EXECUTION COPY
FIFTH AMENDMENT TO CREDIT AGREEMENT
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THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of December 11, 1995, is by and between
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▇▇▇▇▇▇ ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation
(the "Company"), ▇▇▇▇▇▇ ALUMINUM CORPORATION, a Delaware
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corporation (the "Parent Guarantor"), the various financial
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institutions that are or may from time to time become parties to
the Credit Agreement referred to below (collectively, the
"Lenders" and, individually, a "Lender"), and BANKAMERICA
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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,
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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, and the Fourth Amendment to Credit Agreement, dated as of
October 17, 1995 (the "Credit Agreement"); and
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WHEREAS, the parties hereto have agreed to amend the
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
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1.1 Amendment to Article I: Definitions.
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A. The definition of "Joint Venture Affiliate"
contained in Section 1.1 of the Credit Agreement is hereby
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amended by inserting the phrase "Guizhou Kaiser (but only at such
time as Guizhou Kaiser is not a Subsidiary of the Company and is
an Affiliate of the Company), Chengdu Kaiser (but only at such
time as Chengdu Kaiser is not a Subsidiary of the Company and is
an Affiliate of the Company)," after the term "Furukawa," in the
second line thereof.
B. The definition of "Organic Document" contained in
Section 1.1 of the Credit Agreement is hereby amended to read in
its entirety as follows:
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"`Organic Document' means, with respect to any Obligor,
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its articles or certificate of incorporation and its bylaws
(in the case of an Obligor that is a corporation), its
articles of organization or certificate of formation and its
regulations or limited liability company agreement (in the
case of an Obligor that is a limited liability company), and
all shareholder agreements, voting trusts, and similar
arrangements applicable to any of its authorized shares of
capital stock (in the case of an Obligor that is a
corporation) or other equity interests (in the case of an
Obligor that is a limited liability company)."
C. The following definitions are hereby added to
Section 1.1 of the Credit Agreement in the appropriate
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alphabetical order:
"`Chengdu Kaiser' means Chengdu ▇▇▇▇▇▇ Aluminum
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Company, Ltd., a corporation organized under the laws of the
People's Republic of China."
"`Guizhou Kaiser' means Guizhou ▇▇▇▇▇▇ Aluminum
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Company, Ltd., a corporation organized under the laws of the
People's Republic of China."
"`KAEII' means ▇▇▇▇▇▇ Aluminum Extrusions International
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Inc., a corporation organized under the laws of Delaware."
"`KMH' means ▇▇▇▇▇▇ Micromill Holdings, LLC, a limited
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liability company organized under the laws of Delaware."
"`KSM' means ▇▇▇▇▇▇ Sierra Micromills, LLC, a limited
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liability company organized under the laws of Delaware."
"`Texas Holdings' means ▇▇▇▇▇▇ Texas Micromill
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Holdings, LLC, a limited liability company organized under the
laws of Texas."
"`Texas Sierra' means ▇▇▇▇▇▇ Texas Sierra Micromills,
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LLC, a limited liability company organized under the laws of
Texas."
1.2 Amendments to Article IX: Covenants.
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A. Clause (b)(i) of Section 9.2.2 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(i) Indebtedness of the Company in respect of the
Senior Debt, and Contingent Obligations of AJI, KJC, KFC,
KAAC, KMH, KSM, Texas Holdings and Texas Sierra as a
'Subsidiary Guarantor' (under and as defined in the Senior
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Indenture and the Subordinated Indenture) in respect of the
Senior Debt and the Subordinated Debt, respectively;"
B. Clause (b)(ii) of Section 9.2.2 of the Credit
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Agreement is hereby amended by (i) adding the phrase "Chengdu
Kaiser, Guizhou Kaiser, KAEII," after the phrase "KAAC," in the
first parenthetical contained in clause (A) thereof; (ii) adding
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the phrase "Chengdu Kaiser, Guizhou Kaiser, KAEII," after the
phrase "Yellow River Investment Company," in the first
parenthetical contained in clause (B) thereof; and (iii) adding
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the phrase "Chengdu Kaiser, Guizhou Kaiser, KAEII," after the
phrase "Yellow River Investment Company," in the first
parenthetical contained in clause (C) thereof.
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C. Clause (b)(xvii) of Section 9.2.2 of the Credit
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Agreement is hereby amended by adding the phrase "Chengdu Kaiser,
Guizhou Kaiser, KAEII," after the term "AJI," in the
parenthetical contained therein.
D. Section 9.2.2 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause
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(b)(xviii) thereof; and (ii) adding the following as new clause
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(b)(xx) thereof:
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"(xx) Indebtedness of KAEII to the Company and its
Subsidiaries in an aggregate principal amount not to exceed
$5,000,000 outstanding at any time during Fiscal Year 1996
and $7,000,000 outstanding at any time thereafter; and"
E. Clause (e) of Section 9.2.5 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(e) subject to Section 9.2.18, Investments in the
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ordinary course of business in the Company and its
Subsidiaries (other than Investments made prior to
October 1, 1993 by any Obligor (other than KBC and KEC) in
KBC, KEC or any Subsidiary of the Company that is not an
Obligor and other than Investments in Yellow River
Investment Company, Chengdu Kaiser, Guizhou Kaiser, KAEII,
Alwis or Alwis Acquisition);"
F. Clause (n) of Section 9.2.5 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(n) Investments in Alwis and Alwis Acquisition and
Investments (other than Investments in MAXXAM, any Affiliate
of MAXXAM (other than the Company, its Subsidiaries which
are not Restricted Subsidiaries, or any Joint Venture
Affiliate), Chengdu Kaiser, Guizhou Kaiser, KAEII, Yellow
River Investment Company or Yellow River Aluminum) not
otherwise permissible hereunder; provided that the aggregate
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amount of all Investments (without duplication) under this
Section 9.2.5(n) does not exceed $20,000,000 at any one time
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outstanding, and provided further that the aggregate amount
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of Investments under this Section 9.2.5(n) in Alwis and
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Alwis Acquisition (without duplication) plus the aggregate
principal amount of Indebtedness under Section 9.2.2(b)(xix)
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does not exceed $250,000 in the aggregate at any one time
outstanding;"
G. The first paragraph of clause (o) of Section 9.2.5
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of the Credit Agreement is hereby amended to read in its entirety
as follows:
"(o) provided (i) no Default or Event of Default shall
have occurred and be continuing (or would occur after giving
effect to such Investment) and (ii) that the Interest
Coverage Ratio for the four Fiscal Quarter period ended as
of the end of the last period for which consolidated
financial statements of the Company have been delivered
pursuant to Section 9.1.1(a) or 9.1.1(b) is greater than 2.0
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to 1, Investments in Subsidiaries and Joint Venture
Affiliates (other than Alwis, Alwis Acquisition, Chengdu
Kaiser, Guizhou Kaiser, KAEII, Yellow River Investment
Company and Yellow River Aluminum) not otherwise permissible
hereunder in an aggregate amount not to exceed".
H. Clause (r) of Section 9.2.5 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(r) Indebtedness which is an Investment permitted by
clause (b)(xviii), clause (b)(xix) or clause (b)(xx) of
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Section 9.2.2; and"
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I. Section 9.2.5 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause (q)
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thereof; and (ii) adding the following as new clause (s) thereof:
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"(s) Investments by the Company in Chengdu Kaiser,
Guizhou Kaiser and KAEII in an aggregate amount not to
exceed $5,000,000 outstanding at any time during Fiscal Year
1996 (less any Indebtedness outstanding at such time under
Section 9.2.2(b)(xx)) and $7,000,000 outstanding at any time
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thereafter (less any Indebtedness outstanding at such time
under Section 9.2.2(b)(xx)) and Investments by KAEII in
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Chengdu Kaiser and Guizhou Kaiser in an aggregate amount not
to exceed $5,000,000 outstanding at any time during Fiscal
Year 1996 and $7,000,000 outstanding at any time
thereafter."
J. Section 9.2.7 of the Credit Agreement is hereby
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amended by deleting the figure "$70,000,000" from the chart for
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the 1995 Fiscal Year and substituting the figure "$80,000,000"
therefor.
K. Section 9.2.11 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause (i)
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thereof; (ii) deleting the period at the end of clause (j)
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thereof and substituting the phrase "; and" therefor; and (iii)
adding the following as new clause (k) thereof:
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"(k) the Company may enter into an option to enter into
an oil and gas lease and an oil and gas lease with The
Clinton Oil Company with respect to real property located in
Heath, Ohio; provided that the Company's interest in such
lease is assigned as Collateral to the Agent on behalf of
the Lenders on terms and pursuant to documentation in form
and substance satisfactory to the Agent in its sole and
absolute discretion."
L. Clause (c) of Section 9.2.13 of the Credit
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Agreement is hereby amended by adding the phrase "KMH, KSM, Texas
Holdings, Texas Sierra," after the phrase "AJI," in the
parenthetical contained therein.
M. Section 9.2.14 of the Credit Agreement is hereby
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amended by adding the following to the end of clause (d) thereof
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after the figure "$1,500,000":
"and provided further that in addition to such payments
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in an aggregate amount not to exceed $1,500,000 permitted to
be made for each Fiscal Year, the Company shall be permitted
to make a one time payment in respect of services rendered
to the Company and the Company's allocable share of MAXXAM's
overhead expenses during Fiscal Years 1992, 1993 and 1994 in
an aggregate amount not to exceed $2,374,000"
N. Clause (vi) of Section 9.2.18 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(vi) Investments permitted by Sections 9.2.5(f),
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9.2.5(n), 9.2.5(o), 9.2.5(q), 9.2.5(r) and 9.2.5(s); and"
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Section 2. Amendments to Collateral Documents; Release
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of Collateral.
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The parties agree that, as of the Fifth Amendment
Effective Date, (i) the Company Security Agreement shall be
amended as set forth in Exhibit A hereto, (ii) the Subsidiary
Security Agreement shall be amended as set forth in Exhibit B
hereto, (iii) the Subsidiary Guaranty shall be amended as set
forth in Exhibit C hereto, and (iv) the Subsidiary Pledge
Agreement shall be amended as set forth in Exhibit D hereto. The
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Required Lenders hereby approve the forms of such amendments, and
hereby authorize the Agent on their behalf to accept from the
Company and the Subsidiaries of the Company executing such
amendments and authorize the Agent to execute and deliver as
Agent, the amendment to the Company Security Agreement in
substantially the form of such Exhibit A, the amendment to the
Subsidiary Security Agreement in substantially the form of such
Exhibit B, the amendment to the Subsidiary Guaranty in
substantially the form of such Exhibit C and the amendment to the
Subsidiary Pledge Agreement in substantially the form of such
Exhibit D with such changes, additions or deletions as the Agent,
in its sole and absolute discretion, may approve. In addition,
the Lenders hereby agree that the Agent may (i) release the Lien
of the Lenders in the oil, gas and other substances subject to
the oil and gas lease with The Clinton Oil Company (the "Lessee")
referred to in Section 9.2.11(k) of the Credit Agreement (the
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"Lease"), (ii) subordinate the relevant Company Mortgage to the
interest of the Lessee in the Lease, and (iii) execute and
deliver such documents, in form and substance satisfactory to the
Agent in its sole and absolute discretion, as may be necessary or
appropriate to accomplish such release and subordination. The
Lenders hereby further agree that approval by the Agent of the
Lease shall constitute approval of the Lease by the Lenders.
Section 3. Consent of Lenders.
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The Lenders hereby consent to the execution and
delivery by the Company, ▇▇▇▇▇▇ Finance Corporation, ▇▇▇▇▇▇
Alumina Australia Corporation, Alpart Jamaica Inc., Kaiser
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇▇▇ Holdings and Texas Sierra of
a supplement to the Senior Indenture and a supplement to the
Subordinated Indenture, in form and substance satisfactory to the
Agent in its sole and absolute discretion, for the purpose of
adding each of KMH, KSM, Texas Holdings and Texas Sierra as a
"Subsidiary Guarantor" (under and as defined in the Senior
Indenture and the Subordinated Indenture).
Section 4. Conditions to Effectiveness.
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This Amendment shall become effective as of the date
hereof only when the following conditions shall have been
satisfied and notice thereof shall have been given by the Agent
to the Parent Guarantor, the Company, the Agent and each Lender
(the date of satisfaction of such conditions and the giving of
such notice being referred to herein as the "Fifth Amendment
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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
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satisfactory to the Agent shall have been received by the Agent),
together with counterparts of the Second Amendment to Company
Security Agreement, dated as of December 11, 1995, between the
Company and the Agent (the "Security Amendment") and a Pledge
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Amendment to the Company Pledge Agreement with respect to the
stock of KAEII (the "Pledge Amendment") duly executed on behalf
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of the Company and the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company and the Parent Guarantor
approving and authorizing the execution, delivery and performance
of this Amendment, and, as to the Company, the Security Amendment
and the Pledge Amendment, certified by its corporate secretary or
an assistant secretary as being in full force and effect without
modification or amendment as of the date of execution hereof by
the Company or the Parent Guarantor, as the case may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing this
Amendment, and, as to the Company, the Security Amendment and the
Pledge Amendment;
(3) Copies of the Second Amendment to Subsidiary
Security Agreement, dated as of December 11, 1995, between the
Subsidiaries of the Company parties thereto and the Agent (the
"Subsidiary Security Amendment") duly executed on behalf of such
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Subsidiaries and the Agent;
(4) Resolutions of the Board of Directors or of
the Executive Committee or other authorized governing body or
entity of each of the Subsidiaries of the Company executing the
Subsidiary Security Amendment approving and authorizing the
execution, delivery and performance of the Subsidiary Security
Amendment, certified by their respective corporate secretaries or
an assistant secretary or other authorized representative as
being in full force and effect without modification or amendment
as of the date of execution thereof by such Subsidiary;
(5) A signature and incumbency certificate of the
officers or other authorized representative of each of the
Subsidiaries of the Company executing the Subsidiary Security
Amendment;
(6) Certified copies of the Certificate of
Incorporation, Articles of Organization, or Certificate of
Formation, as applicable, of KAEII, KMH, KSM, Texas Holdings and
Texas Sierra;
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(7) Copies of the Bylaws, Limited Liability
Company Agreement or Regulations, as applicable, of KAEII, KMH,
KSM, Texas Holdings and Texas Sierra, certified as of the date of
delivery to the Agent by their respective corporate secretaries
or an assistant secretary or other authorized representative;
(8) Copies of the Second Amendment to Subsidiary
Guaranty, dated as of December 11, 1995, by the Subsidiaries of
the Company parties thereto and the Agent (the "Subsidiary
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Guaranty Amendment") duly executed on behalf of such Subsidiaries
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and the Agent;
(9) Copies of the Second Amendment to Subsidiary
Pledge Agreement, dated as of December 11, 1995, by the
Subsidiaries of the Company parties thereto and the Agent (the
"Subsidiary Pledge Amendment") duly executed on behalf of such
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Subsidiaries and the Agent;
(10) Duly executed financing statements (Form UCC-1)
naming each of KMH, KSM, Texas Holdings and Texas Sierra as
the debtor and the Agent as the secured party, or other similar
instruments or documents, suitable for filing under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in
the reasonable opinion of the Agent, desirable to perfect the
security interest of the Agent in the Collateral granted pursuant
to the Subsidiary Security Agreement to the extent that
perfection may be accomplished by filing under the Uniform
Commercial Code in any state in the United States or the District
of Columbia;
(11) Duly executed amendments to financing
statements naming the Company as debtor and the Agent as the
secured party, or other similar instruments or documents,
suitable for filing under the Uniform Commercial Code of Texas
and California with respect to the ownership interest of the
Company in Texas Holdings and KMH;
(12) Resolutions of the Board of Directors or of
the Executive Committee or other authorized governing body or
entity of each of KMH, KSM, Texas Holdings and Texas Sierra
approving and authorizing the execution, delivery and performance
of the Subsidiary Guaranty Amendment and the Subsidiary Pledge
Amendment, certified by their respective corporate secretaries or
an assistant secretary or other authorized representative as
being in full force and effect without modification or amendment
as of the date of execution thereof by such Subsidiary;
(13) A signature and incumbency certificate of the
officers or other authorized representative of KMH, KSM, Texas
Holdings and Texas Sierra executing the Subsidiary Guaranty
Amendment and the Subsidiary Pledge Amendment;
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(14) Stock certificates evidencing 100% of the
issued and outstanding shares of capital stock of KAEII,
accompanied by undated stock powers duly executed in blank;
(15) For each Lender an opinion, addressed to the
Agent and each Lender, from Kramer, Levin, Naftalis, Nessen,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, in form and substance satisfactory to the Agent;
and
(16) Such other information approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 5. Conditions Subsequent.
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The Company or KMH shall, as soon as reasonably
practicable, deliver to the Agent duly executed instruments or
documents, suitable for recording in the United States Patent and
Trademark Office, with respect to granting a security interest in
such patents and trademarks owned by the Company or KMH and to be
used by KMH and KSM as may be reasonably requested by the Agent.
Section 6. Company's Representations and Warranties.
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In order to induce the Lenders and the Agent to enter
into this Amendment and to amend the Credit Agreement and the
other Loan Documents in the manner provided herein, the Parent
Guarantor and the Company represent and warrant to each Lender
and the Agent that, as of the Fifth Amendment Effective Date
after giving effect to the effectiveness of this Amendment, the
following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
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delivery of this Amendment by the Company and the Parent
Guarantor and the performance of the Credit Agreement as amended
by this Amendment (the "Amended Agreement") by the Company and
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the Parent Guarantor are within such Obligor's corporate powers
and have been duly authorized by all necessary corporate action
on the part of the Company and the Parent Guarantor, as the case
may be.
B. No Conflict. The execution and delivery by the
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Company and the Parent Guarantor of this Amendment and the
performance by the Company and the Parent Guarantor of the
Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Senior Indenture or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
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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
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executed and delivered by the Company and the Parent Guarantor
and this Amendment and the Amended Agreement constitute the
legal, valid and binding obligations of the Company and the
Parent Guarantor, enforceable against the Company and the Parent
Guarantor in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors'
rights generally and by general principles of equity.
D. Governmental Approval, Regulation, etc. No
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authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any
other Person is required for the due execution, delivery or
performance of this Amendment by the Company or the Parent
Guarantor other than the filing of appropriate financing
statements and the filings referred to in Section 5 hereof.
E. Incorporation of Representations and Warranties
------------------------------------------------
from Credit Agreement. Each of the statements set forth in
---------------------
Section 7.2.1 of the Credit Agreement is true and correct.
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Section 7. Acknowledgement and Consent.
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The Company is a party to the Company Collateral
Documents, in each case as amended through the date hereof,
pursuant to which the Company has created Liens in favor of the
Agent on certain Collateral to secure the Obligations. The
Parent Guarantor is a party to the Parent Collateral Documents,
in each case as amended through the date hereof, pursuant to
which the Parent Guarantor has created Liens in favor of the
Agent on certain Collateral and pledged certain Collateral to the
Agent to secure the Obligations of the Parent Guarantor. Certain
Subsidiaries of the Company are parties to the Subsidiary
Guaranty and/or one or more of the Subsidiary Collateral
Documents, in each case as amended through the date hereof,
pursuant to which such Subsidiaries have (i) guarantied the
Obligations and/or (ii) created Liens in favor of the Agent on
certain Collateral. The Company, the Parent Guarantor and such
Subsidiaries are collectively referred to herein as the "Credit
------
Support Parties", and the Company Collateral Documents, the
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10
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 and the amendment of the other Loan Documents effected
as of the date hereof.
Each Credit Support Party acknowledges and agrees that
any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect. Each
Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all
Collateral encumbered thereby will continue to guaranty or
secure, as the case may be, the payment and performance of all
obligations guaranteed or secured thereby, as the case may be.
Each Credit Support Party (other than the Company and
the Parent Guarantor) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this
Amendment, such Credit Support Party is not required by the terms
of the Credit Agreement or any other Loan Document to consent to
the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments
to the Credit Agreement.
Section 8. Miscellaneous.
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A. Reference to and Effect on the Credit Agreement
-----------------------------------------------
and the Other Loan Documents.
----------------------------
(1) On and after the Fifth Amendment Effective
Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring
to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean
and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment and the amendments to the other Loan Documents executed
as of the date hereof, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby
ratified and confirmed.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
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BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
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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.
▇▇▇▇▇▇ ALUMINUM CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
CORPORATION
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
BANKAMERICA BUSINESS CREDIT, BANKAMERICA BUSINESS CREDIT,
INC., as Agent INC.
By: _______________________ By:________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL TRUST THE CIT GROUP/BUSINESS CREDIT,
AND SAVINGS ASSOCIATION INC.
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
CONGRESS FINANCIAL CORPORATION ▇▇▇▇▇▇ FINANCIAL, INC.
(WESTERN)
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
LA SALLE NATIONAL BANK NATIONAL WESTMINSTER BANK PLC
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
TRANSAMERICA BUSINESS CREDIT ABN AMRO BANK N.V.
CORPORATION
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
13
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ ALUMINUM PROPERTIES, ▇▇▇▇▇▇ ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
OXNARD FORGE DIE COMPANY, INC. ▇▇▇▇▇▇ ALUMINIUM
INTERNATIONAL, INC.
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
KAISER ALUMINA AUSTRALIA ▇▇▇▇▇▇ FINANCE CORPORATION
CORPORATION
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
14
KAISER BAUXITE COMPANY ▇▇▇▇▇▇ EXPORT COMPANY
By: _______________________ By:________________________
Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name Printed: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
15
EXHIBIT A
SECOND AMENDMENT TO COMPANY SECURITY AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO COMPANY SECURITY AGREEMENT
(this "Amendment"), dated as of December 11, 1995, is by and
---------
between ▇▇▇▇▇▇ Aluminum & Chemical Corporation, a Delaware
corporation (the "Company"), and BankAmerica Business Credit,
-------
Inc., a Delaware corporation, as agent for the Secured Lenders
(as defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
-----
herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Fifth Amendment.
W I T N E S S E T H:
WHEREAS, the Company, ▇▇▇▇▇▇ Aluminum Corporation, the
various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), and the Agent are
------- ------
parties to the Credit Agreement, dated as of February 15, 1994,
as amended by the First Amendment to Credit Agreement, dated as
of July 21, 1994, the Second Amendment to Credit Agreement, dated
as of March 10, 1995, the Third Amendment to Credit Agreement and
Acknowledgment, dated as of July 20, 1995, and the Fourth
Amendment to Credit Agreement, dated as of October 17, 1995 (the
"Credit Agreement"); and
----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Fifth
Amendment to Credit Agreement (the "Fifth Amendment"); and
---------------
WHEREAS, the Company and the Agent are parties to the
Company Security Agreement, Financing Statement and Conditional
Assignment of Patents and Trademarks, dated as of February 15,
1994, as amended by the First Amendment to Company Security
Agreement, dated as of July 21, 1994 (the "Company Security
----------------
Agreement"), and have agreed to amend the Company Security
---------
Agreement as herein provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
A-1
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Company Security Agreement.
---------------------------------------
A. Clause (d) of Section 2 of the Company
---------- ---------
Security Agreement is hereby amended to read in its entirety as
follows:
"Chattel Paper, Documents (including all Documents
covering Goods of the Company), Instruments, Certificated
Securities, and Uncertificated Securities, but excluding,
however, Securities representing the Company's ownership interest
in any of its Subsidiaries (other than, to the extent provided in
clause (j) of this ▇▇▇▇▇▇▇ ▇, ▇▇▇ and Texas Holdings) or Joint
---------- ---------
Venture Affiliates;"
B. Section 2 of the Company Security Agreement
---------
is hereby amended by (i) deleting the word "and" at the end of
clause (h) thereof; (ii) adding the word "and" at the end of
----------
clause (i) thereof; and (iii) adding the following as new clause
---------- ------
(j) thereof:
---
"(j) All of the Company's right, title and interest as a
member in and to KMH and Texas Holdings (collectively,
the "Pledged Interests") to receive money due and to
-----------------
become due (including, without limitation,
distributions, interest, income from the properties and
assets of KMH and Texas Holdings and returns of
capital) under or pursuant to the certificate of
formation, articles of organization, regulations,
limited liability company agreement or any other
organizational documents of KMH and Texas Holdings
governing the rights and obligations of the members
thereof (collectively, the 'Organizational
--------------
Agreements'), to receive payments or distributions of
----------
property in kind upon termination or liquidation of KMH
or Texas Holdings or the Company's interest in KMH or
Texas Holdings and to receive any other payments or
distributions, whether cash or non-cash, in respect of
the Company's interests in KMH or Texas Holdings
(collectively, 'LLC Distributions');"
-----------------
C. Section 4 of the Company Security Agreement
---------
is hereby amended by adding the following at the end thereof:
"This Agreement shall not in any way be deemed to obligate
the Agent, any Secured Lender or any purchaser at a
foreclosure sale under this Agreement to assume any of the
Company's obligations, duties, expenses or liabilities under
the Organizational Agreements (including, without
limitation, the Company's obligations as a member for the
debts and obligations of KMH and Texas Holdings and to
A-2
manage the business and affairs of KMH and Texas Holdings),
unless and until the Agent, any Secured Lender or purchaser
otherwise agrees to become, and becomes in accordance with
the applicable Organizational Agreements, a member of KMH or
Texas Holdings, as the case may be."
D. The Company Security Agreement is hereby
amended by adding the following as new Section 20 thereof:
----------
"SECTION 20. LLC Distributions
-----------------
(a) Subject to the provisions of the Credit Agreement,
the Company shall be entitled to receive and retain any and
all LLC Distributions paid unless an Event of Default under
Section 10.1.1 of the Credit Agreement has occurred and is
--------------
continuing or unless and until it receives notice, given
with the consent of the Required Lenders during the
continuance of any other Event of Default, from the Agent
that such right has been suspended; provided, however, that
-------- -------
any and all
(i) LLC Distributions paid or payable other than
in cash in respect of, and instruments and other
property received, receivable, or otherwise distributed
in respect of, or in exchange for, any Pledged
Interests,
(ii) LLC Distributions paid or payable in cash in
respect of any Pledged Interests in connection with a
partial or total liquidation or dissolution or in
connection with a reduction of capital, or returns of
capital, and
(iii) cash paid, payable, or otherwise distributed
in redemption of or in exchange for any Pledged
Interests,
shall be, and shall forthwith be delivered to the Agent to hold
as, Collateral (unless such LLC Distributions or cash are (A)
otherwise subject to a Lien in favor of the Agent pursuant to any
other Loan Document, (B) in the case of cash, applied to repay
Loans under the Credit Agreement, or (C) real property, plant or
equipment which, if acquired by the Company after the date
hereof, would not be required to be subject to a Lien in favor of
the Agent under the terms of the Credit Agreement) and shall, if
received by the Company, be received in trust for the benefit of
the Agent, be segregated from the other property or funds of the
Company and be forthwith delivered (if required to be delivered
hereunder) to the Agent as Collateral in the same form as so
received (with all necessary endorsements).
A-3
(b) The Agent shall promptly execute and deliver (or cause
to be executed and delivered) to the Company all such documents
and instruments as the Company may from time to time reasonably
request for the purpose of enabling the Company to receive the
LLC Distributions which it is authorized to receive and retain
pursuant to clause (a) above.
----------
(c) Upon the occurrence and during the continuance of an
Event of Default under Section 10.1.1 of the Credit Agreement or
--------------
upon receipt by the Company of notice from the Agent, given with
the consent of the Required Lenders during the continuance of any
other Event of Default, all rights of the Company to receive the
LLC Distributions which it would otherwise be authorized to
receive and retain pursuant to clause (a) shall be suspended, and
----------
all such rights shall thereupon become vested in the Agent which
shall thereupon (during the continuance of such Event of Default)
have the sole right to receive and hold as Collateral such LLC
Distributions.
(d) All LLC Distributions which are received by the Company
contrary to the provisions of clause (c) shall be received in
----------
trust for the benefit of the Agent, shall be segregated from
other funds of the Company and shall forthwith be paid over to
the Agent as Collateral in the same form as so received (with any
necessary endorsements). Any and all money and other property
paid over to or received by the Agent pursuant to the provisions
of this clause (d) shall be retained by the Agent as additional
----------
Collateral hereunder and be applied in accordance with the
provisions hereof.
(e) In order to permit the Agent to receive all LLC
Distributions which it is entitled to receive under clause (a) or
----------
clause (c), the Company shall promptly execute and deliver (or
----------
cause to be executed and delivered) to the Agent all such
documents or instruments as the Agent may from time to time
reasonably request."
Section 2. Company's Representations and Warranties.
----------------------------------------
In order to induce the Agent to enter into this
Amendment and to amend the Company Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the Company represents and
warrants to each Lender and the Agent that, as of the Fifth
Amendment Effective Date (as defined in the Fifth Amendment)
after giving effect to the effectiveness of this Amendment, the
following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
---------------------------
delivery of this Amendment by the Company and the performance of
A-4
the Company Security Agreement as amended by this Amendment (the
"Amended Agreement") by the Company are within the Company's
-----------------
corporate powers and have been duly authorized by all necessary
corporate action on the part of the Company.
B. No Conflict. The execution and delivery by the
-----------
Company of this Amendment and the performance by the Company of
the Amended Agreement do not:
(1) contravene the Company's Organic Documents or
the Organizational Agreements;
(2) contravene the Senior Indenture or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or contravene
any law or governmental regulation or court decree or order
binding on or affecting the Company or any of its Subsidiaries;
or
(3) result in, or require the creation or
imposition of, any Lien on any of the Company's properties, other
than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by the Company and this Amendment and the
Amended Agreement constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally and by
general principles of equity.
D. Governmental Approval, Regulation, etc. No
----------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by the Company, the pledge of and
grant by the Company of a security interest in the Company's
interest in the LLC Distributions or the perfection of such
security interest, other than the filing of appropriate financing
statements.
E. Organizational Agreements. With such exceptions,
--------------------------
if any, as are not in the aggregate material to the Collateral
taken as whole, no default by the Company or any other member
exists under any of the Organizational Agreements to which it is
a party and no event has occurred or exists which, with notice or
lapse of time or both, would constitute a default by the Company
thereunder and each of the Organizational Agreements has been
duly authorized, executed and delivered by the Company and is in
full force and effect and has not been amended or modified except
A-5
as disclosed to the Agent. There are no outstanding rights to
purchase, or other agreements that require the issuance of, any
membership interests in KMH or Texas Holdings. The Company's
interest in KMH and Texas Holdings are not evidenced by
certificates or instruments. The Company shall cause KMH and
Texas Holdings to register the pledge of the Company's interests
on their respective books and records.
Section 3. Miscellaneous.
-------------
A. Reference to and Effect on the Company Security
------------------------------------------------
Agreement and the Other Loan Documents.
--------------------------------------
(1) On and after the Fifth Amendment Effective
Date, each reference in the Company Security Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Company Security Agreement, and each
reference in the other Loan Documents to the "Company Security
Agreement", "thereunder", "thereof" or words of like import
referring to the Company Security Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Company Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Company Security Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
--------------
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 Agreement 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.
A-6
E. Severability. Any provision of this Amendment
------------
which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
▇▇▇▇▇▇ ALUMINUM & CHEMICAL BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President, Its: Vice President
Chief Financial Officer
and Treasurer
A-7
EXHIBIT B
SECOND AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
-------------------------------------------------
THIS SECOND AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
(this "Amendment"), dated as of December 11, 1995, is by and
---------
among Akron Holding Corporation, an Ohio corporation, ▇▇▇▇▇▇
Alumina Australia Corporation, a Delaware corporation, ▇▇▇▇▇▇
Aluminium International, Inc., a Delaware corporation, ▇▇▇▇▇▇
Aluminum & Chemical Investment, Inc., a Delaware corporation,
▇▇▇▇▇▇ Aluminum Properties, Inc., a Delaware corporation, ▇▇▇▇▇▇
Aluminum Technical Services, Inc., a California corporation,
▇▇▇▇▇▇ Finance Corporation, a Delaware corporation, and Oxnard
Forge Die Company, Inc., a California corporation (collectively,
the "Existing Kaiser Subsidiaries" and individually, an "Existing
---------------------------- ---------
Kaiser Subsidiary"), ▇▇▇▇▇▇ Micromill Holdings, LLC, a limited
-----------------
liability company organized under the laws of Delaware, ▇▇▇▇▇▇
Sierra Micromills, LLC, a limited liability company organized
under the laws of Delaware, ▇▇▇▇▇▇ Texas Sierra Micromills, LLC,
a limited liability company organized under the laws of Texas,
and ▇▇▇▇▇▇ Texas Micromill Holdings, LLC, a limited liability
company organized under the laws of Texas (collectively, the "New
----
Kaiser Subsidiaries" and individually, a "New Kaiser
------------------- ----------
Subsidiary"), and BankAmerica Business Credit, Inc., a Delaware
----------
corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
-----
Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement, as amended
by the Fifth Amendment.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), ▇▇▇▇▇▇ 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 (collectively, the
"Lenders" and, individually, a "Lender"), and the Agent are
------- ------
parties to the Credit Agreement, dated as of February 15, 1994,
as amended by the First Amendment to Credit Agreement, dated as
of July 21, 1994, the Second Amendment to Credit Agreement, dated
as of March 10, 1995, the Third Amendment to Credit Agreement and
Acknowledgment, dated as of July 20, 1995, and the Fourth
Amendment to Credit Agreement, dated as of October 17, 1995 (the
"Credit Agreement"); and
----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Fifth
Amendment to Credit Agreement (the "Fifth Amendment"); and
---------------
B-1
WHEREAS, the Existing Kaiser Subsidiaries and the Agent
are parties to the Subsidiary Security Agreement, Financing
Statement and Conditional Assignment of Patents and Trademarks,
dated as of February 15, 1994, as amended by the First Amendment
to Subsidiary Security Agreement, dated as of July 21, 1994 (the
"Subsidiary Security Agreement"), and have agreed to amend the
-----------------------------
Subsidiary Security Agreement as herein provided; and
WHEREAS, the New Kaiser Subsidiaries are required as a
condition to the effectiveness of the Fifth Amendment to execute
this Amendment; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Subsidiary Security Agreement.
------------------------------------------
A. Clause (d) of Section 2 of the Subsidiary
---------- ---------
Security Agreement is hereby amended to read in its entirety as
follows:
"Chattel Paper, Documents (including all Documents
covering Goods of such Kaiser Subsidiary), Instruments,
Certificated Securities, and Uncertificated Securities, but
excluding, however, Securities representing such Kaiser
Subsidiary's ownership interest in any other Subsidiary of the
Company (other than, to the extent provided in clause (j) of this
----------
Section 2, KMH, KSM and Texas Sierra) or Joint Venture
---------
Affiliates;"
B. Section 2 of the Subsidiary Security
---------
Agreement is hereby amended by (i) deleting the word "and" at the
end of clause (h) thereof; (ii) adding the word "and" at the end
----------
of clause (i) thereof; and (iii) adding the following as new
----------
clause (j) thereof:
----------
"(j) All of each Kaiser Subsidiary's right, title and
interest as a member in and to KMH, KSM and Texas
Sierra (collectively, the "Pledged Interests") to
-----------------
receive money due and to become due (including, without
limitation, distributions, interest, income from the
properties and assets of KMH, KSM and Texas Sierra and
returns of capital) under or pursuant to the
certificate of formation, articles of organization,
regulations, limited liability company agreement or any
other organizational documents of KMH, KSM and Texas
Sierra governing the rights and obligations of the
members thereof (collectively, the 'Organizational
--------------
Agreements'), to receive payments or distributions of
----------
property in kind upon termination or liquidation of
B-2
KMH, KSM or Texas Sierra or such Kaiser Subsidiary's
interest in KMH, KSM or Texas Sierra and to receive any
other payments or distributions, whether cash or non-cash,
in respect of such Kaiser Subsidiary's interests
in KMH, KSM or Texas Sierra (collectively, `LLC
----
Distributions');"
-------------
C. Section 4 of the Subsidiary Security
---------
Agreement is hereby amended by adding the following at the end
thereof:
"This Agreement shall not in any way be deemed to obligate
the Agent, any Secured Lender or any purchaser at a
foreclosure sale under this Agreement to assume any of such
Kaiser Subsidiary's obligations, duties, expenses or
liabilities under the Organizational Agreements (including,
without limitation, such Kaiser Subsidiary's obligations as
a member for the debts and obligations of KMH, KSM and Texas
Sierra and to manage the business and affairs of KMH, KSM
and Texas Sierra), unless and until the Agent, any Secured
Lender or purchaser otherwise agrees to become, and becomes
in accordance with the applicable Organizational Agreements,
a member of KMH, KSM or Texas Sierra, as the case may be."
D. Clauses (a) and (b) of Section 5 of the
------------ --- ---------
Subsidiary Security Agreement are hereby amended to read in their
entirety as follows:
"(a) It is a corporation or a limited liability company
validly organized or formed, as the case may be, and
existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case
may be, and has full corporate power or company power, as
the case may be, and authority to enter into and perform
this Agreement.
"(b) The execution, delivery, and performance of this
Agreement are within the corporate powers or company powers,
as the case may be, of such Kaiser Subsidiary and have been
duly authorized by all necessary corporate action or company
action, as the case may be, on the part of such Kaiser
Subsidiary."
E. Clause (d) of Section 7 of the Subsidiary
---------- ---------
Security Agreement is hereby amended to read in its entirety as
follows:
"(d) Notify the Agent of any change in such Kaiser
Subsidiary's name, identity or organizational structure
within 15 days of such change."
B-3
F. The Subsidiary Security Agreement is hereby
amended by adding the following as new Section 20 thereof:
----------
"SECTION 20. LLC Distributions
-----------------
(a) Subject to the provisions of the Credit Agreement,
each Kaiser Subsidiary shall be entitled to receive and
retain any and all LLC Distributions paid unless an Event of
Default under Section 10.1.1 of the Credit Agreement has
--------------
occurred and is continuing or unless and until it receives
notice, given with the consent of the Required Lenders
during the continuance of any other Event of Default, from
the Agent that such right has been suspended; provided,
--------
however, that any and all
-------
(i) LLC Distributions paid or payable other than
in cash in respect of, and instruments and other
property received, receivable, or otherwise distributed
in respect of, or in exchange for, any Pledged
Interests,
(ii) LLC Distributions paid or payable in cash in
respect of any Pledged Interests in connection with a
partial or total liquidation or dissolution or in
connection with a reduction of capital, or returns of
capital, and
(iii) cash paid, payable, or otherwise distributed
in redemption of or in exchange for any Pledged
Interests,
shall be, and shall forthwith be delivered to the Agent to hold
as, Collateral (unless such LLC Distributions or cash are (A)
otherwise subject to a Lien in favor of the Agent pursuant to any
other Loan Document, (B) in the case of cash, applied to repay
Loans under the Credit Agreement, or (C) real property, plant or
equipment which, if acquired by any Kaiser Subsidiary after the
date hereof, would not be required to be subject to a Lien in
favor of the Agent under the terms of the Credit Agreement) and
shall, if received by such Kaiser Subsidiary, be received in
trust for the benefit of the Agent, be segregated from the other
property or funds of such Kaiser Subsidiary and be forthwith
delivered (if required to be delivered hereunder) to the Agent as
Collateral in the same form as so received (with all necessary
endorsements).
(b) The Agent shall promptly execute and deliver (or cause
to be executed and delivered) to each Kaiser Subsidiary all such
documents and instruments as such Kaiser Subsidiary may from time
to time reasonably request for the purpose of enabling such
Kaiser Subsidiary to receive the LLC Distributions which it is
authorized to receive and retain pursuant to clause (a) above.
----------
B-4
(c) Upon the occurrence and during the continuance of an
Event of Default under Section 10.1.1 of the Credit Agreement or
--------------
upon receipt by the Kaiser Subsidiary of notice from the Agent,
given with the consent of the Required Lenders during the
continuance of any other Event of Default, all rights of such
Kaiser Subsidiary to receive the LLC Distributions which it would
otherwise be authorized to receive and retain pursuant to clause
------
(a) shall be suspended, and all such rights shall thereupon
---
become vested in the Agent which shall thereupon (during the
continuance of such Event of Default) have the sole right to
receive and hold as Collateral such LLC Distributions.
(d) All LLC Distributions which are received by any Kaiser
Subsidiary contrary to the provisions of clause (c) shall be
----------
received in trust for the benefit of the Agent, shall be
segregated from other funds of such Kaiser Subsidiary and shall
forthwith be paid over to the Agent as Collateral in the same
form as so received (with any necessary endorsements). Any and
all money and other property paid over to or received by the
Agent pursuant to the provisions of this clause (d) shall be
----------
retained by the Agent as additional Collateral hereunder and be
applied in accordance with the provisions hereof.
(e) In order to permit the Agent to receive all LLC
Distributions which it is entitled to receive under clause (a) or
----------
clause (c), each Kaiser Subsidiary shall promptly execute and
----------
deliver (or cause to be executed and delivered) to the Agent all
such documents or instruments as the Agent may from time to time
reasonably request."
Section 2. Addition of New Kaiser Subsidiaries.
-----------------------------------
On and after the Fifth Amendment Effective Date (as
defined in the Fifth Amendment), the New Kaiser Subsidiaries
shall be parties to the Subsidiary Security Agreement and the
terms "Kaiser Subsidiary" and "Kaiser Subsidiaries" (as used in
the Subsidiary Security Agreement) shall include and also be a
reference to the New Kaiser Subsidiaries. Schedules I through VI
of the Subsidiary Security Agreement are hereby amended to
include the information set forth on Schedules I through VI
hereto with respect to the New Kaiser Subsidiaries.
Section 3. Kaiser Subsidiaries' Representations and
----------------------------------------
Warranties.
----------
In order to induce the Agent to enter into this
Amendment and to amend the Subsidiary Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, each Kaiser Subsidiary
(including each New Kaiser Subsidiary) represents and warrants to
each Lender and the Agent that, as of the Fifth Amendment
Effective Date after giving effect to the effectiveness of this
B-5
Amendment, the following statements are true and correct in all
material respects:
A. Authorization of Agreements. The execution and
---------------------------
delivery of this Amendment by such Kaiser Subsidiary and the
performance of the Subsidiary Security Agreement as amended by
this Amendment (the "Amended Agreement") by such Kaiser
-----------------
Subsidiary are within such Kaiser Subsidiary's corporate powers
or company powers, as the case may be, and have been duly
authorized by all necessary corporate action or company action,
as the case may be, on the part of such Kaiser Subsidiary.
B. No Conflict. The execution and delivery by such
-----------
Kaiser Subsidiary of this Amendment and the performance by such
Kaiser Subsidiary of the Amended Agreement do not:
(1) contravene such Kaiser Subsidiary's Organic
Documents or the Organizational Agreements;
(2) contravene the Senior Indenture 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 Kaiser Subsidiary or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Kaiser Subsidiary's
properties, other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by such Kaiser Subsidiary and this
Amendment and the Amended Agreement constitute the legal, valid
and binding obligations of such Kaiser Subsidiary, enforceable
against such Kaiser Subsidiary in accordance with their
respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally and by general
principles of equity.
D. Governmental Approval, Regulation, etc. No
---------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by such Kaiser Subsidiary, the
pledge of and grant by such Kaiser Subsidiary of a security
interest in such Kaiser Subsidiary's interest in the LLC
Distributions or the perfection of such security interest, other
than the filing of appropriate financing statements.
B-6
E. Organizational Agreements. With such exceptions,
--------------------------
if any, as are not in the aggregate material to the Collateral
taken as a whole, no default by such Kaiser Subsidiary or any
other member exists under any of the Organizational Agreements to
which it is a party and no event has occurred or exists which,
with notice or lapse of time or both, would constitute a default
by such Kaiser Subsidiary thereunder and each of the
Organizational Agreements has been duly authorized, executed and
delivered by such Kaiser Subsidiary and is in full force and
effect and has not been amended or modified except as disclosed
to the Agent. There are no outstanding rights to purchase, or
other agreements that require the issuance of, any membership
interests in KHM, KSM or Texas Sierra. Such Kaiser Subsidiary's
interest in KHM, KSM and Texas Sierra are not evidenced by
certificates or instruments. Such Kaiser Subsidiary shall cause
KHM, KSM and Texas Sierra to register the pledge of such Kaiser
Subsidiary's interests on their respective books and records.
Section 4. Miscellaneous.
-------------
A. Reference to and Effect on the Subsidiary Security
--------------------------------------------------
Agreement and the Other Loan Documents.
--------------------------------------
(1) On and after the Fifth Amendment Effective
Date, each reference in the Subsidiary Security Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of
like import referring to the Subsidiary Security Agreement, and
each reference in the other Loan Documents to the "Subsidiary
Security Agreement", "thereunder", "thereof" or words of like
import referring to the Subsidiary Security Agreement shall mean
and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Subsidiary Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Subsidiary Security Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
--------------
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO SUCH LAWS RELATING TO
CONFLICTS OF LAWS.
C. Headings. The various headings of this Amendment
--------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
B-7
D. Counterparts. This Agreement may be executed by
-------------
the parties hereto in several counterparts and by the different
parties on separate counterparts, each of which shall be deemed
to be an original and all of which shall constitute together but
one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached
to the same document.
E. Severability. Any provision of this Amendment
------------
which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President
AKRON HOLDING CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ ALUMINUM PROPERTIES, ▇▇▇▇▇▇ ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
B-8
OXNARD FORGE DIE COMPANY, INC. ▇▇▇▇▇▇ ALUMINIUM
INTERNATIONAL, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
KAISER ALUMINA AUSTRALIA ▇▇▇▇▇▇ FINANCE CORPORATION
CORPORATION
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ MICROMILL HOLDINGS, LLC ▇▇▇▇▇▇ SIERRA MICROMILLS, LLC
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Manager Its: Vice President,
Chief Financial Officer
and Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
B-9
EXHIBIT C
SECOND AMENDMENT TO SUBSIDIARY GUARANTY
---------------------------------------
THIS SECOND AMENDMENT TO SUBSIDIARY GUARANTY (this
"Amendment"), dated as of December 11, 1995, is by and among
---------
Akron Holding Corporation, an Ohio corporation, Alpart Jamaica
Inc., a Delaware corporation, ▇▇▇▇▇▇ Alumina Australia
Corporation, a Delaware corporation, ▇▇▇▇▇▇ Aluminium
International, Inc., a Delaware corporation, ▇▇▇▇▇▇ Aluminum &
Chemical Investment, Inc., a Delaware corporation, ▇▇▇▇▇▇
Aluminum Properties, Inc., a Delaware corporation, ▇▇▇▇▇▇
Aluminum Technical Services, Inc., a California corporation,
▇▇▇▇▇▇ Finance Corporation, a Delaware corporation, Kaiser
Jamaica Corporation, a Delaware corporation, and Oxnard Forge Die
Company, Inc., a California corporation (collectively, the
"Existing Kaiser Subsidiaries" and individually, an "Existing
---------------------------- --------
Kaiser Subsidiary"), ▇▇▇▇▇▇ Micromill Holdings, LLC, a limited
-----------------
liability company organized under the laws of Delaware, ▇▇▇▇▇▇
Sierra Micromills, LLC, a limited liability company organized
under the laws of Delaware, ▇▇▇▇▇▇ Texas Sierra Micromills, LLC,
a limited liability company organized under the laws of Texas,
and ▇▇▇▇▇▇ Texas Micromill Holdings, LLC, a limited liability
company organized under the laws of Texas (collectively, the "New
----
Kaiser Subsidiaries" and individually, a "New Kaiser
------------------- ----------
Subsidiary"), and BankAmerica Business Credit, Inc., a Delaware
----------
corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
-----
Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement, as amended
by the Fifth Amendment.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), ▇▇▇▇▇▇ 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 (collectively, the
"Lenders" and, individually, a "Lender"), and the Agent are
------- ------
parties to the Credit Agreement, dated as of February 15, 1994,
as amended by the First Amendment to Credit Agreement, dated as
of July 21, 1994, the Second Amendment to Credit Agreement, dated
as of March 10, 1995, the Third Amendment to Credit Agreement and
Acknowledgment, dated as of July 20, 1995, and the Fourth
Amendment to Credit Agreement, dated as of October 17, 1995 (the
"Credit Agreement"); and
----------------
C-1
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Fifth
Amendment to Credit Agreement (the "Fifth Amendment"); and
---------------
WHEREAS, the Existing Kaiser Subsidiaries are parties
to the Subsidiary Guaranty, dated as of February 15, 1994, as
amended by the First Amendment to Subsidiary Guaranty, dated as
of July 21, 1994 (the "Subsidiary Guaranty"), and have agreed to
-------------------
amend the Subsidiary Guaranty as herein provided; and
WHEREAS, the New Kaiser Subsidiaries are required as a
condition to the effectiveness of the Fifth Amendment to execute
this Amendment; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Subsidiary Guaranty.
--------------------------------
A. Section 3.1 of the Subsidiary Guaranty is
-----------
hereby amended to read in its entirety as follows:
"SECTION 3.1. Organization, etc. Such undersigned is
------------------
a corporation or a limited liability company validly
organized or formed, as the case may be, and existing and in
good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and has full
corporate power or company power, as the case may be, and
authority to enter into and perform its obligations under
this Guaranty."
B. Section 3.2 of the Guaranty is hereby amended
-----------
to read in its entirety as follows:
"SECTION 3.2. Due Authorization, Non-Contravention,
-------------------------------------
etc. The execution, delivery, and performance of this Guaranty
---
are within the corporate powers or company powers, as the case
may be, of such undersigned, have been duly authorized by all
necessary corporate action or company action, as the case may be,
on the part of such undersigned, and do not contravene such
undersigned's Organic Documents, or contravene any 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 upon or affecting such undersigned, or result in, or
require the creation or imposition of, any Lien on any of such
undersigned's properties, other than pursuant to this Guaranty or
any other Loan Document."
C-2
Section 2. Addition of New Kaiser Subsidiaries.
-----------------------------------
On and after the Fifth Amendment Effective Date (as
defined in the Fifth Amendment), the New Kaiser Subsidiaries
shall be parties to the Subsidiary Guaranty and the terms
"Guarantor" and "Guarantors" (as used in the Subsidiary Guaranty)
shall include and also be a reference to the New Kaiser
Subsidiaries.
Section 3. Guarantors' Representations and Warranties.
------------------------------------------
In order to induce the Agent to enter into this
Amendment and to amend the Subsidiary Guaranty in the manner
provided herein, and to induce the Required Lenders to consent to
such action by the Agent, each Guarantor (including each New
Kaiser Subsidiary) represents and warrants to each Lender and the
Agent that, as of the Fifth 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 such Guarantor and the performance
of the Subsidiary Guaranty as amended by this Amendment (the
"Amended Agreement") by such Guarantor are within such
------------------
Guarantor's corporate powers or company powers, as the case may
be, and have been duly authorized by all necessary corporate
action or company action, as the case may be, on the part of such
Guarantor.
B. No Conflict. The execution and delivery by such
-----------
Guarantor of this Amendment and the performance by such Guarantor
of the Amended Agreement do not:
(1) contravene such Guarantor's Organic Documents
or the Organizational Agreements;
(2) contravene the Senior Indenture or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or contravene
any law or governmental regulation or court decree or order
binding on or affecting such Guarantor or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Guarantor's properties,
other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by such Guarantor and this Amendment and
the Amended Agreement constitute the legal, valid and binding
obligations of such Guarantor, enforceable against such Guarantor
C-3
in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally
and by general principles of equity.
D. Governmental Approval, Regulation, etc. No
---------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by such Guarantor.
Section 4. Miscellaneous.
-------------
A. Reference to and Effect on the Subsidiary Guaranty
--------------------------------------------------
and the Other Loan Documents.
----------------------------
(1) On and after the Fifth Amendment Effective
Date, each reference in the Subsidiary Guaranty to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Subsidiary Guaranty, and each reference
in the other Loan Documents to the "Subsidiary Guaranty",
"thereunder", "thereof" or words of like import referring to the
Subsidiary Guaranty shall mean and be a reference to the Amended
Agreement.
(2) Except as specifically amended by this
Amendment, the Subsidiary Guaranty shall remain in full force and
effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Subsidiary Guaranty.
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 Agreement 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
C-4
counterpart so that all signature pages are physically attached
to the same document.
E. Severability. Any provision of this Amendment
-------------
which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President
AKRON HOLDING CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
ALPART JAMAICA, INC. KAISER JAMAICA CORPORATION
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ ALUMINUM PROPERTIES, ▇▇▇▇▇▇ ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
C-5
OXNARD FORGE DIE COMPANY, INC. ▇▇▇▇▇▇ ALUMINIUM
INTERNATIONAL, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
KAISER ALUMINA AUSTRALIA ▇▇▇▇▇▇ FINANCE CORPORATION
CORPORATION
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ MICROMILL HOLDINGS, LLC ▇▇▇▇▇▇ SIERRA MICROMILLS, LLC
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Manager Its: Vice President,
Chief Financial Officer
and Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
C-6
EXHIBIT D
SECOND AMENDMENT TO SUBSIDIARY PLEDGE AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO SUBSIDIARY PLEDGE AGREEMENT
(this "Amendment"), dated as of December 11, 1995, is by and
---------
among Akron Holding Corporation, an Ohio corporation, ▇▇▇▇▇▇
Alumina Australia Corporation, a Delaware corporation, ▇▇▇▇▇▇
Aluminium International, Inc., a Delaware corporation, ▇▇▇▇▇▇
Aluminum & Chemical Investment, Inc., a Delaware corporation,
▇▇▇▇▇▇ Aluminum Properties, Inc., a Delaware corporation, ▇▇▇▇▇▇
Aluminum Technical Services, Inc., a California corporation,
▇▇▇▇▇▇ Finance Corporation, a Delaware corporation, and Oxnard
Forge Die Company, Inc., a California corporation (collectively,
the "Existing Kaiser Subsidiaries" and individually, an "Existing
---------------------------- --------
Kaiser Subsidiary"), ▇▇▇▇▇▇ Micromill Holdings, LLC, a limited
-----------------
liability company organized under the laws of Delaware, ▇▇▇▇▇▇
Sierra Micromills, LLC, a limited liability company organized
under the laws of Delaware, ▇▇▇▇▇▇ Texas Sierra Micromills, LLC,
a limited liability company organized under the laws of Texas,
and ▇▇▇▇▇▇ Texas Micromill Holdings, LLC, a limited liability
company organized under the laws of Texas (collectively, the "New
----
Kaiser Subsidiaries" and individually, a "New Kaiser
------------------- -----------
Subsidiary"), and BankAmerica Business Credit, Inc., a Delaware
----------
corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
------
Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement, as amended
by the Fifth Amendment.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), ▇▇▇▇▇▇ 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 (collectively, the
"Lenders" and, individually, a "Lender"), and the Agent are
------- ------
parties to the Credit Agreement, dated as of February 15, 1994,
as amended by the First Amendment to Credit Agreement, dated as
of July 21, 1994, the Second Amendment to Credit Agreement, dated
as of March 10, 1995, the Third Amendment to Credit Agreement and
Acknowledgment, dated as of July 20, 1995, and the Fourth
Amendment to Credit Agreement, dated as of October 17, 1995 (the
"Credit Agreement"); and
----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Fifth
Amendment to Credit Agreement (the "Fifth Amendment"); and
---------------
D-1
WHEREAS, the Existing Kaiser Subsidiaries and the Agent
are parties to the Subsidiary Pledge Agreement, dated as of
February 15, 1994, as amended by the First Amendment to
Subsidiary Pledge Agreement, dated as of July 21, 1994 (the
"Subsidiary Pledge Agreement"), and have agreed to amend the
---------------------------
Subsidiary Pledge Agreement as herein provided; and
WHEREAS, the New Kaiser Subsidiaries are required as a
condition to the effectiveness of the Fifth Amendment to execute
this Amendment; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Subsidiary Pledge Agreement.
----------------------------------------
A. Section 3.1 of the Subsidiary Pledge
-----------
Agreement is hereby amended to read in its entirety as follows:
"SECTION 3.1. Organization, etc. Such Pledgor is a
------------------
corporation or a limited liability company validly organized
or formed, as the case may be, and existing and in good
standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and has full
corporate power or company power, as the case may be, and
authority to enter into and perform its obligations under
this Agreement."
B. Section 3.2 of the Subsidiary Pledge
-----------
Agreement is hereby amended to read in its entirety as follows:
"SECTION 3.2. Due Authorization, Non-Contravention,
-------------------------------------
etc. The execution, delivery, and performance of this
----
Agreement are within the corporate powers or company powers,
as the case may be, of such Pledgor, have been duly
authorized by all necessary corporate action or company
action, as the case may be, on the part of such Pledgor, and
do not contravene such Pledgor's Organic Documents, or
contravene any 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
upon or affecting such Pledgor, or result in, or require the
creation or imposition of, any Lien on any of such Pledgor's
properties, other than pursuant to this Agreement or any
other Loan Document."
D-2
Section 2. Addition of New Kaiser Subsidiaries.
-----------------------------------
On and after the Fifth Amendment Effective Date (as
defined in the Fifth Amendment), the New Kaiser Subsidiaries
shall be parties to the Subsidiary Pledge Agreement and the terms
"Pledgor" and "Pledgors" (as used in the Subsidiary Pledge
Agreement) shall include and also be a reference to the New
Kaiser Subsidiaries.
Section 3. Pledgors' Representations and Warranties.
----------------------------------------
In order to induce the Agent to enter into this
Amendment and to amend the Subsidiary Pledge Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, each Pledgor (including each
New Kaiser Subsidiary) represents and warrants to each Lender and
the Agent that, as of the Fifth 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 such Pledgor and the performance of
the Subsidiary Pledge Agreement as amended by this Amendment (the
"Amended Agreement") by such Pledgor are within such Pledgor's
-----------------
corporate powers or company powers, as the case may be, and have
been duly authorized by all necessary corporate action or company
action, as the case may be, on the part of such Pledgor.
B. No Conflict. The execution and delivery by such
------------
Pledgor of this Amendment and the performance by such Pledgor of
the Amended Agreement do not:
(1) contravene such Pledgor's Organic Documents
or the Organizational Agreements;
(2) contravene the Senior Indenture or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or contravene
any law or governmental regulation or court decree or order
binding on or affecting such Pledgor or any of its Subsidiaries;
or
(3) result in, or require the creation or
imposition of, any Lien on any of such Pledgor's properties,
other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by such Pledgor and this Amendment and the
Amended Agreement constitute the legal, valid and binding
obligations of such Pledgor, enforceable against such Pledgor in
D-3
accordance with their respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally and by
general principles of equity.
D. Governmental Approval, Regulation, etc. No
---------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by such Pledgor.
Section 4. Miscellaneous.
--------------
A. Reference to and Effect on the Subsidiary Pledge
-------------------------------------------------
Agreement and the Other Loan Documents.
---------------------------------------
(1) On and after the Fifth Amendment Effective
Date, each reference in the Subsidiary Pledge Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Subsidiary Pledge Agreement, and each
reference in the other Loan Documents to the "Subsidiary Pledge
Agreement", "thereunder", "thereof" or words of like import
referring to the Subsidiary Pledge Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Subsidiary Pledge Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Subsidiary Pledge Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
--------------
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO SUCH LAWS RELATING TO
CONFLICTS OF LAWS.
C. Headings. The various headings of this Amendment
---------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
D. Counterparts. This Agreement 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
D-4
counterpart so that all signature pages are physically attached
to the same document.
E. Severability. Any provision of this Amendment
-------------
which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President
AKRON HOLDING CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ ALUMINUM PROPERTIES, ▇▇▇▇▇▇ ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
OXNARD FORGE DIE COMPANY, INC. ▇▇▇▇▇▇ ALUMINIUM
INTERNATIONAL, INC.
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
D-5
KAISER ALUMINA AUSTRALIA ▇▇▇▇▇▇ FINANCE CORPORATION
CORPORATION
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
▇▇▇▇▇▇ MICROMILL HOLDINGS, LLC ▇▇▇▇▇▇ SIERRA MICROMILLS, LLC
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Manager Its: Vice President,
Chief Financial Officer
and Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: By:
Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
Its: Vice President, Its: Vice President,
Chief Financial Officer Chief Financial Officer
and Treasurer and Treasurer
D-6
