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EXHIBIT 4.34
EIGHTEENTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTEENTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of February 11, 2000, is by and between XXXXXX ALUMINUM &
CHEMICAL CORPORATION, a Delaware corporation (the "Company"), XXXXXX ALUMINUM
CORPORATION, a Delaware corporation (the "Parent Guarantor"), the various
financial institutions that are or may from time to time become parties to the
Credit Agreement referred to below (collectively, the "Lenders" and,
individually, a "Lender"), and Bank of America, N.A. (successor to BankAmerica
Business Credit, Inc., a Delaware corporation), as agent (in such capacity,
together with its successors and assigns in such capacity, the "Agent") for the
Lenders. Capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Credit Agreement, as amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders and
the Agent are parties to the Credit Agreement, dated as of February 15, 1994, as
amended by the First Amendment to Credit Agreement, dated as of July 21, 1994,
the Second Amendment to Credit Agreement, dated as of March 10, 1995, the Third
Amendment to Credit Agreement and Acknowledgement, dated as of July 20, 1995,
the Fourth Amendment to Credit Agreement, dated as of October 17, 1995, the
Fifth Amendment to Credit Agreement, dated as of December 11, 1995, the Sixth
Amendment to Credit Agreement, dated as of October 1, 1996, the Seventh
Amendment to Credit Agreement, dated as of December 17, 1996, the Eighth
Amendment to Credit Agreement, dated as of February 24, 1997, the Ninth
Amendment to Credit Agreement and Acknowledgment, dated as of April 21, 1997,
the Tenth Amendment to Credit Agreement and Assignment, dated as of June 25,
1997, the Eleventh Amendment to Credit Agreement and Limited Waivers, dated as
of October 20, 1997, the Twelfth Amendment to Credit Agreement, dated as of
January 13, 1998, the Thirteenth Amendment to Credit Agreement, dated as of July
20, 1998, the Fourteenth Amendment to Credit Agreement, dated as of December 11,
1998, the Fifteenth Amendment to Credit Agreement, dated as of February 23,
1999, the Sixteenth Amendment to Credit Agreement, dated as of March 26, 1999;
and the Seventeenth Amendment to Credit Agreement, dated as of September 24,
1999 (the "Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
1.1 Amendments to Article I: Definitions and Accounting Terms.
A. Subsection 1.1 of the Credit Agreement is hereby
amended by amending subsection (a) of the definition of "Change of Control"
contained therein to read in its entirety as follows:
"(a) MAXXAM not owning (other than by reason of the existence
of a Lien or other encumbrance but including by reason of the foreclosure of or
other realization upon a Lien or other encumbrance) direct or indirect sole
beneficial ownership (as defined under Regulation 13d-3 of the Securities
Exchange Act of 1934 as in effect on the date of this Agreement) of at least 40%
of the total common equity, on a fully diluted basis, of the Parent Guarantor or
the Company; or"
B. Subsection 1.1 of the Credit Agreement is hereby
amended by amending the definition of "Minimum Net Worth" contained therein to
read in its entirety as follows:
"'Minimum Net Worth' means (a) for each Fiscal Quarter of the
Company ending on or prior to December 31, 1998 (commencing with the Fiscal
Quarter ending September 30, 1996), $500,000,000 plus 50% of Net Income (but not
loss) for each such Fiscal Quarter, (b) for the two Fiscal Quarters of the
Company ending on March 31, 1999 and June 30, 1999, $600,000,000 plus 50% of Net
Income (but not loss) for each such Fiscal Quarter, and (c) for each Fiscal
Quarter of the Company ending thereafter, $550,000,000 plus 50% of Net Income
(but not loss) for each such Fiscal Quarter; provided that the calculation of
Minimum Net Worth shall exclude (i) the effect of any non-cash charges, up to an
aggregate amount of $70,000,000, in respect of the Micromill project, including
(without limitation) any write-down of Micromill project assets located at the
Center for Technology in Pleasanton, California, and at the Micromill facility
near Reno, Nevada, (ii) the net cumulative effect of any xxxx-to-market gains or
losses incurred after December 31, 1998, up to an aggregate net amount of
$50,000,000 of losses, on aluminum hedging agreements of the Company and its
Subsidiaries that do not qualify for hedging treatment under GAAP, (iii) the
effect of any non-cash charges, up to an aggregate amount of $30,000,000, in
respect of the settlement of the Company's labor dispute with the United
Steelworkers of America, and (iv) the net cumulative effect of any gains or
losses, up to an aggregate net amount of $50,000,000 of losses, in respect of
adjustments to the net cost basis of the assets of the Gramercy, Louisiana
facility as a result of the explosion at such facility, all of the above
adjustments to be reflected on the relevant Compliance Certificate."
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Section 2. Conditions to Effectiveness.
This Amendment shall become effective as of the date hereof
only when the following conditions shall have been satisfied and notice thereof
shall have been given by the Agent to the Parent Guarantor, the Company and each
Lender (the date of satisfaction of such conditions and the giving of such
notice being referred to herein as the "Eighteenth Amendment Effective Date"):
A. The Agent shall have received for each Lender counterparts
hereof duly executed on behalf of the Parent Guarantor, the Company, the Agent
and the Required Lenders (or notice of the approval of this Amendment by the
Required Lenders satisfactory to the Agent shall have been received by the
Agent).
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of the
Executive Committee of the Board of Directors of the Company and the Parent
Guarantor approving and authorizing the execution, delivery and performance of
this Amendment, certified by their respective corporate secretaries or
assistant secretaries as being in full force and effect without modification or
amendment as of the date of execution hereof by the Company or the Parent
Guarantor, as the case may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing this Amendment;
(3) For each Lender, an opinion, addressed to the
Agent and each Lender, from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, in form and
substance satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents or instruments as the Agent may reasonably request.
Section 3. Company's Representations and Warranties.
In order to induce the Lenders and the Agent to enter into
this Amendment and to amend the Credit Agreement in the manner provided herein,
the Parent Guarantor and the Company represent and warrant to each Lender and
the Agent that, as of the Eighteenth Amendment Effective Date, after giving
effect to the effectiveness of this Amendment, the following statements are true
and correct in all material respects:
A. Authorization of Agreements. The execution and
delivery of this Amendment by the Company and the Parent Guarantor and the
performance of the Credit Agreement as amended by this Amendment (the "Amended
Agreement") by the Company and the Parent Guarantor are within such Obligor's
corporate powers and have been duly authorized by all necessary corporate
action on the part of the Company and the Parent Guarantor, as the case may be.
B. No Conflict. The execution and delivery by the
Company and the Parent Guarantor of this Amendment and the performance by
the Company and the Parent Guarantor of the Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Senior Indenture, the New
Senior Indenture, the Additional New Senior Indentures, or the Subordinated
Indenture or contravene any other contractual restriction where such a
contravention has a reasonable possibility of having a Materially Adverse Effect
or contravene any law or governmental regulation or court decree or order
binding on or affecting such Obligor or any of its Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Obligor's properties or any of the
properties of any Subsidiary of such Obligor, other than pursuant to the Loan
Documents.
C. Binding Obligation. This Amendment has been duly
executed and delivered by the Company and the Parent Guarantor and this
Amendment and the Amended Agreement constitute the legal, valid and binding
obligations of the Company and the Parent Guarantor, enforceable against the
Company and the Parent Guarantor in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally and by
general principles of equity.
D. Governmental Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other Person is required
for the due execution, delivery or performance of this Amendment by the Company
or the Parent Guarantor.
E. Incorporation of Representations and Warranties from
Credit Agreement. Each of the statements set forth in Section 7.2.1 of
the Credit Agreement is true and correct.
Section 4. Acknowledgement and Consent.
The Company is a party to the Company Collateral Documents, in
each case as amended through the date hereof, pursuant to which the Company has
created Liens in favor of the Agent on certain Collateral to secure the
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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 Parent Collateral Documents, the Subsidiary Guaranty
and the Subsidiary Collateral Documents are collectively referred to herein as
the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement as amended by this
Amendment and consents to the amendment of the Credit Agreement effected as of
the date hereof pursuant to this Amendment.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect. Each Credit Support Party hereby confirms
that each Credit Support Document to which it is a party or otherwise bound and
all Collateral encumbered thereby will continue to guaranty or secure, as the
case may be, the payment and performance of all obligations guaranteed or
secured thereby, as the case may be.
Each Credit Support Party (other than the Company and the
Parent Guarantor) acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the amendments to the Credit Agreement effected pursuant
to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or
any other Loan Document shall be deemed to require the consent of such Credit
Support Party to any future amendments to the Credit Agreement.
Section 5. Miscellaneous.
A. Reference to and Effect on the Credit Agreement and
the Other Loan Documents.
(1) On and after the Eighteenth 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
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO SUCH LAWS RELATING TO CONFLICTS OF LAWS.
C. Headings. The various headings of this Amendment
are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provision hereof.
D. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts and by the different parties on separate
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
E. Severability. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Amendment or affecting the validity or enforceability of such provisions in any
other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered as of the day and year first above written.
XXXXXX ALUMINUM CORPORATION XXXXXX ALUMINUM & CHEMICAL CORPORATION
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
BANK OF AMERICA, N.A. (successor to BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), BankAmerica Business Credit, Inc.)
as Agent
By: /S/ Xxxxxxx X. Xxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
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BANK OF AMERICA, N.A. (formerly known THE CIT GROUP/BUSINESS
as Bank of America National Trust and CREDIT, INC.
Savings Association)
By: /S/ Xxxxxxx Xxxxx By: /S/ Xxxxx Xxxxx
Name Printed: Xxxxxxx Xxxxx Name Printed: Xxxxx Xxxxx
Its: Managing Director Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION XXXXXX FINANCIAL, INC.
(WESTERN)
By: /S/ Xxxxxxxx Xxxxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
Name Printed: Xxxxxxxx Xxxxxxxxxx Name Printed: Xxxxxxx X. Xxxxxxx
Its: Vice President Its: Assistant Vice President
LA SALLE BANK NATIONAL TRANSAMERICA BUSINESS CREDIT
ASSOCIATION (formerly known as CORPORATION
La Salle National Bank)
By: /S/ Xxxxxxx X. Xxxxxxxx By: /S/ Xxxxxx Xxxxx
Name Printed: Xxxxxxx X. Xxxxxxxx Name Printed: Xxxxxx Xxxxx
Its: First Vice President Its: Senior Vice President
ABN AMRO BANK N.V.
By: /S/ Xxxxxxx X. French
Name Printed: Xxxxxxx X. French
Its: Senior Vice President
By: /S/ Xxxxxx X. Xxxxxxxx
Name Printed: Xxxxxx X. Xxxxxxxx
Its: Vice President
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX ALUMINUM PROPERTIES, XXXXXX ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER BAUXITE COMPANY XXXXXX EXPORT COMPANY
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
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Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
XXXXXX BELLWOOD CORPORATION KAISER TRANSACTION CORP.
By: /S/ Xxxxx X. Xxxxxxxxx By: /S/ Xxxxx X. Xxxxxxxxx
Name Printed: Xxxxx X. Xxxxxxxxx Name Printed: Xxxxx X. Xxxxxxxxx
Its: Treasurer Its: Treasurer
