security Agreement, as
applicable, 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.
6. APPLICABLE LAW. THE VALIDITY, INTERPRETATIONS AND ENFORCEMENT OF
THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK; PROVIDED
THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
7. COMPLETE AGREEMENT. This Amendment sets forth the complete
agreement of the parties in respect of any amendment to any of the provisions of
any Loan Document. The execution, delivery and effectiveness of this Amendment
do not constitute a waiver of any Default or Event of Default, amend or modify
any provision of any Loan Document except as expressly set forth herein or
constitute a course of dealing or any other basis for altering the Obligations
of any Obligor.
8. CAPTIONS; COUNTERPARTS. The catchlines and captions herein are
intended solely for convenience of reference and shall not be used to interpret
or construe the provisions hereof. This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts
(including by telecopy), all of which taken together shall constitute but one
and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed
this Third Amendment to Post-Petition Credit Agreement, Second Amendment to
Post-Petition Pledge and Security Agreement and Consent of Guarantors as of the
date set forth above.
"PARENT GUARANTOR" XXXXXX ALUMINUM CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
"THE COMPANY" XXXXXX ALUMINUM & CHEMICAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
[Signatures Continued on Next Page]
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/ X. 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 BUSINESS CREDIT, LLC,
as a Lender
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Director
THE PROVIDENT BANK,
as a Lender
By: /s/ Xxxx Xxx Xxxxxx
Name: Xxxx Xxx Xxxxxx
Title: Director
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. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
ALPART JAMAICA INC.
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINA AUSTRALIA CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM & CHEMICAL INVESTMENT, INC.
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINIUM INTERNATIONAL, INC.
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, INC.
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM TECHNICAL
SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX FINANCE CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
KAISER JAMAICA CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX SIERRA MICROMILLS, LLC
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX TEXAS SIERRA MICROMILLS, LLC
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX TEXAS MICROMILL HOLDINGS, LLC
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC.
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXXXX ALUMINUM CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
EXHIBIT 1 TO THIRD AMENDMENT TO POST-PETITION CREDIT
AGREEMENT, SECOND AMENDMENT TO POST-PETITION PLEDGE AND SECURITY
AGREEMENT AND CONSENT OF GUARANTORS
EXHIBIT F
DESCRIPTION OF XXXXXX CENTER ASSETS
(a) The land (the "Land") lying beneath the Xxxxxx Center
office building, garage and mall (the "Building") generally located at 000
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx and 00xx Xxxxxx, Xxxxxxx, Xxxxxxxxxx;
(b) The mall portion of the Building (the "Mall Building")
generally located at Xxxxxxx Street and 21st Street, Oakland, California;
(c) The real property used as a surface parking lot located at
00xx Xxxxxx and 22nd Street, Oakland, California (the "Parking Lot"), subject to
a Parking Lease, dated December 30, 1983, as amended, between Xxxxxx Center
Properties, a California partnership, as landlord, the Company and Xxxxxxxx
Properties Acquisitions Partners, L.P., or, if elected by the buyer, a one
hundred percent ownership interest in the entity that holds fee simple title to
the Parking Lot;
(d) The rights of Xxxxxx Center, Inc. ("KCI") as landlord
under that certain Ground Lease entered into by and between KCI and Kalan
Associates Limited Partnership ("Kalan") as tenant, dated as of August 15, 1983
(the "Ground Lease");
(e) The rights of Alwis as tenant under that certain Master
Lease, entered into by and between Kalan as landlord and Alwis Leasing Corp.
(subsequently merged into Alwis) as tenant, dated as of August 15, 1983 and
pertaining to the Land and the Building (the "Master Lease");
(f) All interests of the Company and Alwis under that certain
Sublease Agreement entered into by and between Alwis as landlord and the Company
as tenant, dated as of August 15, 1983, and pertaining to the Building (the
"Sublease");
(g) All interests of the Company in and to leases of space in
the Building and in any guaranties, security deposits, letters of credit or
other security held by the Company in connection therewith;
(h) That certain Promissory Note made by Kalan in the original
amount of three million two hundred thirty-seven thousand four hundred
eighty-five dollars ($3,237,485), dated as of August 15, 1983 (the "Third Note")
made to and for the benefit of Zenith Insurance Company ("Zenith"), the Third
Note having been acquired by the Company from Zenith;
(i) The Deed of Trust made by Kalan and joined in by KCI to
secure the Third Note;
(j) That certain Assignment of Leases and Agreement made by
Kalan for the benefit of Zenith on August 15, 1983 as additional security for
payment of the Third Note and other obligations of Kalan to Zenith (the "Third
Lease Assignment"), all rights of Zenith thereunder having been assigned to the
Company in connection with endorsement of the Third Note to the Company;
(k) UCC Financing Statement made by Kalan and KCI to Zenith to
secure the Third Note;
(1) That certain agreement made by Kalan obligating itself to
pay the original sum of seventeen million one hundred twenty thousand dollars
($17,120,000) dated as of August 15, 1983 for the benefit of Resources Property
Development Corp. (referred to herein as the "Fourth Note"), the Fourth Note
having been acquired by the Company by assignment;
(m) The Deed of Trust made by Kalan to secure the Fourth Note
for the benefit of Resources Property Development Corp. (the "Fourth Deed of
Trust"), the beneficial interest in the Fourth Deed of Trust having been
assigned to the Company;
(n) All security interests, collateral assignments, pledges,
guaranties and other security held by the Company, KCI or Alwis to secure or
with respect to any of the interests referred to in (g) through (1) above and
all certificates, resolutions and other proofs of authority with respect
thereto;
(o) All permits, entitlements and other licenses and rights
held by the Company, KCI or Alwis with respect to the real property and
improvements that constitute the Xxxxxx Center (the "Property") or other
property interests pertaining the Property;
(p) Various contracts, contract rights, warranties and service
agreements held by the Company, KCI or Alwis with respect to any of the
Property; and
(q) All personal property owned and used by the Company, KCI
or Alwis exclusively in connection with the management and operation of the
Building.
SCHEDULE VII
PLEDGED NOTES
1. Subordinated Note, dated April 30, 1985, as amended, for the original
principal amount of $8,000,000, and a balance at October 31, 2002, of
$4,275,000, payable to Xxxxxx Aluminum & Chemical Corporation, or order, by
National Refractories & Minerals Corporation.
2. Standby Revolving Credit Note, dated September 20, 1990, for the original
amount of $2,500,000, and a balance at October 31, 2002, of $2,500,000, payable
to Xxxxxx Aluminum & Chemical Corporation, or order, by National
Refractories & Minerals Corporation.
3. Non-Negotiable Intercompany Note, dated December 21, 1989, as amended
effective as of July 1, 1993 and December 11, 2000, payable to Xxxxxx Aluminum &
Chemical Corporation, or order, by KaiserTech Limited (now named Xxxxxx Aluminum
Corporation)(the "KT Note").
4. Promissory Note, dated August 15, 1983, for the original principal amount of
$3,237,485 and a balance at October 31, 2002, of $30,275,872, payable to Xxxxxx
Aluminum & Chemical Corporation by Kalan Associates Limited Partnership)(now
named Xxxxxxx Xxxxx, LLP).
5. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Akron Holding
Corporation.
6. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Xxxxxx Aluminum &
Chemical Investment, Inc.
7. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Xxxxxx Aluminum
Properties, Inc.
8. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Xxxxxx Aluminum
Technical Services, Inc.
9. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Oxnard Forge Die
Company, Inc.
10. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Xxxxxx Aluminum
International, Inc.
11. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Xxxxxx Finance
Corporation.
12. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Alumina
Australia Corporation and made payable to the order of Xxxxxx Finance
Corporation.
13. Intercompany Demand Note, dated February 15, 1994, issued by Kaiser Jamaica
Corporation and made payable to the order of Xxxxxx Finance Corporation.
14. Intercompany Demand Note, dated February 15, 1994, issued by Alpart Jamaica
Inc. and made payable to the order of Xxxxxx Finance Corporation.
15. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Aluminum
& Chemical Corporation and made payable to the order of Xxxxxx Alumina
Australia Corporation.
16. Intercompany Demand Note, dated February 15, 1994, issued by Xxxxxx Finance
Corporation and made payable to the order of Xxxxxx Alumina Australia
Corporation.
17. Intercompany Demand Note, dated June 30, 1997, issued by Xxxxxx Bellwood
Corporation and made payable to the order of Xxxxxx Finance Corporation.
SCHEDULE IX
PLEDGED SHARES
JURISDICTION
OF CERTIFICATE NUMBER OF PERCENTAGE
GRANTOR ISSUER ORGANIZATION CLASS NO.(S) SHARES OF CLASS
Xxxxxx Aluminum & Akron Holding Ohio common 2 100 100%
Chemical Corporation Corporation
Xxxxxx Aluminum & Anglesey Aluminum United Kingdom 23 12,862,500 49%
Chemical Corporation Limited
Xxxxxx Aluminum & Xxxxxx Aluminum Delaware common 4 100 100%
Chemical Corporation International, Inc.
Xxxxxx Aluminum & Xxxxxx Aluminum & Ontario common C-1 40,426 65%
Chemical Corporation Chemical Canada
Investment Limited
Xxxxxx Aluminum & Xxxxxx Aluminum & Ontario preferred NP-6 34,356 40%
Chemical Investment, Inc. Chemical Canada
Investment Limited
Xxxxxx Aluminum & Xxxxxx Aluminum & Delaware common 1 10 100%
Chemical Corporation Chemical Investment,
Inc.
Xxxxxx Aluminum & Xxxxxx Aluminum & Ontario common C-2 1,806,841 17.4%
Chemical Investment, Inc. Chemical of Canada
Limited
Xxxxxx Aluminum & Xxxxxx Aluminum Delaware common 2 10 100%
Chemical Corporation Properties, Inc.
Xxxxxx Aluminum & Xxxxxx Aluminum California common 1 2,500 100%
Chemical Corporation Technical Services, Inc.
Xxxxxx Aluminum & Kaiser Bauxite Company Nevada common 1 10,000 100%
Chemical Corporation 2 140,000
Xxxxxx Aluminum & Kaiser Bellwood Delaware common 1 1,000 100%
Chemical Corporation Corporation
Kaiser Alumina Australia Kaiser Finance Delaware common 1 1,000 100%
Corporation Corporation
Xxxxxx Aluminum & Oxnard Forge Die California common 1 1,000 100%
Chemical Corporation Company, Inc.
Xxxxxx Aluminum & Trochus Insurance Bermuda 32 78,000 65%
Chemical Corporation Company, Ltd. 42 325,000
Xxxxxx Aluminum & Volta Aluminum Company Ghana 85 2,357,146 55%
Chemical Corporation Limited
Xxxxxx Aluminum Xxxxxx Aluminum & Delaware common CNB 81285 44,898,914 100%
Corporation Chemical Corporation CNB 81286 1,272,045
CNB 81288 406
