Exhibit 10.2
Execution Version
OMNIBUS Amendment No. 1
This Omnibus Amendment No. 1 is dated as of March 31, 2021, and is among the Persons identified on the signature pages hereof as Lenders (which Lenders constitute the Required Lenders and, as applicable, all affected Lenders), Wells Fargo Bank, National Association, a national banking association (“Wells Fargo”), as agent for the Lenders (Wells Fargo, in that capacity, “Agent”), Kaiser Aluminum Corporation, a Delaware corporation (“KAC”), as a Borrower, and the Affiliates of KAC party to this agreement as Borrowers.
The Lenders, Agent, KAC, and the other Borrowers are party to a Credit Agreement dated as of October 30, 2019 (as amended, restated, supplemented, or otherwise modified before the date of this agreement, the “Credit Agreement”). The parties also desire to modify the Credit Agreement in certain respects.
The parties therefore agree as follows:
“(w) which (i) is sold pursuant to a Permitted Supplier Financing Transaction or (ii) is otherwise owing from a Permitted Supplier Financing Account Debtor; or
(x) which Agent otherwise determines in its Permitted Discretion is unacceptable for any reason whatsoever.”
“(i) which is located in any third party warehouse or is in the possession of a bailee or is being processed offsite at a third party location or outside processor or is in-transit to or from said third party location or outside processor unless (i) such warehouseman, bailee, or third party processor has delivered to Agent a Collateral Access Agreement on terms reasonably satisfactory to Agent or such other documentation as Agent may reasonably require (provided that subject to Agent’s right to establish and maintain appropriate Reserves in its Permitted Discretion, up to $25,000,000 of such Inventory may be included in the Borrowing Base even if Collateral Access Agreements and such other documentation as Agent may reasonably require have not been obtained with respect to such Inventory) or (ii) an appropriate Reserve has been established by Agent in its Permitted Discretion;
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(j) [Reserved];
(k) which is the subject of a consignment by such Borrower as consignor or which any Borrower has placed on consignment with another Person (other than a Person that is a third party processor of such Inventory, in which case such Inventory may be included as Eligible Inventory to the extent provided in clause (i) above);”
““KA Warrick” shall mean Kaiser Aluminum Warrick, LLC (f/k/a Alcoa Warrick LLC), a Delaware limited liability company.
“Permitted Supplier Financing Account Debtor” shall mean any of (i) Ardagh Group S.A. and its Subsidiaries, (ii) Ball Corporation, Ball Metal Beverage Mexico Holdings BV, Ball Packaging LLC, Ball Metal Beverage Container Corp. and Ball Beverage Can Americas S.A. de C.V.; (iii) Pepsico Inc. and its Subsidiaries and Affiliates located in USA and Canada, (iv) Crown Cork & Seal USA, Inc., Crown Metal Packaging Canada LP, Fabricas Monterrey S.A. de C.V., Crown Envases Mexico S.A. de C.V., Crown Famosa S.A. de C.V. and Crown Holdings, Inc., (v) Silgan Holdings Inc. and its Subsidiaries and Affiliates including, without limitation, Silgan Containers Corp. and (vi) any other Account Debtor of any Borrower approved in writing by Agent from time to time in the exercise of its Permitted Discretion at the written request of Administrative Borrower.
“Permitted Supplier Financing Transaction” shall mean any transaction in which any Borrower may, from time to time, sell to a financial buyer Accounts of such Borrower in the ordinary course of business on a non-recourse and true sale basis so long as (i) the Account Debtor of such Accounts is a Permitted Supplier Financing Account Debtor, (ii) such sale is made pursuant to documentation (including, without limitation, intercreditor arrangements) in form and substance reasonably satisfactory to Agent and (iii) each Deposit Account into which proceeds of each such Permitted Supplier Financing Transaction are deposited shall be identified in writing by the Administrative Borrower to Administrative Agent and shall be subject to a Control Agreement.”
“5.15 Permitted Supplier Financing Transaction. Each Loan Party shall cause all proceeds of each Permitted Supplier Financing Transaction to be deposited into a Deposit Account of a Borrower which is subject to a Control Agreement.”
“Subject to applicable Requirements of Law, each Loan Party shall cause each of its domestic Significant Subsidiaries formed or acquired after the date of this Agreement to
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become a Loan Party by executing a Joinder; provided that subject to compliance with the terms of Section 5.18(b), KA Warrick shall execute and deliver a Joinder no later than April 16, 2021.”
“(i) a sale or other disposition of Accounts in connection with a Permitted Supplier Financing Transaction; and
(j) sales, transfers and other dispositions of assets (other than the sale of Equity Interests that would result in a Change in Control) that are not permitted by any other part of this Section 6.5, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this Section 6.5(j) shall not exceed $50,000,000 during any Fiscal Year of KAC;
provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by Sections 6.5(b), 6.5(h), 6.5(i) and 6.5(j) above) (i) shall be made for fair value and (ii) at least 75% of the consideration therefor shall be in cash or assets that can be readily converted into cash without discount within 90 days thereafter, unless, with respect to this clause (ii), (x) such asset is not Collateral and (y) at the time the relevant asset sale, transfer, lease and other disposition occurs the Payment Condition is satisfied.”
“5.18 Post-Closing Obligations.
“(a) Within 30 days after the Closing Date (or such later date as Agent may agree in writing), the Loan Parties will deliver to Agent each of the following documents, in form and substance satisfactory to Agent, duly executed and delivered: (i) a master intercompany demand note between the Loan Parties and their Subsidiaries, and (ii) an intercompany subordination agreement between Agent and the Loan Parties and their Subsidiaries.
(b) On or prior to April 16, 2021 (or such later date as Agent may agree in writing), the Loan Parties will deliver to Agent each of the following documents, in form and substance satisfactory to Agent, duly executed and delivered (as applicable):
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(c) On or prior to April 16, 2021, the Loan Parties will use commercially reasonable efforts to deliver to Agent, in form and substance satisfactory to Agent, a Collateral Access Agreement for the Warrick County, Indiana facility.”
“Notwithstanding anything contained in this Agreement to the contrary, the term “Collateral” shall not include: (i) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of any Grantor if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement and such prohibition or restriction has not been waived or the consent of the other party to such contract, lease, permit, license, or license agreement has not been obtained (provided, that (A) the foregoing exclusion of this clause (i) shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, or (2) to apply to the extent that any consent or waiver has been obtained that would permit Agent’s security interest or lien to attach notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusion of this clause (i) shall in no way be construed to limit, impair, or otherwise affect any of Agent’s, any other member of the Lender Group’s or any Bank Product Provider’s continuing security interests in and liens upon any rights or interests of any Grantor in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, or license agreement, or (2) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, or license agreement), (ii) any Accounts arising out of the sale of goods or services by any Grantor to any Permitted Supplier Financing Account Debtor, together with all proceeds, supporting obligations and other ancillary rights with respect to such Accounts, which are sold and transferred by such Grantor pursuant to any Permitted Supplier Financing Transaction (provided, that the foregoing exclusion of this clause (ii) shall in no way be construed to apply to any right, title or interest in any proceeds of the sale of such Accounts or amounts otherwise paid or payable to or claims arising in favor of any Grantor pursuant to or in connection with any such Permitted Supplier Financing Transaction) or (iii) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided, that upon submission and acceptance by the PTO of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or
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any successor provision), such intent-to-use trademark application shall be considered Collateral.”
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[Signature pages to follow]
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The parties are signing this Omnibus Amendment No. 1 as of the date stated in the introductory clause.
Kaiser Aluminum Corporation, By: /s/ Neal West |
Kaiser Aluminum Investments Company, as a Borrower By: /s/ Neal West |
Kaiser Aluminum Fabricated Products, LLC, as a Borrower By: /s/ Neal West |
Kaiser Aluminum Washington, LLC, By: /s/ Neal West |
Signature page to Omnibus Amendment No. 1—Kaiser
Wells Fargo Bank, National Association,
as Agent and as a Lender
By: /s/ Moses Harris
Name: Moses Harris
Its Authorized Signatory
Signature page to Omnibus Amendment No. 1—Kaiser
JPMorgan Chase Bank, N.A.,
as a Lender
By: /s/ Kenneth Wong
Name: Kenneth Wong
Its Authorized Signatory
Signature page to Omnibus Amendment No. 1—Kaiser
Bank of America, N.A.,
as a Lender
By: /s/ James Fallahay
Name: James Fallahay
Its Authorized Signatory
Signature page to Omnibus Amendment No. 1—Kaiser
U.S. Bank National Association,
as a Lender
By: /s/ Rod Swenson
Name: Rod Swenson
Its Authorized Signatory
Signature page to Omnibus Amendment No. 1—Kaiser
Barclays Bank PLC – New York Branch,
as a Lender
By: /s/ Komal Ramkirath
Name: Komal Ramkirath
Assistant Vice President
Signature page to Omnibus Amendment No. 1—Kaiser