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EXHIBIT 4.1
E x e c u t i o n C o p y
SEVENTEENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTEENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of September 24, 1999, is by and between XXXXXX ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation (the "Company"), XXXXXX ALUMINUM
CORPORATION, a Delaware corporation (the "Parent Guarantor"), the various
financial institutions that are or may from time to time become parties to the
Credit Agreement referred to below (collectively, the "Lenders" and,
individually, a "Lender"), and Bank of America, N.A. (successor to BankAmerica
Business Credit, Inc., a Delaware corporation), as agent (in such capacity,
together with its successors and assigns in such capacity, the "Agent") for the
Lenders. Capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Credit Agreement, as amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders and the Agent
are parties to the Credit Agreement, dated as of February 15, 1994, as amended
by the First Amendment to Credit Agreement, dated as of July 21, 1994, the
Second Amendment to Credit Agreement, dated as of March 10, 1995, the Third
Amendment to Credit Agreement and Acknowledgement, dated as of July 20, 1995,
the Fourth Amendment to Credit Agreement, dated as of October 17, 1995, the
Fifth Amendment to Credit Agreement, dated as of December 11, 1995, the Sixth
Amendment to Credit Agreement, dated as of October 1, 1996, the Seventh
Amendment to Credit Agreement, dated as of December 17, 1996, the Eighth
Amendment to Credit Agreement, dated as of February 24, 1997, the Ninth
Amendment to Credit Agreement and Acknowledgment, dated as of April 21, 1997,
the Tenth Amendment to Credit Agreement and Assignment, dated as of June 25,
1997, the Eleventh Amendment to Credit Agreement and Limited Waivers, dated as
of October 20, 1997, the Twelfth Amendment to Credit Agreement, dated as of
January 13, 1998, the Thirteenth Amendment to Credit Agreement, dated as of July
20, 1998, the Fourteenth Amendment to Credit Agreement, dated as of December 11,
1998, the Fifteenth Amendment to Credit Agreement, dated as of February 23, 1999
and the Sixteenth Amendment to Credit Agreement, dated as of March 26, 1999 (the
"Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
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Section 1. Amendments to Credit Agreement.
1.1 Amendments to Article I: Definitions and Accounting Terms.
Subsection 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Minimum Net Worth" contained therein to read in its entirety
as follows:
" Minimum Net Worth' means (a) for each Fiscal Quarter of the Company
ending on or prior to December 31, 1998 (commencing with the Fiscal Quarter
ending September 30, 1996), $500,000,000 plus 50% of Net Income (but not loss)
for each such Fiscal Quarter, (b) for the two Fiscal Quarters of the Company
ending on March 31, 1999 and June 30, 1999, $600,000,000 plus 50% of Net Income
(but not loss) for each such Fiscal Quarter, and (c) for each Fiscal Quarter of
the Company ending thereafter, $550,000,000 plus 50% of Net Income (but not
loss) for each such Fiscal Quarter."
1.2 Amendments to Article IX: Covenants.
A. Section 9.2.4(a) of the Credit Agreement is hereby amended by
deleting the proviso contained therein and substituting the following therefor:
"provided that for purposes of this Section 9.2.4(a), the calculation
of Net Worth shall exclude (i) the effect of any non-cash charges, up to an
aggregate amount of $70,000,000, in respect of the Micromill project,
including (without limitation) any write-down of Micromill project assets
located at the Center for Technology in Pleasanton, California, and at the
Micromill facility near Reno, Nevada, (ii) the net cumulative effect of any
xxxx-to-market gains or losses incurred after December 31, 1998, up to an
aggregate net amount of $50,000,000 of losses, on aluminum hedging
agreements of the Company and its Subsidiaries that do not qualify for
hedging treatment under GAAP, (iii) the effect of any non-cash charges, up
to an aggregate amount of $30,000,000, in respect of the settlement of the
Company's labor dispute with the United Steelworkers of America, and (iv)
the net cumulative effect of any gains or losses, up to an aggregate net
amount of $50,000,000 of losses, in respect of adjustments to the net cost
basis of the assets of the Gramercy, Louisiana facility as a result of the
explosion at such facility, all of the above adjustments to be reflected on
the relevant Compliance Certificate."
B. Section 9.2.4(b) of the Credit Agreement is hereby amended to read
in its entirety as follows:
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"(b) Interest Coverage Ratio. The Company shall not permit the
Interest Coverage Ratio (i) for the one Fiscal Quarter period ending March
31, 1996 to be less than 1.1 to 1.0, (ii) for the two Fiscal Quarter period
ending June 30, 1996 to be less than 1.2 to 1.0, (iii) for the three Fiscal
Quarter period ending September 30, 1996 to be less than 0.5 to 1.0, (iv)
for the four Fiscal Quarter period ending December 31, 1996 to be less than
0.3 to 1.0, (v) for the one Fiscal Quarter period ending June 30, 1997 to
be less than 0.2 to 1.0, (vi) for the two Fiscal Quarter period ending
September 30, 1997 to be less than 0.4 to 1.0, (vii) for the three Fiscal
Quarter period ending December 31, 1997 to be less than 0.6 to 1.0 and
(viii) for the four Fiscal Quarter period ending on the last day of each of
the Fiscal Quarters set forth below to be less than the correlative ratio
indicated:
Date Ratio
---- -----
First Fiscal Quarter of 1998 0.80 to 1.00
Second Fiscal Quarter of 1998 1.20 to 1.00
Third Fiscal Quarter of 1998 1.60 to 1.00
Fourth Fiscal Quarter of 1998 1.10 to 1.00
First Fiscal Quarter of 1999 No Test
Second Fiscal Quarter of 1999 No Test
Third Fiscal Quarter of 1999 No Test
Fourth Fiscal Quarter of 1999 No Test
First Fiscal Quarter of 2000 0.50 to 1.00
Second Fiscal Quarter of 2000 1.00 to 1.00
Third Fiscal Quarter of 2000 1.25 to 1.00
Fourth Fiscal Quarter of 2000 1.50 to 1.00
First Fiscal Quarter of 2001 2.00 to 1.00
Second Fiscal Quarter of 2001 2.00 to 1.00
; provided that for purposes of calculating the Interest Coverage Ratio
under this Section 9.2.4(b), (i) EBITDA shall exclude (A) the effect of any
non-cash charges, up to an aggregate amount of $70,000,000, in respect of
the Micromill project, including (without limitation) any write-down of
Micromill project assets located at the Center for Technology in
Pleasanton, California, and at the Micromill facility near Reno, Nevada,
(B) the net cumulative effect of any xxxx-to-market gains or losses, for
the relevant four Fiscal Quarter period, up to an aggregate net amount of
$50,000,000 of losses, on aluminum hedging agreements of the Company and
its Subsidiaries that do not qualify for hedging treatment under GAAP, (C)
the effect of any non-cash charges, up to an aggregate amount of
$30,000,000, in respect of the settlement of the Company's labor dispute
with the United
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Steelworkers of America, and (D) the net cumulative effect of any gains or
losses, up to an aggregate net amount of $50,000,000 of losses, in respect
of adjustments to the net cost basis of the assets of the Gramercy,
Louisiana facility as a result of the explosion at such facility, all of
the above adjustments to be reflected on the relevant Compliance
Certificate; and (ii) Adjusted Capital Expenditures shall not be subtracted
from EBITDA."
C. Section 9.2.7 of the Credit Agreement is hereby amended by adding
the following at the end of clause (b) thereof:
"; provided, however, that for purposes of calculating Adjusted
Capital Expenditures for each Fiscal Year after the 1998 Fiscal Year, there
shall be excluded all amounts spent by the Company or its Subsidiaries to
reconstruct the Gramercy, Louisiana facility to the extent such amounts are
covered by valid and collectible insurance from solvent insurers."
D. Section 9.2.18 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (vii) thereof; (ii) deleting the
period at the end of clause (viii) thereof and substituting the phrase "; and"
therefor, and (iii) adding the following as new clause (ix) thereof:
"(ix) the Company and its wholly-owned Subsidiaries may transfer the
capital stock or other ownership interest of any of their respective
wholly-owned Subsidiaries to the Company or any of its wholly-owned
Subsidiaries; provided, however, that (a) the capital stock or other
ownership interest of an Obligor shall be transferred only to another
Obligor, (b) the capital stock or other ownership interest of a Domestic
Subsidiary of the Company shall be transferred only to the Company or
another Domestic Subsidiary of the Company and (c) the capital stock or
other ownership interest of a Subsidiary that is pledged to the Agent on
behalf of the Lenders shall be transferred only to another Obligor."
Section 2. Conditions to Effectiveness.
This Amendment shall become effective as of the date hereof only when
the following conditions shall have been satisfied and notice thereof shall have
been given by the Agent to the Parent Guarantor, the Company and each Lender
(the date of satisfaction of such conditions and the giving of such notice being
referred to herein as the "Seventeenth Amendment Effective Date"):
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A. The Agent shall have received for each Lender counterparts hereof
duly executed on behalf of the Parent Guarantor, the Company, the Agent and the
Required Lenders (or notice of the approval of this Amendment by the Required
Lenders satisfactory to the Agent shall have been received by the Agent).
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of the Executive
Committee of the Board of Directors of the Company and the Parent Guarantor
approving and authorizing the execution, delivery and performance of this
Amendment, certified by their respective corporate secretaries or assistant
secretaries as being in full force and effect without modification or amendment
as of the date of execution hereof by the Company or the Parent Guarantor, as
the case may be;
(2) A signature and incumbency certificate of the officers of the
Company and the Parent Guarantor executing this Amendment;
(3) For each Lender, an opinion, addressed to the Agent and each
Lender, from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, in form and substance
satisfactory to the Agent;
(4) Such other information, approvals, opinions, documents or
instruments as the Agent may reasonably request; and
(5) For the pro rata benefit of the Lenders, a fee in the amount
of $100,000.
Section 3. Company's Representations and Warranties.
In order to induce the Lenders and the Agent to enter into this
Amendment and to amend the Credit Agreement in the manner provided herein, the
Parent Guarantor and the Company represent and warrant to each Lender and the
Agent that, as of the Seventeenth Amendment Effective Date, after giving effect
to the effectiveness of this Amendment, the following statements are true and
correct in all material respects:
A. Authorization of Agreements. The execution and delivery of this
Amendment by the Company and the Parent Guarantor and the performance of the
Credit Agreement as amended by this Amendment (the "Amended Agreement") by the
Company and the Parent Guarantor are within such Obligor's corporate powers and
have been duly authorized by all necessary corporate action on the part of the
Company and the Parent Guarantor, as the case may be.
B. No Conflict. The execution and delivery by the
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Company and the Parent Guarantor of this Amendment and the performance by the
Company and the Parent Guarantor of the Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Senior Indenture, the New Senior Indenture,
the Additional New Senior Indentures, or the Subordinated Indenture or
contravene any other contractual restriction where such a contravention has a
reasonable possibility of having a Materially Adverse Effect or contravene any
law or governmental regulation or court decree or order binding on or affecting
such Obligor or any of its Subsidiaries; or
(3) result in, or require the creation or imposition of, any Lien
on any of such Obligor's properties or any of the properties of any Subsidiary
of such Obligor, other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly executed and
delivered by the Company and the Parent Guarantor and this Amendment and the
Amended Agreement constitute the legal, valid and binding obligations of the
Company and the Parent Guarantor, enforceable against the Company and the Parent
Guarantor in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally and by general principles of equity.
D. Governmental Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other Person is required for the due
execution, delivery or performance of this Amendment by the Company or the
Parent Guarantor.
E. Incorporation of Representations and Warranties from Credit
Agreement. Each of the statements set forth in Section 7.2.1 of the Credit
Agreement is true and correct.
Section 4. Acknowledgement and Consent.
The Company is a party to the Company Collateral Documents, in each
case as amended through the date hereof, pursuant to which the Company has
created Liens in favor of the Agent on certain Collateral to secure the
Obligations. The Parent Guarantor is a party to the Parent Collateral Documents,
in each case as amended through the date hereof, pursuant to which the Parent
Guarantor has created Liens in favor of the Agent on certain Collateral and
pledged certain Collateral to the
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Agent to secure the Obligations of the Parent Guarantor. Certain Subsidiaries of
the Company are parties to the Subsidiary Guaranty and/or one or more of the
Subsidiary Collateral Documents, in each case as amended through the date
hereof, pursuant to which such Subsidiaries have (i) guarantied the Obligations
and/or (ii) created Liens in favor of the Agent on certain Collateral. The
Company, the Parent Guarantor and such Subsidiaries are collectively referred to
herein as the "Credit Support Parties", and the Company Collateral Documents,
the Parent Collateral Documents, the Subsidiary Guaranty and the Subsidiary
Collateral Documents are collectively referred to herein as the "Credit Support
Documents".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement as amended by this Amendment and
consents to the amendment of the Credit Agreement effected as of the date hereof
pursuant to this Amendment.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect. Each Credit Support Party hereby confirms
that each Credit Support Document to which it is a party or otherwise bound and
all Collateral encumbered thereby will continue to guaranty or secure, as the
case may be, the payment and performance of all obligations guaranteed or
secured thereby, as the case may be.
Each Credit Support Party (other than the Company and the Parent
Guarantor) acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Credit Support Party is not
required by the terms of the Credit Agreement or any other Loan Document to
consent to the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other
Loan Document shall be deemed to require the consent of such Credit Support
Party to any future amendments to the Credit Agreement.
Section 5. Miscellaneous.
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(1) On and after the Seventeenth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
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(2) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO SUCH LAWS RELATING TO CONFLICTS OF LAWS.
C. Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
D. Counterparts. This Amendment may be executed by the parties hereto
in several counterparts and by the different parties on separate counterparts,
each of which shall be deemed to be an original and all of which shall
constitute together but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
E. Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provisions in any other
jurisdiction.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered as of the day and year first above written.
XXXXXX ALUMINUM CORPORATION XXXXXX ALUMINUM & CHEMICAL
CORPORATION
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
BANK OF AMERICA, N.A. (successor to BANK OF AMERICA, N.A.
BankAmerica Business Credit, Inc.), (successor to BankAmerica
as Agent Business Credit, Inc.)
By: /s/Xxxxxxx X. Xxxxxxxx By: /s/Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
BANK OF AMERICA, N.A. (formerly known THE CIT GROUP/BUSINESS
as Bank of America National Trust and CREDIT, INC.
Savings Association)
By: /s/Xxxxxxx Xxxxx By: /s/Xxxxx Xxxxx
Name Printed: Xxxxxxx Xxxxx Name Printed: Xxxxx Xxxxx
Its: Managing Director Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION XXXXXX FINANCIAL, INC.
(WESTERN)
By: /s/Xxxxxxxx Metchikig By: /s/Xxxxxxx X. Halston
Name Printed: Xxxxxxxx Metchikig Name Printed: Xxxxxxx X.
Halston
Its: Vice President Its: Assistant Vice President
LA SALLE BANK NATIONAL TRANSAMERICA BUSINESS CREDIT
ASSOCIATION (formerly known as CORPORATION
La Salle National Bank)
By: /s/Xxxxxxx X. Colleth By: /s/Xxxxxx X. Xxxxx
Name Printed: Xxxxxxx X. Colleth Name Printed: Xxxxxx X. Xxxxx
Its: First Vice President Its: Senior Vice President
ABN AMRO BANK N.V.
By: /s/Xxxxxxx X. French
Name Printed: Xxxxxxx X. French
Its: Senior Vice President
By: /s/Xxxxxxx Xxxx
Name Printed: Xxxxxxx Xxxx
Its: Credit Officer
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ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX ALUMINUM PROPERTIES, XXXXXX ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER BAUXITE COMPANY XXXXXX EXPORT COMPANY
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS,
LLC
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
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XXXXXX XXXXX XXXXXX XXXXXXXXXX, XXXXXX XXXXX MICROMILL
LLC HOLDINGS, LLC
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX BELLWOOD CORPORATION KAISER TRANSACTION CORP.
By: /s/Xxxxx X. Xxxxxxxxx By: /s/Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X.
Xxxxxxxxx
Its: Treasurer Its: Treasurer
