EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of March 10, 1995, is by and between
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KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation
(the "Company"), KAISER ALUMINUM CORPORATION, a Delaware
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corporation (the "Parent Guarantor"), the various financial
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institutions that are or may from time to time become parties to
the Credit Agreement referred to below (collectively, the
"Lenders" and, individually, a "Lender"), and BANKAMERICA
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BUSINESS CREDIT, INC., a Delaware corporation, as agent (in such
capacity, together with its successors and assigns in such
capacity, the "Agent") for the Lenders. Capitalized terms used,
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but not defined, herein shall have the meanings given to such
terms in the Credit Agreement, as amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders
and the Agent are parties to the Credit Agreement, dated as of
February 15, 1994, as amended by the First Amendment to Credit
Agreement dated as of July 21, 1994 (the "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 Recitals.
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The second recital to the Credit Agreement is hereby
amended by deleting the amount "$275,000,000" in the fourth line
thereof and by replacing such amount with the amount
"$325,000,000".
1.2 Amendments to Article I: Definitions and Accounting
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Terms.
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A. The definition of "Revolving Commitment
Availability" contained in Section 1.1 of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"'Revolving Commitment Availability' means, at any
---------------------------------
time, the excess of
(a) (i) the lesser of (x) the Revolving Commitment
Amount at such time and (y) the Borrowing Base as in effect
at such time plus (ii), during the period from March 10, 1995 to
----
and including July 10, 1995, the lesser of (x) $50,000,000 and
(y) an amount equal to two-thirds of the amount of any funds then
on deposit in transaction accounts in which agreements are
effected with respect to spot, forward, future and option
transactions entered into by the Company and its Subsidiaries in
the ordinary course of business involving (or, in the case of
futures and options, for or relating to) the purchase and sale of
aluminum, alumina, or bauxite
over
----
(b) the Revolving Credit Outstandings at such time."
B. The definition of "Cash Equivalent Investment"
contained in Section 1.1 of the Credit Agreement is hereby
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amended by (i) deleting the phrase "which have substantially
similar investment policies." in clause (e) thereof and
substituting therefor ";or" and (ii) adding a new clause (f) at
the end thereof as follows:
"(f) investments in and through any Sweep Account."
C. The following definitions are hereby added to
Section 1.1 of the Credit Agreement in the appropriate
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alphabetical order:
"'101 Account' is defined in the Concentration Bank
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Agreement."
"'Sweep Account' means an account or other arrangement
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maintained with any Lender into which funds on deposit in
the Concentration Account or the 101 Account are
automatically swept at the end of each business day,
invested overnight and automatically returned to the
Concentration Account or 101 Account, as the case may be, on
the next business day."
1.3 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 "$275,000,000"
in the second line thereof and by replacing such amount with the
amount "$325,000,000".
B. Clause (a) of Section 2.3 of the Credit Agreement
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is hereby amended by inserting the phrase ", or such other
account at Bank of America as the Company shall notify the Agent
from time to time," after the phrase "account number 12339-11101
at Bank of America" contained therein.
C. Clause (b) of Section 2.3 of the Credit Agreement
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is hereby amended by inserting the phrase ", or such other
account at Bank of America as the Company shall notify the Agent
from time to time," after the phrase "account number 12339-11101
at Bank of America" contained therein.
1.4 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 at the end of the second
parenthetical contained therein: "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 Second
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Amendment to Credit Agreement dated as of March 10, 1995 between
the Company, the Parent Guarantor, the Lenders and the Agent".
1.5 Amendments to Article IX: Covenants.
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A. Section 9.1.10(d) of the Credit Agreement is
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hereby amended by inserting the phrase ",except in the case of a
Sweep Account with Agent or any Affiliate of Agent," after the
phrase "thereof and" contained in the fourth line thereof.
B. Article IX of the Credit Agreement is hereby
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amended by adding the following as new Section 9.2.22 thereof:
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"SECTION 9.2.22 Company Investment or Distribution
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to Parent Guarantor. Notwithstanding anything to the contrary
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contained herein, the Company shall be permitted to make
Investments in, or Distributions to, the Parent Guarantor in an
aggregate amount not to exceed $300,000 in each Fiscal Year."
1.6 Amendments to Signature Pages.
-----------------------------
Subject to the last paragraph of this Section 1.6, 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. 27.270%
Congress Financial Corporation 26.154%
LaSalle National Bank 04.769%
CIT Group/Business Credit, Inc. 06.308%
Transamerica Business Credit Corporation 06.769%
Bank of America National Trust and
Savings Association 09.090%
Heller Financial, Inc. 08.871%
National Westminster Bank PLC 06.000%
ABN Amro N.V. 04.769%
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 Second
Amendment to Credit Agreement dated as of March 10, 1995 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.
Subject to the last paragraph of this Section 1.6, on the
Second Amendment Effective Date (as defined below) each Lender
whose Percentage is increased pursuant to this Amendment shall
make such payments to the Agent, and the Agent shall make such
distributions of such payments to the remaining Lenders, as are
necessary to adjust the amounts of the outstanding Loans of all
Lenders in accordance with the revised Percentages set forth
above in this Section 1.6.
Anything contained in this Amendment or the other Loan
Documents to the contrary notwithstanding, each Lender's
Percentage interest in any LIBO Rate Loan outstanding on the
Second Amendment Effective Date shall remain unchanged for all
purposes under the Loan Documents until the date of expiration of
the Interest Period in effect as of the Second Amendment
Effective Date with respect to such LIBO Rate Loan, at which time
(i) all payments of interest and principal, if any, made on such
date in respect of such LIBO Rate Loan shall be distributed to
Lenders in accordance with such unchanged Percentages and (ii) in
the event such LIBO Rate Loan is to remain outstanding for an
additional Interest Period commencing on such date or is to be
converted to a Reference Rate Loan on such date, Lenders shall
make such payments, and Agent shall make such distributions
thereof, on such date as are necessary to adjust the Percentage
interests of Lenders in such Loan in accordance with the revised
Percentages set forth above in this Section 1.6.
Section 2. Amendments to Collateral Documents.
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The parties agree that, as of the Second Amendment
Effective Date, the Company Deeds of Trust and the Company
Mortgages shall be amended or supplemented as set forth in
Exhibits B and C hereto, respectively.
Section 3. Conditions to Effectiveness.
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This Amendment shall become effective as of the date
hereof (the "Second 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 Company Deeds of
Trust and the Company Mortgages 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 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 an opinion, addressed to the
Agent and each Secured Lender, from Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, in substantially the form of Exhibit A
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
Amount, a fee in the amount of 1.00% 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 Second 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 corporate action
on the part of the Company and the Parent Guarantor, as the case
may be.
B. No Conflict. The execution and delivery by the
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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
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
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from Credit Agreement. Each of the statements set forth in
---------------------
Section 7.2.1 of the Credit Agreement is true and correct.
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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
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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.
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The Company is a party to the Company Collateral
Documents, in each case as amended through the Second 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 Second
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 Second 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
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
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Support Documents".
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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.
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A. Reference to and Effect on the Credit Agreement
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and the Other Loan Documents.
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(1) On and after the Second 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.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
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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
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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
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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
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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
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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 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
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 ABN AMRO BANK N.V.
CORPORATION
By: _______________________ By:________________________
Name Printed:______________ Name Printed:______________
Its:_______________________ Its:_______________________
S - II
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
INC. 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
S - III
EXHIBIT A
March 10, 1995
BankAmerica Business Credit, Inc.,
as Agent
Two North Lake Avenue, Suite 400
Pasadena, California 91101
and
The Lenders Listed on Schedule A Hereto
Re: Second Amendment to Credit Agreement (the "Second
Amendment"), dated as of March 10, 1995, 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"), and
Kaiser Aluminum Corporation, a Delaware corporation (the "Parent
Guarantor"), in connection with the Second Amendment. Capitalized
terms used but not defined herein have the meanings assigned thereto
in the Credit Agreement, as amended by the Second Amendment. As used
herein, "Credit Agreement" has the meaning ascribed thereto in the
first recital of the Second Amendment.
In rendering the opinion set forth herein, we have reviewed
the Credit Agreement and the Second Amendment, 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 and the Parent Guarantor 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, we have relied upon statements and representations of officers
and other representatives of the Company and the Parent Guarantor and
certificates of public officials. We also have assumed (i) the valid
authorization, execution, and delivery of the Second Amendment by the
parties thereto (other than the Company and the Parent Guarantor),
(ii) that each such other party has been duly organized and is validly
BankAmerica Business Credit, Inc., March __, 1995
Agent Page 2
and
The Lenders Listed on Schedule A Hereto
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 thereunder, and (iii) that the Second
Amendment constitutes the legal, valid and binding obligation of each
such other party enforceable against each such other party in
accordance with its 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 Second Amendment, and the
performance by the Company and the Parent Guarantor of the Credit
Agreement as amended by the Second 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 Second Amendment has been duly executed and
delivered by each of the Company and the Parent Guarantor.
3. The Second 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.
The opinion set forth in paragraph 3 above is 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:
BankAmerica Business Credit, Inc., March __, 1995
Agent Page 3
and
The Lenders Listed on Schedule A Hereto
(a) The enforceability of the Second Amendment may be
subject to or limited by 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 Second Amendment 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)
provisions 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;
BankAmerica Business Credit, Inc., March __, 1995
Agent Page 4
and
The Lenders Listed on Schedule A Hereto
(e) 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.
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 Second Amendment and is
solely for the benefit of such Persons in connection with the
execution, delivery and effectiveness of the Second 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.
Very truly yours,
SCHEDULE A
BankAmerica Business Credit, Inc.
Bank of America National Trust
and Savings Association
The CIT Group/Business Credit, Inc.
Congress Financial Corporation (Western)
Heller Financial, Inc.
La Salle National Bank
National Westminster Bank PLC
Transamerica Business Credit Corporation
ABN Amro N.V.
EXHIBIT B
FORM OF SECOND AMENDMENT TO DEED OF TRUST
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
O'Melveny & Myers
275 Battery Street, 26th Floor
San Francisco, California 94111-3305
Attn: Jill H. Matichak, Esq.
(File No. 019,368-663)
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SECOND AMENDMENT TO DEED OF TRUST WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS SECOND AMENDMENT TO DEED OF TRUST WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE FILING AND
FINANCING STATEMENT (this "Second Amendment") is made as of March --,
1995 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, as amended by the First Amendment to Credit
Agreement dated as of July 21, 1994 (as so amended, 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 Second
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 --, 1994 in
the Official Records of ---- County, ---- as Instrument No(s). ----
(the "Original Deed of Trust"), as amended by the First Amendment to
Deed of Trust with Power of Sale, Assignment of Leases and Rents,
Security Agreement, Fixture Filing and Financing Statement (the "First
Amendment") dated as of July 21, 1994 and recorded on August --, 1994
in the Official Records of ---- County, ---- as Instrument No(s). ----
(as so amended, the "Deed of Trust").
C. The Deed of Trust encumbers that certain real property
located in ------- County, --------- as more particularly described in
Exhibit A, attached hereto, and by this reference incorporated herein.
---------
D. Concurrently herewith, Grantor, Parent Guarantor and Bank
Lenders have agreed to amend the Credit Agreement to, among other
things, increase the maximum aggregate principal amount of the Loans
by Fifty Million Dollars ($50,000,000) and provide that Grantor's
obligations thereunder shall be secured by the Deed of Trust, all as
set forth in that certain Second Amendment to Credit Agreement dated
of even date herewith by and between Grantor, Parent Guarantor,
Lenders and Beneficiary (the "Second 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
Second 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. Grantor's obligations evidenced by the Credit
Agreement, as amended by the Second Credit Agreement Amendment, shall
continue to be secured by the Deed of Trust. Except as amended by
this Second 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.
2. It is the intent of each of the parties hereto that the
Original Deed of Trust, as modified and amended by the First Amendment
and this Second Amendment, shall have and retain the priority
established at the time of the recordation of the Original Deed of
Trust on February --, 1994 (the "Original Recording Date"). To the
extent that any court of law or equity
2
determines that the priority of this Second Amendment may not relate
back to the Original Recording Date, then (i) this Second Amendment
shall be bifurcated from the Deed of Trust such that the obligations
of Grantor with respect to the $50,000,000 increase in the maximum
amount of the Loans, as more particularly set forth in the Second
Credit Agreement Amendment and secured by this Second Amendment, shall
have such priority as is established at the time of recordation of
this Second Amendment in the Official Records of ---- County, ----,
and (ii) the Deed of Trust, as unamended by this Second Amendment,
shall continue to secure the obligations of Grantor under the Credit
Agreement, as unamended by the Second Credit Agreement Amendment, and
the other Secured Obligations set forth in the Deed of Trust, and
shall continue to have the priority described in paragraph 2 of the
First Amendment. In no event shall this Second Amendment destroy,
impair or otherwise affect such priority of the Deed of Trust.
3. This Second 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.
4. This Second 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.
5. In the event of any inconsistencies between the
provisions of this Second Amendment and the provisions of the Deed of
Trust, the provisions of this Second Amendment shall govern and
prevail.
6. 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
Second 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.
3
IN WITNESS WHEREOF, the duly authorized representatives of
Grantor and Beneficiary have executed this Second Amendment as of the
date first above written.
"GRANTOR"
KAISER ALUMINUM & CHEMICAL CORPORATION,
a Delaware corporation
By: ____________________________
Name: K.S. Vasan
Its: Treasurer
"BENEFICIARY"
BANKAMERICA BUSINESS CREDIT, INC.,
a Delaware corporation
By: ____________________________
Name: Michael J. Jasaitis
Its: Vice President
4
ACKNOWLEDGEMENTS
STATE OF ___________________ )
)
COUNTY OF __________________ )
On March__, 1995, 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 March__, 1995, before me, _____________________, a Notary
Public in and for said State, personally appeared
________________________________________________________________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
EXHIBIT A
----------
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT C
FORM OF SECOND AMENDMENT TO MORTGAGE
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
O'Melveny & Myers
275 Battery Street, 26th Floor
San Francisco, California 94111-3305
Attn: Jill H. Matichak, Esq.
(File No. 019,368-663)
-----------------------------------------------------------------
SECOND AMENDMENT TO MORTGAGE WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FIXTURE FILING
AND FINANCING STATEMENT
THIS SECOND AMENDMENT TO MORTGAGE WITH POWER OF SALE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE FILING AND
FINANCING STATEMENT (this "Second Amendment") is made as of March --,
1995 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 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 "Mortgagee").
R E C I T A L S :
A. Pursuant to that certain Credit Agreement dated as of
February 15, 1994, as amended by the First Amendment to Credit
Agreement, dated as of July 21, 1994 (as so amended, 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 "Bank Lenders") and Mortgagee, Bank Lenders agreed to
make certain revolving loans and other financial commitments to
Mortgagor (the "Loans"). Except as otherwise provided in this Second
Amendment, all initially capitalized terms used herein without
definition shall have the same meaning as in the Credit Agreement, as
amended.
B. The Loans are secured by, among other things, that certain
Mortgage with Power of Sale, Assignment of Leases and Rents, Security
Agreement, Fixture Filing and Financing Statement dated as of February
15, 1994, executed by Mortgagor, as mortgagor, to Mortgagee as agent
of Bank Lenders, as mortgagee, and recorded on February --, 1994 with
the Recorder of Deeds,
---- County, ---- in Book , Page --- (the "Original Mortgage"), as
amended by the First Amendment to Mortgage with Power of Sale,
Assignment of Leases and Rents, Security Agreement, Fixture Filing and
Financing Statement (the "First Amendment") dated as of July 21, 1994
and recorded on August --, 1994 with the Recorder of Deeds, ----
County, ----- in Book ----, Page ---- (as so amended, the "Mortgage").
C. The Mortgage encumbers that certain real property located in
----County, ----- as more particularly described in Exhibit A,
---------
attached hereto, and by this reference incorporated herein.
D. Concurrently herewith, Mortgagor, Parent Guarantor and Bank
Lenders have agreed to amend the Credit Agreement to, among other
things, increase the maximum aggregate principal amount of the Loans
by Fifty Million Dollars ($50,000,000) and provide that Mortgagor's
obligations thereunder shall be secured by the Mortgage, all as set
forth in that certain Second Amendment to Credit Agreement dated of
even date herewith by and between Mortgagor, Parent Guarantor, Lenders
and Mortgagee (the "Second Credit Agreement Amendment").
E. Mortgagor and Mortgagee desire to amend the Mortgage to
reflect and evidence the amendments and modifications set forth in the
Second 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. Mortgagor's obligations evidenced by the Credit
Agreement, as amended by the Second Credit Agreement Amendment, shall
continue to be secured by the Mortgage. Except as amended by this
Second Amendment, the Mortgage shall remain unmodified and in full
force and effect. The parties hereto hereby ratify and confirm the
Mortgage as amended hereby.
2. It is the intent of each of the parties hereto that the
Original Mortgage, as modified and amended by the First Amendment and
this Second Amendment, shall have and retain the priority established
at the time of the recordation of the Original Mortgage on February --
, 1994 (the "Original Recording Date"). To the extent that any court
of law or equity determines that the priority of this Second Amendment
may not relate back to
2
the Original Recording Date, then (i) this Second Amendment shall be
bifurcated from the Mortgage such that the obligations of Mortgagor
with respect to the $50,000,000 increase in the maximum amount of the
Loans, as more particularly set forth in the Second Credit Agreement
Amendment and secured by this Second Amendment, shall have such
priority as is established at the time of recordation of this Second
Amendment in the Official Records of ---- County, ----, and (ii) the
Mortgage, as unamended by this Second Amendment, shall continue to
secure the obligations of Mortgagor under the Credit Agreement, as
unamended by the Second Credit Agreement Amendment, and the other
Secured Obligations set forth in the Mortgage, and shall continue to
have the priority described in paragraph 2 of the First Amendment. In
no event shall this Second Amendment destroy, impair or otherwise
affect such priority of the Mortgage.
3. This Second 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.
4. This Second 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.
5. In the event of any inconsistencies between the
provisions of this Second Amendment and the provisions of the
Mortgage, the provisions of this Second Amendment shall govern and
prevail.
6. 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
Second 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.
3
IN WITNESS WHEREOF, the duly authorized representatives of
Mortgagor and Mortgagee have executed this Second Amendment as of the
date first above written.
"MORTGAGOR"
KAISER ALUMINUM & CHEMICAL CORPORATION,
Attested By: a Delaware corporation
______________________ By: ____________________________
Name:_________________
Title:________________ Name: K.S. Vasan
Its: Treasurer
[corporate seal]
"MORTGAGEE"
BANKAMERICA BUSINESS CREDIT, INC.,
a Delaware corporation
By: ____________________________
Name: Michael J. Jasaitis
Its: Vice President
4
ACKNOWLEDGEMENTS
STATE OF ___________________ )
)
COUNTY OF __________________ )
On March ____, 1995, 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 March ____, 1995, 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