E X E C U T I O N C O P Y
NINETEENTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER
THIS NINETEENTH AMENDMENT TO CREDIT AGREEMENT AND
LIMITED WAIVER (this "Amendment"), dated as of December 27, 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,
the Seventeenth Amendment to Credit Agreement, dated as of September 24, 1999,
and the Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000
(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. Section 1.1 of the Credit Agreement is hereby amended by amending
the definitions of "Collateral Documents," "Currency Hedge Providers,"
"Intercreditor Agreement," "Minimum Net Worth," "Obligations," and "Secured
Lenders" contained therein to read in their entirety as follows:
'"Collateral Documents' means, collectively, the
Parent Collateral Documents, the Company Collateral Documents,
the Subsidiary Collateral Documents, the Collection Bank
Agreements, the Concentration Bank Agreement, and each other
Instrument or document pursuant to which a Lien is granted to
the Agent (or perfected in favor of the Agent) (or to or in
favor of any agent, trustee, or other Person acting on the
Agent's behalf) as security for any of the Obligations, as any
of the foregoing may be amended, supplemented, restated, or
otherwise modified from time to time in accordance with the
provisions hereof or thereof. Anything in this Agreement or in
any other Loan Document to the contrary notwithstanding, the
Obligations secured under each Collateral Document shall be
deemed to include all Currency Hedge Obligations and Cash
Management Obligations now existing or hereafter arising;
provided, however, that anything in this Agreement or in any
other Loan Document to the contrary notwithstanding, (a) with
respect to any Cash Management Obligations constituting
Indebtedness (as defined in the Senior Indenture, the New
Senior Indenture or the Additional New Senior Indentures), the
Collateral shall not include any U.S. Fixed Assets (as defined
in the Senior Indenture, the New Senior Indenture or the
Additional New Senior Indentures) and (b) no Proceeds of any
U.S. Fixed Assets, or of the disposition by the Agent of any
U.S. Fixed Assets, shall be applied toward the satisfaction of
any Cash Management Obligations constituting Indebtedness (as
defined in the Senior Indenture, the New Senior Indenture or
the Additional New Senior Indentures)."
'"Currency Hedge Providers' means all Lenders party
to a Currency Hedge Agreement and, in their capacity as a
Currency Hedge Provider, party to the Intercreditor
Agreement."
"'Intercreditor Agreement' means the intercreditor
agreement executed and delivered by the Agent, each Lender,
each Lender party to a Currency Hedge Agreement and each
Lender providing Cash Management Services, in substantially
the form of Exhibit U attached hereto, as amended,
supplemented, restated or otherwise modified from time to time
in accordance with the provisions thereof."
"'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 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, (c) for the Fiscal Quarters of the
Company ending on September 30, 1999, December 31, 1999,
March 31, 2000, June 30, 2000 and September 30, 2000,
$550,000,000 plus 50% of Net Income (but not loss) for each
such Fiscal Quarter, and (d) for each Fiscal Quarter of the
Company ending thereafter, $515,000,000 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."
"'Obligations' means (a) all obligations (monetary or
otherwise) of the Company and each other Obligor arising under
or in connection with this Agreement, the Letters of Credit,
and each other Loan Document, (b) all Currency Hedge
Obligations, and (c) all Cash Management Obligations."
"'Secured Lenders' means the Agent, each Lender, each
Issuer Bank, each Currency Hedge Provider and each Cash
Management Provider, together with any successors and assigns
thereto."
B. Section 1.1 of the Credit Agreement is hereby further amended by
adding the following definitions in appropriate alphabetical order:
"'Cash Management Obligations' means, with respect to
the Company, all liabilities and obligations (monetary or
otherwise) of the Company arising in connection with Cash
Management Services."
"'Cash Management Providers' means all Lenders
providing Cash Management Services and, in their capacity as a
Cash Management Provider, party to the Intercreditor Agreement."
"'Cash Management Services' means any one or more of
the following types of services or facilities extended to the
Company by a Cash Management Provider: (a) credit cards; and
(b) any cash management or related services including
automatic clearing house transfer of funds by a Cash Management
Provider for the account of the Company pursuant to
agreement or overdrafts."
C. Section 1.1 of the Credit Agreement is hereby further amended
by adding the following to the end of the definition of "Interest Coverage
Ratio" contained therein:
"; provided that the calculation of EBITDA for purposes of the
calculation of the Interest Coverage Ratio shall exclude the
effect of any non-cash charges, up to an aggregate amount of
$40,000,000, in respect of the write-down of the carrying
value of the Tacoma and Xxxx facilities."
1.2 Amendment to Article II: Commitments and Borrowing Procedures
Section 2.1.1(b) of the Credit Agreement is hereby amended by
deleting the reference to "$325,000,000" contained therein and substituting a
reference to "$300,000,000" therefor.
1.3 Amendments to Article IX: Covenants
A. Section 9.2.2(b)(x) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(x) Indebtedness of the Company in respect of (1)
unsecured Hedging Obligations; (2) secured Hedging
Obligations; (3) Currency Hedge Agreements, provided the
remaining Dollar amount (or the Dollar Equivalent thereof) of
all currency payments the Company is obligated to make under
all such Currency Hedge Agreements (including any payments
that would be payable by the Company following the exercise of
any foreign exchange option sold by the Company but excluding,
during the period prior to the date of exercise, any payments
that would be payable by the Company following the exercise of
any foreign exchange option purchased by the Company) does not
exceed $500,000,000, in the aggregate, at any time; and (4)
Cash Management Obligations;"
B. Section 9.2.3(n) and Section 9.2.3(w) of the Credit Agreement are
hereby amended to read in their entirety as follows:
"(n) Liens on the Company's or any of its
Subsidiary's rights under agreements with respect to spot,
forward, future and option transactions, entered into in the
ordinary course of business, involving (or, in the case of
futures and options, for or relating to) the purchase and sale
of aluminum, alumina, bauxite, energy or other commodities
used in the production process or on the transaction accounts
in which such transactions are effected securing the Company's
or such Subsidiary's obligations under such agreements;
"(w) Liens (i) securing the obligations of the
Company under Currency Hedge Agreements, provided (1) the
remaining Dollar amount (or the Dollar Equivalent thereof) of
all currency payments the Company is obligated to make under
all such Currency Hedge Agreements (including any payments
that would be payable by the Company following the exercise of
any foreign exchange option sold by the Company but excluding,
during the period prior to the date of exercise, any payments
that would be payable by the Company following the exercise of
any foreign exchange option purchased by the Company) does not
exceed $500,000,000, in the aggregate, at any time, and (2)
all Property which is subject to any such Lien constitutes
Collateral; (ii) securing Cash Management Obligations,
provided all Property which is subject to any such Lien
constitutes Collateral; or (iii) securing Hedging
Obligations;"
C. Section 9.2.4(b) of the Credit Agreement is hereby amended by
amending the table contained therein to read in its entirety as follows:
"Date Ratio
---- ------------
First Fiscal Quarter of 1998 0.80 to 1.00
Second Fiscal Quarter of 1998 1.20 to 1.00
Third Fiscal Quarter of 1998 1.60 to 1.00
Fourth Fiscal Quarter of 1998 1.10 to 1.00
First Fiscal Quarter of 1999 No Test
Second Fiscal Quarter of 1999 No Test
Third Fiscal Quarter of 1999 No Test
Fourth Fiscal Quarter of 1999 No Test
First Fiscal Quarter of 2000 0.50 to 1.00
Second Fiscal Quarter of 2000 1.00 to 1.00
Third Fiscal Quarter of 2000 1.25 to 1.00
Fourth Fiscal Quarter of 2000 1.00 to 1.00
First Fiscal Quarter of 2001 1.00 to 1.00
Second Fiscal Quarter of 2001 and Thereafter 1.00 to 1.00"
D. Section 9.2.5(k) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(k) Investments in the form of advance payments in
connection with (i) Hedging Obligations, (ii) Currency Hedge
Agreements, and (iii) spot, forward, future and option
transactions, entered into in the ordinary course of business,
involving (or, in the case of futures and options, for or
relating to) the purchase and sale of aluminum, alumina,
bauxite, energy or other commodities used in the production
process;"
E. Section 9.2.7 of the Credit Agreement is hereby amended by
amending the table contained therein to read in its entirety as follows:
"Fiscal Year Base Amount
----------- -----------
1994 $ 60,000,000
1995 $ 80,000,000
1996 $175,000,000
1997 $175,000,000
1998 $140,000,000
1999 $140,000,000
2000 $185,000,000
Thereafter $140,000,000 "
F. Section 9.2.11(j) of the Credit Agreement is hereby amended by
deleting the reference to "$25,000,000" contained therein and substituting a
reference to "$35,000,000" therefor.
G. Section 9.2.14 of the Credit Agreement is hereby amended by deleting
the two references to "$1,500,000" contained in clause (d) of the second
paragraph thereof and substituting a reference to "$2,250,000" therefor.
1.4 Amendment to Exhibits.
Exhibit U to the Credit Agreement is hereby deleted and
Exhibit I hereto substituted therefor.
1.5 Amendment to Signature Pages.
The Percentages set forth opposite the Lenders' names on the
signature pages of the Credit Agreement are hereby amended to read as follows:
"Bank of America, N.A. 36.307%
Congress Financial Corporation (Western) 27.768%
La Salle Bank National Association 5.666%
The CIT Group/Business Credit, Inc. 7.333%
Transamerica Business Credit Corporation 7.362%
Xxxxxx Financial, Inc. 10.333%
ABN AMRO Bank N.V. 5.231% "
1.6 Amendments to Collateral Documents.
The parties agree that, as of the Nineteenth Amendment
Effective Date (as defined below), the Parent Security Agreement, the Company
Pledge Agreement, the Company Security Agreement, the Subsidiary Guaranty, the
Subsidiary Security Agreement, the Company Deeds of Trust, the Company Mortgages
and the Intercompany Note Pledge Agreement shall be amended or supplemented as
set forth in Exhibits II, III, IV, V, VI, VII, VIII and IX hereto, respectively.
Section 2. Limited Waiver.
The undersigned Lenders, constituting Required Lenders under
the Credit Agreement, hereby waive compliance with the provisions of Section
9.2.6(b)(ii) of the Credit Agreement to the extent, and only to the extent,
necessary to permit Alumina Partners of Jamaica, a Subsidiary of the Company, to
purchase and cancel a portion of its Caribbean Basin Projects Financing
Authority Bonds in the aggregate principal amount of $34,000,000 (only
$22,100,000 of such amount to be paid by the Company) and to pay accrued
interest thereon.
Without limiting the generality of the provisions of Section
12.1 of the Credit Agreement, the waiver set forth in this Section 2 shall be
limited precisely as written and relates solely to the noncompliance by Company
with the provisions of Section 9.2.6(b)(ii) of the Credit Agreement in the
manner and to the extent described above, and nothing in this Section 2 shall be
deemed to (a) constitute a waiver of compliance by Company (i) with respect to
Section 9.2.6(b)(ii) of the Credit Agreement in any other instance or (ii) any
other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein or (b) prejudice any right or remedy
that Agent or any Lender may now have or may have in the future under or in
connection with the Credit Agreement or any other instrument or agreement
referred to therein.
Section 3. 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 "Nineteenth 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, the Parent
Guarantor and the applicable Subsidiaries of the Company approving and
authorizing the execution, delivery and performance of this Amendment
and the amendments to the Collateral Documents described in Section 1.6
hereof, 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, the Parent Guarantor or such Subsidiary, as the case may be;
(2) A signature and incumbency certificate of the officers of
the Company, the Parent Guarantor and the applicable Subsidiaries of
the Company executing this Amendment and the amendments to the
Collateral Documents described in Section 1.6 hereof;
(3) For each Lender, an opinion, addressed to the Agent and
each Lender, from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, in form and
substance satisfactory to the Agent;
(4) Such other information, approvals, opinions, documents or
instruments as the Agent may reasonably request; and
(5) For the pro rata benefit of the Lenders, calculated in
accordance with the Percentages set forth in Section 1.5 hereof, a fee
in the amount of $450,000.
Section 4. Conditions Subsequent.
On or prior to January 31, 2001, (a) the Agent shall have
received duly executed amendments to the UCC-1 Financing Statements originally
filed under the Credit Agreement naming the Cash Management Providers as
additional secured parties and (b) the amendments to the Company Deeds of Trust
and the Company Mortgages described in Section 1.6 hereof shall have been duly
recorded.
Section 5. 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 Nineteenth 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 6. Acknowledgement and Consent.
The Company is a party to the Company Collateral Documents, in
each case as amended through the date hereof, pursuant to which the Company has
created Liens in favor of the Agent on certain Collateral to secure the
Obligations. The Parent Guarantor is a party to the Parent Collateral Documents,
in each case as amended through the date hereof, pursuant to which the Parent
Guarantor has created Liens in favor of the Agent on certain Collateral and
pledged certain Collateral to the 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 7. Miscellaneous.
A. Reference to and Effect on the Credit Agreement and the Other Loan Documents.
(1) On and after the Nineteenth 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 Collateral Documents described in Section 1.6 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 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. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
BANK OF AMERICA, N.A. (successor to BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), as Agent BankAmerica Business Credit, Inc.)
By: /S/ XXXXXXX X. XXXXXXXX By: /S/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President Its: Vice President
THE CIT GROUP/BUSINESS XXXXXX FINANCIAL, INC.
CREDIT, INC.
By: /S/ XXXXX XXXXX By: /S/ XXXXXXX XXXXXXX
Name Printed: Xxxxx Xxxxx Name Printed: Xxxxxxx Xxxxxxx
Its: Assistant Vice President Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION TRANSAMERICA BUSINESS CREDIT
(WESTERN) CORPORATION
By: /S/ XXXX X. XXXXXXXXX By: /S/ XXX X. XXXXXX
Name Printed: Xxxx X. Xxxxxxxxx Name Printed: Xxx X. Xxxxxx
Its: Vice President Its: Vice President
LA SALLE BANK NATIONAL ABN AMRO BANK N.V.
ASSOCIATION (formerly known as
La Salle National Bank) By: /S/ L. XXXXX XXXXXX
Name Printed: L. Xxxxx Xxxxxx
Its: Group Vice President
By: /S/ XXXXXXX X. XXXXXXXX
Name Printed: Xxxxxxx X. Xxxxxxxx By: /S/ XXXXX X. XXXXXXXX
Its: 1st VP Name Printed: Xxxxx X. XxXxxxxx
Its: Group Vice President
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, XXXXXX ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER BAUXITE COMPANY XXXXXX EXPORT COMPANY
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION KAISER TRANSACTION CORP.
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXX X. XXXXXXX
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
EXHIBIT I
EXHIBIT U
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of December 27, 2000
(as amended, supplemented, amended and restated or otherwise modified from time
to time, this "Agreement"), is by and among (i) BANK OF AMERICA, N.A. (successor
to BankAmerica Business Credit, Inc., a Delaware corporation), as collateral
agent (in such capacity, together with its successors and assigns in such
capacity, the "Collateral Agent") for (a) the financial institutions (the
"Lenders") that are or may from time to time become parties to the Credit
Agreement, dated as of February 15, 1994 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the "Credit Agreement") by and
among Xxxxxx Aluminum & Chemical Corporation, a Delaware corporation (the
"Company"), Xxxxxx Aluminum Corporation, a Delaware corporation (the "Parent
Guarantor"), Bank of America, N.A., as Agent for the Lenders, and the Lenders,
(b) the Lenders that may from time to time enter into a Currency Hedge Agreement
(as defined in the Credit Agreement) with the Company and become a party hereto
(the "Currency Hedge Providers"), and (c) the Lenders that may from time to time
provide Cash Management Services (as defined in the Credit Agreement) to the
Company and become a party hereto (the "Cash Management Providers"); (ii) the
LENDERS; (iii) the CURRENCY HEDGE PROVIDERS; and (iv) the CASH MANAGEMENT
PROVIDERS.
R E C I T A L S:
A. Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meaning ascribed to such terms in the Credit
Agreement. In the event the Credit Agreement is terminated or the Commitments of
the Lenders under the Credit Agreement have expired or been terminated prior to
the termination of this Agreement, capitalized terms used in this Agreement and
not otherwise defined herein shall have the meaning ascribed to such terms in
the Credit Agreement immediately prior to such termination or expiration.
B. The Company and the Collateral Agent have executed and
delivered the Company Collateral Documents to secure the obligations of the
Company under the Credit Agreement.
C. The Parent Guarantor has executed and delivered the Parent
Guaranty contained in the Credit Agreement and Akron Holding Corporation, an
Ohio corporation, Alpart Jamaica Inc., a Delaware corporation, Xxxxxx Alumina
Australia Corporation, a Delaware corporation, Xxxxxx Aluminium International,
Inc., a Delaware corporation, Xxxxxx Aluminum & Chemical Investment, Inc., a
Delaware corporation, Xxxxxx Aluminum Properties, Inc., a Delaware corporation,
Xxxxxx Aluminum Technical Services, Inc., a California corporation, Xxxxxx
Finance Corporation, a Delaware corporation, Kaiser Jamaica Corporation, a
Delaware corporation, Oxnard Forge Die Company, Inc., a California corporation,
Xxxxxx Micromill Holdings, LLC, a limited liability company organized under the
laws of Delaware, Xxxxxx Sierra Micromills, LLC, a limited liability company
organized under the laws of Delaware, Xxxxxx Texas Sierra Micromills, LLC, a
limited liability company organized under the laws of Texas, Xxxxxx Texas
Micromill Holdings, LLC, a limited liability company organized under the laws of
Texas, Xxxxxx Bellwood Corporation, a Delaware corporation, and Kaiser
Transaction Corp., a Delaware corporation (collectively the "Subsidiary
Guarantors"), have executed the Subsidiary Guaranty, in each case for the
purpose of guarantying the obligations of the Company under the Credit Agreement
and the other Loan Documents.
D. The Parent Guarantor and the Collateral Agent have executed
and delivered the Parent Collateral Documents to secure the obligations of the
Parent Guarantor under the Parent Guaranty, and certain of the Subsidiary
Guarantors, certain other Subsidiaries of the Company and the Collateral Agent
have executed and delivered the Subsidiary Collateral Documents to secure the
obligations of such Subsidiaries under the Subsidiary Guaranty and of the
Company under the Credit Agreement and the other Loan Documents.
E. The Company, the Parent Guarantor, the Lenders and the
Collateral Agent have entered into a First Amendment to Credit Agreement dated
as of July 21, 1994 pursuant to which the Company is permitted to enter into
Currency Hedge Agreements from time to time with the Currency Hedge Providers;
provided the remaining amount (or the Dollar Equivalent (as defined in the
Credit Agreement) thereof) of all currency payments the Company is obligated to
make under all such Currency Hedge Agreements does not exceed $300,000,000 in
the aggregate at any time.
F. In addition, the Company, the Parent Guarantor, certain of
the Subsidiary Guarantors, certain other Subsidiaries of the Company and the
Collateral Agent have entered into amendments dated as of July 21, 1994 to
certain of the Collateral Documents and the Subsidiary Guaranty in order to (i)
provide for the guaranty by the Parent Guarantor and the Subsidiary Guarantors
of the Company's obligations under the Currency Hedge Agreements and (ii) secure
the obligations of the Company under the Currency Hedge Agreements and the
obligations of the Parent Guarantor and such Subsidiaries with respect to the
Currency Hedge Obligations by the Collateral.
G. The Lenders and the Currency Hedge Providers agreed that
the Lien on the Collateral in favor of the Currency Hedge Providers shall be
subordinate to the Lien on the Collateral in favor of the Lenders and the
Lenders, the Currency Hedge Providers and the Collateral Agent entered into an
Intercreditor Agreement dated as of July 21, 1994 establishing such priority
(the "Existing Intercreditor Agreement").
H. In addition, the Company, the Parent Guarantor, certain of
the Subsidiary Guarantors, certain other Subsidiaries of the Company and the
Collateral Agent have entered into amendments dated as of the date hereof to
certain of the Collateral Documents and the Subsidiary Guaranty in order to (i)
provide for the guaranty by the Parent Guarantor and the Subsidiary Guarantors
of the Company's obligations in respect of the Cash Management Services and (ii)
secure the obligations of the Company in respect of the Cash Management Services
and the obligations of the Parent Guarantor and such Subsidiaries with respect
to the Cash Management Obligations by the Collateral.
I. The Lenders, the Currency Hedge Providers and the Cash
Management Providers have agreed that the Lien on the Collateral in favor of the
Cash Management Providers shall be subordinate to the Lien on the Collateral in
favor of the Lenders and the Currency Hedge Providers.
J. The Lenders, the Currency Hedge Providers, the Cash
Management Providers and the Collateral Agent desire to amend and restate the
Existing Intercreditor Agreement and set forth their agreements concerning the
Collateral.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements and undertakings contained herein, the parties hereto agree that the
Existing Intercreditor Agreement is hereby amended and restated in its entirety
as follows:
1. Definitions. When used in this Agreement, the following
capitalized terms shall have the meanings set forth below. Terms defined
elsewhere in this Agreement are used as so defined.
(a) "Bank of America" means Bank of America, N.A. (successor
to BankAmerica Business Credit, Inc., a Delaware corporation).
(b) "Bank Obligations" means all liabilities and obligations
of the Company, the Parent Guarantor and each Obligor arising under or in
connection with the Credit Agreement and the other Loan Documents, including,
without limitation, all costs and expenses of the Collateral Agent and the
Lenders payable thereunder. The term "Bank Obligations" does not include the
Currency Hedge Obligations or the Cash Management Obligations.
(c) "Cash Management Obligations" means all liabilities and
obligations of the Company arising in connection with the Cash Management
Services, including, without limitation, all costs and expenses of the Cash
Management Providers payable in connection therewith.
(d) "Cash Management Pro Rata Share" means, with respect to
any Cash Management Provider, a fraction, expressed as a percentage, (i) the
numerator of which is the remaining Dollar amount of all payments that the
Company is obligated to make in respect of all Cash Management Services then
being provided by such Cash Management Provider and (ii) the denominator of
which is the remaining Dollar amount of all payments that the Company is
obligated to make in respect of all Cash Management Services.
(e) "Collateral Agreements" means the Company Collateral
Documents, the Parent Collateral Documents, the Subsidiary Collateral Documents,
the Parent Guaranty and the Subsidiary Guaranty.
(f) "Creditors" means the Lenders, the Currency Hedge
Providers and the Cash Management Providers.
(g) "Currency Hedge Obligations" means all liabilities and
obligations of the Company arising under or in connection with the Currency
Hedge Agreements, including, without limitation, all costs and expenses of the
Currency Hedge Providers payable thereunder.
(h) "Currency Hedge Pro Rata Share" means, with respect to any
Currency Hedge Provider, a fraction, expressed as a percentage, (i) the
numerator of which is the remaining Dollar amount (or the Dollar Equivalent
thereof) of all currency payments that the Company is obligated to make under
all Currency Hedge Agreements to which such Currency Hedge Provider is a party
(other than payments in respect of Subordinated Currency Hedge Obligations) and
(ii) the denominator of which is the remaining Dollar amount (or the Dollar
Equivalent thereof) of all currency payments that the Company is obligated to
make under all Currency Hedge Agreements (other than payments in respect of
Subordinated Currency Hedge Obligations).
(i) "Obligations" means and includes all of the Bank
Obligations, all of the Currency Hedge Obligations and all of the Cash
Management Obligations.
(j) "Required Cash Management Providers" means, at any time,
Cash Management Providers the sum of whose Cash Management Pro Rata Shares
equals at least 67%.
(k) "Required Currency Hedge Providers" means, at any time,
Currency Hedge Providers the sum of whose Currency Hedge Pro Rata Shares and
Subordinated Currency Hedge Pro Rata Shares equals at least 67%.
(l) "Subordinated Currency Hedge Obligations" means, as to any
Currency Hedge Provider, (i) if the Lien on the Collateral securing any Currency
Hedge Obligation owing to such Currency Hedge Provider is subordinated to any
Lien on the Collateral to which the Lien on the Collateral securing all Currency
Hedge Obligations is not also subordinated and amounts payable in respect of
such Currency Hedge Obligation are permitted to be netted against other Currency
Hedge Obligations owing to such Currency Hedge Provider, all Currency Hedge
Obligations owing to such Currency Hedge Provider and (ii) if the Lien on the
Collateral securing any Currency Hedge Obligation owing to such Currency Hedge
Provider is subordinated to any Lien on the Collateral to which the Lien on the
Collateral securing all Currency Hedge Obligations is not also subordinated (the
"Subordinated Obligation") and all rights to net amounts payable in respect of
the Subordinated Obligation against amounts payable in respect of all other
Currency Hedge Obligations owing to such Currency Hedge Provider have been
waived, the Subordinated Obligation.
(m) "Subordinated Currency Hedge Pro Rata Share" means, with
respect to any Currency Hedge Provider, a fraction, expressed as a percentage,
(i) the numerator of which is the remaining Dollar amount (or the Dollar
Equivalent thereof) of all currency payments that the Company is obligated to
make under all Currency Hedge Agreements to which such Currency Hedge Provider
is a party in respect of Subordinated Currency Hedge Obligations and (ii) the
denominator of which is the remaining Dollar amount (or the Dollar Equivalent
thereof) of all currency payments that the Company is obligated to make under
all Currency Hedge Agreements in respect of Subordinated Currency Hedge
Obligations.
2. Agreement by Currency Hedge Providers to Subordinate Liens.
The Lenders and the Currency Hedge Providers agree that the Liens on the
Collateral in favor of any Currency Hedge Provider securing the Currency Hedge
Obligations shall be and hereby are subordinate to the Liens on the Collateral
in favor of the Lenders securing the Bank Obligations and that each Currency
Hedge Provider's rights and remedies with respect to any Collateral shall be and
hereby are subordinate to the rights and remedies of the Lenders with respect
thereto in accordance with the terms hereof. Each Currency Hedge Provider agrees
that until the Bank Obligations have been paid in full, including the deposit of
available funds in an amount equal to the then aggregate Letter of Credit
Outstandings in the L/C Collateral Account in accordance with Section 5.8 of the
Credit Agreement and the Commitments of the Lenders under the Credit Agreement
have expired or been terminated, (a) no Currency Hedge Provider shall exercise
any right or remedy or assert any claims, in each case, with respect to any
Collateral, including, without limitation, seeking to foreclose on its junior
security interests therein pursuant to the terms of the Collateral Documents, as
a judgment creditor or otherwise and (b) no Currency Hedge Provider shall have
any right individually to seek to realize upon the security granted by or any
guaranty provided by any Collateral Agreement, it being understood and agreed
that such rights and remedies may be exercised solely by the Collateral Agent
for the benefit of the Currency Hedge Providers in accordance with the terms of
this Agreement and the Collateral Agreements. Notwithstanding the foregoing, (i)
the Currency Hedge Providers shall be entitled to demand and retain all payments
made by the Company from time to time under the Currency Hedge Agreements
notwithstanding the fact that such payments constitute a transfer of cash
Collateral and (ii) the Currency Hedge Providers shall be entitled to file a
proof of claim with respect to the Currency Hedge Obligations in any proceedings
under Title 11 of the United States Code by or against the Company, the Parent
Guarantor or any Subsidiary of the Company. If any Lien described in this
Agreement is determined to be avoidable under federal bankruptcy or applicable
state law, the priority granted such Lien in this Section 2 shall automatically
be void and ineffective and this Agreement automatically shall cease to apply to
such avoidable Lien.
3. Agreement by Cash Management Providers to Subordinate
Liens. The Lenders, the Currency Hedge Providers and the Cash Management
Providers agree that the Liens on the Collateral in favor of any Cash Management
Provider securing the Cash Management Obligations shall be and hereby are
subordinate to the Liens on the Collateral in favor of the Lenders securing the
Bank Obligations and the Currency Hedge Providers securing the Currency Hedge
Obligations and that each Cash Management Provider's rights and remedies with
respect to any Collateral shall be and hereby are subordinate to the rights and
remedies of the Lenders and the Currency Hedge Providers with respect thereto in
accordance with the terms hereof. Each Cash Management Provider agrees that
until the Bank Obligations and the Currency Hedge Obligations have been paid in
full, including the deposit of available funds in an amount equal to the then
aggregate Letter of Credit Outstandings in the L/C Collateral Account in
accordance with Section 5.8 of the Credit Agreement and the Commitments of the
Lenders under the Credit Agreement have expired or been terminated, (a) no Cash
Management Provider shall exercise any right or remedy or assert any claims, in
each case, with respect to any Collateral, including, without limitation,
seeking to foreclose on its junior security interests therein pursuant to the
terms of the Collateral Documents, as a judgment creditor or otherwise and (b)
no Cash Management Provider shall have any right individually to seek to realize
upon the security granted by or any guaranty provided by any Collateral
Agreement, it being understood and agreed that such rights and remedies may be
exercised solely by the Collateral Agent for the benefit of the Cash Management
Providers in accordance with the terms of this Agreement and the Collateral
Agreements. Notwithstanding the foregoing, (i) the Cash Management Providers
shall be entitled to demand and retain all payments made by the Company from
time to time in connection with the Cash Management Services notwithstanding the
fact that such payments constitute a transfer of cash Collateral and (ii) the
Cash Management Providers shall be entitled to file a proof of claim with
respect to the Cash Management Obligations in any proceedings under Title 11 of
the United States Code by or against the Company, the Parent Guarantor or any
Subsidiary of the Company. If any Lien described in this Agreement is determined
to be avoidable under federal bankruptcy or applicable state law, the priority
granted such Lien in this Section 3 shall automatically be void and ineffective
and this Agreement automatically shall cease to apply to such avoidable Lien.
4. Allocation of Proceeds. The Proceeds of any Collateral, or
of the disposition by the Collateral Agent of any of the Collateral (including
insurance benefits) shall be applied by the Collateral Agent, in the following
order of priority:
First, to the payment of the costs and expenses of such
disposition, including the reasonable costs and out-of-pocket expenses of the
Collateral Agent and attorneys' fees and costs and out-of-pocket expenses of
counsel (including allocated costs of in-house counsel) employed in connection
therewith and to the payment of all advances made by the Collateral Agent for
the account of any Obligor under the Collateral Agreements and to the payment of
all reasonable costs and out-of-pocket expenses incurred by the Collateral Agent
in connection with the administration and enforcement of this Agreement and the
Collateral Agreements, to the extent that such advances, costs and expenses
shall not have been reimbursed to the Collateral Agent;
Second, toward the satisfaction of the Bank Obligations other
than Obligations in respect of principal and Reimbursement Obligations;
Third, toward the satisfaction of the Bank Obligations in
respect of principal and Reimbursement Obligations, including the deposit of
available funds in an amount equal to the then aggregate Letter of Credit
Outstandings in the L/C Collateral Account in accordance with Section 5.8 of the
Credit Agreement;
Fourth, toward the satisfaction of the Currency Hedge
Obligations (other than any Subordinated Currency Hedge Obligations) on a
ratable basis according to each Currency Hedge Provider's Currency Hedge Pro
Rata Share;
Fifth, toward the satisfaction of any Subordinated Currency
Hedge Obligations on a ratable basis according to each Currency Hedge Provider's
Subordinated Currency Hedge Pro Rata Share;
Sixth, toward the satisfaction of the Cash Management
Obligations on a ratable basis according to each Cash Management Provider's Cash
Management Pro Rata Share; provided, however, that no Proceeds of any U.S. Fixed
Assets (as defined in the Senior Indenture, the New Senior Indenture or the
Additional New Senior Indentures), or of the disposition by the Collateral Agent
of any U.S. Fixed Assets, shall be applied toward the satisfaction of Cash
Management Obligations constituting Indebtedness (as defined in the Senior
Indenture, the New Senior Indenture or the Additional New Senior Indentures);
and
Seventh, any surplus to be paid to each Obligor, their
respective successors and assigns, as their interests may appear, or as
otherwise required by law.
Each Currency Hedge Provider will, promptly upon the request of the Collateral
Agent from time to time, notify the Collateral Agent of the remaining Dollar
amount (or Dollar Equivalent thereof) of all currency payments that the
Company is obligated to make under all Currency Hedge Agreements to which such
Currency Hedge Provider is a party and of the amount payable by the Company upon
early termination of all Currency Hedge Agreements to which such Currency Hedge
Provider is a party. Each Cash Management Provider will, promptly upon the
request of the Collateral Agent from time to time, notify the Collateral Agent
of the amount of all payments that the Company is obligated to make in
connection with all Cash Management Services then being provided by such Cash
Management Provider. The Collateral Agent may rely without inquiry or
investigation on any such notices, which notices shall be conclusive and
binding, absent manifest error, for all purposes (including but not limited
to the distribution of funds) hereunder and under each of the Collateral
Agreements.
5. Certain Actions by Currency Hedge Providers Regarding the
Collateral. Unless and until the Bank Obligations have been paid in full,
including the deposit of available funds in an amount equal to the then
aggregate Letter of Credit Outstandings in the L/C Collateral Account in
accordance with Section 5.8 of the Credit Agreement and the Commitments of the
Lenders under the Credit Agreement have expired or been terminated, (i) the
Currency Hedge Providers shall have no right or authority to direct any action
or inaction by the Collateral Agent and (ii) notwithstanding the provisions of
Section 4 hereof, each Currency Hedge Provider authorizes the Collateral Agent,
without the further consent of the Currency Hedge Providers, to consent to the
sale, transfer or other disposition by the Obligors of all or any part of the
Collateral in accordance with the Credit Agreement or the Collateral Agreements
free and clear of the Liens of the Lenders and the Currency Hedge Providers;
provided that the Lien of the Currency Hedge Providers shall, subject to the
priorities established in Section 2 hereof, attach to any and all Proceeds
thereof unless (A) such sale, transfer or other disposition is also undertaken
free and clear of all Liens of the Lenders, and (B) no portion of the Proceeds
thereof is subject to the continued Lien of the Lenders or required to be
applied to any of the Bank Obligations.
6. Certain Actions by Cash Management Providers Regarding the
Collateral. Unless and until the Bank Obligations and the Currency Hedge
Obligations have been paid in full, including the deposit of available funds in
an amount equal to the then aggregate Letter of Credit Outstandings in the L/C
Collateral Account in accordance with Section 5.8 of the Credit Agreement and
the Commitments of the Lenders under the Credit Agreement have expired or been
terminated, (i) the Cash Management Providers shall have no right or authority
to direct any action or inaction by the Collateral Agent and (ii)
notwithstanding the provisions of Section 4 hereof, each Cash Management
Provider authorizes the Collateral Agent, without the further consent of the
Cash Management Providers, to consent to the sale, transfer or other disposition
by the Obligors of all or any part of the Collateral in accordance with the
Credit Agreement or the Collateral Agreements free and clear of the Liens of the
Lenders, the Currency Hedge Providers and the Cash Management Providers;
provided that the Lien of the Cash Management Providers shall, subject to the
priorities established in Section 3 hereof, attach to any and all Proceeds
thereof unless (A) such sale, transfer or other disposition is also undertaken
free and clear of all Liens of the Lenders and the Currency Hedge Providers, and
(B) no portion of the Proceeds thereof is subject to the continued Lien of the
Lenders or the Currency Hedge Providers or required to be applied to any of the
Bank Obligations or any of the Currency Hedge Obligations.
7. Foreclosure Proceedings. In any foreclosure proceeding
concerning any Collateral, each holder of an Obligation if bidding for its own
account or for its own account and the accounts of other Creditors is prohibited
from including in the amount of its bid an amount to be applied as a credit
against the Obligations held by it or the Obligations held by the other
Creditors; instead, such holder must bid in cash only. However, in any such
foreclosure proceeding, the Collateral Agent may (but shall not be obligated to)
submit a bid for all Creditors in the form of a credit against the Obligations.
If in any foreclosure proceedings concerning any Collateral the Collateral
Agent, any Lender, any Currency Hedge Provider or any Cash Management Provider
accepts a transfer, conveyance or assignment of title to any of the Collateral,
it shall accept such transfer, conveyance or assignment of title only for the
benefit of all of the Creditors.
8. Independent Rights of the Lenders. The Collateral Agent and
the Lenders may, at any time and from time to time, without the consent of or
notice to any Currency Hedge Provider or any Cash Management Provider, and
without impairing or releasing the obligations of the Currency Hedge Providers
or the Cash Management Providers hereunder (a) change the manner, place or terms
of payment or change or extend the time of payment of, or renew, increase or
alter, the Bank Obligations or the security therefor, or otherwise amend (or
direct the Collateral Agent to amend) in any manner any of the Loan Documents;
(b) exercise or refrain from exercising any rights against the Company and
others; (c) apply any sums by whomsoever paid or however realized to the Bank
Obligations; (d) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any Property whatsoever and by
whomsoever at any time pledged or mortgaged to secure, or however securing, any
Bank Obligations; (e) release anyone liable in any manner for the payment or
collection of any Bank Obligations; and (f) settle or compromise all or any part
of the Bank Obligations. Except as provided in Section 2 hereof, no invalidity,
irregularity or unenforceability of all or any part of the Bank Obligations or
of any of the Liens securing the Bank Obligations shall affect, impair or be a
defense to this Agreement.
9. Independent Rights of the Currency Hedge Providers. The
Currency Hedge Providers may, at any time and from time to time, without the
consent of or notice to any Cash Management Provider, and without impairing or
releasing the obligations of the Cash Management Providers hereunder (a) change
the manner, place or terms of payment or change or extend the time of payment
of, or renew, increase or alter, the Currency Hedge Obligations or the security
therefor, or otherwise amend in any manner any of the Currency Hedge Agreements;
(b) exercise or refrain from exercising any rights against the Company and
others; (c) apply any sums by whomsoever paid or however realized to the
Currency Hedge Obligations; (d) sell, exchange, release, surrender, realize upon
or otherwise deal with in any manner and in any order any Property whatsoever
and by whomsoever at any time pledged or mortgaged to secure, or however
securing, any Currency Hedge Obligations; (e) release anyone liable in any
manner for the payment or collection of any Currency Hedge Obligations; and (f)
settle or compromise all or any part of the Currency Hedge Obligations. Except
as provided in Section 3 hereof, no invalidity, irregularity or unenforceability
of all or any part of the Currency Hedge Obligations or of any of the Liens
securing the Currency Hedge Obligations shall affect, impair or be a defense to
this Agreement.
10. Defaults Under Currency Hedge Obligations. Nothing
contained in this Agreement shall restrict or impair the right or power of any
Currency Hedge Provider to declare a default, an Event of Default (as defined in
any Currency Hedge Agreement) or a termination event when such Currency Hedge
Provider deems it appropriate under and in accordance with the terms of the
applicable Currency Hedge Agreement or to net amounts payable under Currency
Hedge Obligations owing to such Currency Hedge Provider; provided, however, such
declaration or termination shall not permit any Currency Hedge Provider to
exercise any rights with respect to, or to realize on, the Collateral, except as
specifically provided herein. Any Currency Hedge Provider declaring a default,
an Event of Default (as defined in any Currency Hedge Agreement) or a
termination event shall promptly notify the Collateral Agent by telephone, and
confirm such act in writing, within three (3) Business Days, in the manner set
forth in Section 20 hereof; provided, however, that any failure by any Currency
Hedge Lender to so notify the Collateral Agent shall not affect the validity of
any such declaration or termination.
11. Defaults Under Cash Management Obligations. Nothing
contained in this Agreement shall restrict or impair the right or power of any
Cash Management Provider to declare a default when such Cash Management Provider
deems it appropriate in respect of the applicable Cash Management Services;
provided, however, such declaration shall not permit any Cash Management
Provider to exercise any rights with respect to, or to realize on, the
Collateral, except as specifically provided herein. Any Cash Management Provider
declaring a default shall promptly notify the Collateral Agent by telephone, and
confirm such act in writing, within three (3) Business Days, in the manner set
forth in Section 20 hereof; provided, however, that any failure by any Cash
Management Provider to so notify the Collateral Agent shall not affect the
validity of any such declaration or termination.
12. Effect of Bankruptcy. This Agreement shall remain in full
force and effect notwithstanding the filing of a petition for relief by or
against the Company, the Parent Guarantor or any Subsidiary of the Company under
Title 11 of the United States Code and shall apply with full force and effect
with respect to all Collateral acquired by the Company, the Parent Guarantor or
any Subsidiary of the Company, or obligations incurred by the Company to any
Creditor under the Credit Agreement, the Currency Hedge Agreements, the
Collateral Agreements or in respect of the Cash Management Services subsequent
to the date of any such petition.
13. Appointment of Collateral Agent by Lenders. Pursuant to
Article XI of the Credit Agreement, the Lenders have appointed Bank of America
as agent under and for purposes of the Credit Agreement and the other Loan
Documents. The Lenders hereby confirm such appointment on the terms and
conditions set forth in the Credit Agreement and appoint Bank of America as
their agent for purposes of this Agreement on the same terms and conditions.
Nothing contained in this Agreement is intended to amend the terms of the Credit
Agreement relating to the rights and duties of the Collateral Agent and the
Lenders as provided in the Credit Agreement and to the extent that the terms of
this Agreement are inconsistent with the Credit Agreement, the Credit Agreement
shall govern.
14. Appointment of Collateral Agent by Currency Hedge
Providers.
(a) Each Currency Hedge Provider hereby appoints Bank of
America as its agent under and for purposes of this Agreement and the Collateral
Agreements. Each Currency Hedge Provider irrevocably authorizes, and each
assignee of any Currency Hedge Provider shall be deemed to authorize, the
Collateral Agent to act on behalf of such Currency Hedge Provider under this
Agreement and the Collateral Agreements and each Currency Hedge Provider
irrevocably authorizes the Collateral Agent to take such actions on its behalf
and to exercise such powers hereunder and thereunder as are in each case
specifically delegated to or required of the Collateral Agent by the terms
hereof or thereof, together which such powers as may be reasonably incidental
thereto.
(b) Each Currency Hedge Provider hereby acknowledges and
agrees that the Collateral Agent is the agent for the Lenders under the Credit
Agreement and that nothing contained in this Agreement, or in the appointment of
Bank of America as Collateral Agent, is intended to limit or restrict, in any
manner, the Collateral Agent's rights and discretion when acting in its capacity
as agent for the Lenders under the Credit Agreement, regardless of any effect
the exercise of such rights and discretion may have on the Currency Hedge
Providers. In addition, each Currency Hedge Provider hereby acknowledges and
agrees that until the Bank Obligations have been paid in full, including the
deposit of available funds in an amount equal to the then aggregate Letter of
Credit Outstandings in the L/C Collateral Account in accordance with Section 5.8
of the Credit Agreement and the Commitments of the Lenders under the Credit
Agreement have expired or been terminated, the Collateral Agent may act as
Majority Lenders, Required Lenders or all Lenders, as the case may be, may
request and that neither the Collateral Agent nor any Lender shall have any
liability to any Currency Hedge Provider with respect to any such request.
(c) The Collateral Agent shall not have by reason of this
Agreement or any Collateral Agreement a fiduciary relationship in respect of any
Currency Hedge Provider; and nothing in this Agreement or any Collateral
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Collateral Agent any obligations in respect of this Agreement or
any Collateral Agreement except as expressly set forth herein or therein.
(d) The Collateral Agent shall be deemed not to have knowledge
of the occurrence of a default, an Event of Default (as defined in any Currency
Hedge Agreement) or a termination event under any Currency Hedge Agreement, or
any breach of any of the Collateral Agreements unless, in each case, it shall
have received written notice thereof from a Currency Hedge Provider or from the
Company. Each Currency Hedge Provider acknowledges and agrees that the existence
of a default, an Event of Default (as defined in any Currency Hedge Agreement)
or a termination event under any Currency Hedge Agreement may not give rise to a
Default under the Credit Agreement and to the extent that such default, Event of
Default (as defined in any Currency Hedge Agreement) or termination event would
give rise to a Default under the Credit Agreement would not in any event
obligate the Collateral Agent or the Lenders to declare an Event of Default
under the Credit Agreement or cease extending credit to the Company thereunder.
(e) Bank of America and its successor as the Collateral Agent
shall have the same rights and powers with respect to the Currency Hedge
Agreements entered into by it or any of its Affiliates as any other Currency
Hedge Provider and may exercise the same as if it were not the Collateral Agent.
The terms "Currency Hedge Provider" and "Currency Hedge Providers" as used
herein shall include the Collateral Agent in its individual capacity.
(f) Each Currency Hedge Provider acknowledges that it has,
independently of the Collateral Agent, each Lender, each Cash Management
Provider and each other Currency Hedge Provider, and based on such Currency
Hedge Provider's review of the financial information of the Company and such
other documents, information, and investigations as such Currency Hedge Provider
has deemed appropriate, made its own credit decision to enter into a Currency
Hedge Agreement. Each Currency Hedge Provider also acknowledges that it will,
independently of the Collateral Agent, each Lender, each Cash Management
Provider and each other Currency Hedge Provider, and based on such other
documents, information, and investigations as it shall deem appropriate at any
time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement, any Collateral Agreement or any Currency Hedge Agreement.
15. Appointment of Collateral Agent by Cash Management
Providers.
(a) Each Cash Management Provider hereby appoints Bank of
America as its agent under and for purposes of this Agreement and the Collateral
Agreements. Each Cash Management Provider irrevocably authorizes, and each
assignee of any Cash Management Provider shall be deemed to authorize, the
Collateral Agent to act on behalf of such Cash Management Provider under this
Agreement and the Collateral Agreements and each Cash Management Provider
irrevocably authorizes the Collateral Agent to take such actions on its behalf
and to exercise such powers hereunder and thereunder as are in each case
specifically delegated to or required of the Collateral Agent by the terms
hereof or thereof, together which such powers as may be reasonably incidental
thereto.
(b) Each Cash Management Provider hereby acknowledges and
agrees that the Collateral Agent is the agent for the Lenders under the Credit
Agreement and the Currency Hedge Providers and that nothing contained in this
Agreement, or in the appointment of Bank of America as Collateral Agent, is
intended to limit or restrict, in any manner, the Collateral Agent's rights and
discretion when acting in its capacity as agent for the Lenders under the Credit
Agreement or the Currency Hedge Providers, regardless of any effect the exercise
of such rights and discretion may have on the Cash Management Providers. In
addition, each Cash Management Provider hereby acknowledges and agrees that
until the Bank Obligations and the Currency Hedge Obligations have been paid in
full, including the deposit of available funds in an amount equal to the then
aggregate Letter of Credit Outstandings in the L/C Collateral Account in
accordance with Section 5.8 of the Credit Agreement and the Commitments of the
Lenders under the Credit Agreement have expired or been terminated, the
Collateral Agent may act as Majority Lenders, Required Lenders, all Lenders or
Required Currency Hedge Providers, as the case may be, may request and that
neither the Collateral Agent nor any Lender shall have any liability to any Cash
Management Provider with respect to any such request.
(c) The Collateral Agent shall not have by reason of this
Agreement or any Collateral Agreement a fiduciary relationship in respect of any
Cash Management Provider; and nothing in this Agreement or any Collateral
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Collateral Agent any obligations in respect of this Agreement or
any Collateral Agreement except as expressly set forth herein or therein.
(d) The Collateral Agent shall be deemed not to have knowledge
of the occurrence of a default in respect of any Cash Management Services, or
any breach of any of the Collateral Agreements unless, in each case, it shall
have received written notice thereof from a Cash Management Provider or from the
Company. Each Cash Management Provider acknowledges and agrees that the
existence of a default in respect of any Cash Management Services may not give
rise to a Default under the Credit Agreement and to the extent that such default
would give rise to a Default under the Credit Agreement would not in any event
obligate the Collateral Agent or the Lenders to declare an Event of Default
under the Credit Agreement or cease extending credit to the Company thereunder.
(e) Bank of America and its successor as the Collateral Agent
shall have the same rights and powers with respect to the Cash Management
Services provided by it or any of its Affiliates as any other Cash Management
Provider and may exercise the same as if it were not the Collateral Agent. The
terms "Cash Management Provider" and "Cash Management Providers" as used herein
shall include the Collateral Agent in its individual capacity.
(f) Each Cash Management Provider acknowledges that it has,
independently of the Collateral Agent, each Lender, each Currency Hedge Provider
and each other Cash Management Provider, and based on such Cash Management
Provider's review of the financial information of the Company and such other
documents, information, and investigations as such Cash Management Provider has
deemed appropriate, made its own credit decision to provide Cash Management
Services. Each Cash Management Provider also acknowledges that it will,
independently of the Collateral Agent, each Lender, each Currency Hedge Provider
and each other Cash Management Provider, and based on such other documents,
information, and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this
Agreement, any Collateral Agreement or in respect of any Cash Management
Services.
16. The Collateral Agent.
(a) The Collateral Agent shall, at all times prior to the
payment in full of the Bank Obligations and the expiration or termination of the
Commitments of the Lenders under the Credit Agreement, be the same Person that
is the Agent under the Credit Agreement. Written notice of resignation by the
Agent pursuant to Section 11.4 of the Credit Agreement shall also constitute
notice of resignation as the Collateral Agent under this Agreement; removal of
the Agent pursuant to Section 11.4 of the Credit Agreement, and appointment of a
successor Agent pursuant to Section 11.4 of the Credit Agreement, shall also
constitute appointment of a successor Collateral Agent hereunder and such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges, and duties of the retiring or removed Collateral
Agent under this Agreement. After any retiring or removed Collateral Agent's
resignation or removal hereunder as Collateral Agent, the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Agreement while it was the Collateral Agent hereunder.
After the payment in full of the Bank Obligations and the expiration or
termination of the Commitments of the Lenders under the Credit Agreement, the
Required Currency Hedge Providers may appoint one of the Currency Hedge
Providers or a commercial banking institution organized under the laws of the
United States (or any state thereof) or a United States branch or agency of a
foreign commercial banking institution, and having a combined capital and
surplus of at least $500,000,000, as a successor Collateral Agent which shall
thereupon become the Collateral Agent hereunder. After the payment in full of
the Bank Obligations, the expiration or termination of the Commitments of the
Lenders under the Credit Agreement and the payment in full of the Currency Hedge
Obligations, the Required Cash Management Providers may appoint one of the Cash
Management Providers or a commercial banking institution organized under the
laws of the United States (or any state thereof) or a United States branch or
agency of a foreign commercial banking institution, and having a combined
capital and surplus of at least $500,000,000, as a successor Collateral Agent
which shall thereupon become the Collateral Agent hereunder.
(b) Whenever the Collateral Agent shall deem it necessary or
prudent in order either to conform to any law of any jurisdiction in which all
or any part of the Collateral shall be situated or to make any claim or bring
any suit with respect to the Collateral or the Collateral Documents, or in the
event that the Collateral Agent shall have been requested to do so by Majority
Lenders, Required Lenders or all Lenders, as the case may be, or, following the
payment in full of the Bank Obligations, including the deposit of available
funds in an amount equal to the aggregate Letter of Credit Outstandings in the
L/C Collateral Account in accordance with Section 5.8 of the Credit Agreement
and the expiration or termination of the Commitments of the Lenders under the
Credit Agreement, the Required Currency Hedge Providers, or, following the
payment in full of the Currency Hedge Obligations, the Required Cash Management
Providers, the Collateral Agent shall execute and deliver a supplemental
agreement and all other instruments and agreements necessary or proper to
constitute another bank or trust company, or one or more Persons approved by the
Collateral Agent, either to act as Collateral Agent or agents with respect to
all or any part of the Collateral, in any such case with such powers of the
Collateral Agent as may be provided in such supplemental agreement, and to vest
in such bank, trust company or Person as such Collateral Agent or separate
trustee, as the case may be, any Property, title, right, or power of the
Collateral Agent deemed necessary or advisable.
(c) (i) To the extent that the Collateral Agent becomes
concerned that the exercise of any remedies or any action taken or omitted to be
taken by it in connection with any Collateral shall subject it to the
possibility of any liability, cost, or expense which it deems to be significant,
arising under any law, rules, or regulations relating to hazardous or toxic
wastes or materials, the Collateral Agent may, without liability to any Currency
Hedge Provider or any Cash Management Provider or other party to this Agreement
or any Collateral Agreement, or any other Person, decline to accept, abandon,
forfeit, or release such Collateral regardless of any effect such declination,
abandonment, forfeiture, or release may have upon the Currency Hedge Providers
or the Cash Management Providers, or otherwise, if either (A) the Collateral
Agent is requested to decline to accept, abandon, forfeit, or release such
Collateral by Majority Lenders, Required Lenders or all Lenders, as the case may
be, or following the payment in full of the Bank Obligations, including the
deposit of available funds in an amount equal to the then aggregate Letter of
Credit Outstandings into the L/C Collateral Account in accordance with Section
5.8 of the Credit Agreement and the expiration or termination of the Commitments
of the Lenders under the Credit Agreement, the Required Currency Hedge
Providers, or, following the payment in full of all Currency Hedge Obligations,
the Required Cash Management Providers or (B) the Collateral Agent is not,
within thirty (30) days after making a specific proposal therefor, specifically
indemnified to its satisfaction by the Lenders, the Currency Hedge Providers or
the Cash Management Providers, as the case may be, or insured to its
satisfaction by a third party or parties for any liability, costs, and expenses
which might result therefrom.
(ii) In addition, if the Collateral Agent becomes concerned
that the inclusion of certain Property in the Collateral is not in the best
interests of the Collateral Agent or the Creditors, either because of potential
adverse legal implications (including the potential effects of California's "one
form of action", "anti-deficiency" and related rules of law which may apply in
connection with real property located in California) or potential liabilities,
costs, or expenses which the Collateral Agent deems to be significant that may
be imposed upon a Person secured by such Collateral, the Collateral Agent may,
without liability to any Currency Hedge Provider, any Cash Management Provider
or other party to this Agreement or any Collateral Agreement, or any other
Person, decline to accept, abandon, forfeit, or release such Collateral
regardless of any effect such declination, abandonment, forfeiture, or release
may have upon the Creditors or otherwise unless (A) the Collateral Agent is
requested to do otherwise by Majority Lenders, Required Lenders or all Lenders,
as the case may be, or, following the payment in full of the Bank Obligations,
including the deposit of available funds in an amount equal to the then
aggregate Letter of Credit Outstandings into the L/C Collateral Account in
accordance with Section 5.8 of the Credit Agreement and the expiration or
termination of the Commitments of the Lenders under the Credit Agreement, the
Required Currency Hedge Providers, or, following the payment in full of all
Currency Hedge Obligations, the Required Cash Management Providers and (B) the
Collateral Agent is, within thirty (30) days after making a specific proposal
therefor, specifically indemnified to its satisfaction by the Lenders, the
Currency Hedge Providers or the Cash Management Providers, as the case may be,
or insured to its satisfaction by a third party or parties for any liability,
costs, and expenses which might result therefrom.
17. Reliance. The Collateral Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person and upon
advice and statements of legal counsel (which may be counsel for the Company),
independent accountants and other experts selected by the Collateral Agent. The
Collateral Agent shall not be required in any way to determine the identity or
authority of any Person delivering or executing the same.
18. Waiver of Rights of Currency Hedge Providers; Prohibition
on Contesting Liens. The Currency Hedge Providers irrevocably waive any right to
compel the Lenders to marshal assets of the Company, the Parent Guarantor, or
any Subsidiary of the Company or to object to the manner in which the Lenders
may seek to enforce the Liens granted in any of the Collateral, including,
without limitation, any right based on any duty to conduct any sale, lease,
exchange, transfer or other disposition of Collateral in a commercially
reasonable manner. The Currency Hedge Providers agree that they will not (and
waive any right to) contest or support any other Person in contesting, in any
action or proceeding or otherwise (including, without limitation, any federal or
state bankruptcy, insolvency or liquidation proceeding), the priority, validity
or enforceability of the Bank Obligations or any Lien held by the Lenders. In
addition, the Currency Hedge Providers agree that they will not (and waive any
right to) seek to have any Currency Hedge Obligation or any payment thereunder
characterized as an administrative expense or any other expense or claim that
would permit the payment thereof prior to the payment of the secured claims of
the Lenders in any federal or state bankruptcy, insolvency or liquidation
proceeding; provided, however, that nothing contained herein shall be deemed to
be a waiver of any right of any Currency Hedge Provider to obtain relief under
Section 507(b) of Title 11 of the United States Code.
19. Waiver of Rights of Cash Management Providers; Prohibition
on Contesting Liens. The Cash Management Providers irrevocably waive any right
to compel the Lenders or the Currency Hedge Providers to marshal assets of the
Company, the Parent Guarantor, or any Subsidiary of the Company or to object to
the manner in which the Lenders or the Currency Hedge Providers may seek to
enforce the Liens granted in any of the Collateral, including, without
limitation, any right based on any duty to conduct any sale, lease, exchange,
transfer or other disposition of Collateral in a commercially reasonable manner.
The Cash Management Providers agree that they will not (and waive any right to)
contest or support any other Person in contesting, in any action or proceeding
or otherwise (including, without limitation, any federal or state bankruptcy,
insolvency or liquidation proceeding), the priority, validity or enforceability
of the Bank Obligations or any Lien held by the Lenders or the Currency Hedge
Obligations or any Lien held by the Currency Hedge Providers. In addition, the
Cash Management Providers agree that they will not (and waive any right to) seek
to have any Cash Management Obligation or any payment thereunder characterized
as an administrative expense or any other expense or claim that would permit the
payment thereof prior to the payment of the secured claims of the Lenders or the
Currency Hedge Providers in any federal or state bankruptcy, insolvency or
liquidation proceeding; provided, however, that nothing contained herein shall
be deemed to be a waiver of any right of any Cash Management Provider to obtain
relief under Section 507(b) of Title 11 of the United States Code.
20. Notices. Except as otherwise provided herein, all notices
and other communications provided to any party hereto under this Agreement shall
be in writing or by telex or by facsimile (followed promptly thereby by mailing
of such notice or communication) and addressed, delivered, or transmitted to
such party at its address, telex, or facsimile number set forth on the signature
pages hereof, or at such other address, telex, or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if
delivered by hand or if sent by mail or by overnight courier properly addressed
with postage prepaid, shall be deemed given when received; any notice, if
transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).
21. Modification, Amendment. No amendment to, modification or
waiver of, or consent with respect to, any provision of this Agreement shall in
any event be effective unless the same shall be in writing and signed and
delivered by the Collateral Agent, the Lenders, the Currency Hedge Providers and
the Cash Management Providers. Nothing contained in this Agreement, however,
shall be construed to require the approval of all Lenders, any Currency Hedge
Provider or any Cash Management Provider to any amendment to the Credit
Agreement or any of the Collateral Agreements.
22. Severability. Any provision of this Agreement 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 Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
23. Additional Currency Hedge Agreements and Cash Management
Services. Any Lender may secure Currency Hedge Obligations or Cash Management
Obligations by signing an acknowledgment in the form contained on the signature
pages hereof and by delivering a signed counterpart hereof to the Collateral
Agent by which each such Lender agrees to be bound by the terms of this
Agreement.
24. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Creditors, the Collateral Agent and their
respective trustees, receivers, successors and assigns; no other Person
(including but not limited to the Company), shall be entitled to rely on or
raise as a defense any provision of this Agreement in any manner whatsoever.
25. Transferees. No Currency Hedge Provider shall sell, assign
or transfer any of its Liens on the Collateral securing Currency Hedge
Obligations or any interest in the Currency Hedge Obligations except to another
Currency Hedge Provider. No Cash Management Provider shall sell, assign or
transfer any of its Liens on the Collateral securing Cash Management Obligations
or any interest in the Cash Management Obligations except to another Cash
Management Provider.
26. Governing Law. This Agreement shall be deemed to be a
contract made under and governed by the internal laws of the State of New York.
27. Execution in 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 Agreement; 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.
28. Termination. This Agreement shall continue in full force
and effect until the payment in full of the Obligations and (a) the Commitments
of the Lenders under the Credit Agreement have expired or have terminated, (b)
all of the Currency Hedge Agreements have terminated and (c) the provision of
Cash Management Services has been terminated.
29. Further Assurances. The Creditors shall each execute and
deliver to the Collateral Agent such other and further documents and instruments
(in recordable form, if requested) as may be necessary or desirable to implement
fully or evidence further the provisions of this Agreement.
30. Acknowledgments by Lenders and Currency Hedge Providers.
The Lenders and the Currency Hedge Providers acknowledge the following:
(a) Amendments to the UCC-1 Financing Statements filed
pursuant to Section 7.1.6 of the Credit Agreement were filed;
(b) Endorsements to all title insurance policies issued to the
Lenders pursuant to Section 7.1.8 of the Credit Agreement were issued in favor
of the Currency Hedge Providers with respect to the Currency Hedge Obligations;
and
(c) The Company has agreed with the Lenders that it will not
enter into any Currency Hedge Agreement containing any provision that permits
the Currency Hedge Provider party thereto to terminate the Currency Hedge
Agreement, or liquidate or close-out any obligations thereunder, solely as a
result of the occurrence of any Default under the Credit Agreement unless the
Agent, as a result of such Default and upon the direction of the Majority
Lenders, shall have declared all of the outstanding principal amount of the
Loans and other Bank Obligations to be due and payable.
31. Acknowledgments by Lenders, Currency Hedge Providers and
Cash Management Providers. The Lenders, the Currency Hedge Providers and the
Cash Management Providers acknowledge the following:
(a) Amendments to the UCC-1 Financing Statements filed
pursuant to Section 7.1.6 of the Credit Agreement, substantially in the form of
Annex I hereto, with such changes, additions or deletions as the Agent, in its
sole and absolute discretion, may approve, may be filed; and
(b) Endorsements to all title insurance policies issued to the
Lenders pursuant to Section 7.1.8 of the Credit Agreement may be issued in favor
of the Cash Management Providers with respect to the Cash Management
Obligations.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the date first set forth above.
BANK OF AMERICA, N.A. (successor to BankAmerica
Business Credit, Inc.), as Collateral Agent
By:
Name:
Its:
Address: 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
BANK OF AMERICA, N.A. (successor to BankAmerica
Business Credit, Inc.), as a Lender
By:
Name:
Its:
Address: 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
CONGRESS FINANCIAL CORPORATION
(WESTERN), as a Lender
By:
Name:
Title:
Address: 000 Xxxxx Xxxx Xxxxxx
Xxxxxx #0000
Xxxxxxxx, XX 00000
LA SALLE BANK NATIONAL ASSOCIATION,
as a Lender
By:
Name:
Title:
Address: 000 X. Xx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By:
Name:
Title:
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender
By:
Name:
Title:
Address: 0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
XXXXXX FINANCIAL INC., as a Lender
By:
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABN AMRO BANK N.V., as a Lender
By:
Name:
Title:
By:
Name:
Title:
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
LA SALLE BANK NATIONAL ASSOCIATION,
as a Currency Hedge Provider
By:
Name:
Title:
Address: 000 X. Xx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
BANK OF AMERICA, N.A. (successor to
Bank of America National Trust and Savings
Association), as a Currency Hedge
Provider
By:
Name:
Title:
Address: 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
ABN AMRO BANK N.V., as a Currency Hedge Provider
By:
Name:
Title:
By:
Name:
Title:
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
BANK OF AMERICA, N.A., as a Cash Management
Provider
By:
Name:
Title:
Address: 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
ACKNOWLEDGMENT
The undersigned may enter into a Currency Hedge Agreement with
the Company pursuant to which Currency Hedge Obligations thereunder are to be
secured by the Collateral Agreements. The undersigned acknowledges the terms of
this Agreement and agrees to be bound hereby.
___________________, as a Currency Hedge Provider
By:
Name:
Title:
Address:
ACKNOWLEDGMENT
The undersigned may provide Cash Management Services to the
Company and the related Cash Management Obligations are to be secured by the
Collateral Agreements. The undersigned acknowledges the terms of this Agreement
and agrees to be bound hereby.
___________________, as a Cash Management Provider
By:
Name:
Title:
Address:
EXHIBIT II
THIRD AMENDMENT TO PARENT SECURITY AGREEMENT
THIS THIRD AMENDMENT TO PARENT SECURITY AGREEMENT (this
"Amendment"), dated as of December 27, 2000, is by and between Xxxxxx Aluminum
Corporation, a Delaware corporation (the "Parent Guarantor"), and Bank of
America, N.A. (successor to BankAmerica Business Credit, Inc., a Delaware
corporation), as agent for the Secured Lenders (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 Nineteenth Amendment.
W I T N E S S E T H:
WHEREAS, Xxxxxx Aluminum & Chemical Corporation (the
"Company"), 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, 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, 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, the Seventeenth
Amendment to Credit Agreement, dated as of September 24, 1999, and the
Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000 (the
"Credit Agreement"); and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Nineteenth Amendment to
Credit Agreement and Limited Waiver (the "Nineteenth Amendment"); and
WHEREAS, the Parent Guarantor and the Agent are parties to the
Parent Security Agreement, Financing Statement, and Conditional Assignment of
Patents and Trademarks, dated as of February 15, 1994, as amended by the First
Amendment to Parent Security Agreement, dated as of July 21, 1994, and the
Second Amendment to Parent Security Agreement, dated as of April 21, 1997 (the
"Parent Security Agreement"), and have agreed to amend the Parent 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 Parent Security Agreement.
Clause (a)(iii) of Section 11 of the Parent Security Agreement
is hereby amended by amending the final sentence thereof to read in its entirety
as follows:
"Any Proceeds of any Collateral, or of the disposition by the
Agent of any of the Collateral (including benefits to the
extent provided in Section 19 hereof), shall be applied by the
Agent, in the following order of priority:
First, to payment of the costs and expenses of such
disposition, including the reasonable costs and out-of-pocket
expenses of the Agent and attorneys' fees and costs and
out-of-pocket expenses of counsel (including allocated costs
of in-house counsel) employed in connection therewith and to
the payment of all advances made by the Agent for the account
of the Parent Guarantor hereunder and the payment of all
reasonable costs and out-of-pocket expenses incurred by the
Agent in connection with the administration and enforcement of
this Agreement, to the extent that such advances, costs, and
expenses shall not have been reimbursed to the Agent;
Second, toward the satisfaction of the Secured
Obligations other than Obligations in respect of principal and
Reimbursement Obligations, Currency Hedge Obligations and Cash
Management Obligations;
Third, toward the satisfaction of the Secured
Obligations in respect of principal and Reimbursement
Obligations, including the deposit of available funds in an
amount equal to the then aggregate Letter of Credit
Outstandings in the L/C Collateral Account in accordance with
Section 5.8 of the Credit Agreement;
Fourth, toward the satisfaction of the Currency Hedge
Obligations in the order agreed to by the Currency Hedge
Providers from time to time;
Fifth, toward the satisfaction of the Cash Management
Obligations in the order agreed to by the Cash Management
Providers from time to time; and
Sixth, any surplus to be paid to the Parent
Guarantor, its successors and assigns, or as a court of
competent jurisdiction may direct."
Section 2. Parent Guarantor's Representations and Warranties.
In order to induce the Agent to enter into this Amendment and
to amend the Parent Security Agreement in the manner provided herein, and to
induce the Required Lenders to consent to such action by the Agent, the Parent
Guarantor represents and warrants to each Lender and the Agent that, as of the
Nineteenth Amendment Effective Date (as defined in the Nineteenth 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 Parent Guarantor and the performance of the Parent
Security Agreement as amended by this Amendment (the "Amended Agreement") by the
Parent Guarantor are within the Parent Guarantor's corporate powers and have
been duly authorized by all necessary corporate action on the part of the Parent
Guarantor.
B. No Conflict. The execution and delivery by the Parent
Guarantor of this Amendment and the performance by the Parent Guarantor of the
Amended Agreement do not: (1) contravene the Parent Guarantor'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
Parent Guarantor or any of its Subsidiaries; or (3) result in, or require the
creation or imposition of, any Lien on any of the Parent Guarantor's properties,
other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly executed
and delivered by the Parent Guarantor and this Amendment and the Amended
Agreement constitute the legal, valid and binding obligations of the Parent
Guarantor, enforceable against 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 other Person is required for the due execution,
delivery or performance of this Amendment by the Parent Guarantor.
Section 3. Miscellaneous.
A. Reference to and Effect on the Parent Security Agreement
and the Other Loan Documents.
(1) On and after the Nineteenth Amendment Effective Date, each
reference in the Parent Security Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Parent Security
Agreement, and each reference in the other Loan Documents to the "Parent
Security Agreement", "thereunder", "thereof" or words of like import referring
to the Parent Security Agreement shall mean and be a reference to the Amended
Agreement.
(2) Except as specifically amended by this Amendment, the Parent
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 Parent 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 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 BANK OF AMERICA, N.A.
(successor to
BankAmerica Business Credit, Inc.), as Agent
By: By:
Name Printed: Name Printed:
Its: Its:
EXHIBIT III
THIRD AMENDMENT TO COMPANY PLEDGE AGREEMENT
THIS THIRD AMENDMENT TO COMPANY PLEDGE AGREEMENT (this
"Amendment"), dated as of December 27, 2000, is by and between Xxxxxx Aluminum &
Chemical Corporation, a Delaware corporation (the "Company"), and Bank of
America, N.A. (successor to BankAmerica Business Credit, Inc., a Delaware
corporation), as agent for the Secured Lenders (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 Nineteenth Amendment.
W I T N E S S E T H:
WHEREAS, the Company, Xxxxxx 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, 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,
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, the
Seventeenth Amendment to Credit Agreement, dated as of September 24, 1999, and
the Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000 (the
"Credit Agreement"); and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Nineteenth Amendment to
Credit Agreement and Limited Waiver (the "Nineteenth Amendment"); and
WHEREAS, the Company and the Agent are parties to the Company
Pledge Agreement, dated as of February 15, 1994, as amended by the First
Amendment to Company Pledge Agreement, dated as of July 21, 1994, the Second
Amendment to Company Pledge Agreement, dated as of July 20, 1995, and Pledge
Amendments, dated as of July 20, 1995, December 11, 1995, June 25, 1997 and
February 24, 1999 (the "Company Pledge Agreement"), and have agreed to amend the
Company Pledge 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 Pledge Agreement.
Section 2.2 of the Company Pledge Agreement is hereby amended
to read in its entirety as follows:
"SECTION 2.2. Secured Obligations. This Agreement secures, and
the Collateral is collateral security for, the prompt payment
or performance in full when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand, or
otherwise (including the payment of amounts that would become
due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)) of, all
Obligations of the Pledgor now existing or hereafter arising
under or in connection with the Credit Agreement or any other
Loan Document, all Obligations of the Pledgor now existing or
hereafter arising under or in connection with the Currency
Hedge Agreements, all Obligations of the Pledgor now existing
or hereafter arising in connection with the Cash Management
Services, and any and all extensions or renewals thereof,
whether for principal, interest (including interest that, but
for the filing of a petition in bankruptcy with respect to the
Pledgor, would accrue on such Obligations), reimbursements of
amounts drawn under Letters of Credit, fees, expenses,
indemnities, or otherwise, whether voluntary or involuntary,
direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, whether
or not from time to time decreased or extinguished and later
increased, created, or incurred, and all or any portion of
such Obligations that are paid, to the extent all or any part
of such payment is avoided or recovered directly or indirectly
from the Agent or any Secured Lender as a preference,
fraudulent transfer, or otherwise, and any and all Obligations
of the Pledgor now or hereafter existing under this Agreement,
whether for advances, costs, fees, expenses, or otherwise
(collectively, the 'Secured Obligations')."
Section 2. Company's Representations and Warranties.
In order to induce the Agent to enter into this Amendment and
to amend the Company Pledge Agreement in the manner provided herein, and to
induce the Lenders to consent to such action by the Agent, the Company
represents and warrants to each Lender and the Agent that, as of the Nineteenth
Amendment Effective Date (as defined in the Nineteenth Amendment) after giving
effect to effectiveness of this Amendment, the following statements are true and
in all material respects:
A. Authorization of Agreements. The execution and delivery of
this Amendment by the Company and the performance of the Company Pledge
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;
(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 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.
Section 3. Miscellaneous.
A. Reference to and Effect on the Company Pledge Agreement and
the Other Loan Documents.
(1) On and after the Nineteenth Amendment Effective Date, each
reference in the Company Pledge Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Company Pledge
Agreement, and each reference in the other Loan Documents to the "Company Pledge
Agreement", "thereunder", "thereof" or words of like import referring to the
Company Pledge Agreement shall mean and be a reference to the Amended Agreement.
(2) Except as specifically amended by this Amendment, the
Company 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 Company 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
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 & CHEMICAL BANK OF AMERICA, N.A. (successor
CORPORATION to BankAmerica Business Credit,
Inc.), as Agent
By: By:
Name Printed: Name Printed:
Its: Its:
EXHIBIT IV
FIFTH AMENDMENT TO COMPANY SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO COMPANY SECURITY AGREEMENT (this
"Amendment"), dated as of December 27, 2000, is by and between Xxxxxx Aluminum
& Chemical Corporation, a Delaware corporation (the "Company"), and Bank of
America, N.A. (successor to BankAmerica Business Credit, Inc., a Delaware
corporation), as agent for the Secured Lenders (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 Nineteenth Amendment.
W I T N E S S E T H:
WHEREAS, 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
(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, 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, 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, the Seventeenth
Amendment to Credit Agreement, dated as of September 24, 1999, and the
Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000 (the
"Credit Agreement"); and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Nineteenth Amendment to
Credit Agreement and Limited Waiver (the "Nineteenth 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 Second Amendment
to Company Security Agreement, dated as of December 11, 1995, the Third
Amendment to Company Security Agreement dated as of April 21, 1997, and the
Fourth Amendment to Company Security Agreement, dated as of July 20, 1998 (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;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Company Security Agreement.
A. Section 2 of the Company Security Agreement is hereby
amended by adding the following as the second proviso of the first
paragraph thereof:
"; provided further that, notwithstanding anything in this
Agreement or in any other Loan Document to the contrary, (i)
with respect to any Cash Management Obligation constituting
Indebtedness (as defined in the Senior Indenture, the New
Senior Indenture or the Additional New Senior Indentures), the
Collateral shall not include any U.S. Fixed Assets (as defined
in the Senior Indenture, the New Senior Indenture or the
Additional New Senior Indentures) and (ii) no Proceeds of any
U.S. Fixed Assets, or of the disposition by the Agent of any
U.S. Fixed Assets, shall be applied toward the satisfaction of
any Cash Management Obligations constituting Indebtedness (as
defined in the Senior Indenture, the New Senior Indenture or
the Additional New Senior Indentures)."
B. Section 3 of the Company Security Agreement is hereby
amended by inserting the phrase "all Obligations of the Company now existing or
hereafter arising in connection with Cash Management Services," following the
phrase "Currency Hedge Agreements" contained therein.
C. Clause (a)(iii) of Section 11 of the Company Security
Agreement is hereby amended by amending the final sentence thereof to read in
its entirety as follows:
"Any Proceeds of any Collateral, or of the disposition by the
Agent of any of the Collateral (including benefits to the
extent provided in Section 19 hereof), shall be applied by the
Agent, in the following order of priority:
First, to payment of the costs and expenses of such
disposition, including the reasonable costs and out-of-pocket
expenses of the Agent and attorneys' fees and costs and
out-of-pocket expenses of counsel (including allocated costs
of in-house counsel) employed in connection therewith and to
the payment of all advances made by the Agent for the account
of the Company hereunder and the payment of all reasonable
costs and out-of-pocket expenses incurred by the Agent in
connection with the administration and enforcement of this
Agreement, to the extent that such advances, costs, and
expenses shall not have been reimbursed to the Agent;
Second, toward the satisfaction of the Secured
Obligations other than Obligations in respect of principal and
Reimbursement Obligations, Currency Hedge Obligations and Cash
Management Obligations;
Third, toward the satisfaction of the Secured
Obligations in respect of principal and Reimbursement
Obligations, including the deposit of available funds in an
amount equal to the then aggregate Letter of Credit
Outstandings in the L/C Collateral Account in accordance with
Section 5.8 of the Credit Agreement;
Fourth, toward the satisfaction of the Currency Hedge
Obligations in the order agreed to by the Currency Hedge
Providers from time to time;
Fifth, subject to the provisions of the second
proviso of the first paragraph of Section 2, toward the
satisfaction of the Cash Management Obligations in the order
agreed to by the Cash Management Providers from time to time;
and
Sixth, any surplus to be paid to the Company, its
successors and assigns, or as a court of competent
jurisdiction may direct."
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 Nineteenth
Amendment Effective Date (as defined in the Nineteenth 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 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;
(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 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.
Section 3. Miscellaneous.
A. Reference to and Effect on the Company Security Agreement and the
Other Loan Documents.
(1) On and after the Nineteenth 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 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 & CHEMICAL BANK OF AMERICA, N.A. (successor to
CORPORATION BankAmerica Business Credit, Inc.), as Agent
By: By:
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: Assistant Treasurer Its: Vice President
EXHIBIT V
THIRD AMENDMENT TO SUBSIDIARY GUARANTY
THIS THIRD AMENDMENT TO SUBSIDIARY GUARANTY (this
"Amendment"), dated as of December 27, 2000, is by and between Akron Holding
Corporation, an Ohio corporation, Alpart Jamaica Inc., a Delaware corporation,
Xxxxxx Alumina Australia Corporation, a Delaware corporation, Xxxxxx Aluminium
International, Inc., a Delaware corporation, Xxxxxx Aluminum & Chemical
Investment, Inc., a Delaware corporation, Xxxxxx Aluminum Properties, Inc., a
Delaware corporation, Xxxxxx Aluminum Technical Services, Inc., a California
corporation, Xxxxxx Finance Corporation, a Delaware corporation, Kaiser Jamaica
Corporation, a Delaware corporation, Oxnard Forge Die Company, Inc., a
California corporation Xxxxxx Micromill Holdings, LLC, a limited liability
company organized under the laws of Delaware, Xxxxxx Sierra Micromills, LLC, a
limited liability company organized under the laws of Delaware, Xxxxxx Texas
Sierra Micromills, LLC, a limited liability company organized under the laws of
Texas, Texas Micromill Holdings, LLC, a limited liability company organized
under the laws of Texas, Xxxxxx Bellwood Corporation, a Delaware corporation,
and Kaiser Transaction Corp., a Delaware corporation (collectively, the
"Guarantors" and, individually, a "Guarantor"), and Bank of America, N.A.
(successor to BankAmerica Business Credit, Inc., a Delaware corporation), as
agent for the Secured Lenders (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 Nineteenth Amendment.
W I T N E S S E T H:
WHEREAS, Xxxxxx Aluminum & Chemical Corporation (the
"Company"), Xxxxxx 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, 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, 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, the Seventeenth
Amendment to Credit Agreement, dated as of September 24, 1999, and the
Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000 (the
"Credit Agreement"); and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Nineteenth Amendment to
Credit Agreement and Limited Waiver (the "Nineteenth Amendment"); and
WHEREAS, the Guarantors and the Agent 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 Second
Amendment to Subsidiary Guaranty, dated as of December 11, 1995, and Supplements
to Subsidiary Guaranty, dated as of June 25, 1997 and February 23, 1999 (the
"Subsidiary Guaranty"), and have agreed to amend the Subsidiary Guaranty 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 Subsidiary Guaranty.
Section 2.1(a) of the Subsidiary Guaranty is hereby amended to
read in its entirety as follows:
"(a) guarantee the due and prompt performance and payment in
full when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise and
at all times thereafter (including the payment of all amounts
that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a)) of any and all Obligations of the Parent
Guarantor, the Company and their respective Subsidiaries,
whether now existing or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated,
whether due or not due, whether for principal, interest
(including interest that, but for the filing of a petition in
bankruptcy with respect to the Parent Guarantor, the Company
or any of their respective Subsidiaries, would accrue on such
Obligations), fees, expenses, indemnities, or otherwise, and
however arising, under the Credit Agreement, the other Loan
Documents and the Currency Hedge Agreements and in connection
with the Cash Management Services, including those arising
under successive borrowing transactions under the Credit
Agreement which shall either continue the Obligations of the
Company or from time to time renew them after they have been
satisfied (the 'Company Obligations'); and"
Section 2. 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 represents and warrants to each Lender and the Agent that, as of the
Nineteenth Amendment Effective Date (as defined in the Nineteenth 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 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 and have been duly authorized by all
necessary corporate action 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;
(2) contravene the Senior Indenture, the New
Senior Indenture, the Additional 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 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 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 3. Miscellaneous.
A. Reference to and Effect on the Subsidiary Guaranty and the
Other Loan Documents.
(1) On and after the Nineteenth Amendment Effective Date,
each reference in the Subsidiary Guaranty to "this Guaranty", "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 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.
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, XXXXXX ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION KAISER TRANSACTION CORP.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), as Agent
By:
Name Printed:
Its:
EXHIBIT VI
FOURTH AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
(this "Amendment"), dated as of December 27, 2000, is by and among Akron Holding
Corporation, an Ohio corporation, Xxxxxx Alumina Australia Corporation, a
Delaware corporation, Xxxxxx Aluminium International, Inc., a Delaware
corporation, Xxxxxx Aluminum & Chemical Investment, Inc., a Delaware
corporation, Xxxxxx Aluminum Properties, Inc., a Delaware corporation, Xxxxxx
Aluminum Technical Services, Inc., a California corporation, Xxxxxx Finance
Corporation, a Delaware corporation, Oxnard Forge Die Company, Inc., a
California corporation, Xxxxxx Micromill Holdings, LLC, a limited liability
company organized under the laws of Delaware, Xxxxxx Sierra Micromills, LLC, a
limited liability company organized under the laws of Delaware, Xxxxxx Texas
Sierra Micromills, LLC, a limited liability company organized under the laws of
Texas, Xxxxxx Texas Micromill Holdings, LLC, a limited liability company
organized under the laws of Texas, Xxxxxx Bellwood Corporation, a Delaware
corporation, and Kaiser Transaction Corp., a Delaware corporation (collectively,
the "Kaiser Subsidiaries" and individually a "Kaiser Subsidiary"), and Bank of
America, N.A. (successor to BankAmerica Business Credit, Inc., a Delaware
corporation), as agent for the Secured Lenders (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 Nineteenth Amendment.
W I T N E S S E T H:
WHEREAS, 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 (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, 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, the
Seventeenth Amendment to Credit Agreement, dated as of September 24, 1999, and
the Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000 (the
"Credit Agreement"); and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Nineteenth Amendment to
Credit Agreement and Limited Waiver (the "Nineteenth Amendment"); and
WHEREAS, the 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 Second Amendment to Subsidiary Security Agreement, dated as of
December 11, 1995, the Third Amendment to Subsidiary Security Agreement, dated
as of April 21, 1997, and Supplements to Subsidiary Security Agreement, dated as
of June 25, 1997 and February 23, 1999 (the "Subsidiary Security Agreement"),
and have agreed to amend the Subsidiary 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 Subsidiary Security Agreement.
A. Section 2 of the Subsidiary Security
Agreement is hereby amended by adding the following as the second
proviso of the first paragraph thereof:
"; provided further that, notwithstanding anything in this
Agreement or in any other Loan Document to the contrary, (i)
with respect to any Cash Management Obligation constituting
Indebtedness (as defined in the Senior Indenture, the New
Senior Indenture or the Additional New Senior Indentures), the
Collateral shall not include any U.S. Fixed Assets (as defined
in the Senior Indenture, the New Senior Indenture or the
Additional New Senior Indentures) and (ii) no Proceeds of any
U.S. Fixed Assets, or of the disposition by the Agent of any
U.S. Fixed Assets, shall be applied toward the satisfaction of
any Cash Management Obligations constituting Indebtedness (as
defined in the Senior Indenture, the New Senior Indenture or
the Additional New Senior Indentures)."
B. Clause (a)(iii) of Section 11 of the
Subsidiary Security Agreement is hereby amended by amending the final
sentence thereof to read in its entirety as follows:
"Any Proceeds of any Collateral, or of the disposition by the
Agent of any of the Collateral (including benefits to the
extent provided in Section 19 hereof), shall be applied by the
Agent, in the following order of priority:
First, to payment of the costs and expenses of such
disposition, including the reasonable costs and out-of-pocket
expenses of the Agent and attorneys' fees and costs and
out-of-pocket expenses of counsel (including allocated costs
of in-house counsel) employed in connection therewith and to
the payment of all advances made by the Agent for the account
of any Kaiser Subsidiary hereunder and the payment of all
reasonable costs and out-of-pocket expenses incurred by the
Agent in connection with the administration and enforcement of
this Agreement, to the extent that such advances, costs, and
expenses shall not have been reimbursed to the Agent;
Second, toward the satisfaction of the Secured
Obligations other than Obligations in respect of principal and
Reimbursement Obligations, Currency Hedge Obligations and Cash
Management Obligations;
Third, toward the satisfaction of the Secured
Obligations in respect of principal and Reimbursement
Obligations, including the deposit of available funds in an
amount equal to the then aggregate Letter of Credit
Outstandings in the L/C Collateral Account in accordance with
Section 5.8 of the Credit Agreement;
Fourth, toward the satisfaction of the Currency Hedge
Obligations in the order agreed to by the Currency Hedge
Providers from time to time;
Fifth, subject to the provisions of the second
proviso of the first paragraph of Section 2, toward the
satisfaction of the Cash Management Obligations in the order
agreed to by the Cash Management Providers from time to time;
and
Sixth, any surplus to be paid to such Kaiser
Subsidiary, its successors and assigns, or as a court of
competent jurisdiction may direct."
Section 2. 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 represents and warrants to each Lender and the Agent that, as of the
Nineteenth Amendment Effective Date (as defined in the Nineteenth 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 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, the New
Senior Indenture, the Additional 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 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.
Section 3. Miscellaneous.
A. Reference to and Effect on the Subsidiary Security
Agreement and the Other Loan Documents.
(1) On and after the Nineteenth 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.
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.
BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), as Agent
By:
Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President
AKRON HOLDING CORPORATION XXXXXX ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX ALUMINUM PROPERTIES, XXXXXX ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
OXNARD FORGE DIE COMPANY, INC. XXXXXX ALUMINIUM
INTERNATIONAL, INC.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER ALUMINA AUSTRALIA XXXXXX FINANCE CORPORATION
CORPORATION
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX MICROMILL HOLDINGS, LLC XXXXXX SIERRA MICROMILLS, LLC
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
XXXXXX BELLWOOD CORPORATION KAISER TRANSACTION CORP.
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
EXHIBIT VII
RECORDING REQUESTED BY:
EXHIBIT VII
AND WHEN RECORDED MAIL TO:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
(File No. 019,368-663)
THIRD AMENDMENT TO DEED OF TRUST WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS THIRD AMENDMENT TO DEED OF TRUST WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT (this "THIRD AMENDMENT") is made as of December 27, 2000 by and
between XXXXXX ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation
("TRUSTOR"), whose address is 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx Xxxxx 00000,
and BANK OF AMERICA, N.A. (successor to BankAmerica Business Credit, Inc., a
Delaware corporation) ("BANK OF AMERICA"), as agent for the Secured Lenders,
having an office at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
(Bank of America, in its capacity as agent for the Secured Lenders, shall be
referred to hereinafter as "BENEFICIARY").
R E C I T A L S :
A. Pursuant to that certain Credit Agreement, dated as of
February 15, 1994 (the "CREDIT AGREEMENT") between Trustor, Xxxxxx Aluminum
Corporation, a Delaware corporation ("PARENT GUARANTOR"), Bank of America and
various other financial institutions named therein (which financial
institutions, together with Bank of America in its capacity as lender, shall be
referred to hereinafter collectively as "BANK LENDERS") and Beneficiary, Bank
Lenders agreed to make certain revolving loans and other financial commitments
to Trustor (the "LOANS"). Except as otherwise provided in this Third Amendment,
all initially capitalized terms used herein without definition shall have the
same meaning as in the Credit Agreement, as amended.
B. The Loans are secured by, among other things, that certain
Deed of Trust with Power of Sale, Assignment of Leases and Rents, Security
Agreement, Fixture Filing and Financing Statement dated as of February 15, 1994,
executed by Trustor, as trustor, to Chicago Title Insurance Company, as trustee,
for the benefit of Beneficiary as agent of Bank Lenders, as beneficiary, and
recorded on __________ in the Official Records of _________ County, __________
at Volume _____, Page _____ (the "ORIGINAL DEED OF TRUST"), as amended by the
First Amendment to Deed of Trust with Power of Sale, Assignment of Leases and
Rents, Security Agreement, Fixture Filing and Financing Statement (the "FIRST
AMENDMENT") dated as of July 21, 1994 and recorded on __________ in the Official
Records of _________ County, __________ as Instrument _____, Volume _____, Page
_____ and the Second Amendment to Deed of Trust with Power of Sale, Assignment
of Leases and Rents, Security Agreement, Fixture Filing and Financing Statement
(the "SECOND AMENDMENT") dated as of March 10, 1995 and recorded on __________
in the Official Records of __________County, _________ as Instrument _____,
Volume ____, Page __ (as so amended, the "DEED OF TRUST").
C. The Deed of Trust encumbers that certain real property
located in __________ County, _________ as more particularly described in
Exhibit A, attached hereto, and by this reference incorporated herein.
D. Concurrently herewith, Trustor, Parent Guarantor and Bank
Lenders have agreed to amend the Credit Agreement to, among other things, permit
the Cash Management Providers (as defined in the Credit Agreement) to provide
Cash Management Services (as defined in the Credit Agreement) to Trustor and
provide that Trustor's obligations in respect thereof shall be secured by the
Deed of Trust, all as set forth in that certain Nineteenth Amendment to Credit
Agreement and Limited Waiver dated of even date herewith by and between Trustor,
Parent Guarantor, Lenders and Beneficiary (the "NINETEENTH CREDIT AGREEMENT
AMENDMENT").
E. Trustor and Beneficiary desire to amend the Deed of Trust
to reflect and evidence the amendments and modifications set forth in the
Nineteenth Credit Agreement Amendment.
NOW, THEREFORE, with reference to the foregoing Recitals and
for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Trustor and Beneficiary further agree as follows:
1. The definitions of "Lenders" and "Secured
Obligations" set forth in Exhibit C of the Deed
of Trust shall be amended to read in their
entirety as follows:
"'Lender' and 'Lenders' shall mean the Bank Lenders,
the Currency Hedge Providers (as defined in the Credit
Agreement) and the Cash Management Providers (as defined in
the Credit Agreement)."
"'Secured Obligations' means (A) all Obligations,
whether now existing or hereafter arising, of Trustor under or
in connection with the Credit Agreement or any other Loan
Documents, (B) all Obligations, whether now existing or
hereafter arising, of Trustor under or in connection with the
Currency Hedge Agreements (as defined in the Credit Agreement)
and (C) all Obligations, whether now existing or hereafter
arising, of Trustor arising in connection with the Cash
Management Services (as defined in the Credit Agreement),
whether for advances, costs, fees, expenses, or otherwise;
provided, however, that the Secured Obligations shall not
include any Cash Management Obligation (as defined in the
Credit Agreement) constituting Indebtedness (as defined in the
Senior Indenture (as defined in the Credit Agreement), the
Additional New Senior Indenture (as defined in the Credit
Agreement) or the New Senior Indentures (as defined in the
Credit Agreement))."
2. Section 3.9 of the Deed of Trust is hereby
amended to read in its entirety as follows:
First, to payment of the costs and expenses of
disposing of the Collateral and realizing Proceeds, including
the reasonable costs and out-of-pocket expenses of Beneficiary
and the Lenders, and attorneys' fees and costs and
out-of-pocket expenses of counsel employed in connection
therewith and to the payment of all advances made by
Beneficiary and the Lenders for the account of Trustor
hereunder and the payment of all reasonable costs and
out-of-pocket expenses incurred by Beneficiary in connection
with the administration and enforcement, and by any Lender in
connection with the enforcement, of this Deed of Trust, to the
extent that such advances, costs, and expenses shall not have
been reimbursed to Beneficiary or the Lenders, as the case may
be;
Second, toward the satisfaction of the Secured
Obligations other than Obligations in respect of principal and
Reimbursement Obligations, Currency Hedge Obligations and Cash
Management Obligations;
Third, toward the satisfaction of the Secured
Obligations in respect of principal and Reimbursement
Obligations, including the deposit of available funds in an
amount equal to the then aggregate Letter of Credit
Outstandings in the L/C Collateral Account in accordance with
Section 5.8 of the Credit Agreement;
Fourth, toward the satisfaction of the Currency Hedge
Obligations in the order agreed to by the Currency Hedge
Providers from time to time;
Fifth, toward the satisfaction of the Cash Management
Obligations that constitute Secured Obligations in the order
agreed to by the Cash Management Providers from time to time;
and
Sixth, any surplus to be paid to the Trustor, its
successors and assigns, or as a court of competent
jurisdiction may direct.
3. Trustor's obligations
evidenced by the Credit Agreement, as
amended by the Nineteenth Credit Agreement
Amendment, shall continue to be secured by
the Deed of Trust. Except as amended by this
Third Amendment, the Deed of Trust shall
remain unmodified and in full force and
effect. The parties hereto hereby ratify and
confirm the Deed of Trust as amended hereby.
4. It is the intent of
each of the parties hereto that the Deed of
Trust, as modified and amended by the First
Amendment, the Second Amendment and this
Third Amendment, shall have and retain the
priority established at the time of its
original recordation on February 18, 1994
(the "ORIGINAL RECORDING DATE"). To the
extent that any court of law or equity
determines that the priority of this Third
Amendment may not relate back to the
Original Recording Date, then (i) this Third
Amendment shall be bifurcated from the Deed
of Trust such that the obligations of
Trustor with respect to the Cash Management
Services, secured by this Third Amendment,
shall have such priority as is established
at the time of recordation of this Third
Amendment in the Official Records of
__________ County, ______, and (ii) the Deed
of Trust, as unamended by this Third
Amendment, shall continue to secure the
obligations of Trustor under the Credit
Agreement, as unamended by the Nineteenth
Credit Agreement Amendment, and the other
Secured Obligations set forth in the Deed of
Trust, and shall continue to have the
priority described in paragraph 2 of the
Second Amendment. In no event shall this
Third Amendment destroy, impair or otherwise
affect the priority of the Deed of Trust
established on the Original Recording Date.
5. This Third Amendment
shall be governed by and construed in
accordance with the laws in the State of
______ without giving effect to the conflict
of law principles of said State.
6. This Third Amendment
may be executed in counterparts, each of
which shall be deemed an original, but all
of which when taken together shall
constitute one and the same instrument. The
signature page of any counterpart may be
detached therefrom without impairing the
legal effect of the signature(s) thereon and
attached to any other counterpart identical
thereto except having additional signature
pages attached to it.
7. In the event of any
inconsistencies between the provisions of
this Third Amendment and the provisions of
the Deed of Trust, the provisions of this
Third Amendment shall govern and prevail.
8. The relationship of
Trustor and Beneficiary with respect to the
Loans and the matters set forth herein is
that of creditor and debtor respectively and
by virtue of entering into the Third Credit
Agreement Amendment and performing their
respective obligations thereunder, Trustor
and Beneficiary do not intend to form a
partnership or joint venture or any other
relationship other than that of creditor and
debtor respectively.
IN WITNESS WHEREOF, the duly authorized representatives of
Trustor and Beneficiary have executed this Third Amendment as of the date first
above written.
"TRUSTOR"
XXXXXX ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer
"BENEFICIARY"
BANK OF AMERICA, N.A. (successor to BankAmerica
Business Credit, Inc., a Delaware corporation)
By:
Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President
ACKNOWLEDGEMENTS
STATE OF ___________________ )
)
COUNTY OF __________________ )
On December __, 2000, before me, _____________________, a
Notary Public in and for said State, personally appeared
______________________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
STATE OF ___________________ )
)
COUNTY OF __________________ )
On December __, 2000, before me, _____________________, a
Notary Public in and for said State, personally appeared
______________________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature________________________________ (Seal)
Signature________________________________ (Seal)
EXHIBIT VIII
RECORDING REQUESTED BY:
EXHIBIT VIII
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
(File No. 019,368-663)
THIRD AMENDMENT TO MORTGAGE WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS THIRD AMENDMENT TO MORTGAGE WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT (this "THIRD AMENDMENT") is made as of December 27, 2000 by and
between XXXXXX ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation
("MORTGAGOR"), whose address is 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx Xxxxx
00000, and BANK OF AMERICA, N.A. (successor to BankAmerica Business Credit,
Inc., a Delaware corporation) ("BANK OF AMERICA"), as agent for the Secured
Lenders, having an office at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 (Bank of America, in its capacity as agent for the Secured
Lenders, shall be referred to hereinafter as "MORTGAGEE").
R E C I T A L S :
A. Pursuant to that certain Credit Agreement dated as of
February 15, 1994 (the "CREDIT AGREEMENT") between Mortgagor, Xxxxxx Aluminum
Corporation, a Delaware corporation ("PARENT GUARANTOR"), Bank of America and
various other financial institutions named therein (which financial
institutions, together with Bank of America in its capacity as lender, shall be
referred to hereinafter collectively as "BANK LENDERS") and Mortgagee, Bank
Lenders agreed to make certain revolving loans and other financial commitments
to Mortgagor (the "LOANS"). Except as otherwise provided in this Third
Amendment, all initially capitalized terms used herein without definition shall
have the same meaning as in the Credit Agreement, as amended.
B. The Loans are secured by, among other things, that certain
Mortgage with Power of Sale, Assignment of Leases and Rents, Security Agreement,
Fixture Filing and Financing Statement dated as of February 15, 1994, executed
by Mortgagor, as mortgagor, to Mortgagee as agent of Bank Lenders, as mortgagee,
and recorded on __________ in the Official Records of __________ County,
__________ at Volume _____, Page _____ (the "ORIGINAL MORTGAGE"), as amended by
the First Amendment to Mortgage with Power of Sale, Assignment of Leases and
Rents, Security Agreement, Fixture Filing and Financing Statement (the "FIRST
AMENDMENT") dated as of July 21, 1994 and recorded on __________ in the Official
Records of _________ County, __________ as Instrument __________, Volume _____,
Page _____ and the Second Amendment to Mortgage with Power of Sale, Assignment
of Leases and Rents, Security Agreement, Fixture Filing and Financing Statement
(the "SECOND AMENDMENT") dated as of March 10, 1995 and recorded on __________
in the Official Records of __________ County, __________ as Instrument _____,
Volume ____, Page __ (as so amended, the "MORTGAGE").
C. The Mortgage encumbers that certain real property located
in __________ County, __________ as more particularly described in Exhibit A,
attached hereto, and by this reference incorporated herein.
D. Concurrently herewith, Mortgagor, Parent Guarantor and Bank
Lenders have agreed to amend the Credit Agreement to, among other things, permit
the Cash Management Providers (as defined in the Credit Agreement) to provide
Cash Management Services (as defined in the Credit Agreement) to Mortgagor and
provide that Mortgagor's obligations in respect thereof shall be secured by the
Mortgage, all as set forth in that certain Nineteenth Amendment to Credit
Agreement dated of even date herewith by and between Mortgagor, Parent
Guarantor, Lenders and Mortgagee (the "NINETEENTH CREDIT AGREEMENT AMENDMENT").
E. Mortgagor and Mortgagee desire to amend the Mortgage to
reflect and evidence the amendments and modifications set forth in the
Nineteenth Credit Agreement Amendment.
NOW, THEREFORE, with reference to the foregoing Recitals and
for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor and Mortgagee further agree as follows:
1. The definitions of "Lenders" and "Secured Obligations" set
forth in Exhibit C of the Mortgage shall be amended to read in their
entirety as follows:
"'Lender' and 'Lenders' shall mean the Bank Lenders, the
Currency Hedge Providers (as defined in the Credit Agreement)
and the Cash Management Providers (as defined in the Credit
Agreement)."
"'Secured Obligations' means (A) all Obligations, whether
now existing or hereafter arising, of Mortgagor under or in
connection with the Credit Agreement or any other Loan
Documents, (B) all Obligations, whether now existing or
hereafter arising, of Mortgagor under or in connection with
the Currency Hedge Agreements (as defined in the Credit
Agreement) and (C) all Obligations, whether now existing or
hereafter arising, of Mortgagor arising in connection with
the Cash Management Services (as defined in the Credit
Agreement), whether for advances, costs, fees, expenses, or
otherwise; provided, however, that the Secured Obligations
shall not include any Cash Management Obligation (as defined
in the Credit Agreement) constituting Indebtedness (as
defined in the Senior Indenture (as defined in the Credit
Agreement), the Additional New Senior Indenture (as defined
in the Credit Agreement) or the New Senior Indentures (as
defined in the Credit Agreement))."
2. Section 3.9 of the Mortgage is hereby amended to read in
its entirety as follows:
First, to payment of the costs and expenses of
disposing of the Collateral and realizing Proceeds, including
the reasonable costs and out-of-pocket expenses of Mortgagee
and the Lenders, and attorneys' fees and costs and
out-of-pocket expenses of counsel employed in connection
therewith and to the payment of all advances made by Mortgagee
and the Lenders for the account of Mortgagor hereunder and the
payment of all reasonable costs and out-of-pocket expenses
incurred by Mortgagee in connection with the administration
and enforcement, and by any Lender in connection with the
enforcement, of this Mortgage, to the extent that such
advances, costs, and expenses shall not have been reimbursed
to Mortgagee or the Lenders, as the case may be;
Second, toward the satisfaction of the Secured Obligations
other than Obligations in respect of principal and
Reimbursement Obligations, Currency Hedge Obligations and Cash
Management Obligations;
Third, toward the satisfaction of the Secured Obligations
in respect of principal and Reimbursement Obligations,
including the deposit of available funds in an amount equal to
the then aggregate Letter of Credit Outstandings in the L/C
Collateral Account in accordance with Section 5.8 of the
Credit Agreement;
Fourth, toward the satisfaction of the Currency Hedge
Obligations in the order agreed to by the Currency Hedge
Providers from time to time;
Fifth, toward the satisfaction of the Cash Management
Obligations that constitute Secured Obligations in the order
agreed to by the Cash Management Providers from time to time;
and
Sixth, any surplus to be paid to the Mortgagor, its
successors and assigns, or as a court of competent
jurisdiction may direct.
3. Mortgagor's obligations evidenced by the Credit Agreement, as
amended by the Nineteenth Credit Agreement Amendment, shall continue to be
secured by the Mortgage. Except as amended by this Third Amendment, the Mortgage
shall remain unmodified and in full force and effect. The parties hereto hereby
ratify and confirm the Mortgage as amended hereby.
4. It is the intent of each of the parties hereto that the
Mortgage, as modified and amended by the First Amendment, the Second Amendment
and this Third Amendment, shall have and retain the priority established at the
time of its original recordation on February 18, 1994 (the "ORIGINAL RECORDING
DATE"). To the extent that any court of law or equity determines that the
priority of this Third Amendment may not relate back to the Original Recording
Date, then (i) this Third Amendment shall be bifurcated from the Mortgage such
that the obligations of Mortgagor with respect to the Cash Management Services,
secured by this Third Amendment, shall have such priority as is established at
the time of recordation of this Third Amendment in the Official Records of _____
County, ___, and (ii) the Mortgage, as unamended by this Third Amendment, shall
continue to secure the obligations of Mortgagor under the Credit Agreement, as
unamended by the Nineteenth Credit Agreement Amendment, and the other Secured
Obligations set forth in the Mortgage, and shall continue to have the priority
described in paragraph 2 of the Second Amendment. In no event shall this Third
Amendment destroy, impair or otherwise affect the priority of the Mortgage
established on the Original Recording Date.
5. This Third Amendment shall be governed by and construed in
accordance with the laws in the State of ___ without giving effect to the
conflict of law principles of said State.
6. This Third Amendment may be executed in counterparts, each
of which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument. The signature page of any counterpart
may be detached therefrom without impairing the legal effect of the signature(s)
thereon and attached to any other counterpart identical thereto except having
additional signature pages attached to it.
7. In the event of any inconsistencies between the provisions
of this Third Amendment and the provisions of the Mortgage, the provisions of
this Third Amendment shall govern and prevail.
8. The relationship of Mortgagor and Mortgagee with respect to
the Loans and the matters set forth herein is that of creditor and debtor
respectively and by virtue of entering into the Third Credit Agreement Amendment
and performing their respective obligations thereunder, Mortgagor and Mortgagee
do not intend to form a partnership or joint venture or any other relationship
other than that of creditor and debtor respectively.
IN WITNESS WHEREOF, the duly authorized representatives of
Mortgagor and Mortgagee have executed this Third Amendment as of the date first
above written.
"MORTGAGOR"
XXXXXX ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer
"MORTGAGEE"
BANK OF AMERICA, N.A. (successor to BankAmerica
Business Credit, Inc., a Delaware corporation)
By:
Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President
ACKNOWLEDGEMENTS
STATE OF ___________________ )
)
COUNTY OF __________________ )
On December __, 2000, before me, _____________________, a
Notary Public in and for said State, personally appeared
______________________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
STATE OF ___________________ )
)
COUNTY OF __________________ )
On December __, 2000, before me, _____________________, a
Notary Public in and for said State, personally appeared
______________________________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT IX
SECOND AMENDMENT TO INTERCOMPANY NOTE PLEDGE AGREEMENT
THIS SECOND AMENDMENT TO INTERCOMPANY NOTE PLEDGE AGREEMENT
(this "Amendment"), dated as of December 27, 2000, is by and among Xxxxxx Export
Company, a California corporation, and Xxxxxx Bauxite Company, a Nevada
corporation, (collectively, the "Pledgors" and, individually, a "Pledgor"), and
Bank of America, N.A. (successor to BankAmerica Business Credit, Inc., a
Delaware corporation), as agent for the Secured Lenders (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 Nineteenth Amendment.
W I T N E S S E T H:
WHEREAS, Xxxxxx Aluminum & Chemical Corporation (the
"Company"), Xxxxxx 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, 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, the
Seventeenth Amendment to Credit Agreement, dated as of September 24, 1999, and
the Eighteenth Amendment to Credit Agreement, dated as of February 11, 2000 (the
"Credit Agreement"); and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Nineteenth Amendment to
Credit Agreement and Limited Waiver (the "Nineteenth Amendment"); and
WHEREAS, the Pledgors and the Agent are parties to the
Intercompany Note Pledge Agreement, dated as of February 15, 1994, as amended by
the First Amendment to Intercompany Note Pledge Agreement, dated as of July 21,
1994 (the "Intercompany Note Pledge Agreement"), and have agreed to amend the
Intercompany Note Pledge 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 Intercompany Note Pledge Agreement.
Section 2.3 of the Intercompany Note Pledge Agreement is
amended to read in its entirety as follows:
"SECTION 2.3. Secured Obligations. This Agreement secures, and
the Collateral is collateral security for, the prompt payment
or performance in full when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand, or
otherwise (including the payment of amounts that would become
due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)) of, all
Obligations of the Parent Guarantor, the Company, and their
respective Subsidiaries, whether now existing or hereafter
arising under or in connection with the Credit Agreement or
any other Loan Document, all Obligations of the Company now
existing or hereafter arising under or in connection with the
Currency Hedge Agreements, all Obligations of the Company now
existing or hereafter arising in connection with the Cash
Management Services, and any and all extensions or renewals,
thereof, whether for principal, interest (including interest
that, but for the filing of a petition in bankruptcy with
respect to the Parent Guarantor, the Company or any of their
respective Subsidiaries, would accrue on such Obligations),
reimbursements of amounts drawn under Letters of Credit, fees,
expenses, indemnities, or otherwise, whether voluntary or
involuntary, direct or indirect, absolute or contingent,
liquidated or unliquidated, whether or not jointly owed with
others, whether or not from time to time decreased or
extinguished and later increased, created, or incurred, and
all or any portion of such Obligations that are paid, to the
extent all or any part of such payment is avoided or recovered
directly or indirectly from the Agent or any Secured Lender as
a preference, fraudulent transfer, or otherwise, and any and
all Obligations of any Pledgor now or hereafter existing under
this Agreement, whether for advances, costs, fees, expenses,
or otherwise (collectively, the 'Secured Obligations')."
Section 2. Pledgors' Representations and Warranties.
In order to induce the Agent to enter into this Amendment and
to amend the Intercompany Note Pledge Agreement in the manner provided herein,
and to induce the Required Lenders to consent to such action by the Agent, each
Pledgor represents and warrants to each Lender and the Agent that, as of the
Nineteenth Amendment Effective Date (as defined in the Nineteenth 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 such Pledgor and the performance of the
Intercompany Note Pledge Agreement as amended by this Amendment (the "Amended
Agreement") by such Pledgor are within such Pledgor's corporate powers and have
been duly authorized by all necessary corporate action 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;
(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 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 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 3. Miscellaneous.
A. Reference to and Effect on the Intercompany Note Pledge Agreement and
the Other Loan Documents.
(1) On and after the Nineteenth Amendment Effective
Date, each reference in the Intercompany Note Pledge Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import referring to
the Intercompany Note Pledge Agreement, and each reference in the other Loan
Documents to the "Intercompany Note Pledge Agreement", "thereunder", "thereof"
or words of like import referring to the Intercompany Note Pledge Agreement
shall mean and be a reference to the Amended Agreement.
(2) Except as specifically amended by this Amendment,
the Intercompany Note 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 Intercompany Note 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 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 BAUXITE COMPANY XXXXXX EXPORT COMPANY
By: By:
Name Printed: Xxxxx X. Xxxxxxx Name Printed: Xxxxx X. Xxxxxxx
Its: Assistant Treasurer Its: Assistant Treasurer
BANK OF AMERICA, N.A. (successor to
BankAmerica Business Credit, Inc.), as Agent
By:
Name Printed:
Its:
