EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of July 21, 1994, is by and between KAISER
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ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation (the
"Company"), KAISER ALUMINUM CORPORATION, a Delaware corporation
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(the "Parent Guarantor"), the various financial institutions that
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are or may from time to time become parties to the Credit
Agreement referred to below (collectively, the "Lenders" and,
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individually, a "Lender"), and BANKAMERICA BUSINESS CREDIT, INC.,
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a Delaware corporation, as agent (in such capacity, together with
its successors and assigns in such capacity, the "Agent") for the
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Lenders. Capitalized terms used, but not defined, herein shall
have the meanings given to such terms in the Credit Agreement, as
amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders
and the Agent are parties to the Credit Agreement, dated as of
February 15, 1994 (the "Credit Agreement"); and
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WHEREAS, the parties hereto have agreed to amend the
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement.
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1.1 Amendment to List of Exhibits.
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The list of Exhibits is hereby amended by adding
thereto a reference to "Exhibit P-3 Equity Proceeds Note" after
the reference to "Exhibit P-2 Equity Proceeds Note" contained
therein and by adding a reference to "Exhibit T Agreement
Regarding Processing Arrangement" and a reference to "Exhibit U
Intercreditor Agreement" after the reference to "Exhibit S Flood
Plain Status Letter" contained therein.
1.2 Amendment to Recitals.
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The second recital to the Credit Agreement is hereby
amended by deleting the amount "$250,000,000" in the fourth line
thereof and by replacing such amount with the amount
"$275,000,000".
1.3 Amendments to Article I: Definitions and
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Accounting Terms.
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A. Clause (b) of the definition of "Borrowing Base"
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contained in Section 1.1 of the Credit Agreement is hereby
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amended by deleting the amount "$175,000,000" in the first line
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thereof and by replacing such amount with the amount
"$200,000,000".
B. The definition of "Borrowing Base Certificate"
contained in Section 1.1 of the Credit Agreement is hereby
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amended by adding the following thereto immediately preceding the
period in the fourth line thereof: ", with such changes therein
as the Agent and the Company may from time to time agree upon for
purposes of monitoring the Borrowing Base".
C. Clause (a) of the definition of "Cash Equivalent
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Investment" contained in Section 1.1 of the Credit Agreement is
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hereby amended by adding the following thereto immediately
preceding the semi-colon in the third line thereof: "or issued
by any of the following Federal agencies: the Federal Home Loan
Mortgage Corporation, the Federal Home Loan Bank System, the Farm
Credit System (including, but not limited to, the Farm Credit
Banks and Banks for Cooperatives), and the Federal National
Mortgage Association".
D. Clause (b)(i) of the definition of "Cash
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Equivalent Investment" contained in Section 1.1 of the Credit
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Agreement is hereby amended by deleting the words "a member of
the Federal Reserve System" in the first and second lines thereof
and by replacing the deleted words with the words "operating in
the United States".
E. The definition of "Company Collateral Documents"
contained in Section 1.1 of the Credit Agreement is hereby
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amended by adding the word "and" immediately following the word
"Trust," in the fourth line thereof and by deleting the words
", and the Louisiana Security Documents" in the fourth and fifth
lines thereof.
F. The definition of "Convertor Inventory" contained
in Section 1.1 of the Credit Agreement is hereby amended by
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adding the following thereto immediately preceding the period in
the fifth line thereof: "; provided, however, that as long as (a)
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an Agreement Regarding Processing Arrangement, substantially in
the form of Exhibit T hereto, is in effect between the Agent and
Alutek, Inc., (b) if the Agent so requires, an appropriate
financing statement reflecting the Company's interest in such
Inventory has been filed and is effective and (c) the Agent is
satisfied that no creditor of Alutek, Inc. has an interest in any
such raw materials, work-in-progress, or other goods or Inventory
of the Company that the Agent in its sole discretion deems
significant, Convertor Inventory shall not mean or include any
raw materials, work-in-process or other goods or Inventory of the
Company located at the plant of Alutek, Inc. at N. 3401 Tschirley
Road, Spokane, Washington".
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G. Clause (r) of the definition of "Eligible Account"
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contained in Section 1.1 of the Credit Agreement is hereby
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amended by replacing the semi-colon in the first line thereof
with a comma and by adding the word "is" immediately following
the term "(ii)" in the third line thereof.
H. Clause (t) of the definition of "Eligible Account"
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contained in Section 1.1 of the Credit Agreement is hereby
amended to read in its entirety as follows: "which is not
payable in Dollars, other than Accounts in an aggregate amount
not to exceed $2,000,000 payable in Pounds Sterling, unless the
Company or KAII has executed an appropriate Hedging Agreement or
Currency Hedge Agreement acceptable to the Agent with respect
thereto."
I. The definition of "Hedging Agreement" contained in
Section 1.1 of the Credit Agreement is hereby amended to read in
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its entirety as follows:
"`Hedging Agreement' means (a) any interest rate swap, cap,
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or collar agreement or similar arrangement entered into by any
Person and any financial institution to protect such Person
against interest rate risk and (b) any agreement or arrangement
(other than a Currency Hedge Agreement) entered into by any
Person and any financial institution other than a Lender to
protect such Person against fluctuations in currency exchange
rates."
J. The definition of "Hedging Obligations" contained
in Section 1.1 of the Credit Agreement is hereby amended by
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adding the following thereto immediately preceding the period in
the seventh line thereof: "(other than Currency Hedge
Obligations)".
K. Clause (d) of the definition of "Indebtedness"
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contained in Section 1.1 of the Credit Agreement is hereby
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amended by adding the following thereto immediately following the
words "Hedging Obligations" in the second line thereof: "and
Currency Hedge Obligations".
L. Clause (d) of the definition of "Net Income"
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contained in Section 1.1 of the Credit Agreement is hereby
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deleted in its entirety and replaced with the following:
"(d) any after-tax gains or losses attributable (i) to
Asset Dispositions other than Asset Dispositions permitted
under clauses (a) through (d), (f), (g) and (i) of
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Section 9.2.11 hereof, provided, that for purposes of this
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clause (d) only, the amount `$250,000' in clause (g) of
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Section 9.2.11 shall be deemed to be `$1,000,000', or (ii)
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to returned surplus assets of any Pension Plan."
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M. The definition of "Obligations" contained in
Section 1.1 of the Credit Agreement is hereby amended by adding
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the following thereto immediately preceding the period in the
fourth line thereof: "and all Currency Hedge Obligations."
N. The definition of "Secured Lenders" contained in
Section 1.1 of the Credit Agreement is hereby amended by
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replacing the word "and" in the first line thereof with a comma
and by adding the following thereto immediately following the
words "Issuer Bank" in the second line thereof: "and the
Currency Hedge Providers".
O. The definition of "Stated Expiry Date" contained
in Section 1.1 of the Credit Agreement is hereby amended by
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deleting the words "clause (b)(ii)" in the first line thereof and
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by replacing such words with the words "clause (b)(iii)".
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P. Section 1.1 of the Credit Agreement is hereby
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amended by adding the following new definitions which shall be
inserted in their proper alphabetical position:
"`Currency Hedge Agreement' means any currency swap
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agreement, currency cap agreement, currency collar agreement,
currency floor agreement, foreign exchange agreement, foreign
exchange option agreement or other similar agreement or
arrangement entered into by the Company and any Currency Hedge
Provider."
"'Currency Hedge Obligations' means, with respect to the
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Company, all liabilities and obligations (monetary or otherwise)
of the Company arising under or in connection with Currency Hedge
Agreements."
"`Currency Hedge Providers' means all Lenders party to both
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a Currency Hedge Agreement and the Intercreditor Agreement.
"'Dollar Equivalents', with respect to any Currency Hedge
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Agreement, means Dollars or, with respect to any other currency,
an equivalent amount of Dollars determined using the forward
rate, or, in the case of cap agreements, collar agreements and
floor agreements, the strike price, agreed to by the parties and
specified in such Currency Hedge Agreement.
"'Intercreditor Agreement' means the intercreditor agreement
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executed and delivered by the Agent, each Lender and each Lender
party to a Currency Hedge Agreement, in substantially the form of
Exhibit U attached hereto, as amended,
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supplemented, restated or otherwise modified from time to time in
accordance with the provisions thereof."
1.4 Amendments to Article II: Commitments and Borrowing
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Procedures.
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A. Clause (b) of Section 2.1.1 of the Credit
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Agreement is hereby amended by deleting the amount "$250,000,000"
in the second line thereof and by replacing such amount with the
amount "$275,000,000".
B. Clause (b) of Section 2.3 of the Credit Agreement
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is hereby amended by deleting the number "1" in the second line
thereof and by replacing such number with the number "3".
1.5 Amendment to Article III: Repayments, Prepayments,
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Interest, and Fees.
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Section 3.5.1 of the Credit Agreement is hereby amended
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by adding the following thereto immediately following the word
"Date" in the sixth line thereof: "(and, with respect to the
increase in the Revolving Commitment Amount provided for therein,
commencing on the date on which the Agent gives notice to the
Parent Guarantor, the Company and each Lender of the satisfaction
of certain conditions as provided in Section 3 of the First
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Amendment to Credit Agreement dated as of July 21, 1994 between
the Company, the Parent Guarantor, the Lenders and the Agent)".
1.6 Amendments to Article IV: Certain Libo Rate and Other
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Provisions.
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Section 4.10 of the Credit Agreement is hereby amended
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by adding the following as the last sentence thereof:
"The Company shall enter into Currency Hedge Agreements
solely for the purpose of protecting the Company and its
Subsidiaries against fluctuations in currency exchange rates."
1.7 Amendments to Article VI: Parent Guarantor.
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A. Clause (c) of Section 6.2 of the Credit Agreement
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is hereby amended by deleting the word "Transaction" in the third
line thereof and by replacing such word with the word "Loan".
B. Section 6.3 of the Credit Agreement is hereby
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amended by deleting the word "Transaction" in the fourteenth line
thereof and by replacing such word with the word "Loan".
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1.8 Amendments to Article VII: Conditions to Extensions of
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Credit.
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A. Section 7.2 of the Credit Agreement is hereby
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amended by deleting the words "Section 2.1.3(b)" in the sixth
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line thereof and by replacing such words with the words "Sections
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2.1.2(b) and (c)".
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B. Clause (a) of Section 7.2.1 of the Credit
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Agreement is hereby amended by deleting the word "Borrowings" in
the second line thereof, by deleting the word "Borrowing" in the
third line thereof, and by replacing such words with the words
"Credit Extensions".
C. Clause (b)(i) of Section 7.2.1 of the Credit
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Agreement is hereby amended by deleting the word "Transaction" in
the last line thereof and by replacing such word with the word
"Loan".
D. Section 7.2.2 of the Credit Agreement is hereby
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amended by deleting the words "Section 2.4.1" in the sixth line
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thereof and by replacing such words with the words "Section
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2.1.4".
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1.9 Amendment to Article VIII: Representations and
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Warranties.
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Section 8.18 of the Credit Agreement is hereby amended
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by deleting the number "11" from the first line thereof and by
replacing such number with the number "10".
1.10 Amendments to Article IX: Covenants.
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A. Clause (b) of Section 9.1.1 of the Credit
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Agreement is hereby amended by deleting the words "as of the end"
in the twentieth line thereof and by replacing such words with
the words "for the four Fiscal Quarter period ended on the last
day".
B. Clause (c) of Section 9.1.1 of the Credit
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Agreement is hereby amended by deleting the word "Period" in the
twelfth line thereof and by replacing such word with the word
"period" and by adding the following thereto immediately after
the words "Section 9.2.4" in the ninth line thereof: ", the
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remaining Dollar amount (or the Dollar Equivalent thereof) of all
currency payments that the Company is obligated to make under all
Currency Hedge Agreements and the remaining term of all Currency
Hedge Agreements as of the last day of such Fiscal Quarter".
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C. Clause (a) of Section 9.1.4 of the Credit
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Agreement is hereby amended by adding a ")" immediately following
the word "Company" in the fifth line thereof.
D. Clause (b)(D) of Section 9.1.4 of the Credit
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Agreement is hereby amended by deleting the words "Section 7.1"
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in the ninth line thereof and by replacing such words with the
words "Section 7.1.2".
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E. Clause (b)(iii) of Section 9.2.2 of the Credit
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Agreement is hereby amended by deleting the word "and" in the
first line thereof and by replacing such word with a comma and by
adding the words ", ALPART and VALCO" immediately following the
word "KAAC" in the second line thereof.
F. Clause (b)(x) of Section 9.2.2 of the Credit
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Agreement is hereby amended by adding the following immediately
preceding the semi-colon in the second line thereof: ", and
Indebtedness of the Company in respect of Currency Hedge
Agreements; provided (a) 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 $300,000,000, in the aggregate,
at any time, and (b) each obligation of the Company to make
currency payments under any such Currency Hedge Agreement is due
on a date not more than three years from the date of its
incurrence and not later than February 15, 1999".
G. Section 9.2.3 of the Credit Agreement is hereby
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amended by deleting the word "and" at the end of clause (v)
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thereof; by relettering clause (w) thereof to be clause (x); and
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by adding a new clause (w) to read as follows:
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"(w) Liens securing the obligations of the Company
under the Currency Hedge Agreements; provided (a) 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 $300,000,000, in the
aggregate, at any time, (b) each obligation of the Company to
make currency payments under any Currency Hedge Agreement is due
on a date not more than three years from the date of its
incurrence and not later than February 15, 1999, and (c) all
Property which is subject to any such Lien constitutes
Collateral; and".
H. Clause (b) of Section 9.2.5 of the Credit
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Agreement is hereby amended by adding the following immediately
before the semi-colon in the first line thereof: ", provided,
any Investment which when made complies with the requirements of
the definition of Cash Equivalent Investment may continue to be
held notwithstanding that such Investment if made thereafter
would not comply with such requirements".
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I. Clause (o) of Section 9.2.5 of the Credit
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Agreement is hereby amended by adding the following immediately
following the word "Ratio" in the fourth line thereof: " for the
four Fiscal Quarter period ended as of the end of the last period
for which consolidated financial statements of the Company have
been delivered pursuant to Section 9.1.1(a) or 9.1.1(b)"; by
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deleting the word "and" at the end of clause (B) thereof; and by
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adding the following thereto after clause (B) thereof:
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"provided further, any Investment made pursuant to this clause
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(o) of this Section 9.2.5 which when made complies with the
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requirements of this clause (o) may continue to be held
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notwithstanding that such Investment if made thereafter would not
comply with such requirements; and".
J. Clause (a)(iii) of Section 9.2.6 of the Credit
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Agreement is hereby amended by adding the words "(or the proposed
registration, issuance or sale)" immediately following the word
"sale" in the eleventh line thereof and by adding the words "(or,
in the case of a proposed registration, issuance or sale, are
proposed to be)" immediately following the word "are" in the
thirteenth line thereof.
K. Clause (b)(ii) of Section 9.2.6 of the Credit
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Agreement is hereby amended by adding the words "as an inactive
company" immediately following the word "listed" in the fifth
line thereof and by adding the words "and its Subsidiaries"
immediately after the word "Company" in the eighth and tenth
lines thereof.
L. Clause (b)(vi) of Section 9.2.6 of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(vi) make any payment of principal of or interest on the
Indebtedness listed under the heading `Inactive Companies' on
Schedule XIII hereto."
M. Clause (h) of Section 9.2.11 of the Credit
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Agreement is hereby amended by adding the following thereto
immediately following the word "Company" in the first line
thereof: "or any of its Subsidiaries".
N. Clause (j) of Section 9.2.11 of the Credit
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Agreement is hereby amended by deleting the words "Section
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9.2.11(g)" in the sixth line thereof and by replacing such words
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with the words "Section 9.2.11(j)".
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O. The second paragraph of Section 9.2.14 of the
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Credit Agreement is hereby amended by deleting the word "year" in
the twenty-first line thereof and by replacing such word with the
word "Year".
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P. Clause (vi) of Section 9.2.18 of the Credit
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Agreement is hereby amended by adding the words ", 9.2.5(n)"
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immediately following the words "Sections 9.2.5(f)" in the first
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line thereof.
Q. Section 9.2 of the Credit Agreement is hereby
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amended by adding the following new Section 9.2.21 thereto:
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"Section 9.2.21. Currency Hedge Agreements.
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"The Company 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 to liquidate or close-out any obligations
thereunder, solely as a result of the occurrence of any Default
under this 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 Obligations under the Credit Agreement and the
other Loan Documents to be due and payable."
1.11 Amendments to Article X: Events of Default.
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A. Section 10.1.3 of the Credit Agreement is hereby
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amended by adding the following thereto immediately after the
term "(c)," in the fourth line thereof: "9.2.2(b)(x),".
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B. Clause (a) of Section 10.1.4 of the Credit
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Agreement is hereby amended by adding the following thereto
immediately after the word "Sections" in the first line thereof:
"9.2.2(b)(x),".
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1.12 Amendments to Article XIII: Miscellaneous Provisions.
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Section 12.3 of the Credit Agreement is hereby amended
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by amending the last sentence thereof to read in its entirety as
follows:
"The Parent Guarantor and the Company, jointly and severally,
also agree to reimburse the Agent and each Lender upon demand for
all reasonable out-of-pocket expenses (including attorneys' fees
and legal expenses) incurred by the Agent or such Lender (as well
as all allocated costs of in-house counsel incurred by the Agent)
in connection with the enforcement of any Obligations and to
reimburse the Agent upon demand for all reasonable out-of-pocket
expenses (including attorneys' fees and legal expenses) and
allocated costs of in-house counsel incurred by the Agent in
connection with the negotiation of any restructuring or "work-
out," whether or not consummated, of any Obligations."
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1.13 Amendments to Signature Pages.
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The Percentages set forth opposite the Lenders' names
on the signature pages of the Credit Agreement are hereby amended
to read as follows:
BankAmerica Business Credit, Inc. 27.273%
Congress Financial Corporation 26.182%
LaSalle National Bank 9.091%
CIT Group/Business Credit, Inc. 6.0%
Transamerica Business Credit Corporation 8.0%
Bank of America National Trust and
Savings Association 9.091%
Heller Financial, Inc. 8.363%
National Westminster Bank PLC 6.0%
Effective on the date on which the Agent gives notice to the
Parent Guarantor, the Company and each Lender of the satisfaction
of certain conditions as provided in Section 3 of the First
Amendment to Credit Agreement dated as of July 21, 1994 between
the Company, the Parent Guarantor, the Lenders and the Agent and
notwithstanding anything to the contrary contained in Section 5.4
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of the Credit Agreement, each Lender shall be deemed to hold an
undivided interest and participation, to the extent of such
Lender's Percentage as reflected above, in all Letters of Credit
and the Company's Reimbursement Obligations with respect thereto
outstanding as of such date.
1.14 Amendments to Exhibits.
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A. Exhibit K hereto is hereby added to the Credit
Agreement as Exhibit T thereto.
B. Exhibit L hereto is hereby added to the Credit
Agreement as Exhibit U thereto.
Section 2. Amendments to Company Security Agreement,
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Company Pledge Agreement, Subsidiary Pledge Agreement and other
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Collateral Documents.
- - --------------------
The parties agree that, as of the First Amendment
Effective Date (as defined below), the Parent Security Agreement,
the Company Security Agreement, the Company Pledge Agreement, the
Subsidiary Guaranty, the Subsidiary Security Agreement, the
Subsidiary Pledge Agreement, the Intercompany Note Pledge
Agreement, the Company Deeds of Trust and the Company Mortgages
shall be amended or supplemented as set forth in Exhibits B, C,
D, E, F, G, H, I and J hereto, respectively.
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Section 3. Conditions to Effectiveness.
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This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
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following conditions shall have been met and notice thereof shall
have been given by the Agent to the Parent Guarantor, the
Company, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Parent
Guarantor, the Company, the Agent and each of the Lenders (or
notice of the approval of this Amendment by each of the Lenders
satisfactory to the Agent shall have been received by the Agent),
together with counterparts of amendments to the Parent Security
Agreement, the Company Security Agreement, the Company Pledge
Agreement, the Subsidiary Guaranty, the Subsidiary Security
Agreement, the Subsidiary Pledge Agreement, the Intercompany Note
Pledge Agreement, the Company Deeds of Trust and the Company
Mortgages duly executed on behalf of the Company, the Parent
Guarantor, or the Subsidiaries party thereto, respectively, and
the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company and the Parent Guarantor
approving and authorizing the execution, delivery and performance
of this Amendment, certified by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment as of the date of execution hereof by
the Company or the Parent Guarantor, as the case may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing this
Amendment;
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
attached hereto, with such changes therein as shall be
satisfactory to the Agent, (b) an opinion, addressed to the Agent
and each Secured Lender, from Anthony R. Pierno, General Counsel
to the Company, in substantially the form of Exhibit A-2 attached
hereto, with such changes therein as shall be satisfactory to the
Agent, and (c) an opinion, addressed to the Agent and each
Secured Lender, from the local counsel listed on Schedule I
hereto in substantially the form of Exhibit A-3 attached hereto,
with such changes therein as shall be satisfactory to the Agent;
(4) The Agent shall have received, on behalf of
each Lender increasing its portion of the Revolving Commitment
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Amount, a fee in the amount of 1.50% multiplied by the amount of
such increase; and
(5) such other information approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 4. Company's Representations and Warranties.
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In order to induce the Lenders and the Agent to enter
into this Amendment and to amend the Credit Agreement and the
other Loan Documents in the manner provided herein, the Parent
Guarantor and the Company represent and warrant to each Lender
and the Agent that, as of the First Amendment Effective Date
after giving effect to the effectiveness of this Amendment, the
following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
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delivery of this Amendment by the Company and the Parent
Guarantor and the performance of the Credit Agreement as amended
by this Amendment (the "Amended Agreement") by the Company and
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the Parent Guarantor are within such Obligor's corporate powers
and have been duly authorized by all necessary corporation action
on the part of the Company and the Parent Guarantor, as the case
may be.
B. No Conflict. The execution and delivery by the
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Company and the Parent Guarantor of this Amendment and the
performance by the Company and the Parent Guarantor of the
Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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
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any of the properties of any Subsidiary of such Obligor, other
than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
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executed and delivered by the Company and the Parent Guarantor
and this Amendment and the Amended Agreement constitute the
legal, valid and binding obligations of the Company and the
Parent Guarantor, enforceable against the Company and the Parent
Guarantor in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors'
rights generally and by general principles of equity.
D. Governmental Approval, Regulation, etc. No
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authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any
other Person is required for the due execution, delivery or
performance of this Amendment by the Company or the Parent
Guarantor.
E. Incorporation of Representations and Warranties
-----------------------------------------------
from Credit Agreement. Each of the statements set forth in
- - ---------------------
Section 7.2.1 of the Credit Agreement is true and correct.
F. Real Property. As of the date hereof, (1) the
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Liens on the Collateral constituting Real Estate (as defined in
the Company Deeds of Trust and the Company Mortgages) are valid,
prior and perfected, subject only to the exceptions listed in
Exhibits B to the Company Deeds of Trust and the Company
Mortgages and in clauses (e) and (f) of Section 9.2.3 of the
Credit Agreement and (2) there are no Liens securing Indebtedness
for borrowed money (other than those in favor of the Agent) on
the Collateral constituting Real Estate (as defined in the
Company Deeds of Trust and the Company Mortgages).
Section 5. Acknowledgement and Consent.
---------------------------
The Company is a party to the Company Collateral
Documents, in each case as amended through the First Amendment
Effective Date, 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 First
Amendment Effective Date, 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 First Amendment Effective Date, pursuant to which such
Subsidiaries have (i) guarantied the Obligations and/or (ii)
created Liens in favor of the Agent on certain Collateral. The
13
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 and the amendment of the other Loan Documents effected
as of the date hereof.
Each Credit Support Party acknowledges and agrees that
any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect. Each
Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all
Collateral encumbered thereby will continue to guaranty or
secure, as the case may be, the payment and performance of all
obligations guaranteed or secured thereby, as the case may be.
Each Credit Support Party (other than the Company and
the Parent Guarantor) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this
Amendment, such Credit Support Party is not required by the terms
of the Credit Agreement or any other Loan Document to consent to
the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments
to the Credit Agreement.
Section 6. Miscellaneous.
-------------
A. Reference to and Effect on the Credit Agreement
-----------------------------------------------
and the Other Loan Documents.
- - ----------------------------
(1) On and after the First 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 other Loan Documents executed
as of the date hereof, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby
ratified and confirmed.
14
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.
F. Approval of Amendments to Loan Documents. Each of
----------------------------------------
the Lenders hereby approves the forms of the amendments attached
as Exhibits to this Amendment and hereby authorizes the Agent on
its behalf to accept from the Company and the other Obligors, as
the case may be, and authorizes the Agent to execute and deliver
as Agent, the amendments to the Collateral Documents and the
Subsidiary Guaranty in substantially the form of such Exhibits,
with such changes, additions or deletions as the Agent, in its
sole and absolute discretion, may approve.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
KAISER ALUMINUM CORPORATION KAISER ALUMINUM & CHEMICAL
CORPORATION
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
15
BANKAMERICA BUSINESS CREDIT, BANKAMERICA BUSINESS CREDIT,
INC., as Agent INC.
By: _______________________ By:________________________
Name: Michael J. Jasaitis Name: Michael J. Jasaitis
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL TRUST THE CIT GROUP/BUSINESS CREDIT,
AND SAVINGS ASSOCIATION INC.
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
CONGRESS FINANCIAL CORPORATION HELLER FINANCIAL, INC.
(WESTERN)
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
LA SALLE NATIONAL BANK NATIONAL WESTMINSTER BANK PLC
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: _______________________
Name Printed:______________
Its:_______________________
16
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, KAISER ALUMINUM TECHNICAL
INS. SERVICES, INC.
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM
INTERNATIONAL, INC.
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
KAISER BAUXITE COMPANY KAISER EXPORT COMPANY
By: _______________________ By:________________________
Name: K.S. Vasan Name: K.S. Vasan
Its: Treasurer Its: Treasurer
17
EXHIBIT A-1
July __, 1994
BankAmerica Business Credit, Inc.,
as Agent
Two North Lake Avenue, Suite 400
Pasadena, California 91101
and
The Lenders Listed on Schedule A Hereto
Re: First Amendment to Credit Agreement (the "First
Amendment"), dated as of June __, 1994, among
Kaiser Aluminum & Chemical Corporation, Kaiser
Aluminum Corporation, certain financial institutions,
and BankAmerica Business Credit, Inc., as Agent
------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Kaiser Aluminum &
Chemical Corporation, a Delaware corporation (the "Company"),
Kaiser Aluminum Corporation, a Delaware corporation (the "Parent
Guarantor"), the Guarantors (as hereinafter defined) and the
Nonrecourse Pledgors (as hereinafter defined) in connection with
the First Amendment; the First Amendment to Company Security
Agreement, dated as of June __, 1994 (the "Company Security
Agreement Amendment"), between the Company and the Agent; the
First Amendment to Company Pledge Agreement, dated as of June __,
1994 (the "Company Pledge Agreement Amendment"), between the
Company and the Agent; the First Amendment to Parent Security
Agreement, dated as of June __, 1994 (the "Parent Security
Agreement Amendment"), between the Parent Guarantor and the
Agent; the First Amendment to Subsidiary Guaranty, dated as of
June __, 1994 (the "Subsidiary Guaranty Amendment"), between
Akron Holding Corporation, an Ohio corporation, Alpart Jamaica
Inc., a Delaware corporation, Kaiser
Alumina Australia Corporation, a Delaware corporation, Kaiser
Aluminium International, Inc., a Delaware corporation, Kaiser
Aluminum & Chemical Investment, Inc., a Delaware corporation,
Kaiser Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, Kaiser
Jamaica Corporation, a Delaware corporation, and Oxnard Forge Die
Company, Inc., a California corporation (individually, a
"Guarantor" and, collectively, the "Guarantors"), and the Agent;
the First Amendment to Subsidiary Pledge Agreement, dated as of
June __, 1994 (the "Subsidiary Pledge Agreement Amendment"),
between Akron Holding Corporation, an Ohio corporation, Kaiser
Alumina Australia Corporation, a Delaware corporation, Kaiser
Aluminium International, Inc., a Delaware corporation, Kaiser
Aluminum & Chemical Investment, Inc., a Delaware corporation,
Kaiser Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, and Oxnard
Forge Die Company, Inc., a California corporation (collectively,
the "Pledgors" and, individually, a "Pledgor"), and the Agent;
the First Amendment to Subsidiary Security Agreement, dated as of
June __, 1994 (the "Subsidiary Security Agreement Amendment"),
between the Pledgors and the Agent; and the First Amendment to
Intercompany Note Pledge Agreement, dated as of June __, 1994
(the "Intercompany Note Pledge Agreement Amendment"), between
Kaiser Export Company, a California corporation, and Kaiser
Bauxite Company, a Nevada corporation (collectively, the
"Nonrecourse Pledgors" and, individually, a "Nonrecourse
Pledgor") and the Agent. Capitalized terms used but not defined
herein have the meanings assigned thereto in the Credit
Agreement, as amended by the First Amendment. As used herein,
(i) "Credit Agreement" has the meaning ascribed thereto in the
first recital of the First Amendment, (ii) "Delaware Pledgor"
means a Pledgor that is incorporated under the laws of the State
of Delaware and (iii) "Delaware Guarantor" means a Guarantor that
is incorporated under the laws of the State of Delaware.
In rendering the opinion set forth herein, we have
reviewed (i) the Credit Agreement; (ii) the First Amendment;
(iii) the Company Security Agreement, Financing Statement, and
Conditional Assignment of Patents and Trademarks, dated as of
February 15, 1994, between the Company and the Agent (the
"Company Security Agreement"); (iv) the Company Security
Agreement Amendment; (v) the Company Pledge Agreement, dated as
of February 15, 1994, between the Company and the Agent (the
"Company Pledge Agreement"); (vi) the Company Pledge Agreement
Amendment; (vii) the Parent Security Agreement, Financing
Statement, and Conditional Assignment of Patents and Trademarks,
dated as of February 15, 1994, between the Parent Guarantor and
the Agent (the "Parent Security Agreement"); (viii) the Parent
Security Agreement Amendment; (ix) the Subsidiary Guaranty, dated
as of February 15, 1994, between the Guarantors and the Agent
(the "Subsidiary Guaranty"); (x) the Subsidiary Guaranty
Amendment; (xi) the Subsidiary Security Agreement, Financing
Statement, and Conditional Assignment of Patents and Trademarks,
dated as of February 15, 1994, between the Pledgors and the Agent
(the "Subsidiary Security Agreement"); (xii) the Subsidiary
Security Agreement Amendment; (xiii) the Subsidiary Pledge
Agreement, dated as of February 15, 1994, between the Pledgors
and the Agent (the "Subsidiary Pledge Agreement"); (xiv) the
Subsidiary Pledge Agreement Amendment; (xv) the Parent Pledge
Agreement, dated as of February 15, 1994, between the Parent
Guarantor and the Agent (the "Parent Pledge Agreement");
(xvi) the Intercompany Note Pledge Agreement, dated as of
February 15, 1994, between the Nonrecourse Pledgors and the Agent
(the "Intercompany Note Pledge Agreement"); (xvii) the Inter-
company Note Pledge Agreement Amendment; (xviii) each amendment
to a Company Deed of Trust (individually, a "Deed of Trust
Amendment" and, collectively, the "Deed of Trust Amendments")
listed on Schedule B hereto; (xix) each amendment to a Company
Mortgage (individually, a "Mortgage Amendment" and, collectively,
the "Mortgage Amendments"); (xx) each Company Deed of Trust and
Company Mortgage referred to on Schedule B hereto; (xxi) the
Indenture dated as of February 17, 1994, between the Company, and
Kaiser Finance Corporation, Kaiser Alumina Australia Corporation,
Alpart Jamaica Inc. and Kaiser Jamaica Corporation, as Subsidiary
Guarantors, and First Trust National Association, as Trustee,
pursuant to which the Company's 9-7/8% Senior Notes due 2002 were
issued (the "Senior Indenture"); and (xxii) the Indenture dated
as of February 1, 1993, as amended by the First Supplemental
Indenture dated May 1, 1993, between the Company, and Kaiser
Finance Corporation, Kaiser Alumina Australia Corporation, Alpart
Jamaica Inc. and Kaiser Jamaica Corporation, as Subsidiary
Guarantors, and The First National Bank of Boston, as Trustee,
pursuant to which the Company's 12-3/4% Senior Subordinated Notes
due 2003 were issued (the "Senior Subordinated Indenture" and,
together with the Senior Indenture, the "Indentures") and have
examined originals or copies, certified, or otherwise identified
to our satisfaction, of (a) the Certificate of Incorporation and
By-laws of the Company, the Parent Guarantor and each of the
Delaware Pledgors and the Delaware Guarantors as in effect on the
date hereof, and (b) such other documents, records, certificates
and instruments (collectively, "Documents") as in our judgment
are necessary or appropriate as the basis for the opinion
expressed below.
In our examination we have assumed the genuineness of all
signatures, the authenticity of all Documents submitted to us as
originals, the conformity to original documents of all Documents
submitted to us as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts
material to this opinion which we did not independently establish
or verify (other than with respect to the opinions set forth in
Paragraph 13 below), we have relied upon statements and
representations of officers and other representatives of the
Company, the Parent Guarantor, the Pledgors, the Guarantors and
the Nonrecourse Pledgors and certificates of public officials.
We also have assumed (i) the valid authorization, execution, and
delivery of the First Amendment and the Company Security
Agreement Amendment, the Company Pl0edge Agreement Amendment, the
Parent Security Agreement Amendment, the Subsidiary Guaranty
Amendment, the Subsidiary Pledge Agreement Amendment, the
Subsidiary Security Agreement Amendment and the Intercompany Note
Pledge Agreement Amendment (collectively the "Collateral Agree-
ment Amendments"), the Deed of Trust Amendments and the Mortgage
Amendments by the parties thereto (other than the Company, the
Parent Guarantor, the Delaware Pledgors and the Delaware
Guarantors), (ii) that each such other party has been duly
organized and is validly existing and in good standing under the
laws of the jurisdiction of its organization with the corporate
or other organizational power to perform its obligations there-
under, and (iii) that the First Amendment and the Collateral
Agreement Amendments constitute the legal, valid and binding
obligation of each such other party that is not a Guarantor, a
Pledgor or a Nonrecourse Pledgor enforceable against each such
other party in accordance with their respective terms (subject to
qualifications and limitations similar to those set forth in
clauses (a) and (b) on pages __ and __ of this opinion).
Based upon the foregoing, and subject to the
qualifications set forth herein, we are of the opinion that:
1. The execution, delivery and performance by each of
the Company and the Parent Guarantor of the First Amendment, and
the performance by the Company and the Parent Guarantor of the
Credit Agreement as amended by the First Amendment, are within
their respective corporate powers, have been duly authorized by
all necessary corporation action on the part of the Company and
the Parent Guarantor, and do not:
(a) violate the Organic Documents of the Company or
the Parent Guarantor; or
(b) violate any court decree or order of any
governmental authority which, after our due inquiry,
has been specifically disclosed to us by the Company or
the Parent Guarantor.
2. The First Amendment has been duly executed and
delivered by each of the Company and the Parent Guarantor.
3. The First Amendment constitutes the legal, valid,
and binding obligation of each of the Company and the Parent
Guarantor enforceable against each of the Company and the Parent
Guarantor in accordance with its terms.
4. The execution, delivery and performance by the
Company of the Company Security Agreement Amendment, the
Company Pledge Agreement Amendment, the Deed of Trust Amendments
and the Mortgage Amendments, and the performance by the
Company of (i) the Company Security Agreement and the Company
Pledge Agreement, as amended by the Company Security Agreement
Amendment and the Company Pledge Agreement Amendment,
respectively, and (ii) the Company Deeds of Trust and the Company
Mortgages referred to in Schedule B hereto, as amended by the
Deed of Trust Amendments and the Mortgage Amendments, are within
its corporate powers, have been duly authorized by all necessary
corporate action on the part of the Company, and do not:
(a) violate the Organic Documents of the Company; or
(b) violate any court decree or order of any
governmental authority which, after our due inquiry, has been
specifically disclosed to us by the Company.
5. The Company Security Agreement Amendment, the
Company Pledge Agreement Amendment, the Deed of Trust Amendments
and the Mortgage Amendments have been duly executed and delivered
by the Company.
6. The Company Security Agreement Amendment and the
Company Pledge Agreement Amendment constitute the legal, valid,
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms.
7. The execution, delivery and performance by each of
the Delaware Pledgors of the Subsidiary Security Agreement
Amendment and the Subsidiary Pledge Agreement Amendment, and the
performance by each of the Delaware Pledgors of the Subsidiary
Security Agreement and the Subsidiary Pledge Agreement, as
amended by the Subsidiary Security Agreement Amendment and the
Subsidiary Pledge Agreement Amendment, respectively, are within
the corporate powers of each of the Delaware Pledgors, have been
duly authorized by all necessary corporate action on the part of
each of the Delaware Pledgors, and do not:
(a) violate the Organic Documents of any Delaware
Pledgor; or
(b) violate any court decree or order of any
governmental authority which, after our due
inquiry, has been specifically disclosed to us by
the Delaware Pledgors.
8. The Subsidiary Security Agreement Amendment and
the Subsidiary Pledge Agreement Amendment have been duly executed
and delivered by each of the Delaware Pledgors.
9. The Subsidiary Security Agreement Amendment and
the Subsidiary Pledge Agreement Amendment constitute the legal,
valid, and binding obligations of each of the Pledgors enforce-
able against each of the Pledgors in accordance with their
respective terms. The Intercompany Note Pledge Agreement
Amendment constitutes the legal, valid and binding obligation of
each Nonrecourse Pledgor enforceable against each of the
Nonrecourse Pledgors in accordance with its terms.
10. The execution, delivery and performance by each of
the Delaware Guarantors of the Subsidiary Guaranty Amendment, and
the performance by each of the Delaware Guarantors of the
Subsidiary Guaranty, as amended by the Subsidiary Guaranty
Amendment (the "Amended Guaranty"), are within the corporate
powers of each of the Delaware Guarantors, have been duly
authorized by all necessary corporate action on the part of each
of the Delaware Guarantors, and do not:
(a) violate the Organic Documents of any Delaware
Guarantor; or
(b) violate any court decree or order of any
governmental authority which, after our due inquiry,
has been specifically disclosed to us by the Delaware
Guarantors.
11. The Subsidiary Guaranty Amendment has been duly
executed and delivered by each of the Delaware Guarantors.
12. The Subsidiary Guaranty Amendment constitutes the
legal, valid, and binding obligation of each of the Guarantors
enforceable against each of the Guarantors in accordance with its
terms.
13. Annexed hereto as Exhibit A is a form of
International Foreign Exchange Master Agreement, including a form
of Schedule (the "Schedule") thereto, between Bank of America
National Trust and Savings Association and the Company (the
"Master Agreement"). Annexed hereto as Exhibit B is a form of
Confirmation (as such term is defined in the Master Agreement).
Assuming (a) that the Currency Hedge Agreements (i) consist
solely of a Master Agreement in the form annexed hereto as
Exhibit A and appropriately completed and duly executed
Confirmations in the form annexed hereto as Exhibit B and
(ii) relate solely to FX Transactions (as such term is defined in
the Master Agreement) and (b) that the particular terms of each
such FX Transaction are fully and accurately set forth in
Confirmations in the form annexed hereto as Exhibit B and the
Master Agreement, it is our opinion that:
(a) Neither (i) the granting by the Parent Guarantor,
the Company, the Pledgors or the Nonrecourse Pledgors of a
lien on assets of the Parent Guarantor, the Company, the
Pledgors or the Nonrecourse Pledgors that constitute
Collateral, pursuant to the Collateral Documents, as amended
by the Collateral Agreement Amendments, as security for the
Company's obligations (and/or guaranties of such obliga-
tions) under the Currency Hedge Agreements, nor (ii) the
guaranty, pursuant to the Amended Guaranty, by the
Guarantors of the Company's obligations under the Currency
Hedge Agreements or the guaranty by the Parent Guarantor of
the Company's obligations under the Currency Hedge Agree-
ments (A) violates either of the Indentures or (B) results
in, or requires the creation or imposition of, any lien on
the property of the Parent Guarantor, the Company or any
Subsidiary of the Company pursuant to the terms of either of
the Indentures.
(b) The obligations of the Company under the Currency
Hedge Agreements would not constitute "Indebtedness" (as
such term is defined in the Senior Indenture or the Senior
Subordinated Indenture).
14. As used in this Paragraph 14, "Collateral" has the
meaning assigned thereto in the Security Agreements. After
giving effect to the First Amendment, the Company Security Agree-
ment, the Parent Security Agreement, the Subsidiary Security
Agreement, the Company Pledge Agreement, the Subsidiary Pledge
Agreement and the Intercompany Note Pledge Agreement, as amended
by the Collateral Agreement Amendments, and the Parent Pledge
Agreement create valid security interests under the Uniform
Commercial Code as in effect in the State of New York (the "UCC")
in all of the applicable Obligors' right, title, and interest in
and to all Collateral (other than securities or items of
Collateral for which possession must be taken by a secured party
in order to perfect its security interest under Sections 9-103
and 9-104 of the UCC, as to each of which we express no opinion),
to the extent that the creation of a security interest in any
such Collateral is governed by the UCC, as security for the
payment and performance of the obligations, including the
Currency Hedge Obligations (other than amounts that would become
due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code and interest that, but for the
filing of a petition in bankruptcy, would accrue on any obliga-
tions, as to each of which we express no opinion) expressed to be
secured by such agreements. Assuming that properly executed
financing statements in the form annexed hereto as Exhibit C,
with the description of Collateral attached as Schedule IV-2 to
our opinion dated February 17, 1994, addressed to you, have been
duly filed (and all required filing or other fees have been paid)
and are on file, in the offices in the State of New York listed
in Schedule V to our opinion dated February 17, 1994, addressed
to you, upon the filing of properly executed amendments to such
financing statements, in the form annexed hereto as Exhibit D, in
such offices (with [accurate filing information with respect to
the financing statements being amended] properly inserted) and
the payment of any required filing or other fee, the security
interest in favor of the Agent in all of the Company's right,
title and interest in and to all Collateral of the Company
consisting of (1) goods (as such term is defined in Section 9-
105(1)(h) of the UCC) located in the State of New York (other
than mobile goods described in Section 9-103(3) of the UCC and
other than fixtures and goods which are to become fixtures),
including goods in the possession of a bailee who has not issued
a negotiable document (as such term is hereinafter defined)
therefor if such goods and any document issued therefor are
located in the State of New York, and (2) negotiable documents
(as such term is defined in Section 9-105(l)(f) of the UCC) that
are located in the State of New York, to the extent, in each
case, that a security interest therein may be perfected by a
filing of financing statements under the UCC, and, to such
extent, no filing or recording of any other document or
instrument or other action is required, on the date hereof, to
perfect such security interest under the UCC. In connection with
our opinion set forth in this Paragraph 14, we have assumed with
your permission and without investigation that from February 17,
1994 and at all relevant times thereafter, including on the date
hereof and at all relevant times hereafter:
(i) the Collateral exists, and that each Obligor has
rights in or title to each item of Collateral (and we
do not express any opinion herein as to any of such
rights or title); and
(ii) none of any Obligor's chattel paper, instruments,
or securities bear any endorsement or legend indicating
an ownership or other interest therein other than that
of such Obligor or the security interest of the Agent.
The opinions set forth in paragraphs 3, 6, 9, and 12
above are subject to the following qualifications and limitations
and the other opinions set forth above are subject to the
following qualifications and limitations, other than those set
forth in clauses (a), (b) and (c) below:
(a) The enforceability of the First Amendment and the
Collateral Agreement Amendments may be subject to or limited by
page>
bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance or transfer, moratorium, or other laws and court
decisions now or hereafter in effect relating to or affecting the
rights of creditors generally;
(b) The enforceability of the First Amendment and the
Collateral Agreement Amendments is subject to the application of
and may be limited by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law). Such principles of equity are
of general application and in applying such principles a court,
among other things, might not allow a creditor to accelerate the
maturity of a debt under certain circumstances, including,
without limitation, upon the occurrence of a default deemed
immaterial or might decline to order an obligor to perform
covenants. Such principles applied by a court might include a
requirement that a creditor act with reasonableness and in good
faith. Thus, we express no opinion as to the validity or
enforceability of (i) provisions restricting access to legal or
equitable remedies, such as the specific performance of executory
covenants, (ii) provisions that purport to establish evidentiary
standards, (iii) provisions relating to waivers, severability,
indemnity, submissions to jurisdiction, set off, delay or
omission of enforcement of rights or remedies, and (iv) provi-
sions purporting to convey rights to persons other than parties
to the Credit Agreement. In addition, we express no opinion as
to the enforceability of any provision purporting to provide
indemnification or contribution relating to matters arising under
Federal or State securities laws;
(c) The remedy of specific performance and injunctive
and other forms of equitable relief are subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(d) We have not been requested to render, and with
your permission we do not express, any opinion as to the
applicability to any Loan Document or security interests of
Section 548 of the Federal Bankruptcy Code, Article 10 of the New
York Debtor & Creditor Law, or any other fraudulent conveyance,
insolvency or transfer laws or any court decisions with respect
to any of the foregoing;
(e) We express no opinion as to the priority of any
security interest created by the Loan Documents; or as to rights
of buyers in the ordinary course of business or of buyers not in
the ordinary course of business to the extent, in each case, the
Collateral is intended to secure future advances or future credit
extensions or to the extent, in each case, that the Loan
Documents authorize the Obligors to dispose of Collateral; or as
to the limitations contained in the Federal Bankruptcy Code upon
the extent to which property acquired after the commencement of a
case under the Federal Bankruptcy Code may be subjected to a
security interest arising from an agreement entered into prior to
the commencement of such case;
(f) We express no opinion as to the creation,
perfection or enforcement of Liens in governmental licenses,
permits and approvals in which it is ineffective under govern-
mental rules or regulations to grant a Lien;
(g) We express no opinion as to any security interests
relating to property in which security interests cannot be
granted under the UCC, as to the perfection of security interests
granted by any Obligor other than the Company, or as to the
perfection of security interests granted by the Company which may
be perfected by any means other than by filing a financing state-
ment pursuant to the UCC;
(h) We express no opinion as to the creation, validity
or perfection of any security interest in (i) any patents, trade-
marks, copyrights, or other intellectual property or (ii) any
equipment used in farming operations, consumer goods, farm
products, crops, timber, minerals or the like (including oil and
gas) or accounts resulting from the sale thereof, receivables due
from any government or agency or department thereof, beneficial
interests in a trust or a decedent's estate, letters of credit,
uncertificated securities, interests in or claims in or under any
policy of insurance (other than insurance payable to the Agent or
any Obligor by reason of loss or damage to any Collateral), or
items which are subject to a requirement of any jurisdiction that
provides for a registration or certificate of title or a filing
other than under the UCC, or any item to which Article 9 of the
UCC does not apply, including, without limitation, the items set
forth in Section 9-104 of the UCC;
(a) Any purported assignment of any agreement or any
governmental approval, license or permit may be subject to
restrictions upon assignment or transfer which, although not
necessarily applicable to assignments intended as security, may
be required to be satisfied before the Agent will be treated as
an assignee thereof, except (x) to the extent that consents to or
approvals of such assignment have been obtained from the
appropriate governmental body or other Person, or (y) to the
extent that Section 9-318(4) of the UCC may be applicable to
render ineffective a prohibition on assignment of certain
accounts or creation of a security interest in certain general
intangibles;
(j) The perfection of security interests which are
perfected by the filing of financing statements is limited both
in extent and as to continuation by various provisions of the
UCC, including, but not limited to, those relating to non-
identifiable or commingled cash proceeds and the need to file
continuation statements and/or new financing statements if the
classification of any Collateral under the UCC changes because of
a change in the use of such Collateral, or upon the lapse of time
or if a relevant Obligor changes its name, identity, corporate
structure or location of the chief executive office, chief place
of business or the places where it keeps the Collateral or its
records with respect thereto.
(k) Our opinion expressed herein is limited to the
laws of the State of New York, the General Corporation Law of the
State of Delaware, and the Federal laws of the United States of
America, and we do not express any opinion herein concerning any
other laws. We express no opinion as to the effects (if any) of
any laws of any jurisdiction (except the State of New York) in
which any Lender is located which limits the rate of interest
that such Lender may charge or collect.
(l) For purposes of our opinions in paragraphs 9, 12
and 14 above as they relate to Kaiser Aluminum Technical
Services, Inc., a California corporation, Oxnard Forge Die
Company, Inc., a California corporation, Kaiser Export Company, a
California corporation, Akron Holding Corporation, an Ohio
corporation, and Kaiser Bauxite Company, a Nevada corporation, we
have relied with your permission on and assumed (without
independent investigation) the accuracy of the conclusions set
forth in the opinion of Anthony R. Pierno, Esq., of even date
herewith.
The opinion expressed herein is based upon the laws in
effect on the date hereof, and we assume no obligation to review
or supplement this opinion should any such law be changed by
legislative action, judicial decision or otherwise.
Ezra G. Levin, a partner of our firm, is a director of
the Company and the Parent Guarantor.
This opinion is being furnished only to the addressees
named above pursuant to Section 3.B.(3) of the First Amendment
and is solely for the benefit of such Persons in connection with
the execution, delivery and effectiveness of the First Amendment.
Accordingly, this opinion may not be used, quoted, or relied upon
by any other person or entity or for any other purpose without,
in each instance, our express prior written consent. Any Lender
listed on Schedule A hereto may, however, deliver a copy of this
opinion to any Assignee Lender that becomes a party to the
Agreement in connection with the assignment and delegation to
such Assignee Lender of all or any fraction of a Lender's total
Credit Extension and Revolving Commitment, and any such Assignee
Lender may rely upon this opinion as if it were addressed and had
been delivered to such Assignee Lender on the date hereof.
Very truly yours,
SCHEDULE A
BankAmerica Business Credit, Inc.
Bank of America National Trust
and Savings Association
CIT Group/Business Credit, Inc.
Congress Financial Corporation (Western)
Heller Financial, Inc.
La Salle National Bank
National Westminster Bank PLC
Transamerica Business Credit Corporation
Exhibit A-2
-----------
[Letterhead of
KAISER ALUMINUM & CHEMICAL CORPORATION]
July __, 1994
BankAmerica Business Credit, Inc.,
as Agent
Two North Lake Avenue
Suite 400
Pasadena, California 91101
and
The Lenders Listed on Schedule A hereto
Re: First Amendment to Credit Agreement (the "First
Amendment") dated as of June __, 1994, among Kaiser
Aluminum & Chemical Corporation, Kaiser Aluminum
Corporation, certain financial institutions, and
BankAmerica Business Credit, Inc., as Agent
------------------------------------------------
Ladies and Gentlemen:
I am the general counsel of Kaiser Aluminum & Chemical
Corporation, a Delaware corporation (the "Company"), and of
Kaiser Aluminum Corporation, a Delaware corporation (the "Parent
Guarantor"), and have acted as counsel to the Company, the Parent
Guarantor, and the other Persons listed on Schedule B hereto
(such other Persons being herein collectively referred to as the
"Obligors" and individually referred to as an "Obligor") in
connection with the First Amendment; the First Amendment to
Company Security Agreement, dated as of June __, 1994 (the
"Company Security Agreement Amendment"), between the Company and
the Agent; the First Amendment to Company Pledge Agreement, dated
as of June __, 1994 (the "Company Pledge Agreement Amendment"),
between the Company and the Agent; the First Amendment to Parent
Security Agreement, dated as of June __, 1994 (the "Parent
Security Agreement Amendment"), between the Parent Guarantor and
the Agent; First Amendment to Subsidiary Guaranty, dated as of
June __, 1994 (the "Subsidiary Guaranty Amendment"), between
Akron Holding Corporation, an Ohio corporation, Alpart Jamaica
Inc., a Delaware corporation, Kaiser Alumina Australia Corpora-
tion, a Delaware corporation, Kaiser Aluminium International,
Inc., a Delaware corporation, Kaiser Aluminum & Chemical
Investment, Inc., a Delaware corporation, Kaiser Aluminum
Properties, Inc., a Delaware corporation, Kaiser Aluminum
Technical Services, Inc., a California corporation, Kaiser
Finance Corporation, a Delaware corporation, Kaiser Jamaica
Corporation, a Delaware corporation, and Oxnard Forge Die
Company, Inc., a California corporation (individually, a
"Guarantor" and, collectively, the "Guarantors"), and the Agent;
the First Amendment to Subsidiary Pledge Agreement, dated as of
June __, 1994 (the "Subsidiary Pledge Agreement Amendment"),
between Akron Holding Corporation, an Ohio corporation, Kaiser
Alumina Australia Corporation, a Delaware corporation, Kaiser
Aluminium International, Inc., a Delaware corporation, Kaiser
Aluminum & Chemical Investment, Inc., a Delaware corporation,
Kaiser Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, and Oxnard
Forge Die Company, Inc., a California corporation (collectively,
the "Pledgors" and, individually, a "Pledgor"), and the Agent;
the First Amendment to Subsidiary Security Agreement, dated as of
June __, 1994 (the "Subsidiary Security Agreement Amendment"),
between the Pledgors and the Agent; and the First Amendment to
Intercompany Note Pledge Agreement, dated as of June __, 1994
(the "Intercompany Note Pledge Agreement Amendment"), between the
Nonrecourse Pledgors (as hereinafter defined) and the Agent.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Credit Agreement, as amended by the First
Amendment. As used herein, (i) "Credit Agreement" has the
meaning ascribed thereto in the first recital of the First
Amendment, (ii) "Collateral Agreement Amendments" means, collec-
tively, the Company Security Agreement Amendment, the Company
Pledge Agreement Amendment, the Parent Security Agreement
Amendment, the Subsidiary Guaranty Amendment, the Subsidiary
Pledge Agreement Amendment, the Subsidiary Security Agreement
Amendment and the Intercompany Note Pledge Agreement Amendment,
and (iii) "Subsidiary Collateral Agreements" means, collectively,
the Subsidiary Guaranty (as hereinafter defined), the Subsidiary
Security Agreement (as hereinafter defined), the Subsidiary
Pledge Agreement (as hereinafter defined) and the Intercompany
Note Pledge Agreement (as hereinafter defined).
In rendering the opinion set forth herein, I have
reviewed (i) the Credit Agreement; (ii) the First Amendment;
(iii) the Company Security Agreement, Financing Statement, and
Conditional Assignment of Patents and Trademarks, dated as of
February 15, 1994, between the Company and the Agent (the
"Company Security Agreement"); (iv) the Company Security Agree-
ment Amendment; (v) the Company Pledge Agreement, dated as of
February 15, 1994, between the Company and the Agent (the
"Company Pledge Agreement"); (vi) the Company Pledge Agreement
Amendment; (vii) the Parent Security Agreement, Financing
Statement, and Conditional Assignment of Patents and Trademarks,
dated as of February 15, 1994, between the Parent Guarantor and
the Agent (the "Parent Security Agreement"); (viii) the Parent
Security Agreement Amendment; (ix) the Subsidiary Guaranty, dated
as of February 15, 1994, between the Guarantors and the Agent
(the "Subsidiary Guaranty"); (x) the Subsidiary Guaranty Amend-
ment; (xi) the Subsidiary Security Agreement, Financing State-
ment, and Conditional Assignment of Patents and Trademarks, dated
as of February 15, 1994, between the Pledgors and the Agent (the
"Subsidiary Security Agreement"); (xii) the Subsidiary Security
Agreement Amendment; (xiii) the Subsidiary Pledge Agreement,
dated as of February 15, 1994, between the Pledgors and the Agent
(the "Subsidiary Pledge Agreement"); (xiv) the Subsidiary Pledge
Agreement Amendment; (xv) the Intercompany Note Pledge Agreement,
dated as of February 15, 1994 (the "Intercompany Note Pledge
Agreement") between Kaiser Export Company, a California corpora-
tion, and Kaiser Bauxite Company, a Nevada corporation
(collectively, the "Nonrecourse Pledgors"), and the Agent; and
(xvi) the Intercompany Note Pledge Agreement Amendment, and have
examined originals or copies, certified, or otherwise identified
to my satisfaction, of (a) the Certificate of Incorporation and
By-laws of the Company, the Parent Guarantor and each of the
Obligors as in effect on the date hereof, and (b) such other
documents, records, certificates and instruments (collectively,
"Documents") as in my judgment are necessary or appropriate as
the basis for the opinion expressed below.
In my examination I have assumed the genuineness of all
signatures, the authenticity of all Documents submitted to me as
originals, the conformity to original Documents of all Documents
submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts
material to this opinion which I did not independently establish
or verify, I have relied upon statements and representations of
officers and other representatives of the Company, the Parent
Guarantor and the Obligors and certificates of public officials.
Based upon the foregoing, and subject to the qualifica
tions set forth herein, I am of the opinion that:
1. Each Obligor is a corporation validly organized
and existing and in good standing under the laws of the juris-
diction of its incorporation. Each Obligor has the corporate
power and authority to enter into and perform its Obligations
under the Collateral Agreement Amendments, and the Subsidiary
Collateral Agreements, as amended by the Collateral Agreement
Amendments, to which it is a party.
2. The execution, delivery, and performance by each
Obligor of the Subsidiary Collateral Agreements, and the
Collateral Agreement Amendments, to which it is a party, and the
performance by each Obligor of the Subsidiary Collateral Agree-
ments, as amended by the Collateral Agreement Amendments, to
which it is a party, are within such Obligor's respective
corporate powers and authority, have been duly authorized by all
necessary corporate action on the part of such Obligor, and do
not:
(a) violate such Obligor's Organic Documents; or
(b) violate any court decree or order of any
governmental authority entered against and applicable to
such Obligor of which I have knowledge after due inquiry.
3. Each Subsidiary Collateral Agreement, and each
Collateral Agreement Amendment, to which any Obligor is a party
has been duly executed and delivered by such Obligor.
My opinion expressed herein is limited to the laws of
the State of California, the General Corporation Law of the State
of Delaware, the General Corporation Law of the State of Nevada
(with respect only to Kaiser Bauxite Company), the General
Corporation Law of the State of Ohio (with respect only to Akron
Holding Corporation), and the Federal laws of the United States
of America, and I do not express any opinion herein concerning
any other laws.
The opinion expressed herein is based upon the laws in
effect on the date hereof, and I assume no obligation to revise
or supplement this opinion should any such law be changed by
legislative action, judicial decision, or otherwise.
This opinion is being furnished only to the addressees
named above pursuant to Section 3.B.(3) of the First Amendment
and is solely for the benefit of such Persons in connection with
the execution, delivery and effectiveness of the First Amendment.
Accordingly, this opinion may not be used, quoted, or relied upon
by any other person or entity or for any other purpose without,
in each instance, my express prior written consent. Any Lender
listed on Schedule A hereto may, however, deliver a copy of this
opinion to any Assignee Lender that becomes a party to the
Agreement in connection with the assignment and delegation to
such Assignee Lender of all or any fraction of a Lender's total
Credit Extension and Revolving Commitment, and any such Assignee
Lender may rely upon this opinion as if it were addressed and had
been delivered to such Assignee Lender on the date hereof.
Very truly yours,
Anthony R. Pierno
Vice President and
General Counsel
Schedule A
BankAmerica Business Credit, Inc.
Bank of America National Trust
and Savings Association
CIT Group/Business Credit, Inc.
Congress Financial Corporation (Western)
Heller Financial, Inc.
La Salle National Bank
National Westminster Bank PLC
Transamerica Business Credit Corporation
Schedule B
Obligors
Kaiser Aluminum Technical Services, Inc., a California cor-
poration; Oxnard Forge Die Company, Inc., a California
corporation; Kaiser Export Company, a California corporation;
Akron Holding Corporation, an Ohio corporation; and Kaiser
Bauxite Company, a Nevada corporation.
EXHIBIT A-3
[Local Counsel Letterhead]
August __, 1994
BankAmerica Business Credit, Inc.
Two North Lake Avenue, Suite 400
Pasadena, California 91101
Bank of America National Trust and
Savings Association
555 California Street
San Francisco, California 94104
and
The Lenders Party to the Credit Agreement
Referenced Below
Re: Kaiser Aluminum & Chemical Corporation
--------------------------------------
Ladies and Gentlemen:
We have acted as special counsel in the State of
________ to the Agent (as such term is defined below) in
connection with that certain First Amendment to Credit Agreement
(the "First Amendment to Credit Agreement") dated as of July 21,
-----------------------------------
1994 among Kaiser Aluminum Corporation, a Delaware corporation
(the "Parent Guarantor"), Kaiser Aluminum & Chemical Corporation,
----------------
a Delaware corporation (the "Company"), various financial
-------
institutions (herein collectively referred to as the "Lenders"),
-------
and BankAmerica Business Credit, Inc., a Delaware corporation, as
agent (in such capacity, the "Agent") for the Lenders. The Agent
-----
has requested that we advise you with respect to certain matters
set forth herein regarding _______________ law.
As used herein, the terms "Real Estate," "Personalty,"
"Collateral," "Loan Documents" and "Secured Obligations" shall
have the respective meanings ascribed to such terms in the
Modified Mortgage (as hereinafter defined).
In this connection, we have examined each of the
following:
i. An executed copy of the First Amendment to
Credit Agreement which modifies and amends that certain
Credit Agreement dated as of February 15, 1994, by and
among the Company, the Parent Guarantor, the Lenders
and the Agent (such Credit Agreement, as modified and
amended by the First Amendment to Credit Agreement, is
hereinafter referred to as the "Modified Credit
---------------
Agreement");
---------
ii An executed copy of that certain First
Amendment to Company Security Agreement (the "First
----
Amendment to Security Agreement") from the Company to
-------------------------------
the Agent which modifies and amends that certain
Company Security Agreement dated as of February 15,
1994, by and between the Company and the Agent (such
Security Agreement, as modified and amended by the
First Amendment to Security Agreement, is hereinafter
referred to as the "Modified Security Agreement");
---------------------------
iii. An executed copy of that certain
First Amendment to [Deed of Trust][Mortgage]
with Power of Sale, Assignment of Leases and
Rents, Security Agreement, Fixture Filing and
Financing Statement (the "First Amendment to
------------------
Mortgage") by and between the Company and the Agent
---------
which modifies and amends that certain [Deed of
Trust][Mortgage] with Power of Sale, Assignment of
Leases and Rents, Security Agreement, Fixture Filing
and Financing Statement dated as of February 15, 1994,
by the Company in favor of the Agent and recorded in
the Official Records of ____________ County, __________
on February 22, 1994, as Instrument No. _______________
(such [Deed of Trust][Mortgage], as modified and
amended by the First Amendment to Mortgage, is
hereinafter referred to as the "Modified Mortgage");
-----------------
iv. An executed copy of that certain UCC-2
Financing Statement (the "UCC-2") by the Company in
-----
favor of the Agent which modifies and amends that
certain UCC-1 Financing Statement dated February 15,
1994, by the Company in favor of the Agent and filed
with the ____________ Secretary of State on February
____, 1994, as Instrument No. _____________ (such
Financing Statement, as modified and amended by the
UCC-2, is hereinafter referred to as the "Modified
--------
Financing Statement"); and
-------------------
v. Such questions of law as we have deemed
necessary or appropriate and originals or copies,
certified or otherwise identified to our satisfaction,
of such other documents, records, certificates and
instruments as in our judgment are necessary or
appropriate as the basis for the opinions expressed
herein.
Subject to each of the assumptions, qualifications and
exceptions set forth in our opinion letter dated February ___,
1994 previously delivered to you, we advise you as follows:
4. The Modified Mortgage is in form sufficient to
create a lien on the Real Estate and all fixtures attached
thereto for the benefit of the Agent with respect to each of the
Secured Obligations, including, without limitation, the
obligations under the Currency Hedge Agreements (as such term is
defined in the First Amendment to Credit Agreement). The
Modified Security Agreement and the Modified Financing Statement
are in forms sufficient to create and perfect a security interest
in the Personalty and other non-Real Estate Collateral in favor
of the Agent with respect to the Secured Obligations (to the
extent that a security interest in such items of Personalty and
other non-Real Estate Collateral may be perfected by filing),
including, without limitation, the Obligations under the Currency
Hedge Agreements (as such term is defined in the First Amendment
to Credit Agreement). In order to provide constructive notice of
the lien created by the Modified Mortgage and in order to perfect
the security interest created by the Modified Security Agreement
with respect to those items of Personalty and other non-Real
Estate Collateral that may be perfected by filing, it is
necessary to record the First Amendment to Mortgage in the
Official Records of _____________ County, ____________ and to
file the UCC-2 in the office of the _______________ Secretary of
State pursuant to the recording and filing systems established
pursuant to applicable ____________ law. In rendering such
opinion, we have assumed that the description of the Real Estate
contained in the Modified Mortgage and the description of the
Personalty and other non-Real Estate Collateral contained in the
Modified Security Agreement and the Modified Financing Statement
are legally sufficient to enable a subsequent purchaser or
mortgagee to identify such property. Our opinion with respect to
the perfection of security interests in the Personalty and other
non-Real Estate Collateral is also limited to items in which a
security interest may be perfected by filing. Regarding fixtures
included in the Personalty and other non-Real Estate Collateral,
we have assumed that such fixtures are located on the Real Estate
and that the Company had or will have an interest of record in
the Real Estate at the time of filing and recording of the First
Amendment to Mortgage. Except for the filing of periodic
continuation statements as required by the _________ Commercial
Code and except for _________________, it is not necessary to re-
record, re-register, or re-file the Modified Mortgage or the
Modified Financing Statement or to record, register, or file any
other or additional documents, instruments or statements in order
to maintain the priority of the liens and security interests
created thereby; provided, however, that additional financing
statements and fixture filings may be required to be filed if the
Company changes its name, identity, or corporate structure, or
the jurisdiction in which its place of business (or, if it has
more than one place of business, its chief executive office) or
the Personalty or other non-Real Estate Collateral is located.
5. The Modified Mortgage constitutes the legal,
valid, and binding obligation of the Company enforceable against
the Company in accordance with its terms.
6. There is no recording, registration, stamp,
mortgage or other similar tax or fee payable with respect to the
filing of the UCC-2 and the recording of the First Amendment to
Mortgage, other than nominal statutory recording fees and any fee
or charge payable to any entity whose services may be used to
assist in such recordation and/or filing. We express no opinion,
however, with respect to any income, franchise, sales,
withholding, real or personal property, business license, or
other tax that may result from the transactions contemplated by
the Modified Credit Agreement or the Loan Documents, or the
performance of any of the obligations described therein,
including the payment and performance of the Secured Obligations.
Our opinions contained herein are rendered only as of
the date hereof, and we undertake no obligation to update our
opinions after the date hereof.
This letter is intended for the information solely of
the parties to whom it is addressed and to O'Melveny & Myers,
counsel for the Agent, and is not to be relied upon by, or quoted
to, any other person without the prior written consent of this
firm.
Very truly yours,
By: ______________________
EXHIBIT B
FIRST AMENDMENT TO PARENT SECURITY AGREEMENT
---------------------------------------------
THIS FIRST AMENDMENT TO PARENT SECURITY AGREEMENT (this
"Amendment"), dated as of July 21, 1994, is by and between Kaiser
---------
Aluminum Corporation, a Delaware corporation (the "Parent
------
Guarantor"), and BankAmerica Business Credit, Inc., a Delaware
- - ---------
corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
-----
Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Kaiser 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 (the "Credit
------
Agreement"); and
- - ---------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First 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 (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.
--------------------------------------
A. The proviso in the first paragraph of Section 2 of
------- ---------
the Parent Security Agreement is hereby amended by adding the
words ", and any Hedging Agreements and Currency Hedge
Agreements," in clause (B) of the proviso, immediately following
---------- -------
the word "Property".
B. 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 and Currency
Hedge 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; and
Fifth, any surplus to be paid to the Parent
-----
Guarantor, its successors and assigns, or as a court of
competent jurisdiction may direct."
Section 2. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Parent
Guarantor and the Agent.
2
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Parent Guarantor approving and
authorizing the execution, delivery and performance of this
Amendment, certified by its corporate secretary or an assistant
secretary as being in full force and effect without modification
or amendment as of the date of execution hereof by the Parent
Guarantor;
(2) A signature and incumbency certificate of the
officers of the Parent Guarantor executing this Amendment;
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Parent Guarantor, in substantially the form of
Exhibit A-2 to the First Amendment, with such changes therein as
shall be satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. 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 First 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 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;
3
(2) contravene the Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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 4. Miscellaneous.
-------------
A. Reference to and Effect on the Parent Security
----------------------------------------------
Agreement and the Other Loan Documents.
- - --------------------------------------
(1) On and after the First 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.
4
(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.
5
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
KAISER ALUMINUM BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By:__________________________ By:_________________________
Name Printed:________________ Name Printed:_______________
Its:_________________________ Its:________________________
6
EXHIBIT C
FIRST AMENDMENT TO COMPANY SECURITY AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO COMPANY SECURITY AGREEMENT
(this "Amendment"), dated as of July 21, 1994, is by and between
---------
Kaiser Aluminum & Chemical Corporation, a Delaware corporation
(the "Company"), and BankAmerica Business Credit, Inc., a
-------
Delaware corporation, as agent for the Secured Lenders (as
defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
-----
herein shall have the meanings given to such terms in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, the Company, Kaiser 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
(the "Credit Agreement"); and
----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First 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 (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. The proviso in the first paragraph of Section 2 of
------- ---------
the Company Security Agreement is hereby amended by adding the
words ", and any Hedging Agreements and Currency Hedge
Agreements," in clause (B) of the proviso, immediately following
---------- -------
the word "Property".
B. Section 3 of the Company Security Agreement is
---------
hereby amended to read in its entirety as follows:
1
"SECTION 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 Company
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,
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
Company, 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 Company now or hereafter existing
under this Agreement, whether for advances, costs, fees,
expenses, or otherwise (collectively, the 'Secured
-------
Obligations')."
-----------
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;
2
Second, toward the satisfaction of the Secured
------
Obligations other than Obligations in respect of principal
and Reimbursement Obligations and Currency Hedge
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; and
Fifth, any surplus to be paid to the Company, its
-----
successors and assigns, or as a court of competent
jurisdiction may direct."
Section 2. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Company and
the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company approving and authorizing
the execution, delivery and performance of this Amendment,
certified by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment
as of the date of execution hereof by the Company;
(2) A signature and incumbency certificate of the
officers of the Company executing this Amendment;
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Company, in substantially the form of Exhibit A-2
4
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. Company's Representations and Warranties.
----------------------------------------
In order to induce the 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 First
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 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 Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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
4
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 4. Miscellaneous.
-------------
A. Reference to and Effect on the Company Security
-----------------------------------------------
Agreement and the Other Loan Documents.
- - --------------------------------------
(1) On and after the First 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
5
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.
KAISER ALUMINUM & CHEMICAL BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By:__________________________ By:_________________________
Name Printed:________________ Name Printed:_______________
Its:_________________________ Its:________________________
6
EXHIBIT D
FIRST AMENDMENT TO COMPANY PLEDGE AGREEMENT
--------------------------------------------
THIS FIRST AMENDMENT TO COMPANY PLEDGE AGREEMENT (this
"Amendment"), dated as of July 21, 1994, is by and between Kaiser
---------
Aluminum & Chemical Corporation, a Delaware corporation (the
"Company"),
-------
and BankAmerica Business Credit, Inc., a Delaware corporation, as
agent for the Secured Lenders (as defined in the Credit Agreement
referred to below) (in such capacity, together with its
successors and assigns in such capacity, the "Agent").
-----
Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Company, Kaiser 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
(the "Credit Agreement"); and
----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First Amendment"); and
---------------
WHEREAS, the Company and the Agent are parties to the
Company Pledge Agreement, dated as of February 15, 1994 (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.
-------------------------------------
A. Clause (b)(i) of Section 4.1 of the Company Pledge
------------- -----------
Agreement is hereby amended by adding thereto the words "(unless,
after giving effect thereto, the percentage of the outstanding
shares of such Issuer owned by the Pledgor is not reduced)"
immediately after the word "Pledgor" in the fourth line thereof.
B. 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
1
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,
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. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Company and
the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company approving and authorizing
the execution, delivery and performance of this Amendment,
certified by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment
as of the date of execution hereof by the Company;
(2) A signature and incumbency certificate of the
officers of the Company executing this Amendment;
2
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Company, in substantially the form of Exhibit A-2
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. Company's Representations and Warranties.
----------------------------------------
In order to induce the Agent to enter into this
Amendment and to amend the Company Pledge 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 First 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 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 Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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
(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 4. Miscellaneous.
-------------
A. Reference to and Effect on the Company Pledge
---------------------------------------------
Agreement and the Other Loan Documents.
- - --------------------------------------
(1) On and after the First 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.
4
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.
KAISER ALUMINUM & CHEMICAL BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By:__________________________ By:_________________________
Name Printed:________________ Name Printed:_______________
Its:_________________________ Its:________________________
5
EXHIBIT E
FIRST AMENDMENT TO SUBSIDIARY GUARANTY
---------------------------------------
THIS FIRST AMENDMENT TO SUBSIDIARY GUARANTY (this
"Amendment"), dated as of July 21, 1994, is by and between
---------
Akron Holding Corporation, an Ohio corporation, Alpart Jamaica
Inc., a Delaware corporation, Kaiser Alumina Australia
Corporation, a Delaware corporation, Kaiser Aluminium
International, Inc., a Delaware corporation, Kaiser Aluminum &
Chemical Investment, Inc., a Delaware corporation, Kaiser
Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, Kaiser
Jamaica Corporation, a Delaware corporation, and Oxnard Forge Die
Company, Inc., a California corporation (collectively, the
"Guarantors" and, individually, a "Guarantor"), and BankAmerica
---------- ---------
Business Credit, Inc., a Delaware corporation, as agent for the
Secured Lenders (as defined in the Credit Agreement referred to
below) (in such capacity, together with its successors and
assigns in such capacity, the "Agent"). Capitalized
-----
terms used, but not defined, herein shall have the meanings given
to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation (the
"Company"), Kaiser 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 (the "Credit
------
Agreement"); and
- - ---------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First Amendment"); and
---------------
WHEREAS, the Guarantors and the Agent are parties to
the Subsidiary Guaranty, dated as of February 15, 1994 (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:
1
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, 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. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, each Guarantor, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of each Guarantor and
the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of each Guarantor approving and
authorizing the execution, delivery and performance of this
Amendment, certified by its corporate secretary or an assistant
secretary as being in full force and effect without modification
or amendment as of the date of execution hereof by such
Guarantor;
(2) A signature and incumbency certificate of the
officers of each Guarantor executing this Amendment;
2
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Company, in substantially the form of Exhibit A-2
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. 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 First 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 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 Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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
3
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 4. Miscellaneous.
-------------
A. Reference to and Effect on the Subsidiary Guaranty
--------------------------------------------------
and the Other Loan Documents.
- - ----------------------------
(1) On and after the First 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.
4
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
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM PROPERTIES,
INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINIUM INTERNATIONAL,
INC.
By:________________________
Name Printed:______________
Its:_______________________
5
OXNARD FORGE DIE COMPANY, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINA AUSTRALIA
CORPORATION
By:_______________________
Name Printed:_____________
Its:______________________
KAISER FINANCE CORPORATION
By:________________________
Name Printed:______________
Its:_______________________
KAISER JAMAICA CORPORATION
By:_______________________
By:_______________________
Name Printed:_____________
Its:______________________
ALPART JAMAICA INC.
By:_______________________
By:_______________________
Name Printed:_____________
Its:______________________
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:_______________________
By:_______________________
Name Printed:_____________
Its:______________________
6
EXHIBIT F
FIRST AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
-------------------------------------------------
THIS FIRST AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
(this "Amendment"), dated as of July 21, 1994, is by and among
---------
Akron Holding Corporation, an Ohio corporation, Kaiser Alumina
Australia Corporation, a Delaware corporation, Kaiser Aluminium
International, Inc., a Delaware corporation, Kaiser Aluminum &
Chemical Investment, Inc., a Delaware corporation, Kaiser
Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, and Oxnard
Forge Die Company, Inc., a California corporation (collectively,
the "Kaiser Subsidiaries" and, individually, a "Kaiser
------------------- ------
Subsidiary"), and BankAmerica Business Credit, Inc., a Delaware
- - ----------
corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
-----
Capitalized terms used, but not defined, herein shall have
the meanings given to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation (the
"Company"), Kaiser 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 (the "Credit
------
Agreement"); and
- - ---------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First 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 (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:
1
Section 1. Amendment to Subsidiary Security Agreement.
------------------------------------------
A. The proviso in the first paragraph of Section 2 of
-------
the Subsidiary Security Agreement is hereby amended by adding the
words ", and any Hedging Agreements and Currency Hedge
Agreements," in clause (B) of the proviso, immediately following
---------- -------
the word "Property."
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 and Currency Hedge
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; and
Fifth, any surplus to be paid to such Kaiser
-----
Subsidiary, its successors and assigns, or as a court of
competent jurisdiction may direct."
2
Section 2. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, each Kaiser Subsidiary, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of each Kaiser
Subsidiary and the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of each Kaiser Subsidiary approving and
authorizing the execution, delivery and performance of this
Amendment, certified by its corporate secretary or an assistant
secretary as being in full force and effect without modification
or amendment as of the date of execution hereof by such Kaiser
Subsidiary;
(2) A signature and incumbency certificate of the
officers of each Kaiser Subsidiary executing this Amendment;
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Company, in substantially the form of Exhibit A-2
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. 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 First 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 such Kaiser Subsidiary and the
3
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
and have been duly authorized by all necessary corporate action
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;
(2) contravene the Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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.
4
Section 4. Miscellaneous.
-------------
A. Reference to and Effect on the Subsidiary Security
--------------------------------------------------
Agreement and the Other Loan Documents.
- - --------------------------------------
(1) On and after the First 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 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.
5
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
AKRON HOLDING CORPORATION
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM PROPERTIES,
INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By:________________________
Name Printed:______________
Its:_______________________
OXNARD FORGE DIE COMPANY, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINIUM INTERNATIONAL,
INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINA AUSTRALIA
CORPORATION
By:_______________________
Name Printed:_____________
Its:______________________
KAISER FINANCE CORPORATION
By:________________________
Name Printed:______________
Its:_______________________
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:_______________________
Name Printed:_____________
Its:______________________
6
EXHIBIT G
FIRST AMENDMENT TO SUBSIDIARY PLEDGE AGREEMENT
-----------------------------------------------
THIS FIRST AMENDMENT TO SUBSIDIARY PLEDGE AGREEMENT
(this "Amendment"), dated as of July 21, 1994, is by and among
---------
Akron Holding Corporation, an Ohio corporation, Kaiser Alumina
Australia Corporation, a Delaware corporation, Kaiser Aluminium
International, Inc., a Delaware corporation, Kaiser Aluminum &
Chemical Investment, Inc., a Delaware corporation, Kaiser
Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, and Oxnard
Forge Die Company, Inc., a California corporation (collectively,
the "Pledgors" and, individually, a "Pledgor"), and BankAmerica
-------- -------
Business Credit, Inc., a Delaware corporation, as agent for the
Secured Lenders (as defined in the Credit Agreement referred to
below) (in such capacity, together with its successors and
assigns in such capacity, the "Agent"). Capitalized terms used,
-----
but not defined, herein shall have the meanings given to such
terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation (the
"Company"), Kaiser 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 (the "Credit
------
Agreement"); and
- - ---------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First Amendment"); and
---------------
WHEREAS, the Pledgors and the Agent are parties to the
Subsidiary Pledge Agreement, dated as of February 15, 1994 (the
"Subsidiary Pledge Agreement"), and have agreed to amend the
---------------------------
Subsidiary 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:
1
Section 1. Amendment to Subsidiary Pledge Agreement.
----------------------------------------
A. Clause (b)(i) of Section 4.1 of the Subsidiary
------------ -----------
Pledge Agreement is hereby amended by adding thereto the words
"(unless, after giving effect thereto, the percentage of the
outstanding shares of such Issuer owned by such Pledgor is not
reduced)" immediately after the word "Pledgor" in the fourth line
thereof.
Section 2. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, each Pledgor, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of each Pledgor and
the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of each Pledgor approving and authorizing
the execution, delivery and performance of this Amendment,
certified by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment
as of the date of execution hereof by such Pledgor;
(2) A signature and incumbency certificate of the
officers of each Pledgor executing this Amendment;
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Company, in substantially the form of Exhibit A-2
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. Pledgors' Representations and Warranties.
----------------------------------------
In order to induce the Agent to enter into this
Amendment and to amend the Subsidiary 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
2
warrants to each Lender and the Agent that, as of the First
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 such Pledgor and the performance of
the Subsidiary 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 Indenture dated as of February
1, 1993, as amended by the First Supplemental Indenture dated May
1, 1993, between the Company, and Kaiser Finance Corporation,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc. and
Kaiser Jamaica Corporation, as Subsidiary Guarantors, and The
First National Bank of Boston, as Trustee, or the Indenture dated
as of February 17, 1994, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and First Trust National Association, as Trustee, 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.
3
Section 4. Miscellaneous.
-------------
A. Reference to and Effect on the Subsidiary Pledge
-------------------------------------------------
Agreement and the Other Loan Documents.
- - --------------------------------------
(1) On and after the First Amendment Effective
Date, each reference in the Subsidiary Pledge Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Subsidiary Pledge Agreement, and each
reference in the other Loan Documents to the "Subsidiary Pledge
Agreement", "thereunder", "thereof" or words of like import
referring to the Subsidiary Pledge Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Subsidiary 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 Subsidiary 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.
4
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
AKRON HOLDING CORPORATION
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM PROPERTIES,
INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By:________________________
Name Printed:______________
Its:_______________________
OXNARD FORGE DIE COMPANY, INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINIUM INTERNATIONAL,
INC.
By:________________________
Name Printed:______________
Its:_______________________
KAISER ALUMINA AUSTRALIA
CORPORATION
By:_______________________
Name Printed:_____________
Its:______________________
KAISER FINANCE CORPORATION
By:________________________
Name Printed:______________
Its:_______________________
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:_______________________
Name Printed:_____________
Its:______________________
5
EXHIBIT H
FIRST AMENDMENT TO INTERCOMPANY NOTE PLEDGE AGREEMENT
------------------------------------------------------
THIS FIRST AMENDMENT TO INTERCOMPANY NOTE PLEDGE
AGREEMENT (this "Amendment"), dated as of July 21, 1994, is by
---------
and among Kaiser Export Company, a California corporation, and
Kaiser Bauxite Company, a Nevada corporation, (collectively, the
"Pledgors" and, individually, a "Pledgor"), and BankAmerica
-------- -------
Business Credit, Inc., a Delaware corporation, as agent for the
Secured Lenders (as defined in the Credit Agreement referred to
below) (in such capacity, together with its successors and
assigns in such capacity, the "Agent"). Capitalized
-----
terms used, but not defined, herein shall have the meanings given
to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation (the
"Company"), Kaiser 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 (the "Credit
------
Agreement"); and
- - ---------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a First
Amendment to Credit Agreement (the "First Amendment"); and
---------------
WHEREAS, the Pledgors and the Agent are parties to the
Intercompany Note Pledge Agreement, dated as of February 15, 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
1
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, 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. Conditions to Effectiveness.
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Effective Date") only when the
------------------------------
following conditions shall have been met and notice thereof shall
have been given by the Agent to the Company, the Parent
Guarantor, each Pledgor, the Agent and each Lender:
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of each Pledgor and
the Agent.
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of each Pledgor approving and authorizing
the execution, delivery and performance of this Amendment,
certified by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment
as of the date of execution hereof by such Pledgor;
2
(2) A signature and incumbency certificate of the
officers of each Pledgor executing this Amendment;
(3) For each Lender (a) an opinion, addressed to
the Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A-1
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent and (b) an opinion, addressed to the
Agent and each Secured Lender, from Anthony R. Pierno, General
Counsel to the Company, in substantially the form of Exhibit A-2
to the First Amendment, with such changes therein as shall be
satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. 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 First
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 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 Indenture dated as of
February 1, 1993, as amended by the First Supplemental Indenture
dated May 1, 1993, between the Company, and Kaiser Finance
Corporation, Kaiser Alumina Australia Corporation, Alpart Jamaica
Inc. and Kaiser Jamaica Corporation, as Subsidiary Guarantors,
and The First National Bank of Boston, as Trustee, or the
Indenture dated as of February 17, 1994, between the Company, and
Kaiser Finance Corporation, Kaiser Alumina Australia Corporation,
Alpart Jamaica Inc. and Kaiser Jamaica Corporation, as Subsidiary
Guarantors, and First Trust National Association, as Trustee, or
contravene any other contractual restriction where such a
contravention has a reasonable possibility of having a Materially
4
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 4. Miscellaneous.
-------------
A. Reference to and Effect on the Intercompany Note
------------------------------------------------
Pledge Agreement and the Other Loan Documents.
- - ---------------------------------------------
(1) On and after the First 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.
4
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.
KAISER EXPORT COMPANY
By:________________________
Name Printed:______________
Its:_______________________
KAISER BAUXITE COMPANY
By:________________________
Name Printed:______________
Its:_______________________
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:_______________________
Name Printed:_____________
Its:______________________
5
EXHIBIT I
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
O'Melveny & Myers
275 Battery Street, 26th Floor
San Francisco, California 94111-3305
Attn: Marilyn K. Beardsley, Esq.
(File No. 019,368-663)
- - -----------------------------------------------------------------
FIRST AMENDMENT TO DEED OF TRUST WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS FIRST AMENDMENT TO DEED OF TRUST WITH POWER OF
SALE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE
FILING AND FINANCING STATEMENT (this "First Amendment") is made
as of July 21, 1994 by and between KAISER ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation ("Grantor"), whose address is
6177 Sunol Drive, Pleasanton, California 94566, and BANKAMERICA
BUSINESS CREDIT, INC., a Delaware corporation ("BABC"), as agent
for the Secured Lenders (as defined in the Credit Agreement
referred to below), having an office at Two North Lake Avenue,
Suite 400, Pasadena, California 91101 (BABC, 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 Grantor,
Kaiser Aluminum Corporation, a Delaware corporation ("Parent
Guarantor"), BABC and various other financial institutions named
therein (which financial institutions, together with BABC 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
Grantor (the "Loans"). Except as otherwise provided in this
First 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 Grantor, as
grantor, to Chicago Title Insurance Company, as trustee, for the
benefit of Beneficiary as agent of Bank Lenders, as beneficiary,
and recorded on February 22, 1994 in the Official Records of
________ County, __________ as Instrument No. ___________ (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, Grantor, Parent Guarantor and
Bank Lenders have agreed to amend the Credit Agreement to, among
other things, (i) increase the maximum aggregate principal amount
of the Loans by Twenty-Five Million Dollars ($25,000,000) and
(ii) permit Grantor to enter into Currency Hedge Agreements (as
defined in the Credit Agreement) from time to time with the
Currency Hedge Providers (as defined in the Credit Agreement) and
provide that Grantor's obligations thereunder shall be secured by
the Deed of Trust, all as set forth in that certain First
Amendment to Credit Agreement dated of even date herewith by and
between Grantor, Parent Guarantor, Lenders and Beneficiary (the
"First Credit Agreement Amendment").
E. Grantor and Beneficiary desire to amend the Deed of
Trust to reflect and evidence the amendments and modifications
set forth in the First Credit Agreement Amendment.
NOW, THEREFORE, with reference to the foregoing
Recitals and for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor and
Beneficiary further agree as follows:
(1) The introductory paragraph of the Deed of Trust
shall be amended in part by deleting the words "as agent for the
various financial institutions which are, or may hereafter
become, parties to the Credit Agreement (as hereinafter defined)"
immediately after the fourth parenthetical contained therein and
substituting the following therefor:
"as agent for the Secured Lenders (as defined in
the Credit Agreement referred to herein)".
(2) Recital A of the Deed of Trust shall be amended in
part by deleting the second parenthetical contained therein and
substituting the following therefor:
"(which financial institutions, including BABC in
its capacity as a lender, being herein, together
with their respective successors and assigns,
2
collectively called the 'Bank Lenders' and
individually called a 'Bank
------------ ----
Lender')".
------
(3) Recital B of the Deed of Trust shall be deleted in
its entirety.
4. The introductory paragraph of Article II of the
Deed of Trust shall be amended in part by deleting the reference
to "Lenders" contained therein and substituting "Bank Lenders"
therefor.
5. Article II of the Deed of Trust shall be amended
by adding thereto the following:
"2.10 No Subordinate Liens. Grantor
--------------------
represents and
warrants that as of the date hereof there are no
Liens on the Real Estate that secure Indebtedness
for borrowed money, other than those in favor of
Beneficiary."
6. Section 4.3 of the Deed of Trust shall be amended
by deleting the term "Obligations" contained therein and
substituting the term "Secured Obligations" therefor.
7. Section 4.21 of the Deed of Trust shall be amended
by deleting the second sentence thereof and substituting the
following therefor:
"This Deed of Trust, the other Loan Documents and
the Currency Hedge Agreements (as defined in the
Credit Agreement) shall constitute the entire
understanding and agreement of Trustor, Trustee,
Beneficiary, and the Lenders with respect to the
subject matter hereof, and shall supersede and
replace all prior understandings and agreements,
whether oral or in writing."
8. The definition of "Secured Obligations" set forth
-------------------
in Exhibit C of the Deed of Trust shall be amended to read in its
entirety as follows:
"'Secured Obligations' means all Obligations,
-------------------
whether now existing or hereafter arising, of Grantor
under or in connection with the Credit Agreement or any
other Loan Documents and all Obligations, whether now
existing or hereafter arising, of Grantor under or in
connection with the Currency Hedge Agreements (as
defined in the Credit Agreement), whether for advances,
costs, fees, expenses, or otherwise."
3
9. The following definitions shall be added to
Exhibit C of the Deed of Trust:
"'Indebtedness' shall have the meaning ascribed to
------------
that term in the Credit Agreement."
"'Lender' and 'Lenders' shall mean the Bank
------ -------
Lenders and the Currency Hedge Providers (as
defined in the Credit Agreement)."
10. Grantor's obligations evidenced by the Credit
Agreement, as amended by the First Credit Agreement Amendment,
shall continue to be secured by the Deed of Trust. Except as
amended by this First 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.
11. It is the intent of each of the parties hereto
that the Deed of Trust, as modified and amended by this First
Amendment, shall have and retain the priority established at the
time of its original recordation on February 22, 1994 (the
"Original Recording Date"). To the extent that any court of law
or equity determines that the priority of this First Amendment
may not relate back to the Original Recording Date, then (i) this
First Amendment shall be bifurcated from the Deed of Trust such
that the obligations of Grantor with respect to the Currency
Hedge Agreements and the $25,000,000 increase in the maximum
amount of the Loans, as more particularly set forth in the First
Credit Agreement Amendment and secured by this First Amendment,
shall have such priority as is established at the time of
recordation of this First Amendment in the Official Records of
______ County, __________, and (ii) the Deed of Trust, as
unamended by this First Amendment, shall continue to secure the
obligations of Grantor under the Credit Agreement, as unamended
by the First Credit Agreement Amendment, and shall continue to
have the priority established as of the Original Recording Date.
In no event shall this First Amendment destroy, impair or
otherwise affect the priority of the Deed of Trust established on
the Original Recording Date.
12. This First 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.
13. This First 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
4
identical thereto except having additional signature pages
attached to it.
14. In the event of any inconsistencies between the
provisions of this First Amendment and the provisions of the Deed
of Trust, the provisions of this First Amendment shall govern and
prevail.
15. The relationship of Grantor 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 First Credit Agreement Amendment and performing their
respective obligations thereunder, Grantor and Beneficiary do not
intend to form a partnership or joint venture or any other
relationship other than that of creditor and debtor respectively.
5
IN WITNESS WHEREOF, the duly authorized representatives
of Grantor and Beneficiary have executed this First Amendment as
of the date first above written.
"GRANTOR"
KAISER ALUMINUM & CHEMICAL CORPORATION,
a Delaware corporation
By: ____________________________
Name: ______________________
Its: ______________________
By: ____________________________
Name: ______________________
Its: ______________________
"BENEFICIARY"
BANKAMERICA BUSINESS CREDIT, INC.,
a Delaware corporation
By: ____________________________
Name: ______________________
Its: ______________________
6
ACKNOWLEDGEMENTS
STATE OF ___________________ )
)
COUNTY OF __________________ )
On ___________, 1994, 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 ___________, 1994, 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 ___________, 1994, 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
A - 1
EXHIBIT J
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
O'Melveny & Myers
275 Battery Street, 26th Floor
San Francisco, California 94111-3305
Attn: Marilyn K. Beardsley, Esq.
(File No. 019,368-663)
- - -----------------------------------------------------------------
FIRST AMENDMENT TO MORTGAGE WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS FIRST AMENDMENT TO MORTGAGE WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE
FILING AND FINANCING STATEMENT (this "First Amendment") is made
as of ________________, 1994 by and between KAISER ALUMINUM &
CHEMICAL CORPORATION, a Delaware corporation ("Mortgagor"), whose
address is 6177 Sunol Drive, Pleasanton, California 94566, and
BANKAMERICA BUSINESS CREDIT, INC., a Delaware corporation
("BABC"), as agent for the various financial institutions which
are defined as "Secured Lenders" in the Credit Agreement (as
hereinafter defined), or may hereafter become, parties to the
Credit Agreement (as hereinafter defined), having an office at
Two North Lake Avenue, Suite 400, Pasadena, California 91101
(BABC, in its capacity as agent for such financial institutions
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,
Kaiser Aluminum Corporation, a Delaware corporation ("Parent
Guarantor"), BABC and various other financial institutions named
therein (which financial institutions, together with BABC in its
capacity as lender, shall be referred to hereinafter collectively
as "Lenders") and Mortgagee, Lenders agreed to make certain
revolving loans and other financial commitments to Mortgagor (the
"Loans"). Except as otherwise provided in this First 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 Lenders, as mortgagee, and
recorded on February 22, 1994 in the Official Records of ______
County, __________ as Instrument No. __________ (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
Lenders have agreed to amend the Credit Agreement to, among other
things, (i) increase the maximum aggregate principal amount of
the Loans by Twenty-Five Million Dollars ($25,000,000) and (ii)
permit Mortgagor to enter into Currency Hedge Agreements from
time to time with the Currency Hedge Providers (as defined in the
Credit Agreement) and provide that Mortgagor's obligations
thereunder shall be secured by the Mortgage, all as set forth in
that certain First Amendment to Credit Agreement dated of even
date herewith by and between Mortgagor, Parent Guarantor, Lenders
and Mortgagee (the "First Credit Agreement Amendment").
E. Mortgagor and Mortgagee desire to amend the Mortgage to
reflect and evidence the amendments and modifications set forth
in the First 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 introductory paragraph of the Mortgage shall
be amended in part immediately after the third parenthetical as
follows:
". . . as agent for the various financial
institutions which are defined as "Secured
Lenders" in the Credit Agreement (as hereinafter
defined), or may hereafter become parties to the
Credit Agreement (as hereinafter defined) . . ."
(2) Recital A of the Mortgage shall be amended in part
immediately after the first parenthetical as follows:
". . . , between Parent Guarantor, Mortgagor, the
various financial institutions which are defined
as "Secured Lenders" in the Credit Agreement
and/or which may hereafter become parties to the
Credit Agreement . . ."
2
(3) Recital B of the Mortgage shall be deleted in its
entirety.
(4) Article II of the Mortgage shall be amended by
adding thereto the following:
"2.9 No Subordinate Liens. Mortgagor represents and
--------------------
warrants that as of the date hereof there are no Liens
on the Real Estate that secure Indebtedness for
borrowed money, other than those in favor of
Mortgagee."
(5) The definition of "Secured Obligations" set forth
in Exhibit C of the Mortgage shall be amended to read in its
entirety as follows:
"'Secured Obligations' means all Obligations,
-------------------
whether now existing or hereafter arising, of
Mortgagor under or in connection with the Credit
Agreement or any other Loan Documents and 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), whether for advances, costs,
fees, expenses, or otherwise."
6. The following definition shall be added to Exhibit
C of the Mortgage:
"'Indebtedness' shall have the meaning ascribed to
------------
that term in the Credit Agreement."
7. Mortgagor's obligations evidenced by the Credit
Agreement, as amended by the First Credit Agreement Amendment,
shall continue to be secured by the Mortgage. Except as amended
by this First Amendment, the Mortgage shall remain unmodified and
in full force and effect. The parties hereto hereby ratify and
confirm the Mortgage as amended hereby.
8. It is the intent of each of the parties hereto
that the Mortgage, as modified and amended by this First
Amendment, shall have and retain the priority established at the
time of its original recordation on February 22, 1994 (the
"Original Recording Date"). To the extent that any court of law
or equity determines that the priority of this First Amendment
may not relate back to the Original Recording Date, then (i) this
First Amendment shall be bifurcated from the Mortgage such that
the obligations of Mortgagor with respect to the Currency Hedge
Agreements and the $25,000,000 increase in the maximum amount of
the Loans, as more particularly set forth in the First Credit
Agreement Amendment and secured by this First Amendment, shall
have such priority as is established at the time of recordation
3
of this First Amendment in the Official Records of ______ County,
________, and (ii) the Mortgage, as unamended by this First
Amendment, shall continue to secure the obligations of Mortgagor
under the Credit Agreement, as unamended by the First Credit
Agreement Amendment, and shall continue to have the priority
established as of the Original Recording Date. In no event shall
this First Amendment destroy, impair or otherwise affect the
priority of the Mortgage established on the Original Recording
Date.
9. This First Amendment shall be governed by and
construed in accordance with the laws in the State of Oklahoma
without giving effect to the conflict of law principles of said
State.
10. This First 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.
11. In the event of any inconsistencies between the
provisions of this First Amendment and the provisions of the
Mortgage, the provisions of this First Amendment shall govern and
prevail.
12. 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 First 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.
4
IN WITNESS WHEREOF, the duly authorized representatives
of Mortgagor and Mortgagee have executed this First Amendment as
of the date first above written.
"MORTGAGOR"
Attested By: KAISER ALUMINUM & CHEMICAL CORPORATION,
a Delaware corporation
____________________
Name:_______________ By: ____________________________
Title:______________
Name: ______________________
Its: ______________________
By: ____________________________
Name: ______________________
Its: ______________________
"MORTGAGEE"
BANKAMERICA BUSINESS CREDIT, INC.,
a Delaware corporation
By: ____________________________
Name: ______________________
Its: ______________________
5
ACKNOWLEDGEMENTS
STATE OF ___________________ )
)
COUNTY OF __________________ )
On ___________, 1994, 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 ___________, 1994, 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 ___________, 1994, 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
A - 1
EXHIBIT K
EXHIBIT T
FORM OF AGREEMENT REGARDING PROCESSING ARRANGEMENT
--------------------------------------------------
This Agreement Regarding Processing Arrangement (the
"Agreement") is made as of the _____ day of August 1994, by and
between Alutek, Inc. ("Processor"), a Washington corporation, and
BankAmerica Business Credit, Inc. (the "Agent"), a Delaware
corporation.
WHEREAS, the Agent is agent for certain financial
institutions (the "Lenders") that are or may from time to time
become parties to the Credit Agreement, dated as of February 15,
1994 (the "Credit Agreement") among Kaiser Aluminum & Chemical
Corporation (the "Company"), Kaiser Aluminum Corporation, the
Lenders and the Agent; and
WHEREAS, capitalized terms used in this Agreement and not
otherwise defined are used as defined in the Credit Agreement;
and
WHEREAS, pursuant to the Credit Agreement, the Lenders make
Credit Extensions to the Company from time to time; and
WHEREAS, to secure the repayment of such Credit Extensions,
the Company, pursuant to certain Company Collateral Documents has
granted to the Agent, for the benefit of the Lenders, a security
interest in, among other things, substantially all of its
Inventory (as defined in the Company Security Agreement) located
in the United States; and
WHEREAS, the Company from time to time will deliver to
Processor at its processing facility located in the City of
Spokane, County of Spokane, Washington (the "Facility"), certain
of the Company's Inventory for processing by Processor, which
processing may include inspection, sawing, stenciling, stamping,
packaging, storage and loading services (such Inventory received
by and in the possession of Processor is herein referred to as
the "Materials"); and
WHEREAS, as a condition precedent to the agreement of the
Agent and the Lenders to a first amendment to the Credit
Agreement, the Agent and the Lenders require that Processor enter
into this Agreement with the Agent for the benefit of the Agent
and the Lenders;
NOW, THEREFORE, in consideration of the foregoing premises,
and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Processor hereby
represents, warrants and agrees to and with the Agent, as
follows:
1
1. Processor hereby acknowledges and agrees that title to
all Materials shall at all times remain with the Company, and
Processor has and shall make no claim with respect thereto.
Processor hereby further acknowledges receipt of notification
from the Agent of the Agent's security interest, for the benefit
of the Lenders, in all of said Materials which Processor shall
receive from time to time from the Company, and Processor agrees
to execute individually in favor of the Agent, or to join with
the Company in the execution of, such documents, instruments,
financing statements, certificates and agreements as the Agent
may reasonably request from Processor hereafter to evidence or
give notice of such security interest.
2. During the term of this Agreement, Processor shall
receive all Materials from the Company (whether in the Company's
name, or in the Agent's name for the account of the Company), and
shall store, process and maintain the Materials at the Facility
in accordance with its contractual agreements with the Company,
but subject to the provisions of this Agreement. All charges to
be paid by the Company to Processor will be for the account of,
and shall be billed directly to, the Company, and the Agent shall
have no responsibility or financial liability to Processor for
the Company's obligations to Processor.
3. Until receipt of further written notice from the Agent
to Processor at Processor's address set forth below Processor's
signature, Processor is authorized by the Agent to release
Materials in accordance with the Company's directions. Upon
receipt of written notice from the Agent to Processor that an
Event of Default under the Credit Agreement has occurred and is
continuing and that the Required Lenders have consented to the
Agent's exercising remedies in accordance with the provisions of
the Credit Agreement and the Company Security Agreement with
respect to the Materials, Processor shall not honor any
directions for release of Materials from the Company, but shall
release Materials only in accordance with the Agent's
instructions, until the Agent advises Processor to the contrary.
4. The Agent's security interest in the Materials shall be
superior to any interest whatsoever which Processor may have
therein, and Processor will not assert against the Materials any
statutory, contractual or possessory liens, all of which
Processor hereby subordinates in favor of the Agent under the
terms of this Agreement. No benefit under this paragraph 4 shall
inure to any person not party to this Agreement.
5. Processor will notify the Agent at the Agent's address
set forth below the Agent's signature, or at such other address
as the Agent shall hereafter specify in writing, in the event the
Company defaults in any of its obligations to Processor and
Processor intends to exercise its rights or remedies against the
Company.
2
6. Upon receipt of written notice from the Agent to
Processor that an Event of Default under the Credit Agreement has
occurred and is continuing and that the Required Lenders have
consented to the Agent's exercising remedies in accordance with
the provisions of the Credit Agreement and the Company Security
Agreement with respect to the Materials, Processor agrees that
the Agent, at its option, may (a) keep the Materials in the
Facility for a period of up to ninety (90) days following receipt
by the Agent of notice from Processor requesting removal
therefrom, without charge other than reasonable storage and
handling charges accruing during such period mutually agreed to
by Processor and the Agent; and/or (b) enter the Facility during
normal business hours and at times mutually acceptable to the
Agent and Processor in order to remove the Materials therefrom,
without charge other than processing charges with respect to
Materials removed from the Facility by the Agent. In any such
event, Processor agrees to cooperate with the Agent and not to
hinder the Agent's actions in enforcing its remedies with respect
to the Materials. The Agent and Processor agree that this
Agreement will not (i) affect any contractual arrangements with
respect to the processing of Materials now or hereafter existing
between the parties or between the Company and either of the
parties or (ii) obligate either party to provide to or purchase
from the other party any processing services with respect to the
Materials.
7. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of Processor and the Agent.
8. This Agreement shall terminate upon written notice from
the Agent to Processor that the Company Security Agreement has
terminated or that the security interest in the Materials
thereunder has terminated.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties as of the day and year specified at the beginning
hereof.
Alutek, Inc.
By
Name:
Title:
Address for Notice Purposes:
Alutek, Inc.
N. 3401 Tschirley Road
Spokane, Washington 99216
3
BankAmerica Business Credit, Inc.
By
Name:
Title:
Address for Notice Purposes:
BankAmerica Business Credit, Inc.
Two North Lake Avenue
Suite 400
Pasadena, California 91101
The undersigned consents to the execution, delivery and
performance by Processor of the foregoing agreement.
Kaiser Aluminum & Chemical
Corporation
By
4
EXHIBIT L
EXHIBIT U
INTERCREDITOR AGREEMENT
------------------------
This INTERCREDITOR AGREEMENT, dated as of July 21, 1994
(as amended, supplemented, amended and restated or otherwise
modified from time to time, this "Agreement"), is by and among
---------
(i) 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 Kaiser Aluminum & Chemical Corporation, a Delaware
corporation (the "Company"), Kaiser Aluminum Corporation, a
-------
Delaware corporation (the "Parent Guarantor"), BankAmerica
----------------
Business Credit, Inc., as Agent for the Lenders, and the Lenders
and (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"); (ii) the LENDERS; and (iii) the CURRENCY HEDGE
- - ---------
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. 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,
Kaiser Alumina Australia Corporation, a Delaware corporation,
Kaiser Aluminium International, Inc., a Delaware corporation,
Kaiser Aluminum & Chemical Investment, Inc., a Delaware
corporation, Kaiser Aluminum Properties, Inc., a Delaware
corporation, Kaiser Aluminum Technical Services, Inc., a
California corporation, Kaiser Finance Corporation, a Delaware
corporation, Kaiser Jamaica Corporation, a Delaware corporation,
and Oxnard Forge Die Company, Inc., a California corporation
(collectively the "Subsidiary Guarantors"), have executed the
---------------------
1
Subsidiary Guaranty, in each case for the purpose of guarantying
the obligations of the Company under the Credit Agreement and the
other Loan Documents.
C. 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.
D. The Company, the Parent Guarantor, the Lenders and
the Collateral Agent have entered into a First Amendment to
Credit Agreement dated as of the date hereof pursuant to which
the Company will be 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.
E. 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 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 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.
F. The Lenders and the Currency Hedge Providers have
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.
G. The Lenders, the Currency Hedge Providers and the
Collateral Agent desire to set forth their agreements concerning
the Collateral.
NOW, THEREFORE, in consideration of the mutual
covenants, agreements and undertakings contained herein, the
parties hereto agree 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.
2
(a) "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.
(b) "Business Credit" means BankAmerica Business Credit,
---------------
Inc., a Delaware corporation.
(c) "Collateral Agreements" means the Company Collateral
---------------------
Documents, the Parent Collateral Documents, the Subsidiary
Collateral Documents, the Parent Guaranty and the Subsidiary
Guaranty.
(d) "Creditors" means the Lenders and the Currency Hedge
---------
Providers.
(e) "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.
(f) "Obligations" means and includes all of the Bank
-----------
Obligations and all of the Currency Hedge Obligations.
(g) "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).
(h) "Required Currency Hedge Providers" means, at any time,
---------------------------------
Currency Hedge Providers the sum of whose Pro Rata Shares and
Subordinated Pro Rata Shares equals at least 67%.
(i) "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
3
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.
(j) "Subordinated 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 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
4
(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 herein shall
automatically be void and ineffective and this Agreement
automatically shall cease to apply to such avoidable Lien.
3. 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 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 Pro Rata Share; and
Sixth, 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
5
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. 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.
4. Certain Actions Regarding the Collateral.
----------------------------------------
(a) 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) nothwithstanding the provisions of Section 3 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 of 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.
(b) 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 or any Currency Hedge 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.
6
5. 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,
and without impairing or releasing the obligations of the
Currency Hedge 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.
6. Defaults. 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 13 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.
7. 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 or the Collateral Agreements subsequent to the
date of any such petition.
7
8. Appointment of Collateral Agent by Lenders.
------------------------------------------
Pursuant to Article XI of the Credit Agreement, the Lenders have
appointed Business Credit 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 Business Credit 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.
9. Appointment of Collateral Agent by Currency Hedge
-------------------------------------------------
Providers.
---------
(a) Each Currency Hedge Provider hereby appoints
Business Credit 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 Business Credit 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
8
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) Business Credit 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, 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, 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.
(g) 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
9
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, 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.
(h) (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 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 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 (B) the Collateral Agent is not, within thirty (30)
days after making a specific proposal therefor, specifically
indemnified to its satisfaction by the Lenders or the Currency
Hedge 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
10
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 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 and (B) the Collateral Agent
is, within thirty (30) days after making a specific proposal
therefor, specifically indemnified to its satisfaction by the
Lenders or the Currency Hedge 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.
10. The Collateral Agent. 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.
11
11. 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.
12. Waiver of Rights; 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.
13. 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).
14. 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
12
the Collateral Agent, the Lenders and the Currency Hedge
Providers. Nothing contained in this Agreement, however, shall
be construed to require the approval of all Lenders or any
Currency Hedge Provider to any amendment to the Credit Agreement
or any of the Collateral Agreements.
15. 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.
16. Additional Currency Hedge Agreements. Any Lender
------------------------------------
may secure Currency Hedge 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.
17. 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.
18. 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 Agreements or the Currency Hedge Obligations
except to another Currency Hedge Provider.
19. 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.
20. 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.
21. 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 and (b) all of
the Currency Hedge Agreements have terminated.
13
22. 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.
23. Acknowledgments. 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, 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;
(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 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.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement effective as of the date first set forth above.
BANKAMERICA BUSINESS CREDIT, INC.,
as Collateral Agent
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: Two North Lake Avenue
Suite 400
Pasadena, CA 91101
14
BANKAMERICA BUSINESS CREDIT, INC.,
as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: Two North Lake Avenue
Suite 400
Pasadena, CA 91101
CONGRESS FINANCIAL CORPORATION
(WESTERN), as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 225 South Lake Avenue
Office #1000
Pasadena, CA 91101
LA SALLE NATIONAL BANK, as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 120 S. La Salle Street
5th Floor
Chicago, IL 60603
THE CIT GROUP BUSINESS CREDIT, INC.,
as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 2110 Walnut Hill Lane
Irving, TX 75038
15
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 8750 West Bryn Mawr Avenue
Suite 720
Chicago, IL 60631
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 555 California Street
41st Floor
San Francisco, CA 94104
HELLER FINANCIAL INC., as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 101 Park Avenue
New York, NY 10178
NATIONAL WESTMINSTER BANK PLC,
as a Lender
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 175 Water Street
29th Floor
New York, NY 10038
16
LA SALLE NATIONAL BANK, as a Currency
Hedge Provider
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 120 S. La Salle Street
5th Floor
Chicago, IL 60603
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Currency Hedge
Provider
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 555 California Street
41st Floor
San Francisco, CA 94104
NATIONAL WESTMINSTER BANK PLC,
as a Currency Hedge Provider
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address: 175 Water Street
29th Floor
New York, NY 10038
17
ACKNOWLEDGMENT
The undersigned has entered into a Currency Hedge
Agreement with the Company pursuant to which Currency Hedge
Obligations thereunder are to be secured by the Collateral
Documents. The undersigned acknowledges the terms of this
Agreement and agrees to be bound hereby.
_____________, as a Currency Hedge
Provider
_________________________________
By_______________________________
Name:____________________________
Title:___________________________
Address:
18
SCHEDULE A
----------
This Schedule A, consisting of 2 pages, is attached to and
made a part of an amendment to a financing statement naming the
following parties:
DEBTOR
- - ------
Kaiser Aluminum & Chemical Corporation
6177 Sunol Boulevard
Pleasanton, California 94566
SECURED PARTY
- - -------------
BankAmerica Business Credit, Inc., as Agent for BankAmerica
Business Credit, Inc., Congress Financial Corporation (Western),
Heller Financial, Inc., Transamerica Business Credit Corporation,
The CIT Group/Business Credit, Inc., La Salle National Bank,
National Westminster Bank PLC and Bank of America National Trust
and Savings Association
Two North Lake Avenue
Suite 400
Pasadena, California 91101
Schedule I to the above referenced financing statement is hereby
amended as follows:
1. The first paragraph of Schedule I is hereby amended to read in
its entirety as follows:
"BankAmerica Business Credit, Inc. acts as Secured Party under
that certain Company Security Agreement, Financing Statement, and
Conditional Assignment of Patents and Trademarks dated as of
February 15, 1994 (as amended, supplemented, amended and
restated, or otherwise modified from time to time, the "Security
--------
Agreement"), by and between the Debtor and the Secured Party, as
- - ---------
agent (in such capacity, together with its successors and assigns
in such capacity, the 'Secured Party' or the 'Agent') for the
------------- -----
various financial institutions (collectively, the 'Lenders') that
-------
are or from time to time may become parties to that certain
Credit Agreement dated as of February 15, 1994 referred to in the
Security Agreement (as amended, supplemented, amended and
restated, or otherwise modified from time to time, the 'Credit
------
Agreement') and for the Currency Hedge Providers (as hereinafter
- - --------
defined).
1
2. Clause (a) of the definition of "Cash Equivalent Investment"
contained in Schedule I is hereby amended to read in its entirety
as follows:
"(a) any evidence of Indebtedness (as defined in the
Credit Agreement), maturing not more than one year after
such time, issued or guaranteed by the United States
Government or issued by any of the following Federal
agencies: the Federal Home Loan Mortgage Corporation, the
Federal Home Loan Bank System, the Farm Credit System
(including, but not limited to, the Farm Credit Banks and
Banks for Cooperatives), and the Federal National Mortgage
Association;"
3. Clause (b)(i) of the definition of "Cash Equivalent
Investment" contained in Schedule I is hereby amended to read in
its entirety as follows:
"(i) a commercial banking institution that is operating
in the United States and has a combined capital and surplus
and undivided profits of not less than $500,000,000;"
4. The following definitions are hereby added to Schedule I in
the appropriate alphabetical order:
"'Currency Hedge Agreement' means any currency swap
------------------------
agreement, currency cap agreement, currency collar agreement,
currency floor agreement, foreign exchange agreement or other
similar agreement or arrangement entered into by the Company and
any Currency Hedge Provider; provided, however, that the term
'Currency Hedge Agreement, shall not include any foreign exchange
option agreement purchased by the Company for a fee paid
contemporaneously with the execution of the agreement."
"'Currency Hedge Providers' means all Lenders party to both a
------------------------
Currency Hedge Agreement and the Intercreditor Agreement dated as
of July 21, 1994 among the Agent, each Lender-and each Lender party
to a Currency Hedge Agreement."
5. The definition of "Secured Lenders" contained in Schedule I is
---------------
hereby amended to read in its entirety as follows:
"'Secured Lenders' means the Secured Party, each Lender, each
---------------
Issuer Bank and the Currency Hedge Providers, together with any
successors-and assigns thereto."
2