Exhibit 4.2
SEVENTH AMENDMENT TO
POST-PETITION CREDIT AGREEMENT, AMENDMENT
TO SUBSIDIARY GUARANTY, CONSENT OF GUARANTORS
AND ACKNOWLEDGMENT AND AGREEMENT
OF AJI, KJC, KFC, KAAC AND KBC
This SEVENTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT, AMENDMENT
TO SUBSIDIARY GUARANTY, CONSENT OF GUARANTORS AND ACKNOWLEDGMENT AND AGREEMENT
OF AJI, KJC, KFC, KAAC AND KBC (this "Amendment") is dated as of October 28,
2004, 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 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, XXXXX FARGO FOOTHILL, INC. (fka Foothill Capital
Corporation) ("Foothill"), as Co-Syndication Agent (GE Capital, CIT and
Foothill, collectively, the "Co-Agents"), and solely with respect to the
provisions of Section 1.12 of this Amendment (and Section 9.1.21 of the Credit
Agreement, as defined below and amended hereby), BANK OF AMERICA, N.A. ("Bank of
America"), in its capacity as depository bank with respect to the Cash
Collateral Accounts (as hereinafter defined and, in such capacity, "Depository
Bank").
RECITALS
WHEREAS, the Parent Guarantor, the Company, the Lenders, and the
Agent have entered into that certain Post-Petition Credit Agreement dated as of
February 12, 2002, as amended by that certain First Amendment to Post-Petition
Credit Agreement and Post-Petition Pledge and Security Agreement and Consent of
Guarantors dated as of March 21, 2002, that certain Second Amendment to
Post-Petition Credit Agreement and Consent of Guarantors dated as of March 21,
2002, that certain Third Amendment to Post-Petition Credit Agreement, Second
Amendment to Post-Petition Pledge and Security Agreement and Consent of
Guarantors dated as of December 19, 2002, that certain Fourth Amendment to
Post-Petition Credit Agreement and Consent of Guarantors dated as of March 17,
2003, that certain Consent and Fifth Amendment to Post-Petition Credit Agreement
and Consent of Guarantors dated as of June 6, 2003, and that certain Sixth
Amendment to Post-Petition Credit Agreement and Consent of Guarantors dated as
of August 1, 2003, and as further modified by that certain Waiver and Consent
with Respect to Post-Petition Credit Agreement dated as of October 9, 2002, that
certain Second Waiver and Consent With Respect to Post-Petition Credit Agreement
dated as of January 13, 2003, and limited waivers dated March 24, 2003, May 5,
2003, March 29, 2004, May 21, 2004, July 29, 2004, and September 29, 2004 (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 Company has requested that the Lenders agree to amend
certain provisions of the Credit Agreement and the Lenders 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, the
Agent and, with respect to Section 1.12 hereof, Bank of America, as Depository
Bank, agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions and upon the
terms set forth in this Amendment, the Credit Agreement is hereby amended as
follows:
1.1 Amendments to Section 1.1 (Definitions).
(a) The following definition of "2004 Financial Forecast" is
added in proper alphabetical order:
""2004 Financial Forecast" means the financial forecast on a monthly
basis for the fiscal period ending December 31, 2004, prepared by the
Company's management and delivered to the Agent and the Lenders on May 5,
2004."
(b) The definitions of "Actual VALCO EBITDA Amount", "Forecast
VALCO EBITDA Amount," "Kaiser Center Assets," "Xxxx Charges," "VALCO Adjusted
Net Earnings from Operations," and "VALCO PPE Reduction" are deleted in their
entirety.
(c) The definition of "Adjusted Net Earnings from Operations"
is deleted in its entirety and replaced with the following:
""Adjusted Net Earnings from Operations" means, with respect to any
fiscal period of the Company, the Company's consolidated net income after
provision for income taxes for such fiscal period, as determined in
accordance with GAAP and reported on the consolidated financial statements
for such period, excluding the consolidated impact of any and all of the
following included in such consolidated net income (without duplication):
(a) gain or loss in an amount greater than $150,000 arising from the sale
of any capital assets; (b) gain arising from any write-up in the book
value of any asset; (c) earnings of any Person, substantially all the
assets of which have been acquired in any manner, to the extent realized
by such other Person prior to the date of acquisition; (d) earnings of any
Person (other than a Subsidiary of the Company) in which the Company or
any of its Subsidiaries has an ownership interest to the extent that such
earnings exceed the sum of (i) the amount received in cash by the Company
and its Subsidiaries and (ii) $3,000,000; (e) earnings of any Person to
which assets of the Company or any of its Subsidiaries shall have been
sold, transferred or disposed of, or into which the Company or any of its
Subsidiaries shall have been merged, or which has been a party with the
Company or any of its Subsidiaries to any consolidation or other form of
reorganization, prior to the date of such transaction; (f) gain arising
from the acquisition of debt or equity securities of the Company or any of
its Subsidiaries from cancellation or forgiveness of Indebtedness; (g)
gain arising from extraordinary items, as determined in
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accordance with GAAP, or from any other non-recurring transaction
resulting in gain in an amount greater than $150,000; (h) any gain that
arises from the reversal of expenses in respect of power payments to the
extent reflected in the Financial Forecast; (i) non-cash LIFO inventory
valuation charges in aggregate amounts not to exceed $20,000,000 after May
31, 2004; (j) non-cash pension expenses in aggregate amounts not to exceed
$68,000,000 in Fiscal Year 2004; (k) non-cash special charges relating to
pension expenses in aggregate amounts not to exceed $25,000,000 in any
Fiscal Year; (l) non-cash impairment charges relating to fixed assets or
Investments in aggregate amounts not to exceed $100,000,000 after May 31,
2004, except for any such charges which reduce the book value of any
Eligible Fixed Asset to an amount less than the OLV In-Place Value of such
Eligible Fixed Asset (such exception to apply only to the amount by which
the book value of such Eligible Fixed Asset is less than such OLV In-Place
Value as a result of such charges); (m) non-cash charges related to the
write down of the value of Inventory located outside the United States in
aggregate amounts not to exceed $10,000,000 after May 31, 2004; and (n)
the recording of accruals for the following items, but only to the extent
that such accruals are non-cash during the term of this Agreement and
arise solely out of pre-petition liabilities: (i) in aggregate amounts not
to exceed $80,000,000 after May 31, 2004, in respect of the rejection of
the Bonneville Power Administration contract, (ii) in aggregate amounts
not to exceed $250,000,000 after May 31, 2004, in respect of the unfair
labor practices claims arising in connection with the United Steelworkers
of America strike and subsequent lockout, (iii) in aggregate amounts not
to exceed $250,000,000 after May 31, 2004, in respect of liabilities to
the PBGC relating to Pension Plans, (iv) in aggregate amounts not to
exceed $400,000,000 after May 31, 2004, in respect of curtailment or
settlement charges related to retiree medical obligations, (v) all claims
relating to liabilities for asbestos exposure and any other personal
injury claims intended to ultimately be settled as a part of a Plan of
Reorganization by transferring the liability and certain rights against
certain insurance policies to a trust and (vi) other pre-petition
liabilities in aggregate amounts not to exceed $100,000,000 after May 31,
2004."
(d) The following definitions of "ALPART Claims," "ALPART
Collateral" and "ALPART Plan Event" are added in proper alphabetical order:
""ALPART Claims" means the Agent's and the Secured Lenders'
superpriority secured claims against AJI and KJC in the amount of
$20,000,000 (plus an amount equal to the interest accruing on and
investments of, and the earnings on and proceeds of investments of, the
ALPART Collateral)."
""ALPART Collateral" means $20,000,000 (plus an amount equal to the
interest accruing thereon and investments thereof, and the earnings on and
proceeds of investments with respect thereto) of the Net Disposition
Proceeds from the sale of AJI's and KJC's interests in ALPART, which
amount is deposited in Cash Collateral Accounts as security for the
Obligations under the Loan Documents, and all interest accruing on and
investments of, and the earnings on and proceeds of investments of, such
amount."
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""ALPART Plan Event" means the effective date of a Subsidiary Plan
for AJI/KJC, which plan shall provide for cash payment to the Company and
deposits to Cash Collateral Accounts and confirmation of guaranty
obligations (if applicable) upon such effective date in the amounts and as
otherwise required by Section 9.1.19."
(e) The definition of "Availability Reserve" is deleted in its
entirety and replaced with the following:
""Availability Reserve" means a reserve against availability under
the Borrowing Base in an amount equal to the lesser of (i) $20,000,000 and
(ii) ten percent (10%) of the Revolving Commitment Amount."
(f) The definition of "Borrowing Base" is amended to delete
clauses (b) and (c) thereof in their entirety and to replace them with the
following:
"(b) (i) the lesser of (A) $125,000,000 and (B) 65% of all Eligible
Inventory as at such time or (ii) at any time following Agent's receipt of
a satisfactory appraisal pursuant to Section 9.1.18(a), the least of (A)
$125,000,000, (B) 65% of all Eligible Inventory as at such time and (C)
85% of the Net Recovery Percentage (as determined by the most recent
Inventory appraisal delivered to the Agent pursuant to Section 9.1.18(a))
of all Eligible Inventory as at such time;
plus
(c) the lesser of (i) $50,000,000 and (ii) 50% of the OLV In-Place
Value of Eligible Fixed Assets (such lesser number, the "PPE
Subcomponent"); provided, that the PPE Subcomponent shall be permanently
reduced in an amount equal to each PPE Subcomponent Reduction; and
provided further that the PPE Subcomponent shall at no time be less than
zero."
(g) The definition of "Carve-Out Reserve" is amended to insert
the following before the final period of the first sentence thereof:
"; provided that the Carve-Out Reserve shall not include Professional Fees
specifically relating to the administration of the Bankruptcy Cases of
AJI, KJC, KFC, KAAC or KBC incurred after June 30, 2004, which costs shall
be charged to AJI, KJC, KAAC (both on behalf of itself and KFC) or KBC, as
applicable, and paid by such estate or estates."
(h) The following definitions of "Cash Collateral Accounts"
and "Claims" are added in the proper alphabetical order:
""Cash Collateral Accounts" means each of those certain blocked
deposit and/or securities accounts established with Bank of America, N.A.,
by the Company, AJI, KJC, KAAC, KBC and any other Obligor receiving the
ALPART Collateral, the QAL Collateral, the KACC Available Amount or the
KBC
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Allocable Amount, which accounts are subject to the exclusive dominion and
control of the Agent, for its benefit and the benefit of the Secured
Lenders, and held as Collateral for the Obligations, all pursuant to
documentation in form and substance satisfactory to the Agent in its sole
discretion."
""Claims" has the meaning set forth in Section 101(5) of the
Bankruptcy Code."
(i) The definition of "Eligible Fixed Assets" is amended to
insert "identified on Schedule I hereto" immediately after "manufacturing
facility" in the second line thereof.
(j) The definition of "Excluded Assets" is amended to add the
following at the end thereof:
"Notwithstanding anything herein or in any other Loan Document to the
contrary, "Excluded Assets" shall not include the ALPART Collateral or the
QAL Collateral, or the proceeds of any Asset Disposition of the VALCO
Interests or the Gramercy/KJBC Interests."
(k) The definition of "Final Order" is deleted in its entirety
and replaced with the following:
""Final Order" means the Third Amended and Restated Final Order
Authorizing Secured Post-Petition Financing on a Super Priority Basis
Pursuant to 11 U.S.C. Sections 363, 364, and 507(b) and Granting Relief
from the Automatic Stay Pursuant to 11 U.S.C. Section 362 entered in the
Bankruptcy Cases approving the Seventh Amendment and the granting of Liens
as provided therein, and as the same may hereafter be further amended,
supplemented or otherwise modified, in each case with the prior written
consent of the Agent."
(l) The following definitions of "Gramercy/KJBC Debt,"
"Gramercy/KJBC Interests" and "Gramercy/KJBC Proceeds" are added in proper
alphabetical order:
""Gramercy/KJBC Debt" means an amount equal to the Indebtedness
owing to the Company or any other Obligor by KJBC that is not indefeasibly
repaid in full in cash immediately upon an Asset Disposition of the
Gramercy/KJBC Interests."
""Gramercy/KJBC Interests" means the Company's or any other
Obligor's interests in (i) the real property and other assets associated
with the facility in Gramercy, Louisiana and/or (ii) KJBC or the assets of
KJBC."
""Gramercy/KJBC Proceeds" means (i) the amount of Net Disposition
Proceeds from an Asset Disposition with respect to the Gramercy/KJBC
Interests, to the extent such proceeds are received by the Company or any
other Obligor, net of (ii) any amounts required by any governmental
authority or regulatory body or
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by the terms of any agreement or contract with any Person relating to the
Gramercy/KJBC Interests or by an order of the Bankruptcy Court to pay, or
deposited into escrow to pay, liabilities associated with such assets and
business (in each case for so long as such proceeds remain in escrow or
the same have been applied to such liabilities); provided that no amounts
shall be netted from the full Net Disposition Proceeds pursuant to this
clause (ii) until the Agent has received a written request from the
Company for such netting, describing (and providing documentation, as
applicable) the requirements of such governmental authority or regulatory
body, or terms and requirements of any such agreement or contract with any
Person, in each case with respect to such payments or escrowed funds and
the liabilities relating thereto, and the same in each case are reasonably
acceptable to the Agent (including without limitation as to amounts)."
(m) The following definition of "KACC Available Amount" is
added in proper alphabetical order:
""KACC Available Amount" means the $28,000,000 deposited in a Cash
Collateral Account in the name of the Company established at Bank of
America, N.A., in connection with the consummation of the sale of the
interests in ALPART."
(n) The following definition of "KBC Allocable Amount" is
added in proper alphabetical order:
""KBC Allocable Amount" means the portion of the Net Disposition
Proceeds from an Asset Disposition of the Gramercy/KJBC Interests that is
allocable to KBC pursuant to the Settlement and Release Agreement or, if
the Settlement Effective Date has not occurred, then pursuant to the
Purchase Agreement dated as of May 17, 2004, for the sale of the
Gramercy/KJBC Interests."
(o) The definition of "Maximum Letter of Credit Amount" is
amended to change the number "$125,000,000" to "$100,000,000".
(p) The following definition of "Minimum Aggregate Proceeds
Collateral" is added in proper alphabetical order:
""Minimum Aggregate Proceeds Collateral" means the aggregate of the
ALPART Collateral and the QAL Collateral; provided that (i) prior to a QAL
Triggering Event, the Minimum Aggregate Proceeds Collateral shall consist
of (x) the ALPART Collateral, maintained in Cash Collateral Accounts in
accordance herewith, plus (y) the QAL Claims, and (ii) after the
occurrence of a QAL Triggering Event, the Minimum Aggregate Proceeds
Collateral shall consist of the ALPART Collateral and the QAL Collateral,
in each case maintained in Cash Collateral Accounts in accordance
herewith."
(q) The definition of "New Domestic Debtor" is deleted in its
entirety and replaced with the following:
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""Xxx Xxxxxxxx Xxxxxx" means, each of Xxxxx, XXX Trading, Xxxxxx
Center Properties, KBC, KCI and KEC, and "New Domestic Debtors" means all of
them collectively."
(r) The definition of "OLV In-Place Value" is deleted in its
entirety and replaced with the following:
""OLV In-Place Value" means the appraised value of the Eligible
Fixed Assets then owned, reduced by such Environmental Compliance Reserve,
if any, as the Agent, after consultation with the Company, deems
appropriate in its commercially reasonable discretion."
(s) The definition of "Permitted Asset Dispositions" is
deleted in its entirety and replaced with the following:
""Permitted Asset Dispositions" means (i) an Asset Disposition of
the QAL Interests so long as (a) the QAL Collateral is immediately
deposited in the applicable Cash Collateral Accounts at Bank of America,
N.A., by the purchaser of the QAL Interests upon consummation of such sale
and maintained on deposit thereafter in accordance with Sections 9.1.20
and 9.1.21, (b) the Debtors are released from any further obligation to
make Investments with respect to QAL and from any Contingent Liabilities
with respect to QAL other than such indemnification and post-closing
obligations and liabilities as are customarily found in purchase
agreements and agreed with the ultimate purchaser of the QAL Interests and
set forth in the definitive documentation therefor; provided that the
aggregate amount of such indemnification and post-closing obligations and
liabilities for which the Company reasonably believes the Debtors may be
liable shall not exceed an amount that is reasonably acceptable to the
Required Lenders, all as set forth in a letter agreement between the
Company and the Agent (acting at the direction of the Required Lenders),
to be entered into prior to the execution and delivery of a purchase
agreement relating to the QAL Interests, and (c) all Net Disposition
Proceeds from such Asset Disposition shall be allocated to KAAC, the
Company and/or KAII; (ii) an Asset Disposition of the VALCO Interests;
provided that the terms of any such Asset Disposition and disposition of
the proceeds thereof are substantially as generally described to the Agent
and the Lenders prior to the effective date of the Seventh Amendment; and
(iii) an Asset Disposition of the Gramercy/KJBC Interests pursuant to the
Purchase Agreement dated as of May 17, 2004, among the Company, KBC,
Gramercy Alumina LLC and St. Xxx Bauxite Limited which was approved by the
Bankruptcy Court on July 19, 2004."
(t) The definition of "PPE Subcomponent Reduction" is deleted
in its entirety and replaced with the following:
""PPE Subcomponent Reduction" shall mean an amount equal to (a) the
aggregate of all Net Disposition Proceeds received by the Parent
Guarantor, the Company or any Subsidiary from any Asset Dispositions
effected after the effective date of the Sixth Amendment, except (1) Asset
Dispositions permitted
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under Sections 9.2.11(a), (b), (c), (d), (f) and (i); (2) sales of
Accounts owned by the Company, KAII or Kaiser Bellwood; (3) the Asset
Disposition of the interests in ALPART and certain assets owned by ALPART,
the sellers of interests in ALPART or their affiliates in the transaction
that closed on July 1, 2004; and (4) except as hereinafter provided,
Permitted Asset Dispositions; provided that in the case of any Asset
Disposition by a less than wholly owned Subsidiary, only the proportionate
amount of Net Disposition Proceeds received in connection therewith which
corresponds to the Company's direct or indirect percentage ownership
interest in such Subsidiary shall be included in a PPE Subcomponent
Reduction; plus (b) after the occurrence of a Threshold Event, an amount
equal to $5,000,000 upon each such occurrence, provided that (i) any
reductions under this clause (b) shall occur no more frequently than once
each calendar month and (ii) the aggregate reductions under this clause
(b) shall not cause the PPE Subcomponent to be less than $25,000,000; plus
(c) at any time on or after the date on which the first reduction of the
PPE Subcomponent under clause (b) above has occurred, (1) if an Asset
Disposition of the Gramercy/KJBC Interests has occurred or a Subsidiary
Plan for KBC has been confirmed, an amount equal to the greater of (i) the
KBC Allocable Amount and (ii) $3,000,000, plus an amount equal to 50% of
the Gramercy/KJBC Proceeds (excluding the KBC Allocable Amount) in excess
of $3,000,000, plus (2) if an Asset Disposition of the VALCO Interests has
occurred, an amount equal to $7,000,000, plus an amount equal to 50% of
the VALCO Proceeds in excess of $7,000,000, in each case whether such
proceeds were received prior to or after a reduction of the PPE
Subcomponent pursuant to clause (b); provided that any reductions pursuant
to this clause (c) shall be effective on the later of (x) the Threshold
Event giving rise to a reduction under clause (b) above and (y)(A) the
consummation of such Asset Disposition or confirmation of such Subsidiary
Plan (as applicable) and (B) thereafter upon receipt of any subsequent
cash payment on notes or deferred payment obligations or purchase price
adjustments pursuant to clause (i) of the following proviso; provided
further that (i) any reductions based on the Gramercy/KJBC Proceeds or the
VALCO Proceeds, as applicable, under this clause (c) shall be made only to
the extent such proceeds are received directly by the Company or any other
Obligor, or any Affiliate of an Obligor, in cash or cash equivalents,
including in respect of cash payments on any promissory notes received as
part of the consideration for such Asset Disposition and in respect of
cash payments of deferred payment obligations or purchase price
adjustments received as consideration in such Asset Disposition, and (ii)
any subsequent repayment of the Gramercy/KJBC Debt or the VALCO Debt, as
applicable, shall not increase or otherwise affect the PPE Subcomponent,
nor shall it reduce or otherwise affect the PPE Subcomponent Reduction;
plus (d) an amount equal to 100% of the Indebtedness owing to the Company
or any other Obligor by AJI, KJC and/or KAAC, as applicable, pursuant to
the Settlement and Release Agreement (whether or not the Settlement
Effective Date has occurred) that is not indefeasibly repaid in full in
cash by (1) AJI and KJC immediately upon, or in connection with, an ALPART
Plan Event or (2) KAAC immediately upon, or in connection with, a QAL Plan
Event; plus (e) an amount equal to 100% of the
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Indebtedness owing to the Company or any other Obligor by QAL that is not
indefeasibly repaid in full in cash by QAL immediately upon a QAL Sale
Event."
(u) The following definitions of "QAL Claims," "QAL
Collateral," "QAL Interests," "QAL Plan Event," "QAL Sale Event" and "QAL
Triggering Event" are added in the proper alphabetical order:
""QAL Claims" means the Agent's and the Secured Lenders'
superpriority secured claims against KAAC in the amount of (i) the
Obligations prior to the Settlement Effective Date and (ii) after the
Settlement Effective Date, $40,000,000 (plus interest, if any, accruing on
and investments of, and earnings on and proceeds of investments of, the
QAL Collateral after a QAL Triggering Event)."
""QAL Collateral" means the Net Disposition Proceeds of a QAL Sale
Event and any other distributions in respect of the QAL Interests
(including pursuant to a plan of reorganization or liquidation or the
Settlement and Release Agreement); provided that following the occurrence
of both the Settlement Effective Date and a QAL Triggering Event in
accordance with the terms and provisions of this Agreement, the QAL
Collateral shall be fixed at a principal amount of $40,000,000, and shall
include such amount, interest accruing thereon and all investments
thereof, and earnings on and proceeds of investments with respect
thereto."
""QAL Interests" means the ownership interests of the Company, KAAC
and any other Obligor in QAL, certain contracts, rights and interests or
loans owned by any Obligor relating to QAL, and any inventory held at QAL
and owned by any Obligor."
""QAL Plan Event" means the effective date of a Subsidiary Plan for
KAAC, which plan shall provide for cash payments to the Company and
deposits to Cash Collateral Accounts upon such effective date in the
amounts required by Section 9.1.20."
""QAL Sale Event" means the consummation of an Asset Disposition of
the QAL Interests."
""QAL Triggering Event" means either a QAL Sale Event or a QAL Plan
Event."
(v) The definition of "Secured Guarantor" is deleted in its
entirety and replaced with the following:
""Secured Guarantor" means each of Kaiser Bellwood, KAII, Parent
Guarantor, Akron, KAAC, KACI, KAP, KATSI, KBC, KFC, KMH, KSM, Oxnard,
Texas Holdings, Texas Sierra, AJI and KJC, and "Secured Guarantors" means
all of them, collectively."
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(w) The following definition of "Settlement and Release
Agreement" is added in proper alphabetical order:
""Settlement and Release Agreement" means the Settlement and Release
Agreement dated as of October 5, 2004, among the Obligors and the
Unsecured Creditors' Committee, in the form attached as Exhibit A to the
Seventh Amendment."
(x) The following definition of "Settlement Effective Date" is
added in proper alphabetical order:
""Settlement Effective Date" means the date on which the Settlement
and Release Agreement becomes effective in accordance with its terms;
provided that for purposes of the following definitions and sections:
"KBC Allocable Amount"
"QAL Claims"
"QAL Collateral"
Section 9.1.20
the Settlement Effective Date shall be deemed not to have occurred if the
Approval Order (as defined in the Settlement and Release Agreement) is
overturned, vacated or otherwise reversed on appeal."
(y) The following definition of "Seventh Amendment" is added
in the proper alphabetical order:
""Seventh Amendment" means the Seventh Amendment to Post-Petition
Credit Agreement, Amendment to Subsidiary Guaranty and Consent of
Guarantors and Acknowledgment and Agreement of AJI, KJC, KFC, KAAC and
KBC, dated as of ___________, 2004, by and among the Parent Guarantor, the
Company, the Lenders, the Agent, the Co-Agents and, with respect to
Section 1.12 thereof, Bank of America, N.A., as depository bank for the
Cash Collateral Accounts, and acknowledged by AJI, KJC, KFC, KAAC and
KBC."
(z) The following definition of "Subsidiary Plan" is added in
proper alphabetical order:
"Subsidiary Plan" means a separate standalone plan or plans of
reorganization or liquidation for AJI, KJC, KAAC, KFC and/or KBC as
applicable."
(aa) The following definitions of "Threshold" and "Threshold
Event" are added in proper alphabetical order:
""Threshold" means, as of any date of determination, an amount equal
to 85% of the Borrowing Base attributable to the sum of (i) amounts
included under
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clause (a) of the definition of Borrowing Base and (ii) amounts included
under clause (b) of the definition of Borrowing Base."
"Threshold Event" means at any time after August 31, 2004, the
earlier to occur of either of the following events: (x) Revolving Credit
Outstandings exceed the Threshold for five (5) consecutive Business Days
or (y) Revolving Credit Outstandings exceed the Threshold for any five (5)
Business Days in any calendar month; provided that with respect to Section
9.2.4, the time period for determining whether a "Threshold Event" shall
have occurred shall be, in the case of clause (x) above, three (3)
consecutive Business Days and, in the case of clause (y) above, any three
(3) Business Days."
(bb) The following definition of "Unsecured Creditors
Committee" is added in proper alphabetical order:
""Unsecured Creditors' Committee" means the Official Committee of
Unsecured Creditors which was appointed in the Bankruptcy Cases on
February 22, 2002, as such appointment may be amended from time to time."
(cc) The definition of "Unsecured Guarantor" is deleted in its
entirety and replaced with the following:
"Unsecured Guarantor" means each of the New Domestic Debtors (other
than KBC) and "Unsecured Guarantors" means all of them, collectively.
(dd) The following definitions of "VALCO Debt," "VALCO
Interests" and "VALCO Proceeds" are added in proper alphabetical order:
""VALCO Debt" means an amount equal to the Indebtedness owing to the
Company or any other Obligor by VALCO that is not indefeasibly repaid in
full in cash upon an Asset Disposition of the VALCO Interests."
""VALCO Interests" means the Company's or any other Obligor's
ownership interests in VALCO and any alumina inventory held at VALCO and
owned by the Company or any other Obligor."
""VALCO Proceeds" means (i) the Net Disposition Proceeds from the
sale or other disposition of the VALCO Interests, to the extent such
proceeds are received by the Company or any other Obligor, net of (ii) any
amounts required by any governmental authority or regulatory body or by
the terms of any agreement or contract with any Person relating to the
VALCO Interests or by an order of the Bankruptcy Court to pay, or
deposited into escrow to pay, liabilities associated with such assets and
business (in each case for so long as such proceeds remain in escrow or
the same have been applied to such liabilities; provided that no amounts
shall be netted from the full Net Disposition Proceeds pursuant to this
clause (ii) until the Agent has received a written request from the
Company for such netting, describing (and providing documentation, as
applicable) the requirements of such governmental authority or regulatory
body,
11
or terms and requirements of any such agreement or contract with any
Person, in each case with respect to such payments or escrowed funds and
the liabilities relating thereto, and the same in each case are reasonably
acceptable to the Agent (including without limitation as to amounts)."
1.2 AMENDMENT TO SECTION 2.1.1 (REVOLVING COMMITMENT). Section
2.1.1(b) of the Credit Agreement is amended (i) to delete the reference to
"$285,000,000" in clause (x) thereof and to replace it with "$200,000,000" and
(ii) to delete the two references in the last sentence of such Section to the
"Sixth Amendment" and replace them with "Seventh Amendment".
1.3 AMENDMENT TO SECTION 3.5.1 (COMMITMENT FEE). Section 3.5.1 of
the Credit Agreement is amended to delete the reference to "1/2 of 1% per annum"
and replace it with "0.625% per annum".
1.4 AMENDMENT TO SECTION 7.4 (ALL CREDIT EXTENSIONS). Section 7.4 of
the Credit Agreement is amended to delete the first sentence thereof and to
replace it with the following:
"The obligation of each Lender to fund any Loan on the occasion of
any Credit Extension (including the initial Credit Extension), the
obligation of Agent to fund any Swingline Loan, the obligation of any
Issuer Bank to issue any Letter of Credit and the obligation of Agent to
consent to the withdrawal of the KACC Available Amount from a Cash
Collateral Account, as the case may be, shall, except as provided in
Sections 2.1.2(b) and (c), be subject to the prior or concurrent
satisfaction (or waiver) of each of the conditions precedent set forth in
this Section 7.4."
1.5 AMENDMENT TO SECTION 8.1 (ORGANIZATION, ETC.). Section 8.1 of
the Credit Agreement is amended to delete the first sentence thereof and to
replace it with the following:
"Each of (i) the Obligors, (ii) the Canadian Subsidiaries, (iii)
Anglesey, (iv) prior to a QAL Sale Event, QAL, (v) prior to a sale of the
VALCO Interests, VALCO, and (vi) each other Significant Subsidiary of the
Company is a corporation, partnership, or other entity validly organized
and existing and (in the case of non-Domestic Subsidiaries and Joint
Venture Affiliates, to the extent that "good standing" is recognized under
applicable law) in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be; is duly qualified to do
business and (in the case of non-Domestic Subsidiaries and Joint Venture
Affiliates, to the extent that "good standing" is recognized under
applicable law) in good standing as a foreign corporation, partnership, or
other entity in each jurisdiction where the nature of its business or
activities requires such qualification; and has full corporate,
partnership, or other organizational power and authority and holds all
requisite governmental licenses, permits, and other approvals to own,
lease, and operate its Properties and to conduct its business
substantially as now being operated and conducted, except where the
failure to be so qualified and in good standing or to have such power,
authority,
12
licenses, permits, and other approvals has no reasonable possibility of
having a Materially Adverse Effect."
1.6 AMENDMENT TO SECTION 8.5 (FINANCIAL INFORMATION). Section 8.5 of
the Credit Agreement is amended to add the following clause (d) at the end
thereof:
"(d) The 2004 Financial Forecast was prepared on the basis of the
estimates and assumptions stated therein and represented, at May 5, 2004,
the Company's good faith forecasts and projections of its future financial
performance prepared after duly diligent investigations; and such 2004
Financial Forecast, if prepared as of the effective date of the Seventh
Amendment, would contain estimates of the future financial performance of
the Company and its Subsidiaries which would not materially and adversely
differ from the respective estimates contained in the 2004 Financial
Forecast. As of the effective date of the Seventh Amendment, no material
developments have occurred since May 5, 2004, which would lead the Company
to believe that such 2004 Financial Forecast, taken as a whole, is not
reasonably attainable, subject to the uncertainties and approximations
inherent in any projections. It is understood by the Agent and the Lenders
that all of the estimates and assumptions on which such 2004 Financial
Forecast is based may not prove to be correct, that actual future
financial performance may vary from that projected, and that nothing
contained in this clause (d) shall be construed as a warranty, or
guarantee, of future financial performance."
1.7 AMENDMENT TO SECTION 8.18 (JOINT VENTURE CONTINGENT
LIABILITIES). Section 8.18 of the Credit Agreement is deleted in its entirety
and replaced with the following:
"SECTION 8.18. JOINT VENTURE CONTINGENT LIABILITIES. Item 10 ("Joint
Venture Contingent Liabilities") of the Disclosure Schedule contains a
fair summary of the types of the material Contingent Liabilities of the
Company and its Subsidiaries in respect of the businesses, operations, and
financial obligations of (i) Anglesey, (ii) prior to a QAL Sale Event,
QAL, and (iii) prior to a sale of the VALCO Interests, VALCO."
1.8 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 clause (o) at the end thereof:
"(o) as soon as available, but in any event no later than (x) if a
Threshold Event has occurred or is reasonably expected to occur as a
result of any of the following, or if the Revolving Credit Outstandings
exceed the Threshold or are reasonably expected to exceed the Threshold
after giving effect to any of the following, five (5) Business Days prior
thereto, and (y) otherwise, as soon as available but in no event later
than one (1) Business Day thereafter: (i) any Asset Disposition of the QAL
Interests or the VALCO Interests or (ii) any ALPART Plan Event, a QAL Plan
Event or the effective date of a Subsidiary Plan for KBC or KFC, the
Company shall deliver to the Agent a schedule setting forth (1) if an
13
Asset Disposition, a detailed description (including an itemized schedule)
of the use of sale proceeds with respect thereto, (2) in any case, a
schedule of all Indebtedness and liabilities owing to any (other) Obligor
by the subject (or owner, as applicable) of such Asset Disposition or
Subsidiary Plan, as applicable, and (3) a schedule of all such
Indebtedness and liabilities that shall remain unpaid after consummation
of such Asset Disposition or effective date of such Subsidiary Plan, as
applicable, together with a certificate of a Financial Authorized Officer
of the Company certifying to the Agent and the Lenders that such matters
are true and correct in all material respects."
1.9 AMENDMENT TO SECTION 9.1.18 (INVENTORY APPRAISALS). Section
9.1.18 of the Credit Agreement is amended by (a) deleting the caption thereto in
its entirety and replacing it with "SECTION 9.1.18. (APPRAISALS)." and (b)
inserting "(a)" immediately prior to the text thereof and (c) adding a new
paragraph (b) to read as follows:
"(b) If at any time the Revolving Credit Outstandings exceed eighty
percent (80%) of the Borrowing Base, the Agent may, at its option and at
the expense of the Company, obtain an updated appraisal of the Net
Recovery Percentage of Eligible Fixed Assets to establish the OLV In-Place
Value, which appraisal shall be from an appraisal firm satisfactory to
Agent and shall be in scope, form and substance satisfactory to Agent;
provided that such updated appraisal will be required no more frequently
than once in every 180-day period, unless a Default or an Event of Default
shall have occurred and be continuing, in which case the Agent may require
more frequent appraisals, but in any event no more frequently than
monthly."
1.10 ADDITION OF SECTION 9.1.19 (ALPART COLLATERAL). A new Section
9.1.19 is added to the Credit Agreement to read as follows: "SECTION 9.1.19
ALPART COLLATERAL.
(a) Prior to an ALPART Plan Event, the ALPART Collateral shall, at
all times, (i) serve as Collateral for the Obligations and (ii) be
deposited in Cash Collateral Accounts of AJI and KJC, free and clear of
Liens, claims and encumbrances other than first-priority Liens in favor of
Agent for its benefit and the benefit of the Secured Lenders, and claims
which are junior to the Agent's and the Secured Lenders' claims.
(b) After an ALPART Plan Event, the ALPART Collateral shall, at all
times, (i) serve as Collateral for the Obligations and (ii) be deposited
in Cash Collateral Accounts of AJI, KJC and/or the Company, free and clear
of Liens, claims and encumbrances other than first-priority Liens in favor
of Agent for its benefit and the benefit of the Secured Lenders, the Lien
permitted by Section 9.2.3(z) and claims which are junior to the Agent's
and the Secured Lenders' claims."
14
1.11 ADDITION OF SECTION 9.1.20 (QAL TRIGGERING EVENT PAYMENTS). A
new Section 9.1.20 is added to the Credit Agreement to read as follows:
"9.1.20 QAL TRIGGERING EVENT PAYMENTS. Upon the occurrence of a QAL
Triggering Event, the following payments will be made from the Net
Disposition Proceeds of an Asset Disposition of the QAL Interests if a QAL
Sale Event has occurred, or from payments to the Company in respect of a
Subsidiary Plan for KAAC if a QAL Plan Event has occurred, and, in either
case, deposited in a Cash Collateral Account of the applicable Obligor,
free and clear of Liens, claims and encumbrances other than first-priority
Liens in favor of Agent for its benefit and the benefit of the Secured
Lenders, the Lien permitted by Section 9.2.3(z), and claims which are
junior to the Agent's and the Secured Lenders' claims:
(a) Upon a QAL Sale Event, the QAL Collateral shall be deposited by
KAAC and/or such other Obligor, as applicable, in a Cash Collateral
Account of such Obligor(s); and
(b) Upon a QAL Plan Event, the QAL Collateral shall be paid to the
Company and deposited in a Cash Collateral Account of the Company and upon
such deposit, any amounts held by the Agent pursuant to the preceding
clause (a) (if any) shall be released as such Obligor(s) direct Agent in
writing.
For purposes of clarification, until the Settlement Effective Date, (i)
any and all proceeds from any Asset Disposition of the QAL Interests
received by KAAC, the Company or any other Secured Guarantor and (ii) any
and all amounts paid by KAAC to the Company or any other Secured Guarantor
in connection with a QAL Plan Event, in each case, shall be part of the
Collateral and subject to the Lien in favor of the Agent, for the benefit
of itself and the Secured Lenders. After the Settlement Effective Date,
the QAL Collateral shall serve as Collateral for the Obligations."
1.12 ADDITION OF SECTION 9.1.21 (CASH COLLATERAL ACCOUNTS; GRANT OF
SECURITY INTERESTS). The following Section 9.1.21 is added to the Credit
Agreement:
"SECTION 9.1.21 CASH COLLATERAL ACCOUNTS; GRANT OF SECURITY
INTERESTS. (a) Agent shall deposit all funds paid to Agent pursuant to
Sections 9.1.19, 9.1.20 and 9.2.18 and the KACC Available Amount as cash
collateral to the credit of a Cash Collateral Account owned by the
applicable Obligor. As security for the payment of all Obligations, the
Company hereby grants, conveys, assigns, pledges, sets over, and transfers
to the Agent, and creates in the Agent's favor, a first-priority Lien on
and security interest in the ALPART Collateral, the QAL Collateral, the
KBC Allocable Amount, the Cash Collateral Accounts and all money,
instruments, securities, financial assets, investment property and other
property at any time deposited in, held in, credited to or acquired in
connection with the Cash Collateral Accounts, together with all proceeds
of any of the foregoing (including without limitation dividends payable in
cash or stock and
15
shares or other proceeds of conversions or splits of any securities in the
Cash Collateral Accounts), and all interest accruing thereon and
investments thereof, and earnings on and proceeds of investments with
respect thereto, for the benefit of the Agent and the Secured Lenders. The
Company shall cause each of AJI, KJC, KAAC, KBC and each other Obligor, as
applicable, to execute and deliver to the Agent a security agreement or
cash collateral account agreement in form and substance satisfactory to
the Agent pursuant to which each of AJI, KJC, KAAC, KBC and/or such other
Obligor shall, as security for the payment of all Guarantied Obligations
(as defined in the Subsidiary Guaranty), grant, convey, assign, pledge,
set over, and transfer to the Agent, and create in the Agent's favor, a
first-priority Lien on and security interest in the ALPART Collateral, the
QAL Collateral, the KBC Allocable Amount, the Cash Collateral Accounts and
all money, instruments, securities, financial assets, investment property
and other property at any time deposited in, held in, credited to or
acquired in connection with the Cash Collateral Accounts, together with
all proceeds of any of the foregoing (including without limitation
dividends payable in cash or stock and shares or other proceeds of
conversions or splits of any securities in the Cash Collateral Accounts),
and all interest accruing thereon and investments thereof, and earnings on
and proceeds of investments with respect thereto, for the benefit of the
Agent and the Secured Lenders. None of the Company, AJI, KJC, KAAC, KBC or
any other Obligor shall have any right to withdraw or to cause the Agent
to withdraw any funds deposited in the Cash Collateral Accounts, except
that, (w) upon satisfaction of the conditions set forth in Section 7.4,
the Company may request that Agent permit withdrawal of amounts up to the
then-outstanding KACC Available Amount and the Agent will permit such
withdrawal, (x) funds on deposit in any deposit or securities accounts of
AJI and KJC maintained at Bank of America, N.A., or its affiliates, other
than the ALPART Collateral, may be withdrawn by AJI and KJC (and, at the
request of AJI or KJC, the Agent will take any action reasonably necessary
to permit such withdrawal) to pay the Professional Fees specifically
relating to the Bankruptcy Cases of AJI, KJC and KBC or to make
distributions under a Subsidiary Plan for AJI and KJC; provided that with
respect to KBC, any withdrawal shall only be to the extent that the
Company has not previously advanced funds for the Professional Fees of KBC
pursuant to Section 9.2.14 hereof, (y) the ALPART Collateral and the QAL
Collateral may be transferred from the Cash Collateral Accounts of AJI,
KJC and KAAC, as applicable, to Cash Collateral Accounts of the Company in
accordance with Sections 9.1.19 and 9.1.20 hereof and (z) the KBC
Allocable Amount may be transferred to AJI and/or KJC in accordance with
Section 9.2.18 hereof. Amounts held in the Cash Collateral Accounts may be
invested from time to time in Cash Equivalent Investments as directed by
the applicable Obligor and at such Obligor's sole investment risk, but
held in the name of the Agent. At any time and from time to time, upon the
Agent's request, the Company promptly shall, and shall cause AJI, KJC,
KAAC, KBC and each other Obligor, as applicable, to, execute and deliver
any and all such further instruments and documents (including financing
statements and bond powers executed in blank) as may be necessary,
appropriate, or desirable in the Agent's judgment to obtain the full
16
benefits (including perfection and priority) of this Section 9.1.21 and of
the rights and powers herein granted. None of the Company, AJI, KJC, KAAC,
KBC or any other Obligor shall create or suffer to exist any Lien on any
amounts or investments held in the Cash Collateral Accounts other than (i)
the first-priority Liens granted under this Section 9.1.21 and the
Acknowledgment and Agreement of AJI, KJC, KFC, KAAC and KBC executed in
connection with the Seventh Amendment and (ii) the junior Liens permitted
under Section 9.2.3(z). Notwithstanding anything herein or in any other
Loan Document to the contrary, neither the Agent nor any Secured Lender
shall be under any obligation to marshal any assets in favor of any
Obligor or any other party or against or in payment of any or all of the
Obligations, including without limitation the Cash Collateral Accounts or
any money, instruments, securities, financial assets, investment property
or other property at any time deposited in, held in, credited to or
acquired in connection with the Cash Collateral Accounts or any proceeds
thereof. Each of the Agent, the Company, AJI, KJC, KAAC, KBC, each other
Obligor and, by its execution of a counterpart of the Seventh Amendment,
Bank of America, N.A., as depository bank with respect to the Cash
Collateral Accounts, agree that Bank of America, N.A., will comply with
all instructions and entitlement orders originated by the Agent directing
disposition of the funds and investments in the Cash Collateral Accounts
without further consent by the Company, AJI, KJC, KAAC, KBC or any other
Obligor, and the Agent shall have sole and exclusive dominion and control
over the Cash Collateral Accounts.
(b) On or at any time after the Settlement Effective Date, AJI and
KJC may request that the Agent permit withdrawal from any deposit or
securities accounts maintained by AJI and KJC at Bank of America, N.A., or
its affiliates any amounts on deposit in excess of the amount of the
ALPART Collateral and the Agent will permit such withdrawal; provided that
if the Approval Order (as defined in the Settlement and Release Agreement)
is overturned, vacated or otherwise reversed on appeal, all rights of
withdrawal of AJI and KJC pursuant to this clause (b) shall terminate
immediately.
(c) AJI, KJC, KAAC, KBC and any other Obligor, as applicable, shall
pay to Bank of America, N.A., fees and investment charges, if any, charged
by Bank of America, N.A., or its affiliates with respect to the Cash
Collateral Accounts and other deposit or securities accounts, which
charges (if any) shall be consistent with those customarily charged by
Bank of America, N.A., with respect to the maintenance of accounts similar
to the Cash Collateral Accounts."
1.13 AMENDMENT TO SECTION 9.2.3 (LIENS). Section 9.2.3 of the Credit
Agreement is amended:
(a) to delete clause (t) thereof and to replace it with the
following:
"(t) Liens consisting of rights to (but not a security interest in)
proceeds of Asset Dispositions held in escrow in connection with such
Asset Disposition;"
17
(b) to delete the word "and" at the end of clause (x),
(c) to delete the period at the end of clause (y) and replace it
with "; and"
and (d) to add the following clause (z) at the end of such Section:
"(z) if all or any portion of the ALPART Collateral and/or QAL
Collateral is, pursuant to the Settlement and Release Agreement,
transferred by AJI, KJC and/or KAAC to the Company in connection with a
ALPART Plan Event and/or QAL Plan Event, a Lien in favor of AJI, KJC
and/or KAAC, as applicable, on the ALPART Collateral and/or QAL
Collateral, as applicable, securing (and solely to the extent of) any such
amount(s) so transferred, which Lien is junior and subordinate to the Lien
in favor of the Agent and the Secured Lenders and is subject to an
intercreditor agreement, in form and substance satisfactory to the Agent
in its sole discretion."
1.14 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:
"SECTION 9.2.4 MINIMUM EBITDA. Commencing with the first month in
which a Threshold Event occurs and continuing through the then-remaining
term of this Agreement, 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 such month and each
month thereafter for the period specified below:
Period EBITDA
------------------------ -------------
1 month ending 10/31/04 $(22,500,000)
2 months ending 11/30/04 $(20,500,000)
3 months ending 12/31/04 $(19,500,000)
The minimum EBITDA amounts set forth above include the expected EBITDA
amounts attributable to the Gramercy/KJBC Interests, the QAL Interests and
the VALCO Interests for each month in the period from October 1, 2004
through December 31, 2004, as agreed in writing by the Company and the
Required Lenders prior to the effective date of the Seventh Amendment (the
"Attributable EBITDA Amounts"). Upon consummation of a QAL Triggering
Event and/or an Asset Disposition of the Gramercy/KJBC Interests and/or
the VALCO Interests, the minimum EBITDA amounts set forth above for each
period ending after the QAL Triggering Event or such Asset Disposition is
consummated will automatically be reduced by an amount equal to the
product of (i) the Attributable EBITDA Amount attributable to the
Gramercy/KJBC Interests, the QAL Interests and/or the VALCO Interests,
respectively, for the applicable period, times (ii) a fraction, the
numerator of which is the number of days remaining in such period and the
denominator of which is the total number of days in such period. All
18
reductions to the minimum EBITDA amounts pursuant to the foregoing
sentence will be cumulative for all such Asset Dispositions."
1.15 AMENDMENT TO SECTION 9.2.11 (ASSET DISPOSITIONS). Section
9.2.11 of the Credit Agreement is amended to delete the last sentence of such
Section.
1.16 AMENDMENT TO SECTION 9.2.14 (TRANSACTIONS WITH AFFILIATES).
Section 9.2.14 of the Credit Agreement is amended to add the following paragraph
immediately after the second paragraph of that Section:
"Notwithstanding any other provision of this Agreement, on and after
the effective date of the Seventh Amendment, the Company will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer
or permit to exist any transaction, arrangement, or contract between any
Obligor and any of AJI, KJC, KFC, ALPART, KAAC, KBC and/or QAL requiring,
constituting or involving any payments or other transfers of Property to
be made by any Obligor to or for the benefit of, or pursuant to which any
Obligor incurs a Contingent Liability in respect of any obligation of, or
incurs a contractual obligation for the benefit of, AJI, KJC, KFC, ALPART,
KAAC, KBC and/or QAL other than transactions, arrangements and contracts
entered into in the ordinary course of business consistent with past
practice and on a basis no less favorable to any Obligor than would be
obtained in an arm's length transaction with a Person that is not an
Affiliate of such Obligor; provided that the foregoing shall not restrict
or otherwise be deemed to prohibit (i) the transactions contemplated under
the Seventh Amendment and consummated in accordance therewith (including,
without limitation, those transactions set forth in the definition of
"Permitted Asset Dispositions,") or (ii) the transactions under the
Settlement and Release Agreement (whether or not the Settlement Effective
Date has occurred); and provided further that all costs and expenses
(including Professional Fees) relating to the Bankruptcy Cases of AJI,
KJC, KFC, KAAC and KBC incurred after June 30, 2004, shall be payable only
by AJI, KJC, KAAC (on behalf of itself and KFC) and KBC (or by AJI and/or
KJC on behalf of KBC), as applicable, and shall not be charged to or paid
by any other Obligor or assessed against the Collateral, except that (a)
the Company may advance payments for Professional Fees of KFC and KAAC
incurred after June 30, 2004, but prior to the occurrence of a QAL
Triggering Event and shall be reimbursed for such payments immediately
upon a QAL Triggering Event from the Net Disposition Proceeds (other than
the QAL Collateral) of a QAL Sale Event or distributions (other than the
QAL Collateral) to the Company pursuant to a Subsidiary Plan for KAAC, and
(b) the Company may advance payments for Professional Fees of KBC incurred
after June 30, 2004, but prior to the closing of the Asset Disposition of
the Gramercy/KJBC Interests, and the Company shall be reimbursed for such
payments (with interest at a rate equal to the sum of (x) the Reference
Rate from time to time in effect and (y) a margin of 1-1/2%) immediately
(and in any event prior to the transfer of any portion of the KBC
Allocable Amount, or the making of any other distributions or transfers,
to AJI and/or KJC) from the KBC Allocable Amount prior to the transfer of
such amount to AJI and/or KJC pursuant to Section 9.2.18 hereof;
19
provided that KACC shall not be obligated to pay Professional Fees of KBC
in excess of the KBC Allocable Amount; provided further that all costs and
expenses (including Professional Fees) incurred by KBC after the Asset
Disposition of the Gramercy/KJBC Interests shall be charged to KBC and
payable by KBC's estate or, if necessary, by AJI and KJC out of funds
other than the ALPART Collateral."
1.17 AMENDMENT TO SECTION 9.2.18 (INTERCOMPANY TRANSFERS OF
PROPERTY). Section 9.2.18 of the Credit Agreement is amended to add the
following clause (ix) at the end thereof:
"(ix) in connection with an Asset Disposition with respect to the
Gramercy/KJBC Interests in compliance with this Agreement, the KBC
Allocable Amount may be transferred by KBC to AJI and/or KJC in accordance
with the terms of the Settlement and Release Agreement; provided that the
foregoing permitted transfer shall only take place after making any
required reimbursement to the Company pursuant to Section 9.2.14 (together
with interest thereon as provided therein), and the amount so transferred
shall be reduced accordingly by all such amounts; provided further that
until such permitted transfer, the KBC Allocable Amount shall be
Collateral and deposited and maintained in a Cash Collateral Account of
KBC; provided further that the KBC Allocable Amount shall not (a) exceed
$7,000,000 or (b) be funded directly or indirectly from the proceeds of
any Loans. Neither KBC nor any other Obligor shall have any right to
withdraw any funds deposited in such account except as provided in the
immediately preceding sentence or to reimburse the Company in accordance
with Section 9.2.14 (together with interest thereon as provided therein)."
1.18 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 effective date of
the Seventh Amendment, 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 2004 Financial Forecast (other than with
respect to Investments in, and Contingent Liabilities incurred on
behalf of, QAL); provided that solely with respect to Investments
in, and Contingent Liabilities incurred on behalf of, QAL (and
without duplication of any amounts in the 2004 Financial Forecast),
the Company may make Investments in KAAC or QAL, and KAAC may make
Investments in QAL, in each case, solely to pay capital expenditures
of QAL in an aggregate amount not to exceed $15,000,000 in Fiscal
Year 2004; provided further that upon a QAL
20
Triggering Event, any Investments in, or Contingent Liabilities
incurred on behalf of, KAAC or QAL on or after June 30, 2004, shall
be immediately repaid in full in cash by QAL and KAAC to the
respective Obligor, (ii) Investments made in, or Contingent
Liabilities incurred on behalf of, Anglesey or VALCO not reflected
in the 2004 Financial Forecast 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 not reflected in the 2004 Financial Forecast 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.
Notwithstanding the foregoing or anything in the 2004 Financial
Forecast to the contrary, 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 (i) ALPART, AJI, KJC or KFC,
(ii) on and following a QAL Triggering Event, QAL or KAAC, (iii) on
and after an Asset Disposition of the VALCO Interests, VALCO, and
(iv) KJBC or KBC."
1.19 ADDITION OF SECTION 9.2.25 (SETTLEMENT AND RELEASE AGREEMENT).
A new Section 9.2.25 is added to read as follows:
"SECTION 9.2.25 SETTLEMENT AND RELEASE AGREEMENT. The Obligors shall
not enter into any agreement for the settlement or release of intercompany
claims except an agreement in form and substance identical to the
Settlement and Release Agreement, with such modifications thereto (or to
the Settlement and Release Agreement, as applicable) as may be approved by
the Agent and the Lenders holding at least 86% of the then aggregate
outstanding principal amount of the Revolving Credit Outstandings or, if
no such principal amount is then outstanding, Lenders having at least 86%
of the Revolving Commitments. In the case of any inconsistency between the
Settlement and Release Agreement and the Seventh Amendment (and this
Agreement as amended thereby), the provisions of the Seventh Amendment
(and this Agreement as amended thereby) shall control."
1.20 AMENDMENT TO SECTION 10.1.3 (NON-PERFORMANCE OF CERTAIN
COVENANTS AND OBLIGATIONS). Section 10.1.3 is amended to insert "9.1.1 or"
before "9.2.20" in the sixth line thereof.
1.21 AMENDMENT TO SECTION 10.1.10 (BANKRUPTCY CASES). Section
10.1.10 is amended to (a) add the following clauses:
"(i) any Debtor files a motion seeking to use any cash collateral
held by the Agent or withdraw any amounts from any Cash Collateral Account
(including to fund any adjustments to the net cash proceeds received with
respect to a QAL
21
Triggering Event), except as provided in Sections 9.1.21 and 9.2.18, or
any other Person files such a motion and the Debtors fail to object
thereto in good faith and in a timely manner, or
(j) an order is entered by the Bankruptcy Court authorizing use of
such cash collateral described in the preceding clause (i), or, except as
provided in Sections 7.4 and 9.1.21 with respect to the KACC Available
Amount or except as provided in Sections 9.1.21(b) and 9.2.18, withdrawal
of any amounts from any Cash Collateral Account, other than to transfer to
another Cash Collateral Account as expressly permitted by this Agreement,
or
(k) a QAL Triggering Event occurs and the Minimum Aggregate Proceeds
Collateral are less than $60,000,000; or
(l) a Plan(s) of Reorganization with respect to all Debtors is not
filed on or before February 13, 2005, or any such Plan of Reorganization
filed with respect to the Debtors does not provide for termination of all
Revolving Commitments and indefeasible payment in full in cash of all
Obligations (and cancellation of all Letters of Credit or provision of
cash collateral or a Supporting Letter of Credit for all Letters of Credit
in accordance with the requirements of this Agreement) on or before the
effective date of such Plan(s) of Reorganization, or any such Plan of
Reorganization with respect to the Company does not include an agreement
that (i) with respect to any amounts effectively loaned to the Company
(such amounts, the "Affiliate Loans") by any of AJI, KJC and/or KAAC (or
any other Person, as applicable) (each of the foregoing for purposes of
this Section 10.1.10(l), an "Affiliate Lender") in accordance with the
Settlement and Release Agreement, such Affiliate Loans shall be capped at
a maximum of $55,000,000, and (ii) if the repayment of any portion of such
Affiliate Loans cannot be paid at the time of consummation of such Plan of
Reorganization (due to insufficient liquid assets of the Company), then
the repayment of such portion of the Affiliate Loan shall be deferred
until such time, not later than eighteen (18) months after the effective
date of such Plan of Reorganization, as reasonably determined by the
Company and the Unsecured Creditors Committee in conjunction with such
Plan of Reorganization, at which time such claim shall be paid in full
together with interest at the rate of twelve percent (12%) per annum."
And (b) to add the following proviso at the end of clause (c):
"provided, however, that separate Subsidiary Plans may be proposed by (i)
AJI and KJC, jointly, so long as such Subsidiary Plan (x) provides that
AJI and KJC shall each affirm their Subsidiary Guaranty (or execute a
replacement guaranty that is satisfactory to Agent in its sole discretion)
in an amount equal to the portion of the ALPART Collateral that has not
been transferred to a Cash Collateral Account of the Company pursuant to
such Subsidiary Plan, (y) provides that the ALPART Collateral shall remain
in Cash Collateral Accounts maintained by AJI, KJC and/or the Company
until the Obligations are indefeasibly repaid in full in cash and the
Agreement is terminated and (z) is consistent with the terms
22
of the Settlement and Release Agreement (whether or not the Settlement
Effective Date has occurred), (ii) KAAC so long as such Subsidiary Plan
(x) provides for a cash payment (from funds that do not directly or
indirectly come from borrowings under the Loan Documents) to the Company
upon the effective date of such Subsidiary Plan in an amount equal to the
QAL Collateral and the deposit thereof in a Cash Collateral Account in
accordance herewith, (y) provides for a cash payment (from funds that do
not directly or indirectly come from borrowings under the Loan Documents)
to the Company in an amount equal to the Professional Fees and
disbursements paid by the Company on behalf of KAAC and KFC pursuant to
Section 9.2.14 and (z) is consistent with the terms of the Settlement and
Release Agreement (whether or not the Settlement Effective Date has
occurred), (iii) KBC, so long as (x) a cash payment (from funds that do
not directly or indirectly come from borrowings under the Loan Documents)
is made to the Company in an amount equal to the Professional Fees and
disbursements paid by the Company on behalf of KBC pursuant to Section
9.2.14 and not previously reimbursed (together with interest thereon as
provided therein) and (y) such Subsidiary Plan is consistent with the
terms of the Settlement and Release Agreement (whether or not the
Settlement Effective Date has occurred), and (iv) KFC, so long as such
Subsidiary Plan is consistent with the terms of the Settlement and Release
Agreement (whether or not the Settlement Effective Date has occurred);
provided further that, in the case of clauses (i) and (ii) above, the
Debtors shall have been released from any further obligation to make
Investments with respect to, or incur any Contingent Liabilities with
respect to, ALPART or QAL (as applicable) and, in the case of a Subsidiary
Plan for AJI and KJC, all claims of AJI and KJC against the Company or any
other Obligor are released and discharged (other than such claims as are
contemplated in the Settlement and Release Agreement, subject to Section
10.1.10(l) hereof);"
1.22 ADDITION OF SECTION 10.1.13 (EXCESS PAYMENT TO PBGC). A new
Section 10.1.13 is added to read as follows:
"SECTION 10.1.13 EXCESS PAYMENT TO PBGC. Any Obligor, or any other
Person on behalf of any Obligor, shall make any payment to the PBGC (or
any other third-party, including without limitation a replacement Plan)
with respect to any Claims of the PBGC (including without limitation any
Claims under Section 365 or 503 of the Bankruptcy Code) which payment,
when aggregated with all such other similar payments made prior to or
concurrently therewith, shall cause the aggregate of all such payments to
exceed $25,000,000; provided, however, that after the Settlement Effective
Date, each of AJI, KJC and KAAC may make such payments in connection with
its Subsidiary Plan so long as such payments are not (i) funded directly
or indirectly from the proceeds of any Loans or (ii) made from the
Collateral, including without limitation the ALPART Collateral or the QAL
Collateral."
1.23 AMENDMENT TO SECTION 12.3 (PAYMENT OF COSTS AND EXPENSES). The
last paragraph of Section 12.3 of the Credit Agreement is amended to add at the
end of such Section "or the definition of Borrowing Base."
23
1.24 AMENDMENT TO TABLE OF CONTENTS (SCHEDULES). Page vii of the
Table of Contents is amended to replace "Schedule I [Intentionally Omitted]"
with "Schedule I Eligible Fixed Assets".
1.25 ADDITION OF SCHEDULE I (ELIGIBLE FIXED ASSETS). A new Schedule
I (Eligible Fixed Assets) is added to the Credit Agreement in the form of
Schedule I (Eligible Fixed Assets) hereto.
2. AMENDMENT TO SUBSIDIARY GUARANTY. Reference is made to (i) that certain
Subsidiary Guaranty dated as of February 12, 2002, made by certain Subsidiaries
of the Company, including, inter alia, AJI, KJC, KAAC and KFC, in favor of the
Agent (as amended prior to the date hereof, the "Original Guaranty"), and (ii)
that certain Subsidiary Guaranty dated as of March 17, 2003, made by certain
Subsidiaries of the Company, including, inter alia, AJI, KJC and KBC, in favor
of the Agent (as amended prior to the date hereof, the "Additional Guaranty").
Subject to the conditions and upon the terms set forth in this Amendment, the
Subsidiary Guaranty is hereby amended as follows:
2.1 ADDITION OF SECTION 2.11 (LIMITATIONS ON RECOURSE AS TO CERTAIN
SUBSIDIARIES) TO THE ORIGINAL GUARANTY. A new Section 2.11 is added to the
Original Guaranty to read as follows:
"SECTION 2.11 LIMITATIONS ON RECOURSE AS TO CERTAIN SUBSIDIARIES.
Notwithstanding anything herein to the contrary, the following limitations
on recourse to AJI, KJC, KFC and KAAC under this Guaranty shall apply:
(a) The recourse liability of AJI and KJC under this Guaranty shall
be limited, on an aggregate basis, to an amount equal to the ALPART
Claims; provided that AJI's and KJC's liability under this Guaranty,
including with respect to this Section 2.11(a), shall continue to be joint
and several at all times.
(b) After the occurrence of the Settlement Effective Date in
compliance with the terms and conditions of the Credit Agreement, the
recourse liability of KAAC under this Guaranty shall be limited to the QAL
Claims.
(c) After the occurrence of both the Settlement Effective Date and a
QAL Plan Event and transfer of the QAL Collateral to the Company in
compliance with the terms of the Credit Agreement, KAAC shall have no
liability under this Guaranty.
(d) After the occurrence of both the Settlement Effective Date and
the effective date of a Subsidiary Plan for KFC, KFC shall have no
liability under this Guaranty.
Notwithstanding anything herein or in any other Loan Document to the
contrary, the Settlement Effective Date shall be deemed not to have
occurred, and the limitations and releases of this Section 2.11 shall be
of no force or effect and
24
deemed void ab initio, if the Approval Order (as defined in the Settlement
and Release Agreement) is overturned, vacated or otherwise reversed on
appeal."
2.2 ADDITION OF SECTION 2.11 (LIMITATIONS ON RECOURSE AS TO CERTAIN
SUBSIDIARIES) TO THE ADDITIONAL GUARANTY. A new Section 2.11 is added to the
Additional Guaranty to read as follows:
"SECTION 2.11 LIMITATIONS ON RECOURSE AS TO CERTAIN SUBSIDIARIES.
Notwithstanding anything herein to the contrary, the following limitations
on recourse of AJI, KJC and KBC under this Guaranty shall apply:
(a) The recourse liability of AJI and KJC under this Guaranty shall
be limited, on an aggregate basis, to an amount equal to the ALPART
Claims; provided that AJI's and KJC's liability under this Guaranty,
including with respect to this Section 2.11(a), shall continue to be joint
and several at all times.
(b) After the occurrence of both the Settlement Effective Date and
the effective date of a Subsidiary Plan for KBC, KBC shall have no
liability under this Guaranty.
Notwithstanding anything herein or in any other Loan Document to the
contrary, the Settlement Effective Date shall be deemed not to have
occurred, and the limitations and releases of this Section 2.11 shall be
of no force or effect and deemed void ab initio, if the Approval Order (as
defined in the Settlement and Release Agreement) is overturned, vacated or
otherwise reversed on appeal."
3. RELEASE OF CLAIMS. Following the Settlement Effective Date, each of the
Agent and each Secured Lender agrees to, and hereby does, release any and all
claims arising under the Credit Agreement and the other Loan Documents and held
by the Agent or such Secured Lender as against AJI, KJC, KFC, KAAC and/or KBC,
as applicable, but, with respect to AJI, KJC and KAAC, only to the extent such
claim is in excess of the ALPART Claims and/or the QAL Claims, as applicable,
all as more fully and expressly provided herein (and in the Credit Agreement, as
amended hereby), and subject to all of the conditions and terms hereof and
thereof; provided, however, the releases provided for in this Section 3 shall
not apply to (i) KAAC until the occurrence of a QAL Triggering Event and the
deposit of the QAL Collateral in the Cash Collateral Accounts as required by the
Credit Agreement, as amended hereby, (ii) KBC until the effective date of a
Subsidiary Plan for KBC in accordance with the terms of the Credit Agreement, as
amended hereby, and (iii) KFC until the effective date of a Subsidiary Plan for
KFC in accordance with the terms of the Credit Agreement, as amended hereby.
Notwithstanding anything herein or in any other Loan Document to the contrary,
the Settlement Effective Date shall be deemed not to have occurred, and the
limitations and releases of this Section 3 shall be of no force or effect and
deemed void ab initio, if the Approval Order (as defined in the Settlement and
Release Agreement) is overturned, vacated or otherwise reversed on appeal.
4. REPRESENTATIONS AND WARRANTIES OF PARENT GUARANTOR AND THE COMPANY.
Each of the Parent Guarantor and the Company represents and
25
warrants to each Lender and the Agent that the following statements are true,
correct and complete:
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 REPRESENTATIONS AND WARRANTIES, ETC. All of the conditions set
forth in Section 7.4 of the Credit Agreement, giving effect to this Amendment,
have been met on and as of the date hereof and as of the effective date of this
Amendment.
5. 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 all Lenders, and
counterparts of the Consent have been delivered to the Agent by the Parent
Guarantor and each Subsidiary Guarantor; (b) each of AJI, KJC, KFC, KAAC and KBC
shall have executed and delivered to the Agent an acknowledgement confirming its
obligations under this Amendment and the agreements set forth herein; (c) this
Amendment shall have been approved by the Bankruptcy Court in the Chapter 11
Cases pursuant to the Final Order, all in form and substance satisfactory to the
Agent and its counsel and on notice satisfactory to them, in each case in their
sole discretion, and the Agent shall have received a copy of the Final Order
entered by the Bankruptcy Court, which order shall have become final; (d) the
Company has paid to the Agent, for the ratable benefit of the Lenders, an
amendment fee equal to 0.00875 times the Revolving Commitment Amount (after
giving effect to this Amendment); (e) the Company has paid to the Agent and the
Lenders, as applicable, all fees and expenses due to the Agent and the Lenders
26
under the Loan Documents; and (f) each of the Company, AJI, KJC, KFC, KAAC and
KBC shall have executed and delivered to the Agent agreements (including control
agreements), in form and substance satisfactory to the Agent, (i) granting to
the Agent Liens on the ALPART Collateral, the QAL Collateral, the KBC Allocable
Amount, the Cash Collateral Accounts and all funds, instruments, securities,
financial assets, investment property and other property deposited therein, held
therein, credited thereto or acquired in connection therewith and (ii)
perfecting the same.
6. EFFECT OF AMENDMENT; RATIFICATION. This Amendment is a Loan Document.
From and after the date on which this Amendment becomes effective, all
references in the Loan Documents to the Credit Agreement shall mean the Credit
Agreement as amended hereby, and to the Subsidiary Guaranty shall mean the
Subsidiary Guaranty as amended hereby. Except as expressly amended hereby, the
Credit Agreement and the other Loan Documents, including the Liens and
superpriority claims 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.
7. 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.
8. 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.
9. 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.
10. GENERAL RELEASE. By signing below and/or the Consent of Guarantors
hereto and/or the Acknowledgment and Agreement of AJI, KJC, KFC, KAAC and KBC
hereto, each of the Company and the other Obligors, on behalf of itself and each
other Obligor, and each of their respective predecessors, successors and
assigns, hereby fully, finally, irrevocably, forever and unconditionally
releases, discharges and acquits the Agent, each of the Secured Lenders, and
each of the foregoing's officers, employees and agents, from all Released Claims
(as hereinafter defined). As used herein the term "Released Claims" means all
claims of the Company and the other Obligors, on the one hand, against the Agent
or any Secured Lender, on the other hand, including but not limited to all
claims, demands, obligations, liabilities,
27
indebtedness, responsibilities, disputes, breaches of contract, breaches of duty
or any relationship, acts, omissions, misfeasance, malfeasance, cause or causes
of action (whether at law or in equity), debts, sums of money, accounts,
compensations, contracts, controversies, promises, damages, costs, rights of
offset, losses and expenses, of every type, kind, nature, description or
character, known and unknown, whensoever arising and occurring at any time up to
and through the date hereof, whether known or unknown, suspected or unsuspected,
liquidated or unliquidated, matured or unmatured, fixed or contingent, which in
any way arise out of, are connected with or relate to this Amendment or any of
the other Loan Documents (including as amended hereby) or any transactions
thereunder or the administration of the lender-borrower relationship provided in
the Loan Documents. Each of the parties hereto intends that the foregoing
releases shall be effective as a full and final accord and satisfaction of
Released Claims, and each of the Company and the other Obligors hereby agrees,
represents and warrants that, to the extent permitted by applicable law, the
matters released herein are not limited to matters which are known or disclosed.
In this connection, each of the Company and the other Obligors hereby agrees,
represents and warrants that it realizes and acknowledges that (a) factual
matters now existing and unknown to it may have given or may hereafter give rise
to Released Claims which are presently unknown, unsuspected, unliquidated,
unmatured and/or contingent, (b) such Released Claims may be unknown,
unsuspected, unliquidated, unmatured and/or contingent due to ignorance,
oversight, error, negligence or otherwise, and (c) if such Released Claims had
been known, suspected, liquidated, matured and/or unconditional, its decision to
enter into this release may have been materially affected. Each of the Company
and the other Obligors further agrees, represents and warrants that this release
has been negotiated and agreed upon in view of these realizations. Nevertheless,
each of the Company and the other Obligors hereby intends to release, discharge,
and acquit each other of and from any such unknown, unsuspected, unliquidated,
unmatured and/or contingent Released Claims which are in any way set forth in or
related to the matters identified hereinabove.
[signature pages follow]
28
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Seventh Amendment to Post-Petition Credit Agreement, Amendment to Guaranties 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
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 Documentation Agent and
as a Lender
By: /s/Xxxxx X'Xxxxxxx
--------------------------------
Name: Xxxxx X'Xxxxxxx
Title: Duly Authorized Signatory
XXXXX FARGO FOOTHILL, INC.
(fka Foothill Capital Corporation),
as Co-Syndication Agent and as a Lender
By: /s/Xxxxxx Xxx
--------------------------------
Name: Xxxxxx Xxx
Title: Vice President
S-1
THE CIT GROUP/BUSINESS CREDIT, INC., as
Co-Syndication Agent and as a Lender
By: /s/Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC., as a Lender
By: /s/Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/Xxxxxx Sha Xxxxxx
--------------------------------
Name: Xxxxxx Sha Xxxxxx
Title: Vice President
GMAC COMMERCIAL FINANCE, LLC,
as successor by merger to GMAC Business
Credit, LLC, as a Lender
By: /s/Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
S-2
BANK OF AMERICA, N.A.,
as Depository Bank for the Cash Collateral
Accounts, solely with respect to Section
1.12 of the foregoing Amendment (and
Section 9.1.21 of the Credit Agreement,
as amended hereby)
By: ___________________________________
Name: ___________________________________
Title:___________________________________
S-3
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 Guaranties, as amended by the Amendment, continue in full
force and effect, and (c) ratifies the Parent Guaranty or the Subsidiary
Guaranty or Guaranties, each as amended by the Amendment, to which it is a
party, as applicable, and each of the Loan Documents, as amended by the
Amendment, to which it is a party and further ratifies the Security Interests
(if any) and superpriority claims granted by it to the Agent for its benefit and
the benefit of the Secured Lenders.
[signatures following; remainder of page intentionally left blank]
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
ALPART JAMAICA INC.
XXXXXX ALUMINA AUSTRALIA CORPORATION
XXXXXX BELLWOOD CORPORATION
XXXXXX ALUMINUM & CHEMICAL INVESTMENT, INC.
XXXXXX ALUMINIUM INTERNATIONAL, INC.
XXXXXX ALUMINUM PROPERTIES, INC.
XXXXXX ALUMINUM TECHNICAL SERVICES, INC.
XXXXXX FINANCE CORPORATION
KAISER JAMAICA CORPORATION
XXXXXX MICROMILL HOLDINGS, LLC
XXXXXX SIERRA MICROMILLS, LLC
XXXXXX TEXAS SIERRA MICROMILLS, LLC
XXXXXX TEXAS MICROMILL HOLDINGS, LLC
OXNARD FORGE DIE COMPANY, INC.
XXXXXX ALUMINUM CORPORATION
ALWIS LEASING LLC
XXXXXX BAUXITE COMPANY
XXXXXX CENTER, INC.
XXXXXX CENTER PROPERTIES
KAE TRADING, INC.
XXXXXX EXPORT COMPANY
By ___________________________________
Name: ___________________________________
Title:___________________________________
S-1
ACKNOWLEDGEMENT AND AGREEMENT OF AJI, KJC, KFC, KAAC AND KBC
Each of the undersigned Obligors has reviewed the foregoing
Amendment, and the Loan Documents to be amended thereby, and as of the date
first set forth above (i) acknowledges and agrees to the agreements set forth in
the Amendment and the Loan Documents, as amended by the Amendment, and (ii)
confirms and agrees to be bound by its respective obligations under the
Amendment and the Loan Documents as amended thereby, including without
limitation such Obligor's obligation to make the deposits into the respective
Cash Collateral Accounts contemplated by and in accordance with Sections 9.1.19,
9.1.20, 9.1.21 and 9.2.18 as applicable, of the Credit Agreement (as amended by
the Amendment).
In furtherance of the foregoing, each of the undersigned Obligors,
as security for the payment of all Guaranteed Obligations (as defined in each
Subsidiary Guaranty to which such Obligor is a party), hereby grants, conveys,
assigns, pledges, sets over, and transfers to the Agent, and creates in the
Agent's favor, a first-priority Lien on and security interest in all of such
Obligor's right title and interest in (and whether now or hereafter existing)
the ALPART Collateral, the QAL Collateral, the KBC Allocable Amount, the Cash
Collateral Accounts and all money, instruments, securities, financial assets,
investment property and other property at any time deposited in, held in,
credited to or acquired in connection with the Cash Collateral Accounts,
together with all proceeds of any of the foregoing (including without limitation
dividends payable in cash or stock and shares or other proceeds of conversions
or splits of any securities in the Cash Collateral Accounts), and all interest
accruing thereon and investments thereof, and earnings on and proceeds of
investments with respect thereto, for the benefit of the Agent and the Secured
Lenders.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this ACKNOWLEDGEMENT AND AGREEMENT OF AJI, KJC, KFC, KAAC and KBC as
of the date first set forth above
ALPART JAMAICA INC.
XXXXXX ALUMINA AUSTRALIA CORPORATION
XXXXXX FINANCE CORPORATION
KAISER JAMAICA CORPORATION
KAISER BAUXITE CORPORATION
By: ___________________________________
Name:
Title:
SCHEDULE A
to
SEVENTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT,
AMENDMENT TO SUBSIDIARY GUARANTY,
CONSENT OF GUARANTORS
AND ACKNOWLEDGEMENT AND AGREEMENT OF AJI, KJC, KFC, KAAC AND KBC
NAME REVOLVING COMMITMENT PERCENTAGE
--------------------------------------------- -------------------- ----------
Bank Of America, N.A. $ 38,597,000 19.2985%
General Electric Capital Corporation 38,597,000 19.2985%
The Cit Group/Business Credit, Inc., 28,070,000 14.0350%
Xxxxx Fargo Foothill, Inc.
(fka Foothill Capital Corporation) 31,578,000 15.7890%
Xxxxxxx Xxxxx Business Financial Services Inc 24,562,000 12.2810%
GMAC Commercial Finance LLC 21,052,000 10.5260%
PNC Bank, National Association 17,544,000 8.7720%
------------ --------
TOTAL $200,000,000 100.0000%
------------ --------
SCHEDULE I
(ELIGIBLE FIXED ASSETS)
Xxxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx
Bellwood Extrusion
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx
Greenwood
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
Tennalum
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx
Los Angeles
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
Newark
000 Xxxxxx Xxxxx
Xxxxx, Xxxx
Sherman
0000 Xxxxxxx 00 Xxxxx
Xxxxxxx, Xxxxx
Tulsa
0000 Xxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx
Richland
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx
EXHIBIT A
Settlement and Release Agreement
[attached]
