E x e c u t i o n C o p y
THIRTEENTH AMENDMENT TO CREDIT AGREEMENT
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THIS THIRTEENTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of July 20, 1998, is by and between ▇▇▇▇▇▇
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ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation (the
"Company"), ▇▇▇▇▇▇ ALUMINUM CORPORATION, a Delaware corporation
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(the "Parent Guarantor"), the various financial institutions that
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are or may from time to time become parties to the Credit
Agreement referred to below (collectively, the "Lenders" and,
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individually, a "Lender"), and BANKAMERICA BUSINESS CREDIT, INC.,
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a Delaware corporation, as agent (in such capacity, together with
its successors and assigns in such capacity, the "Agent") for the
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Lenders. Capitalized terms used, but not defined, herein shall
have the meanings given to such terms in the Credit Agreement, as
amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders
and the Agent are parties to the Credit Agreement, dated as of
February 15, 1994, as amended by the First Amendment to Credit
Agreement, dated as of July 21, 1994, the Second Amendment to
Credit Agreement, dated as of March 10, 1995, the Third Amendment
to Credit Agreement and Acknowledgement, dated as of July 20,
1995, the Fourth Amendment to Credit Agreement, dated as of
October 17, 1995, the Fifth Amendment to Credit Agreement, dated
as of December 11, 1995, the Sixth Amendment to Credit Agreement,
dated as of October 1, 1996, the Seventh Amendment to Credit
Agreement, dated as of December 17, 1996, the Eighth Amendment to
Credit Agreement, dated as of February 24, 1997, the Ninth
Amendment to Credit Agreement and Acknowledgment, dated as of
April 21, 1997, the Tenth Amendment to Credit Agreement and
Assignment, dated as of June 25, 1997, the Eleventh Amendment to
Credit Agreement and Limited Waivers, dated as of October 20,
1997, and the Twelfth Amendment to Credit Agreement, dated as of
January 13, 1998 (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 Amendments to Article I: Definitions.
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A. The definition of "Joint Venture Affiliate"
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contained in Section 1.1 of the Credit Agreement is hereby
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amended by inserting the phrase "Venezuela Aluminum Partners (but
only at such time as Venezuela Aluminum Partners is not a
Subsidiary of the Company and is an Affiliate of the Company),
CAVSA (but only at such time as CAVSA is not a Subsidiary of the
Company and is an Affiliate of the Company), ALCASA (but only at
such time as ALCASA is not a Subsidiary of the Company and is an
Affiliate of the Company), BAUXILUM (but only at such time as
BAUXILUM is not a Subsidiary of the Company and is an Affiliate
of the Company), CARBONORCA (but only at such time as CARBONORCA
is not a Subsidiary of the Company and is an Affiliate of the
Company), VENALUM (but only at such time as VENALUM is not a
Subsidiary of the Company and is an Affiliate of the Company),"
after the term "AKW LLC," in such definition.
B. The definition of "Materially Adverse Effect"
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contained in Section 1.1 of the Credit Agreement is hereby
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amended by inserting the phrase ", Venezuela Aluminum Partners,
CAVSA, ALCASA, BAUXILUM, CARBONORCA, and VENALUM" following the
term "KJBC" in the parenthetical contained in clause (a) thereof.
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C. The following definitions are hereby added to
Section 1.1 of the Credit Agreement in the appropriate
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alphabetical order:
"'ALCASA' means C.V.G. Aluminios del Caroni, S.A., a
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corporation organized under the laws of Venezuela."
"'BAUXILUM' means C.V.G. Bauxilum, C.A., a corporation
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organized under the laws of Venezuela."
"'CARBONORCA' means C.V.G. Carbones del Orinoco, C.A.,
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a corporation organized under the laws of Venezuela."
"'CAVSA' means Corporacion Aluminios de Venezuela,
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S.A., a corporation organized under the laws of Venezuela."
"'Maximum Letter of Credit Amount' means (a) if no
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Venezuela Letter of Credit is issued, $125,000,000, and (b) if a
Venezuela Letter of Credit is issued, then (i) during the period
from and including the date of such issuance to and including the
date on which the Venezuela Bid Bond Obligation is terminated,
$235,000,000, (ii) from and excluding the date on which the
Venezuela Bid Bond Obligation is terminated, $200,000,000 and
(iii) from and excluding the date on which all Venezuela Letters
of Credit have expired or are terminated, $125,000,000."
"'Pricing Interest Coverage Ratio' means, for any
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period, the ratio of
(a) (i) the sum of EBITDA for all of the Fiscal
Quarters comprising such period minus (ii) the aggregate
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Adjusted Capital Expenditures for all of the Fiscal Quarters
comprising such period minus (iii) the aggregate amount of
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all Investments (including any payment under a Venezuela
Letter of Credit) made by the Company in Venezuela Aluminum
Partners and/or CAVSA (without duplication) during such
period
to
--
(b) (i) the aggregate amount of interest expense
(excluding amortization of deferred financing costs and, to
the extent not paid in cash, interest on the PIK Note and
the Equity Proceeds Notes) of the Company and its
Subsidiaries for all of the Fiscal Quarters comprising such
period, calculated on a consolidated basis in accordance
with GAAP, minus (ii) the amount of interest income of the
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Company and its Subsidiaries which was included in the
calculation of Net Income, in accordance with GAAP, for all
of the Fiscal Quarters comprising such period, minus (iii)
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that portion of the amount set forth in clause (i) above
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attributable to (A) the proportionate direct or indirect
ownership of Persons other than the Company and its
Subsidiaries of the voting stock of, or partnership interest
in, any Subsidiary or (B) if the economic burden of the
amount set forth in clause (i) above is borne or to be borne
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by minority owners of such Subsidiary (other than the
Company and its Subsidiaries) in a proportion other than the
proportion of their direct or indirect ownership of the
voting stock of, or partnership interest in, such
Subsidiary, the proportionate share of the economic burden
of such amount borne or to be borne by such minority
owners."
"'VENALUM' means C.V.G. Industria Venezolana del
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Aluminio, C.A., a corporation organized under the laws of
Venezuela."
"'Venezuela Aluminum Partners' means Venezuela Aluminum
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Partners, a corporation organized under the laws of the Cayman
Islands, or Aluminium Consortium Venezuela B.V., a corporation
organized under the laws of the Netherlands."
"'Venezuela Bid Bond Obligation' means the obligation
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of the Company to pledge assets and/or provide one or more
letters of credit to support a bid bond submitted by Venezuela
Aluminum Partners in connection with a bid to purchase the
capital stock of CAVSA."
"'Venezuela Letter of Credit' means a Letter of Credit
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securing obligations of the Company in connection with the
Company making Investments in Venezuela Aluminum Partners and/or
CAVSA."
"'Venezuela Letter of Credit Amount' means, at any
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time, (a) the Maximum Letter of Credit Amount at such time minus
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(b) $125,000,000."
"'Venezuela Pledged Cash' means cash and/or Cash
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Equivalent Investments securing obligations of the Company in
connection with the Company making Investments in Venezuela
Aluminum Partners and/or CAVSA."
1.2 Amendments to Article II: Commitments and Borrowing
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Procedures.
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Clause (b) of Section 2.1.3 of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"(b) the Issuer Bank shall not be required to issue (i)
any Letter of Credit if, after giving effect thereto, (A) the
Letter of Credit Outstandings would exceed the Maximum Letter of
Credit Amount; or (B) (1) the sum of the aggregate Stated Amount
(without duplication) of all Venezuela Letters of Credit
outstanding at such time plus the aggregate amount of Venezuela
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Pledged Cash outstanding at such time would exceed an amount
equal to (2) $210,000,000 plus the sum of the aggregate amount of
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Venezuela Pledged Cash and Venezuela Letters of Credit
outstanding at such time in respect of the Venezuela Bid Bond
Obligation minus the aggregate amount of all Investments
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(including any payment under a Venezuela Letter of Credit) made
by the Company in Venezuela Aluminum Partners and/or CAVSA; or
(ii) any Venezuela Letter of Credit if, after giving effect
thereto, the aggregate Stated Amount (without duplication) of all
Venezuela Letters of Credit outstanding at such time would exceed
the Venezuela Letter of Credit Amount."
1.3 Amendments to Article III: Repayments, Prepayments,
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Interest, and Fees.
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Section 3.4.1 of the Credit Agreement is hereby amended
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by deleting the phrase "Interest Coverage Ratio" each time it
appears therein and substituting the phrase "Pricing Interest
Coverage Ratio" therefor.
1.4 Amendments to Article V: Letter of Credit.
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A. Clause (b)(ii) of Section 5.1 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(ii) (A) the Stated Amount thereof, when added to the
Letter of Credit Outstandings immediately prior to the issuance
of such Letter of Credit, would exceed the Maximum Letter of
Credit Amount; or (B) if immediately after the issuance of such
Letter of Credit (1) the sum of the aggregate Stated Amount
(without duplication) of all Venezuela Letters of Credit
outstanding at such time plus the aggregate amount of Venezuela
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Pledged Cash outstanding at such time would exceed an amount
equal to (2) $210,000,000 plus the sum of the aggregate amount
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of Venezuela Pledged Cash and Venezuela Letters of Credit
outstanding at such time in respect of the Venezuela Bid Bond
Obligation minus the aggregate amount of all Investments
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including any payment under a Venezuela Letter of Credit) made by
the Company in Venezuela Aluminum Partners and/or CAVSA."
B. Clause (b) of Section 5.1 of the Credit Agreement
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is hereby amended by adding the following as the last sentence
thereof:
"The Issuer Bank is under no obligation to issue any
Venezuela Letter of Credit if the aggregate Stated Amount
(without duplication) thereof, when added to the aggregate Stated
Amount (without duplication) of all other Venezuela Letters of
Credit outstanding immediately prior to the issuance of such
Venezuela Letter of Credit, would exceed the Venezuela Letter of
Credit Amount."
1.5 Amendments to Article IX: Covenants.
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A. Section 9.1.1 of the Credit Agreement is hereby
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amended by adding the phrase "(other than Venezuela Aluminum
Partners, CAVSA, ALCASA, BAUXILUM, CARBONORCA, and VENALUM)"
following the words "Joint Venture Affiliate" in clause
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(d)(ii)(C) thereof.
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B. Section 9.2.3 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause (w)
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thereof, (ii) deleting the period at the end of clause (x)
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thereof and substituting the phrase "; and" therefor, and (iii)
adding the following as a new clause (y) thereof:
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"(y) Liens on Venezuela Pledged Cash in an amount not
to exceed $100,000,000 at any one time outstanding; provided,
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however, that (i) the sum of the aggregate Stated Amount (without
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duplication) of all Venezuela Letters of Credit outstanding at
such time plus the aggregate amount of Venezuela Pledged Cash
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outstanding at such time may not exceed an amount equal to (ii)
$210,000,000 plus the sum of the aggregate amount of Venezuela
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Pledged Cash and Venezuela Letters of Credit outstanding at such
time in respect of the Venezuela Bid Bond Obligation minus the
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aggregate amount of all Investments (including any payment under
a Venezuela Letter of Credit) made by the Company in Venezuela
Aluminum Partners and/or CAVSA."
C. Clause (n) of Section 9.2.5 of the Credit
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Agreement is hereby amended by adding the phrase "ALCASA,
BAUXILUM, CARBONORCA, CAVSA, VENALUM, Venezuela Aluminum
Partners," after the term "KAEII," in the first parenthetical
contained therein.
D. Clause (o) of Section 9.2.5 of the Credit
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Agreement is hereby amended by adding the phrase "ALCASA,
BAUXILUM, CARBONORCA, CAVSA, VENALUM, Venezuela Aluminum
Partners," after the term "KAEII," in the second parenthetical
contained therein.
E. 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 (s)
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thereof, (ii) deleting the period at the end of clause (t)
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thereof and substituting the phrase "; and" therefor; and (iii)
adding the following as a new clause (u) thereof:
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"(u) Investments (including any payment under a
Venezuela Letter of Credit) by the Company in Venezuela Aluminum
Partners and/or CAVSA in an amount not to exceed $210,000,000 in
the aggregate at any one time outstanding."
F. Section 9.2.18 of the Credit Agreement is hereby
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amended by amending clause (vi) thereof to read in its entirety
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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), 9.2.5(s), 9.2.5(t), and
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9.2.5(u);".
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1.6 Amendments to Article X: Events of Default.
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A. Section 10.1.6 of the Credit Agreement is hereby
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amended by adding the phrase "(other than Venezuela Aluminum
Partners, CAVSA, ALCASA, BAUXILUM, CARBONORCA, and VENALUM)"
following the words "Joint Venture Affiliate" and following the
words "Joint Venture Affiliates" contained therein.
B. Section 10.1.10 of the Credit Agreement is hereby
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amended by adding the phrase ", Venezuela Aluminum Partners,
CAVSA, ALCASA, BAUXILUM, CARBONORCA, and VENALUM" following the
term "KJBC" in the first parenthetical contained therein.
Section 2. Amendments to Collateral Documents.
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The parties agree that, as of the Thirteenth Amendment
Effective Date, the Company Security Agreement shall be amended
as set forth in Exhibit A hereto. The Required Lenders hereby
approve the form of such amendment, and hereby authorize the
Agent on their behalf to accept from the Company, 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 with such changes, additions or deletions as the Agent,
in its sole and absolute discretion, may approve.
Section 3. 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 and each Lender (the date of
satisfaction of such conditions and the giving of such notice
being referred to herein as the "Thirteenth Amendment Effective
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Date").
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A. The Agent shall have received for each Lender (1)
counterparts hereof duly executed on behalf of the Parent
Guarantor, the Company, the Agent and the Required Lenders (or
notice of the approval of this Amendment by the Required Lenders
satisfactory to the Agent shall have been received by the Agent),
(2) counterparts of the Fourth Amendment to Company Security
Agreement, dated as of July 20, 1998, between the Company and the
Agent (the "Company Security Amendment") duly executed on behalf
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of the Company and the Agent, and (3) a letter regarding the
payment of a fee in the amount of $406,250 upon the closing of
the purchase by the Company or any of its Subsidiaries of the
capital stock or assets of CAVSA or any of its Subsidiaries, duly
executed on behalf of the Company, the Agent and the Required
Lenders.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Board of Directors of the Company
and the Parent Guarantor approving and authorizing the execution,
delivery and performance of this Amendment, and, in the case of
the Company, the Company Security Amendment, certified by their
respective corporate secretaries or assistant secretaries as
being in full force and effect without modification or amendment
as of the date of execution hereof by the Company or the Parent
Guarantor, as the case may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing this
Amendment and, in the case of the Company, the Company Security
Amendment;
(3) For each Lender an opinion, addressed to the
Agent and each Lender, from Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇, in
form and substance satisfactory to the Agent;
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request;
and
(5) For the pro rata benefit of the Lenders, a
fee in the amount of $406,250 and, for the benefit of the Agent,
the fee set forth in that certain letter dated as of the date
hereof between the Agent and the Company.
Section 4. 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 in the
manner provided herein, the Parent Guarantor and the Company
represent and warrant to each Lender and the Agent that, as of
the Thirteenth 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, the New
Senior Indenture, the Additional New Senior Indentures, or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or contravene
any law or governmental regulation or court decree or order
binding on or affecting such Obligor or any of its Subsidiaries;
or
(3) result in, or require the creation or
imposition of, any Lien on any of such Obligor's properties or
any of the properties of any Subsidiary of such Obligor, other
than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
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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.
E. Incorporation of Representations and Warranties
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from Credit Agreement. Each of the statements set forth in
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Section 7.2.1 of the Credit Agreement is true and correct.
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Section 5. 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
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Support Parties", and the Company Collateral Documents, the
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Parent Collateral Documents, the Subsidiary Guaranty and the
Subsidiary Collateral Documents are collectively referred to
herein as the "Credit Support Documents".
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Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement as
amended by this Amendment and consents to the amendment of the
Credit Agreement effected as of the date hereof pursuant to this
Amendment.
Each Credit Support Party acknowledges and agrees that
any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect. Each
Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all
Collateral encumbered thereby will continue to guaranty or
secure, as the case may be, the payment and performance of all
obligations guaranteed or secured thereby, as the case may be.
Each Credit Support Party (other than the Company and
the Parent Guarantor) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this
Amendment, such Credit Support Party is not required by the terms
of the Credit Agreement or any other Loan Document to consent to
the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments
to the Credit Agreement.
Section 6. Miscellaneous.
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A. Reference to and Effect on the Credit Agreement
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and the Other Loan Documents.
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(1) On and after the Thirteenth Amendment
Effective Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and
confirmed.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
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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
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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
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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
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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 CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------- ----------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Its: Treasurer Its: Treasurer
BANKAMERICA BUSINESS CREDIT, BANKAMERICA BUSINESS CREDIT,
INC. INC., as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------- -----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL TRUST THE CIT GROUP/BUSINESS
AND SAVINGS ASSOCIATION CREDIT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------- -----------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name Printed: ▇▇▇ ▇▇▇▇▇▇
Its: Managing Director Its: Vice President
CONGRESS FINANCIAL CORPORATION ▇▇▇▇▇▇ FINANCIAL, INC.
(WESTERN)
By: /s/ ▇▇▇▇▇▇▇▇ Metchakian By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------- -----------------------
Name Printed: ▇▇▇▇▇▇▇▇ Metchakian Name Printed: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Its: Vice President Its: Account Executive, AVP
LA SALLE NATIONAL BANK TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- -----------------------
Name Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: First Vice President Its: Senior Vice President
ABN AMRO BANK N.V.
San Francisco International Branch
by: ABN AMRO North America,
Inc., as agent
By: /s/ ▇▇▇▇▇▇▇ ▇. French
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Name Printed: ▇▇▇▇▇▇▇ ▇. French
Its: Group Vice President & Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Vice President
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------- -----------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Its: Treasurer Its: Treasurer
▇▇▇▇▇▇ ALUMINUM PROPERTIES, ▇▇▇▇▇▇ ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
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Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. ▇▇▇▇▇▇ ALUMINIUM
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
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Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA ▇▇▇▇▇▇ FINANCE CORPORATION
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
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Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
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Its: Treasurer Its: Treasurer
KAISER BAUXITE COMPANY ▇▇▇▇▇▇ EXPORT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
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Its: Treasurer Its: Treasurer
▇▇▇▇▇▇ MICROMILL HOLDINGS, LLC ▇▇▇▇▇▇ SIERRA MICROMILLS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Its: Treasurer Its: Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name Printed: ▇▇▇▇▇ ▇.
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Its: Treasurer Its: Treasurer
▇▇▇▇▇▇ BELLWOOD CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Treasurer
EXHIBIT A
FOURTH AMENDMENT TO COMPANY SECURITY AGREEMENT
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THIS FOURTH AMENDMENT TO COMPANY SECURITY AGREEMENT
(this "Amendment"), dated as of July 20, 1998, is by and between
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▇▇▇▇▇▇ Aluminum & Chemical Corporation, a Delaware corporation
(the "Company"), and BankAmerica Business Credit, Inc., a
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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,
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herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Thirteenth Amendment.
W I T N E S S E T H:
WHEREAS, the Company, ▇▇▇▇▇▇ Aluminum Corporation, a
Delaware corporation (the "Parent Guarantor"), the various
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financial institutions that are or may from time to time become
parties to the Credit Agreement (collectively, the "Lenders" and,
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individually, a "Lender"), and the Agent are parties to the
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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, the Fourth Amendment
to Credit Agreement, dated as of October 17, 1995, the Fifth
Amendment to Credit Agreement, dated as of December 11, 1995, the
Sixth Amendment to Credit Agreement, dated as of October 1, 1996,
the Seventh Amendment to Credit Agreement, dated as of December
17, 1996, the Eighth Amendment to Credit Agreement, dated as of
February 24, 1997, the Ninth Amendment to Credit Agreement and
Acknowledgment, dated as of April 21, 1997, the Tenth Amendment
to Credit Agreement, dated as of June 25, 1997, the Eleventh
Amendment to Credit Agreement and Limited Waivers, dated as of
October 20, 1997, and the Twelfth Amendment to Credit Agreement,
dated as of January 13, 1998 (the "Credit Agreement"); and
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WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a
Thirteenth Amendment to Credit Agreement (the "Thirteenth
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Amendment"); and
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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 Second Amendment to
Company Security Agreement, dated as of December 11, 1995 and the
Third Amendment to Company Security Agreement dated as of April
21, 1997 (the "Company Security Agreement"), and have agreed to
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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;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Company Security Agreement.
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The proviso contained in the first paragraph of
Section 2 of the Company Security Agreement is hereby amended by
adding the phrase "ALCASA, BAUXILUM, CARBONORCA, CAVSA, VENALUM,
Venezuela Aluminum Partners," immediately following the phrase
"Furukawa," each time it appears in clause (A) thereof.
Section 2. Company's Representations and Warranties.
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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 Thirteenth
Amendment Effective Date (as defined in the Thirteenth 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
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delivery of this Amendment by the Company and the performance of
the Company Security Agreement as amended by this Amendment (the
"Amended Agreement") by the Company are within the Company's
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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
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Company of this Amendment and the performance by the Company of
the Amended Agreement do not:
(1) contravene the Company's Organic Documents;
(2) contravene the Senior Indenture, the New
Senior Indenture, the Additional New Senior Indentures, or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or contravene
any law or governmental regulation or court decree or order
binding on or affecting 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
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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
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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
other Person is required for the due execution, delivery or
performance of this Amendment by the Company.
Section 3. Miscellaneous.
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A. Reference to and Effect on the Company Security
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Agreement and the Other Loan Documents.
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(1) On and after the Thirteenth 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
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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
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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
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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
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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:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Treasurer Its: Vice President
