Exhibit 4.45 FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND POST-PETITION PLEDGE AND SECURITY AGREEMENT AND CONSENT OF GUARANTORS This FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND POST-PETITION PLEDGE AND SECURITY AGREEMENT AND CONSENT OF GUARANTORS (this "Amendment") is dated as of March 21, 2002 and entered into by and among KAISER ALUMINUM CORPORATION, a Delaware corporation, as debtor and debtor-in-possession (the "Parent Guarantor"), KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation, as debtor and debtor-in-possession (the "Borrower"), the banks and other financial institutions signatory hereto that are parties as Lenders to the Credit Agreement referred to below (the "Lenders"), BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacity, the "Agent") for the Lenders, GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital") as Documentation Agent, THE CIT GROUP/BUSINESS CREDIT, INC. ("CIT"), as Co-Syndication Agent, and FOOTHILL CAPITAL CORPORATION ("Foothill"), as Co-Syndication Agent (GE Capital, CIT and Foothill, collectively, the "Co-Agents"). RECITALS WHEREAS, the Parent Guarantor, the Borrower, the Lenders, and the Agent have entered into that certain Post-Petition Credit Agreement dated as of February 12, 2002 (the "Credit Agreement"; capitalized terms used in this Amendment without definition shall have the meanings given such terms in the Credit Agreement); and WHEREAS, the Agent has appointed the Co-Agents to serve in the capacities set forth above; and WHEREAS, the parties hereto wish to amend the Credit Agreement, on the terms and conditions set forth in this Amendment; NOW THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the Parent Guarantor, the Borrower, the Lenders, and the Agent agree as follows: 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions and upon the terms set forth in this Amendment, the Credit Agreement is hereby amended as follows: 1.1 AMENDMENTS TO SECTION 1.1 (DEFINITIONS). (a) The following definition is added to Section 1.1 of the Credit Agreement in proper alphabetical order: "Stores Inventory" means all goods (purchased, manufactured, or transferred in) in the nature of supply items which are not directly used in the manufacturing (production) or shipping (distribution) process and which are classified by the Debtors as "stores" consistent with past practice and the Debtors' Controller's Policy Manual. (b) The definition of "Borrowing Base" is amended to add the following before the final semicolon of clause (c) of such definition: "; provided further that, so long as the Company has by March 31, 2002 (i) approved the engagement by the Agent of an appraiser to perform such appraisals and (ii) provided to the Agent such information regarding Hazardous Materials and other environmental matters as the Agent requires in order to initially establish an Environmental Compliance Reserve with respect to the OLV In-Place Value (as contemplated under the definition thereof) of Eligible Fixed Assets, the PPE Subcomponent shall not be reduced to zero (as a result of the failure to deliver and approve such appraisals and environmental reports) until July 1, 2002". (c) The definition of "Collateral" is amended to add the following at the end of such definition: "The proceeds of any disposition of any equity interests in any Unsecured Guarantor, KAAC, QAL, KJBC, or the Mining JV, except to the extent noncash proceeds constitute Excluded Assets, shall constitute Collateral, even though the equity interests themselves are not Collateral." (d) The definition of "Eligible Account" is amended to add "and each Lender" in the first sentence thereof after the words "after consultation with the Company". (e) The definition of "Eligible Inventory" is amended to delete clause (d) and to replace it with the following: "(d) is not Stores Inventory, Tolling Inventory, or Inventory delivered to the Company, KAII or Kaiser Bellwood on consignment;" 1.2 AMENDMENT TO SECTION 2.1.2(A). Section 2.1.2(a) of the Credit Agreement is amended to delete the first sentence and to replace it with the following: "From time to time on any Business Day occurring during the period commencing on the Initial Borrowing Date and continuing to (but not including) the Revolving Commitment Termination Date, (i) so long as no Default or Event of Default has occurred and is continuing, Agent will make a portion of the Revolving Credit Commitment available to the Company by making Loans to the Company in an aggregate amount not to exceed $25,000,000 outstanding at any time and (ii) if a Default or Event of Default has occurred and is continuing, the Agent may, subject to Section 7.4, make a portion of the Revolving Credit Commitment available to the Company by making Loans to the Company in an aggregate amount not to exceed $15,000,000 outstanding at any time (Loans made under this Section 2.1.2(a)(i) and (ii) "Swingline Loans"), in each case notwithstanding the fact that such Swingline Loans may exceed the Agent's Revolving Credit Commitment; provided, however, that the Agent shall not make any Swingline Loan in an amount that would exceed the Revolving Commitment Availability. The Commitment of the Agent to make Swingline Loans from time to time under clause (i) above is herein referred to as its "Swingline Commitment"." 1.3 AMENDMENT TO SECTION 2.1.3. Section 2.1.3 of the Credit Agreement is amended to add after the phrase "Agent shall not be required to make" the parenthetical "(and may not make)". 1.4 AMENDMENT TO SECTION 2.5(A). Section 2.5(a) of the Credit Agreement is amended to add the following proviso at the end of such Section: "provided that the Agent and the Lenders shall seek payment of the Obligations from proceeds of any preferences, fraudulent conveyances, and other avoidance powers, claims and recoveries arising under Section 544, 545, 546, 547, 548, 549, 550 or 553 of the Bankruptcy Code only after all Collateral proceeds and other funds of the Obligors available for the payment of the Obligations have been exhausted;" 1.5 AMENDMENT TO SECTION 2.5(C). Section 2.5(c) of the Credit Agreement is amended to delete the phrase "all property of the Debtors" and to replace it with "all Property of the Debtors and their estates of every kind or type whatsoever, tangible, intangible, real, personal and mixed, whether now owned or hereafter acquired or arising, wherever located, and including without limitation, all property of the estates of each of the Debtors within the meaning of section 541 of the Bankruptcy Code and all proceeds, rents and products of the foregoing and all distributions thereon,". 1.6 AMENDMENT TO SECTION 3.3. Section 3.3 of the Credit Agreement is amended to add a new Section 3.3.4 as follows: "SECTION 3.3.4. APPLICATION OF PAYMENTS. Except as required by Section 3.3.1 or 3.3.2 (and notwithstanding any other provision in any other Loan Document governing the application of proceeds of Collateral, at any time during the continuance of an Event of Default), all amounts received by the Agent in respect of the Obligations, other than in respect of (i) principal of or interest then due on the Loans, (ii) reimbursements of Reimbursement Obligations, or (iii) specific fees or expenses or other amounts then due to the Agent and Lenders, shall be applied first, to pay any fees, indemnities or expense reimbursements then due to the Agent, costs and expenses of any realization on the Collateral and payments of advances made by the Agent in accordance with the Loan Documents; second, to pay any fees, indemnities or expense reimbursements then due to the Lenders from the Borrower; third, to pay interest then due in respect of Swingline Loans and Revolving Loans; fourth, to pay or prepay Swingline Loans; fifth, to pay or prepay principal of Revolving Loans and unpaid Reimbursement Obligations; sixth, to the extent required by Section 5.7, deposited in the L/C Collateral Account; and seventh, to the payment of all other Obligations, including Bank Product Obligations. Payments made to, or deposits in, the Concentration Account or other deposit accounts of Borrower maintained with Bank of America shall not constitute payments received by the Agent for purposes of this Section 3.3.4. If an Event of Cash Dominion has occurred and is continuing, but only so long as no Event of Default has occurred and is continuing, this Section 3.3.4 shall not apply and Section 3.3.2 shall be applicable; provided, however, that this Section 3.3.4 shall apply at all times during the continuance of an Event of Default." 1.7 AMENDMENT TO SECTION 4.7(A). Section 4.7(a) of the Credit Agreement is amended to delete the first clause in the fifth sentence and to replace it with "If the Agent fails to remit such funds to such Lender due to an inadvertent delay of no more than 3 Business Days,". 1.8 AMENDMENT TO SECTION 7.4. Section 7.4 of the Credit Agreement is amended to delete the second sentence thereof and to replace it with the following: "Notwithstanding the foregoing, the Lenders acknowledge and agree that during the continuance of a Default, unless and until the Agent receives written instructions from the Required Lenders during the continuance of a Default to cease making Swingline Loans and Revolving Loans and to cease instructing Issuer Banks to issue Letters of Credit, (a) if the Agent has determined, in the exercise of its reasonable business judgment, that it is in the best interests of the Lenders to continue to make Loans or issue Letters of Credit for the account of the Borrower, the Agent may waive the conditions of this Section 7.4 (other than 7.4.4) and continue to make Swingline Loans and instruct the applicable Issuer Bank to issue Letters of Credit notwithstanding the existence of a Default; provided, however, that the Agent may not make any Swingline Loan or cause to be issued any Letter of Credit in an amount that would exceed the Revolving Commitment Availability and that the Swingline Loans made and the Letters of Credit issued while such Default exists shall not exceed $15,000,000 at any time outstanding and (b) the Lenders shall be obligated to continue to make Revolving Loans and to reimburse the Agent for Swingline Loans made in accordance with clause (a) and shall be deemed to have purchased and received an undivided interest in Letters of Credit issued in accordance with clause (a)." 1.9 AMENDMENTS TO SECTION 9.1.3. Section 9.1.3 of the Credit Agreement is amended to add the following at the end of such Section: "; provided, however, that if the Borrower or any of its Subsidiaries fails to maintain its assets, as required by clause (a) (without giving effect to the three lines preceding this proviso), the condition of such assets may be taken into consideration in determining the OLV in Place Value of Eligible Fixed Assets for purposes of determining the PPE Subcomponent of the Borrowing Base or the establishment of Reserves with respect thereto (but only to the extent that such assets have been included in the PPE Subcomponent of the Borrowing Base), as the Agent determines in its commercially reasonable judgment." 1.10 AMENDMENT TO SECTION 9.2.2(B), SECTION 9.2.2(B) is amended to delete clause (i) and to replace it with the following: "(i) Indebtedness of a Debtor in an aggregate amount for all Debtors not to exceed $30,000,000, such Indebtedness to have terms and conditions satisfactory to the Required Lenders in their sole discretion and to be subordinated to the Obligations on terms satisfactory to the Required Lenders in their sole discretion;" 1.11 AMENDMENT TO SECTION 9.2.3, SECTION 9.2.3 is amended to delete clause (r) and to replace it with the following: "(r) Liens on Property of a Debtor (other than Excluded Assets) securing Indebtedness permitted under Section 9.2.2(b)(i), provided that any such Liens which encumber the Collateral shall be subordinated on terms satisfactory to the Required Lenders in their sole discretion to the Liens granted pursuant to the Loan Documents and shall be subject to intercreditor arrangements on terms satisfactory to the Required Lenders in their sole discretion;" 1.12 AMENDMENT TO SECTION 9.2.6. Section 9.2.6 of the Credit Agreement is amended to add the following after the words "except that" at the end of the introduction to clause (a): "to the extent permitted under the Bankruptcy Code or by order of the Bankruptcy Court" 1.13 AMENDMENT TO SECTION 9.2.11. Section 9.2.11 of the Credit Agreement is amended to add the following sentence at the end of such Section: "Further, notwithstanding the foregoing, or the provisions of Sections 9.2.10 or 9.2.18, the Company will not, and will not permit AJI or KJC to, sell any of the assets of AJI or KJC, including any partnership interests in ALPART, or liquidate, or dissolve AJI or KJC, or consolidate or merge AJI or KJC with any other entity, nor will it permit AJI or KJC or ALPART to sell any of the assets of ALPART, other than sales of Inventory in the ordinary course of business or liquidate or dissolve ALPART or merge or consolidate ALPART with any other entity." 1.14 AMENDMENT TO SECTION 10.1. Section 10.1 of the Credit Agreement is amended to add the following as Section 10.1.11: "SECTION 10.1.11. ACTIONS AGAINST UNSECURED GUARANTORS. Any creditor of any Unsecured Guarantor takes any action to collect or otherwise enforce any Indebtedness of any Unsecured Guarantor, or any rights, remedies or obligations under any documents creating or evidencing such Indebtedness, at law or in equity, including without limitation, making any demand for payment, bringing suit in any court or before any tribunal, seeking to attach property, perfect Liens or otherwise assert any security interests, Liens or claims (by setoff or otherwise), filing any involuntary petition against any Unsecured Guarantor under the Bankruptcy Code or taking any equivalent action under any other law affecting the rights of creditors, seeking to attach any assets of any Unsecured Guarantor, exercising any right of offset, or seeking any injunction under applicable laws." 1.15 ADDITION OF SECTION 11.11. A new Section 11.11 is added to the Credit Agreement to read as follows: "SECTION 11.11. THE CO-AGENTS. None of the Co-Agents shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders in their capacities as Lenders hereunder. Without limiting the foregoing, none of the Co-Agents shall be deemed to have a fiduciary relationship with any Lender or the Agent. Each Lender which becomes a party to this Agreement acknowledges that it has not relied, and will not rely, on any of the Co-Agents in deciding to enter into this Agreement or in taking or not taking action hereunder." 1.11 DELETION OF SECTION 12.1(B). Section 12.1(b) of the Credit Agreement is deleted in its entirety. 2. AMENDMENTS TO SECURITY AGREEMENT. Subject to the conditions and upon the terms set forth in this Amendment, the Security Agreement is hereby amended as follows: 2.1 AMENDMENT TO SECTION 14(A)(III). Section 14(a)(iii) of the Security Agreement is hereby amended to delete paragraph "Third" and to replace it with the following: "Third, toward the satisfaction of the Secured Obligations (not including Bank Product 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 the Credit Agreement;" 3. REPRESENTATIONS AND WARRANTIES OF PARENT GUARANTOR AND THE BORROWER. Each of the Parent Guarantor and the Borrower represents and warrants to each Lender and the Agent that the following statements are true, correct and complete: 3.1 POWER AND AUTHORITY. Each of the Parent Guarantor, Borrower and each other Obligor has all corporate or other organizational power and authority to enter into this Amendment and, as applicable, the Consent of Guarantors attached hereto (the "Consent"), and to carry out the transactions contemplated by, and to perform its obligations under or in respect of, the Credit Agreement, as amended hereby. 3.2 DUE AUTHORIZATION, NON-CONTRAVENTION. The execution, delivery and performance by the applicable Obligor of this Amendment and the Consent and the performance of the obligations of each Obligor under or in respect of the Credit Agreement as amended hereby have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene such Obligor's Organic Documents, (b) contravene any contractual restriction entered into after the Petition Date where such a contravention has a reasonable possibility of having a Materially Adverse Effect, or contravene any law or governmental regulation or court order binding on or affecting such Obligor, or (c) result in, or require the creation or imposition of, any Lien on any of such Obligor's properties. 3.3 EXECUTION, DELIVERY AND ENFORCEABILITY. This Amendment and the Consent have been duly executed and delivered by each Obligor which is a party thereto and constitute the legal, valid and binding obligations of such Obligor, enforceable in accordance with their terms. 3.4 NO DEFAULT OR EVENT OF DEFAULT. No event has occurred and is continuing or will result from the execution and delivery of this Amendment or the Consent that would constitute a Default or an Event of Default. 3.5 REPRESENTATIONS AND WARRANTIES. Each of the representations and warranties contained in the Loan Documents is and will be true and correct in all material respects on and as of the date hereof and as of the effective date of this Amendment, except to the extent that such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects as of such earlier date. 4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall be effective only if and when signed by, and when counterparts hereof shall have been delivered to the Agent (by hand delivery, mail or telecopy) by, the Parent Guarantor, the Borrower and the Required Lenders, and counterparts of the Consent have been delivered to the Agent by the Parent Guarantor and each Subsidiary Guarantor and this Amendment has been approved by the Bankruptcy Court in the Chapter 11 Cases, if such approval is required. 5. EFFECT OF AMENDMENT; RATIFICATION. This Amendment is a Loan Document. From and after the date on which this Amendment becomes effective, all references in the Loan Documents to the Credit Agreement or the Security Agreement shall mean the Credit Agreement or the Security Agreement, as applicable, each as amended hereby. Except as expressly amended hereby, the Credit Agreement and the other Loan Documents, including the Liens granted thereunder, shall remain in full force and effect, and all terms and provisions thereof are hereby ratified and confirmed. Each of the Parent Guarantor and the Borrower confirms that as amended hereby, each of the Loan Documents is in full force and effect. 6. APPLICABLE LAW. THE VALIDITY, INTERPRETATIONS AND ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. 7. COMPLETE AGREEMENT. This Amendment sets forth the complete agreement of the parties in respect of any amendment to any of the provisions of any Loan Document. The execution, delivery and effectiveness of this Amendment do not constitute a waiver of any Default or Event of Default, amend or modify any provision of any Loan Document except as expressly set forth herein or constitute a course of dealing or any other basis for altering the Obligations of any Obligor. 8. CAPTIONS; COUNTERPARTS. The catchlines and captions herein are intended solely for convenience of reference and shall not be used to interpret or construe the provisions hereof. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by telecopy), all of which taken together shall constitute but one and the same instrument. IN WITNESS WHEREOF, each of the undersigned has duly executed this First Amendment to Post-Petition Credit Agreement and Post-Petition Pledge and Security Agreement and Consent of Guarantors as of the date set forth above. "PARENT GUARANTOR" KAISER ALUMINUM CORPORATION By: /S/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer "BORROWER" KAISER ALUMINUM & CHEMICAL CORPORATION By: /S/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer BANK OF AMERICA, N.A., as the Agent and a Lender By: /S/ Richard Burke Name: Richard Burke Title: Sr. V.P. GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender By: /S/ Thomas G. Sullivan Name: Thomas G. Sullivan Title: Duly Authorized Signatory FOOTHILL CAPITAL CORPORATION, as a Lender By: /S/ Sanat Amladi Name: Sanat Amladi Title: AVP THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender By: /S/ Grant Weiss Name: Grant Weiss Title: Vice President CONSENT OF GUARANTORS Each of the undersigned is a Guarantor of the Obligations of the Borrower under the Credit Agreement and each other Loan Document and hereby (a) consents to the foregoing Amendment, (b) acknowledges that notwithstanding the execution and delivery of the foregoing Amendment, the obligations of each of the undersigned Guarantors are not impaired or affected and the Parent Guaranty and the Subsidiary Guaranty continue in full force and effect, and (c) ratifies the Parent Guaranty or the Subsidiary Guaranty, as applicable, and each of the Loan Documents to which it is a party and further ratifies the Security Interests granted by it to the Agent for its benefit and the benefit of the Secured Parties. IN WITNESS WHEREOF, each of the undersigned has executed and delivered this CONSENT OF GUARANTORS as of the date first set forth above. AKRON HOLDING CORPORATION By /S/ David A. Cheadle Title: Assistant Treasurer ALPART JAMAICA INC. By /S/ David A. Cheadle Title: Assistant Treasurer KAISER ALUMINA AUSTRALIA CORPORATION By /S/ David A. Cheadle Title: Assistant Treasurer KAISER BELLWOOD CORPORATION By /S/ David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM & CHEMICAL INVESTMENT, INC. By /S/ David A. Cheadle Title: Assistant Treasurer KAISER ALUMINIUM INTERNATIONAL, INC. By /S/ David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM PROPERTIES, INC. By /S/ David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM TECHNICAL SERVICES, INC. By /S/ David A. Cheadle Title: Assistant Treasurer KAISER FINANCE CORPORATION By /S/ David A. Cheadle Title: Assistant Treasurer KAISER JAMAICA CORPORATION By /S/ David A. Cheadle Title: Assistant Treasurer KAISER MICROMILL HOLDINGS, LLC By /S/ David A. Cheadle Title: Assistant Treasurer KAISER SIERRA MICROMILLS, LLC By /S/ David A. Cheadle Title: Assistant Treasurer KAISER TEXAS SIERRA MICROMILLS, LLC By /S/ David A. Cheadle Title: Assistant Treasurer KAISER TEXAS MICROMILL HOLDINGS, LLC By /S/ David A. Cheadle Title: Assistant Treasurer OXNARD FORGE DIE COMPANY, INC. By /S/ David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM CORPORATION By /S/ David A. Cheadle Title: Assistant Treasurer
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10-K Filing
Kaiser Aluminum & Chemical Inactive 10-K2001 FY Annual report
Filed: 12 Apr 02, 12:00am