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Exhibit 10.1
REVOLVING CREDIT AGREEMENT
Dated as of April 2, 2001
Among
CENTURY ALUMINUM COMPANY
CENTURY ALUMINUM OF WEST VIRGINIA, INC.,
BERKELEY ALUMINUM, INC.,
CENTURY KENTUCKY, INC.,
METALSCO, LTD.
and
NSA, LTD.
as Borrowers
the Lending Institutions listed on Schedule 1 hereto
as Lenders,
FLEET CAPITAL CORPORATION,
as Agent,
FLEET SECURITIES INC.,
as Arranger
and
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION....................................1
1.1. Definitions.....................................................1
1.2. Rules of Interpretation.........................................24
2. THE REVOLVING CREDIT FACILITY..............................................25
2.1. Commitment to Lend..............................................25
2.2. Unused Revolving Credit Commitment Fee..........................25
2.3. Reduction of Total Revolving Credit Commitment..................25
2.4. The Revolving Credit Notes......................................26
2.5. Interest on Loans...............................................26
2.6. Requests for Loans..............................................27
2.6.1. General.................................................27
2.6.2. Swing Line..............................................27
2.7. Conversion Options..............................................28
2.7.1. Conversion to Different Type of Loan....................28
2.7.2. Continuation of Type of Loan............................28
2.7.3. Eurodollar Rate Loans...................................28
2.8. Funds for Loan..................................................29
2.8.1. Funding Procedures......................................29
2.8.2. Advances by Agent.......................................29
2.9. Change in Borrowing Base........................................30
2.10. Settlements.....................................................30
2.10.1. General.................................................30
2.10.2. Failure to Make Funds Available.........................31
2.10.3. No Effect on Other Lenders..............................31
2.11. Repayments of Revolving Credit Loans Prior to Event of Default..32
2.11.1. Credit for Funds Received in Fleet Blocked Account......32
2.11.2. Application of Payments Prior to Event of Default.......32
2.12. Repayments of Loans After Event of Default......................33
3. REPAYMENT OF THE LOANS.....................................................33
3.1. Maturity........................................................33
3.2. Mandatory Repayments of Loans...................................33
3.3. Optional Repayments of Loans....................................34
4. LETTERS OF CREDIT..........................................................34
4.1. Letter of Credit Commitments....................................34
4.1.1. Commitment to Issue Letters of Credit...................34
4.1.2. Letter of Credit Applications...........................34
4.1.3. Terms of Letters of Credit..............................34
4.1.4. Reimbursement Obligations of Lenders....................35
4.1.5. Participations of Lenders...............................35
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4.2. Reimbursement Obligation of the Borrowers.......................35
4.3. Letter of Credit Payments.......................................36
4.4. Obligations Absolute............................................36
4.5. Reliance by Issuer..............................................37
4.6. Letter of Credit Fee............................................37
5. CERTAIN GENERAL PROVISIONS.................................................38
5.1. Closing Fee.....................................................38
5.2. Agent's Fee.....................................................38
5.3. Funds for Payments..............................................38
5.3.1. Payments to Agent.......................................38
5.3.2. No Offset, etc..........................................38
5.4. Computations....................................................39
5.5. Inability to Determine Eurodollar Rate..........................39
5.6. Illegality......................................................39
5.7. Additional Costs, etc...........................................40
5.8. Capital Adequacy................................................41
5.9. Change of Lending Office........................................41
5.10. Certificate.....................................................42
5.11. Indemnity.......................................................42
5.12. Interest After Default..........................................42
5.12.1. Overdue Amounts.........................................42
5.12.2. Amounts Not Overdue.....................................42
5.13. No Legal Impediment.............................................42
5.14. Governmental Regulation.........................................43
5.15. Concerning Joint and Several Liability of the Borrowers.........43
5.16. Replacement of Lender...........................................44
6. COLLATERAL SECURITY AND GUARANTIES.........................................45
6.1. Security of Borrower............................................45
6.2. Guaranties and Security of Guarantors...........................45
7. REPRESENTATIONS AND WARRANTIES.............................................45
7.1. Corporate Authority.............................................45
7.1.1. Incorporation; Good Standing............................45
7.1.2. Authorization...........................................46
7.1.3. Enforceability..........................................46
7.2. Governmental Approvals..........................................46
7.3. Title to Properties; Leases.....................................46
7.4. Financial Statements and Projections............................46
7.4.1. Fiscal Year.............................................46
7.4.2. Financial Statements....................................47
7.4.3. Projections.............................................47
7.5. No Material Changes, etc........................................47
7.6. Franchises, Patents, Copyrights, etc............................47
7.7. Litigation......................................................48
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7.8. No Materially Adverse Contracts, etc............................48
7.9. Compliance with Other Instruments, Laws, etc....................48
7.10. Tax Status......................................................48
7.11. No Event of Default.............................................48
7.12. Holding Company and Investment Company Acts.....................48
7.13. Absence of Financing Statements, etc............................49
7.14. Perfection of Security Interest.................................49
7.15. Certain Transactions............................................49
7.16. Employee Benefit Plans..........................................49
7.16.1. In General..............................................49
7.16.2. Terminability of Welfare Plans..........................50
7.16.3. Guaranteed Pension Plans................................50
7.16.4. Multiemployer Plans.....................................50
7.17. Use of Proceeds.................................................50
7.17.1. General.................................................50
7.17.2. Regulations U and X.....................................51
7.17.3. Ineligible Securities...................................51
7.18. Environmental Compliance........................................51
7.19. Subsidiaries, etc...............................................52
7.20. Bank Accounts...................................................52
7.21. Chief Executive Office..........................................53
7.22. Insurance.......................................................53
7.23. Disclosure......................................................53
8. AFFIRMATIVE COVENANTS OF THE BORROWERS.....................................53
8.1. Punctual Payment................................................53
8.2. Maintenance of Office...........................................53
8.3. Records and Accounts............................................54
8.4. Financial Statements, Certificates and Information..............54
8.5. Notices.........................................................56
8.5.1. Defaults................................................56
8.5.2. Environmental Events....................................56
8.5.3. Notification of Claim against Collateral................56
8.5.4. Notices of Litigation and Judgments.....................56
8.5.5. Notification of Delinquent Payments and Pechiney
Net Worth Calculation...................................57
8.6. Corporate Existence; Maintenance of Properties..................57
8.7. Insurance.......................................................57
8.8. Taxes...........................................................57
8.9. Inspection of Properties and Books, etc.........................58
8.9.1. General.................................................58
8.9.2. Collateral Reports......................................58
8.10. Compliance with Laws, Contracts, Licenses, and Permits..........58
8.11. Employee Benefit Plans..........................................58
8.12. Use of Proceeds.................................................59
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8.13. Bank Accounts...................................................59
8.13.1. General.................................................59
8.13.2. Acknowledgment of Application...........................60
8.14. Ownership of Subsidiaries.......................................60
8.15. Permitted Acquisitions..........................................60
8.16. Environmental Reports, etc......................................60
8.17. Further Assurances..............................................60
9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.................................61
9.1. Restrictions on Indebtedness....................................61
9.2. Restrictions on Liens...........................................62
9.3. Restrictions on Investments.....................................64
9.4. Distributions...................................................65
9.5. Merger, Consolidation and Disposition of Assets.................66
9.5.1. Mergers and Acquisitions................................66
9.5.2. Disposition of Assets...................................66
9.6. Sale and Leaseback..............................................66
9.7. Compliance with Environmental Laws..............................66
9.8. Employee Benefit Plans..........................................67
9.9. Business Activities.............................................67
9.10. Fiscal Year.....................................................67
9.11. Transactions with Affiliates....................................67
9.12. Bank Accounts...................................................68
9.13. Limitations on Operation of Subsidiaries........................68
9.14. Derivative Obligations..........................................68
10. FINANCIAL COVENANTS OF THE BORROWER.......................................68
10.1. Capital Expenditures............................................68
11. REVOLVING CREDIT CLOSING CONDITIONS.......................................69
11.1. Proceedings and Loan Documents..................................69
11.1.1. Proceedings.............................................69
11.1.2. Loan Documents..........................................69
11.2. Certified Copies of Charter Documents...........................69
11.3. Corporate Action................................................69
11.4. Incumbency Certificate..........................................70
11.5. Validity of Liens...............................................70
11.6. Perfection Certificates and UCC Search Results..................70
11.7. Certificates of Insurance.......................................70
11.8. Agency Account Agreements.......................................70
11.9. Borrowing Base Report and Borrowing Availability................70
11.10. Accounts Receivable Aging Report, Etc...........................71
11.11. Solvency Certificate............................................71
11.12. Litigation......................................................71
11.13. Material Adverse Effect.........................................71
11.14. Opinion of Counsel..............................................71
11.15. Payment of Fees.................................................71
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11.16. Financial Statements and Projections............................71
11.17. Payoff Letter...................................................72
11.18. Disbursement Instructions.......................................72
11.19. Consummation of the Hawesville Acquisition and Glencore
Hawesville Acquisitions.........................................72
11.20. Proceeds of First Mortgage Notes................................72
11.21. Updated Collateral Audit........................................72
12. CONDITIONS TO ALL BORROWINGS..............................................73
12.1. Representations True; No Event of Default.......................73
12.2. Borrowing Base Report...........................................73
12.3. Permitted Acquisitions..........................................73
13. EVENTS OF DEFAULT; ACCELERATION; ETC......................................73
13.1. Events of Default and Acceleration..............................73
13.2. Termination of Commitments......................................76
13.3. Remedies........................................................77
13.4. Distribution of Collateral Proceeds.............................77
14. SETOFF....................................................................78
15. THE AGENT.................................................................79
15.1. Authorization...................................................79
15.2. Employees and Agents............................................79
15.3. No Liability....................................................79
15.4. No Representations..............................................80
15.4.1. General.................................................80
15.4.2. Closing Documentation, etc..............................80
15.5. Payments........................................................80
15.5.1. Payments to Agent.......................................80
15.5.2. Distribution by Agent...................................81
15.5.3. Delinquent Lenders......................................81
15.6. Holders of Notes................................................81
15.7. Indemnity.......................................................82
15.8. Agent as Lender.................................................82
15.9. Resignation.....................................................82
15.10. Notification of Defaults and Events of Default; Delivery
of Information; Etc.............................................82
15.11. Duties in the Case of Enforcement...............................83
15.12. Replacement of Agent............................................83
16. EXPENSES AND INDEMNIFICATION..............................................83
16.1. Expenses........................................................83
16.2. Indemnification.................................................84
16.3. Survival........................................................85
17. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.............................85
17.1. Sharing of Information with Section 20 Subsidiary...............85
17.2. Confidentiality.................................................85
17.3. Prior Notification..............................................86
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17.4. Other...........................................................86
18. SURVIVAL OF COVENANTS, ETC................................................86
19. ASSIGNMENT AND PARTICIPATION..............................................87
19.1. Conditions to Assignment by Lenders.............................87
19.2. Certain Representations and Warranties; Limitations; Covenants..87
19.3. Register........................................................88
19.4. New Notes.......................................................89
19.5. Participations..................................................89
19.6. Disclosure......................................................89
19.7. Assignee or Participant Affiliated with the Borrowers...........90
19.8. Miscellaneous Assignment Provisions.............................90
19.9. Assignment by Borrowers.........................................91
20. NOTICES, ETC..............................................................91
21. GOVERNING LAW.............................................................91
22. HEADINGS..................................................................92
23. COUNTERPARTS..............................................................92
24. ENTIRE AGREEMENT, ETC.....................................................92
25. WAIVER OF JURY TRIAL......................................................92
26. CONSENTS, AMENDMENTS, WAIVERS, ETC........................................92
27. SEVERABILITY..............................................................94
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Schedules and Exhibits
Schedule 1 Commitments; Banks' Offices
Schedule 2 Permitted Inventory Locations; Approved Parties
Schedule 7.3 Title to Properties; Leases
Schedule 7.7 Litigation
Schedule 7.16 Employee Benefit Plans
Schedule 7.18 Environmental
Schedule 7.19 Subsidiaries
Schedule 7.20 Bank Accounts
Schedule 7.21 Chief Executive Offices
Schedule 7.22 Insurance
Schedule 9.1 Permitted Existing Indebtedness
Schedule 9.2 Permitted Existing Liens
Schedule 9.3 Permitted Existing Investments
Schedule 9.11 Transactions with Affiliates
Exhibit A Form of Borrowing Base Report
Exhibit B Form of Revolving Credit Note
Exhibit C Form of Loan Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Accession Agreement
Exhibit G Form of Bailee Certificate
Exhibit H Form of Customs Agent Agreement
Exhibit I Form of Guaranty
Exhibit J Form of Security Agreement
Exhibit K Form of Non-Setoff Agreement
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of April 2, 2001, by and among
(a) CENTURY ALUMINUM COMPANY, a Delaware corporation ("Century Aluminum"), (b)
BERKELEY ALUMINUM, INC., a Delaware corporation ("Berkeley"), (c) CENTURY
ALUMINUM OF WEST VIRGINIA, INC., a Delaware corporation ("Century WV"), (d)
CENTURY KENTUCKY, INC., a Delaware corporation ("Century K"), (e) METALSCO,
LTD., a Georgia company ("Metalsco"), (f) NSA, LTD, a Kentucky limited
partnership (("NSA") and, together with Century Aluminum, Berkeley, Century WV,
Century K, and Metalsco, collectively, the "Borrowers" and each individually a
"Borrower"), (e) the Lenders (as defined in ss.1 below), and (g) FLEET CAPITAL
CORPORATION as Agent (as defined in ss.1 below).
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in
this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Accounts Receivable. All rights of any of the Borrowers (other than
Metalsco) to payment for goods sold or leased in the ordinary course of business
and all rights of any of the Borrowers to payment for services rendered in the
ordinary course of business and all sums of money or other proceeds due thereon
pursuant to transactions with account debtors, except for that portion of the
sum of money or other proceeds due thereon that relate to sales, use or property
taxes in conjunction with such transactions, recorded on books of account in
accordance with GAAP.
Acquisition. Any transaction, or any series of related transactions,
consummated after the Closing Date, in which a Borrower or any Subsidiary of a
Borrower (in one transaction or as the most recent transaction in a series of
transactions) (a) acquires any business or all or substantially all of the
assets of any Person or any division or business unit thereof, whether through
purchase of assets, merger or otherwise, (b) directly or indirectly acquires
control of at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors or
(c) directly or indirectly acquires control of a majority ownership in any
partnership or joint venture.
Acquisition Documents. All agreements, documents and instruments executed
and/or delivered in connection with the Hawesville Acquisition and any
Acquisition.
Acquisition Collateral. Collateral of the Borrowers and their Subsidiaries
acquired through a Permitted Acquisition.
Affiliate. Any Person that would be considered to be an affiliate of any
Borrower under Rule 144 of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if such Borrower were
issuing securities.
Agency Account Agreement. See ss.8.13.1.
Agent's Head Office. The Agent's head office located at 1 South Wacker
Drive, Suite 1400, Chicago, Illinois 60606, or at such other location as the
Agent may designate from time to time.
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Agent. Fleet Capital Corporation acting as administrative, documentation
and collateral agent for the Lenders, and any successor agent appointed pursuant
toss.15.9.
Agent's Fee. See ss.5.2.
Agent's Special Counsel. Bingham Dana LLP or such other counsel as may be
approved by the Agent.
Applicable Law. As to any Person, any law (including common law), treaty,
rule or regulation, or any determination of any Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property, or to
which such Person or any of its Property is subject.
Applicable Margin. With respect to any Loan, Commitment Fees or Letter of
Credit Fee, the applicable percentage set forth in the table below opposite the
Leverage Ratio set forth therein as of the relevant date of determination;
provided, however, that for the period commencing on the Closing Date and ending
on the date the Lenders receive the financial statements and certificates
required under ss.8.4(c) and (d) for the fiscal year ended December 31, 2001,
the Applicable Margin shall be as set forth opposite Level II below.
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Level Leverage Ratio Base Rate Loans Eurodollar Rate Loans Commitment Fee
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I Greater than 3.5:1.0 1.500% 3.000% 0.500%
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II Greater than 1.250% 2.750% 0.500%
3.00:1.0 but less
than or equal to
3.50:1.0
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III Greater than 1.000% 2.500% 0.500%
2.50:1.0 but less
than or equal to
3.00:1.0
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IV Less than or equal .750% 2.250% 0.500%
to 2.50:1.0
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Each change in the Applicable Margin resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans, Revolving Credit
Commitments and Letters of Credit outstanding on and after the date of delivery
to the Agent of the Compliance Certificate required by ss.8.4(d) (which shall
include attached thereto the financial statements and certificates required by
ss.8.4(c) or (d) as applicable) indicating such change until the date
immediately preceding the next delivery of such Compliance Certificate
indicating another such change. Notwithstanding the foregoing, (i) at any time
during which the Borrowers have failed to timely deliver such Compliance
Certificate required by ss.8.4(d) and the financial statements and certificates
required by ss.8.4(c) or (d), or (ii) after the occurrence of and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be in
Level I for purposes of determining the Applicable Margin.
Approval. With respect to any of the Borrowers and any of their
Subsidiaries, each and every approval, consent, filing or registration by or
with any Governmental Authority, or any creditor or shareholder of such Borrower
or any of its Subsidiaries, necessary to authorize or permit the execution,
delivery and performance by such Borrower or such Subsidiary of any of the Loan
Documents to which it is a party, and to ensure the validity and enforceability
of such Loan Documents.
Approved Customs Broker. A customs broker satisfactory to the Agent which
has entered into a Customs Agent Agreement with the Agent and the Borrower.
Approved Party. A consignee or bailee listed on Schedule 2 (as such
Schedule 2 may be supplemented from time to time with the consent of the Agent)
(a) from whom the Agent has received (i) a bailee letter substantially in the
form of Exhibit G hereto (a "Bailee Certificate") in connection with such
consignee's or bailee's possession of inventory of a Borrower, (ii) financing
statements in form and substance satisfactory to the Agent executed and
delivered by such Borrower as secured party/bailor and such possessor of such
inventory as debtor/bailee, for filing in the appropriate jurisdictions, (iii)
an assignment in form and substance satisfactory to the Agent by such secured
party/bailor to the Agent of the aforementioned financing statements, (b)
located in a jurisdiction in which appropriate Uniform Commercial Code financing
statements showing the applicable Borrower as debtor and the Agent as secured
party have been filed in the proper filing office or offices in order to perfect
the Agent's security interest therein in the Borrower's inventory in the
possession of such consignee or bailee, and (c) whose secured creditors have
received notice from the Agent, on behalf of the applicable Borrower, as to such
Borrower's interest in inventory owned by such Borrower and which is in the
possession of such consignee or bailee. Notwithstanding the inventory
eligibility requirements contained in the definition of "Eligible Inventory",
during the sixty (60) day period from and after the Closing Date, (i) any Bailee
Certificate from any party in possession of inventory of the Borrowers and (ii)
any requirement of clauses (a)(ii) and (iii) and clause (c) hereof which would
be otherwise necessary in order that such inventory would constitute "Eligible
Inventory" shall not be required so long as the Agent shall have otherwise
perfected the Agent's security interest therein by filing in the proper filing
office or offices appropriate Uniform Commercial Code financing statements
showing such Borrower as debtor and the Agent as secured party.
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Approved Shipper. A shipper (a) from whom the Agent has received a Bailee
Certificate in connection with such shipper's possession of inventory of a
Borrower (b) which transports such inventory through jurisdictions in which
appropriate Uniform Commercial Code financing statements showing the applicable
Borrower as debtor and the Agent as secured party have been filed in the proper
filing office or offices in order to perfect the Agent's security interest
therein in the Borrower's inventory in the possession of such shipper, and (c)
whose secured creditors have received notice from the Agent, on behalf of the
applicable Borrower, as to such Borrower's interest in inventory owned by such
Borrower and which is in the possession of such shipper. Notwithstanding the
inventory eligibility requirements contained in the definition of "Eligible
Inventory", during the sixty (60) day period from and after the Closing Date,
(i) any Bailee Certificate from any shipper in possession of inventory of the
Borrowers and (ii) any requirement of clause (c) hereof which would be otherwise
necessary in order that such inventory would constitute "Eligible Inventory"
shall not be required so long as the Agent shall have otherwise perfected the
Agent's security interest therein by filing in the proper filing office or
offices appropriate Uniform Commercial Code financing statements showing such
Borrower as debtor and the Agent as secured party.
Arranger. Fleet Securities Inc.
Assignment and Acceptance. See ss.19.1.
Authorized Officer. With respect to each Borrower or Subsidiary of a
Borrower, any of the president, chief executive officer, chief financial
officer, any vice president or the treasurer of such Borrower or such Subsidiary
to the extent that such officer is duly authorized by the respective Borrower or
Subsidiary to sign, in the name and on behalf of such Borrower or Subsidiary,
the Loan Documents, and all documents, instruments, certificates and other
agreements contemplated in any Loan Document, and to give notice and to take
such other actions on behalf of such Borrower or such Subsidiary under the Loan
Documents.
Balance Sheet Date. December 31, 2000.
Bailee Certificate. As defined in the definition of "Approved Party".
Base Rate. The annual rate of interest publicly announced from time to time
by Fleet National Bank at its head office in Boston, Massachusetts, as its "base
rate."
Base Rate Loans. Loans bearing interest calculated by reference to the Base
Rate.
Berkeley. As defined in the preamble hereto.
Borrowers. As defined in the preamble hereto.
Borrowing Availability. At any time, (a) the lesser of (i) the Borrowing
Base and (ii) the Total Revolving Credit Commitment, minus (b) the aggregate of
(i) the Letter of Credit Exposure and (ii) outstanding Loans (after giving
effect to all amounts requested) as of the date of determination.
Borrowing Base. At the relevant time of reference thereto, an amount
determined by the Agent by reference to the most recent Borrowing Base Report,
which is equal to:
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(a) (i) 85.00% of Eligible Accounts Receivable (from account debtors
other than Glencore) for which invoices have been issued and are payable
and (ii) the lesser of (x) 85.00% of Eligible Accounts Receivable from
Glencore for which invoices have been issued and are payable and (y)
$10,000,000; plus
(b) 65.00% of the net book value of Eligible Inventory determined on a
first-in first-out basis and at lower of cost or market in conformity with
GAAP; plus
(c) the Discretionary Amount, minus
(d) the Minimum Reserve Amount.
as adjusted by the Agent in accordance with ss.2.9.
Borrowing Base Report. A Borrowing Base Report signed by an Authorized
Officer of Century Aluminum and in substantially the form of Exhibit A hereto.
Breakage Costs. See ss.5.11.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York, are open for the transaction of banking
business and, in the case of Eurodollar Rate Loans, also a day which is a
Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
Capital Expenditures. Amounts paid or Indebtedness incurred by any Borrower
or any of their Subsidiaries in connection with (i) the purchase or lease by
such Borrower or any of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet of such Person in
accordance with GAAP or (ii) the lease of any assets by any such Borrower or any
of its Subsidiaries as lessee under any Synthetic Lease to the extent that such
assets would have been Capital Assets had such Synthetic Lease been treated for
accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which any Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Capital Stock. With respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however
designated, whether voting or non-voting) in such person's equity, entitling the
holder to receive a share of the profits and losses, and a distribution of
assets, after liabilities, of such Person.
Century Aluminum. As defined in the preamble hereto.
Century K. As defined in the preamble hereto.
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Century Kentucky, LLC. Century Aluminum of Kentucky, LLC, a Delaware
limited liability company.
Century WV. As defined in the preamble hereto.
CERCLA. See ss.7.18(a).
Closing Date. The first date on which the conditions set forth in ss.11
have been satisfied or waived and any Loans are available to be made or any
Letter of Credit is available to be issued hereunder.
Closing Fee. See ss.5.1.
Code. The Internal Revenue Code of 1986.
Collateral. As defined in the Security Agreement.
Combined or combined. With reference to any term defined herein, shall mean
such term as applied to the accounts of the Borrowers and the Guarantors,
combined in accordance with GAAP.
Combined EBITDA. For any fiscal period, the Combined Net Income (or
Deficit) for such period plus to the extent deducted in determining Combined Net
Income (or Deficit), the sum of Combined Total Interest Expense, taxes,
depreciation and amortization, in each case of the Borrowers and the Guarantors
for such period on a combined basis, all determined in accordance with GAAP plus
to the extent not included in determining Combined Net Income (or Deficit), cash
Distributions actually received during such period by the Borrowers and the
Guarantors from Subsidiaries that are not Borrowers or Guarantors or from the
European Subsidiary .
Combined Net Income (or Deficit). With respect to any fiscal period, the
combined net income (or deficit) of the Borrowers and the Guarantors, after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with GAAP, after eliminating therefrom all extraordinary nonrecurring
items of income, and also excluding therefrom any non-cash charges or gains,
determined in accordance with GAAP, related to hedging contracts (permitted
under ss.9.14) until such time as such contracts are settled.
Combined Total Funded Debt. With respect to the Borrowers and the
Guarantors, the sum, without duplication, of the aggregate amount of
Indebtedness of the Borrowers and the Guarantors, on a combined basis, relating
to (i) the borrowing of money or the obtaining of credit, including the issuance
of notes or bonds, (ii) the deferred purchase price of assets (other than trade
payables incurred in the ordinary course of business), (iii) in respect of any
Synthetic Leases or any Capitalized Leases, and (iv) the maximum drawing amount
of all letters of credit outstanding; provided, however, Combined Total Funded
Debt shall not include (a) any contingent adjustments to the purchase price of
the Hawesville Acquisition until any such adjustments become due and payable and
(b) Derivative Obligations.
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Combined Total Interest Expense. For any fiscal period, the aggregate
amount of interest required to be paid or accrued by the Borrowers and the
Guarantors during such period on all Indebtedness of the Borrowers and the
Guarantors outstanding during all or any part of such period, to the extent such
interest was or is required, in accordance with GAAP, to be reflected as an item
of expense, including payments consisting of interest in respect of any
Capitalized Lease, or any Synthetic Lease, and including commitment fees, agency
fees, facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money.
Commingled Accounts. The depository accounts of Century K or NSA into which
proceeds of Commingled Receivables are deposited.
Commingled Receivables. The accounts receivable relating to goods produced
at the Hawesville Facility as to which Persons other than the Borrowers and the
Guarantors have an interest.
Commitment Fees. See ss.2.2.
Commitment Letter. The Commitment Letter, dated as of March 9, 2001, among
the Borrowers, the Agent and the Arranger.
Commitment Percentage. With respect to each Lender, the percentage set
forth on Schedule 1 hereto as such Lender's percentage of the Total Revolving
Credit Commitment of all of the Lenders.
Compliance Certificate. See ss.8.4(d).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of Century Aluminum and its
Subsidiaries, consolidated in accordance with GAAP.
Contractual Obligation. With respect to any Person, any provision of any
security issued by such Person or of any contract, agreement, indenture,
mortgage, guarantee, debenture, pledge agreement or other document, instrument
or writing (whether by formal agreement, letter or otherwise) under which any
obligation is evidenced, assumed or undertaken, or any right to any Lien is
granted or perfected, and to which such Person is a party or by which it or any
of its Property is bound.
Conversion Request. A notice given by the Borrowers to the Agent of the
Borrowers' election to convert or continue a Loan in accordance with ss.2.7.
Credit Agreement. This Revolving Credit Agreement, including the Schedules
and Exhibits hereto.
Customs Agent Agreement. A Customs Agent Agreement, substantially in the
form of Exhibit H hereto, entered into among the Agent, the Borrowers and an
Approved Customs Broker.
Default. See ss.13.1.
Delinquent Lender. See ss.15.5.3.
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Derivative Obligations: Every obligation of a Person under any forward
contract, futures contract, swap, option or other financing agreement or
arrangement (including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices.
Discretionary Amount. As at any date of determination, an amount determined
by the Agent in its sole and absolute discretion to preserve and protect the
Collateral, including but not limited to advances to fund payroll and other
advances necessary for the operation of the Borrowers, which amount shall not
exceed $5,000,000 at any time and which amount shall not be more than $0.00 for
more than any period of thirty (30) consecutive days.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of any of the Borrowers, other than
dividends payable solely in shares of common stock of any of the Borrowers; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of any of the Borrowers, directly or indirectly through a Subsidiary of
any Borrower or otherwise; the return of capital by any of the Borrowers to its
shareholders as such; or any other distribution on or in respect of any shares
of any class of capital stock of any of the Borrowers.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Company. A non-individual Person organized under the laws of the
United States or any state thereof.
Domestic Lending Office. Initially, the office of each Lender designated as
such in Schedule 1 hereto; thereafter, such other office of such Lender, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or continued in accordance with ss.2.7.
Eligible Accounts Receivable. The aggregate of the unpaid portions of
Accounts Receivable (net of any credits, rebates, contras, offsets, holdbacks or
other adjustments or commissions payable to third parties that are adjustments
to such Accounts Receivable) (i) that the applicable Borrower reasonably and in
good faith determines to be collectible; (ii) that are with account debtors or
other obligors that (A) are not Affiliates of any Borrower or any Subsidiary of
a Borrower, (B) purchased the goods or services giving rise to the relevant
Account Receivable in an arm's length transaction, (C) are not insolvent or
involved in any case or proceeding, whether voluntary or involuntary, under any
bankruptcy, reorganization, arrangement, insolvency, adjustment of debt,
dissolution, liquidation or similar law of any jurisdiction and (D) are, in the
Agent's reasonable judgment, creditworthy; (iii) that are in payment of
obligations that have been fully performed, do not consist of progress billings
or bill and hold invoices and are not subject to dispute or any other similar
claims that would reduce the cash amount payable therefor; (iv) that are not
subject to any pledge, restriction, security interest or other Lien other than
those created by the Loan Documents; (v) in which the Agent has a valid and
perfected first priority security interest; (vi) that are not outstanding for
more than (A) sixty (60) days past the due date thereof or (B) 120 days past the
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earlier to occur of the date of the respective invoice thereof and the date of
shipment; (vii) that are not due from an account debtor or other obligor located
in Minnesota unless such Borrower (A) has received a certificate of authority to
do business and is in good standing in such state or (B) has filed a notice of
business activities report with the appropriate office or agency of such state
for the current year; (viii) that are not due from any single account debtor or
other obligor if more than fifty percent (50%) of the aggregate amount of all
Accounts Receivable owing from such account debtor or other obligor would
otherwise not be Eligible Accounts Receivable; (ix) that are payable in Dollars;
(x) that are not payable from an account debtor outside of the United States,
unless (A) such Accounts Receivable are secured by a letter of credit in form
and substance satisfactory to the Agent and (y) the Agent has obtained a prior,
perfected security interest in such letter of credit or (z) which pursuant to
the terms thereof, causes all drawings made under such letter of credit to be
payable solely to one of the Operating Accounts or (B) (x) the account debtor is
located in the Dominion of Canada, (y) the Agent is reasonably satisfied that
the Borrowers have taken all necessary steps to perfect the Agent's lien in such
accounts in the Dominion of Canada and (z) the aggregate gross amount of such
accounts receivable included as Eligible Accounts Receivable does not exceed
$8,000,000; provided that in the Agent's discretion up to an additional
$5,000,000 in the aggregate of Accounts Receivable payable from an account
debtor outside of the United States may be considered Eligible Accounts
Receivable; (xi) that are not secured by a letter of credit unless (A) the Agent
has obtained a prior, perfected security interest in such letter of credit or
(B) pursuant to the terms thereof, all drawings made under such letter of credit
are payable solely to one of the Operating Accounts; and (xii) notwithstanding
the foregoing clause (ii)(A) relating to Affiliates, Accounts Receivable from
Glencore may be considered Eligible Accounts Receivable so long as such Accounts
Receivable (a) are subject to a Non-Setoff Agreement between the applicable
Borrowers and Glencore, provided that no Accounts Receivable of Glencore of the
type described in paragraph four of the Non-Setoff Agreement with Glencore Ltd.
may be considered Eligible Accounts Receivable hereunder, and (b) otherwise
satisfy the eligibility criteria set forth in clauses (i) through (xi) hereof.
Eligible Assignee. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with GAAP; (iii) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD; (iv) the central bank of any country which is a member of
the OECD; and (v) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution or other Person approved by the Agent, such approval
not to be unreasonably withheld.
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Eligible Inventory. Finished goods, work in progress and raw materials
(including saleable scrap) owned by any Borrower (other than Metalsco); provided
that Eligible Inventory shall not include any inventory (i) which constitute
stores and supplies, (ii) held on consignment, or not otherwise owned by such
Borrower, or of a type no longer sold by such Borrower, (iii) which has been
returned by a customer or is damaged or subject to any legal encumbrance other
than Permitted Liens, (iv) which is not in the possession or control of such
Borrower or Approved Party, at Permitted Inventory Locations unless it is (A) in
transit from one Permitted Inventory Location within the United States of
America to another Permitted Inventory Location within the United States of
America, or (B) In-Transit Alumina, (v) as to which either (A) appropriate UCC
financing statements showing such Borrower as debtor and the Agent as secured
party have not been filed in the proper filing office or offices in order to
provide the Agent with a valid and perfected first priority security interest
therein or (B) all documents of title relating to such Inventory have been
consigned to the Agent in a manner reasonably acceptable to the Agent and the
Agent or an Approved Customs Broker is in possession of all documents of title
relating to such goods, (vi) which has been shipped to a customer of such
Borrower regardless of whether such shipment is on a consignment basis, or (vii)
which is not located within the United States of America, (viii) any inventory
located at the Hawesville Facility, unless, the Agent has received a Non-Setoff
Agreement in the form of Exhibit K hereto or (ix) which the Agent reasonably
deems to be obsolete or not marketable.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any of the Borrowers or any
ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.7.18(a).
EPA. See ss.7.18(b).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with any
of the Borrowers under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or if
commercial banks in London are not open, such other eurodollar interbank market
as may be selected by the Agent in its sole discretion acting in good faith.
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Eurodollar Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate of interest equal to (i) the arithmetic average of the rates per
annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two Eurodollar Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurodollar Rate Loan of such Reference Bank to which such Interest Period
applies, divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.
Eurodollar Rate Loans. Loans bearing interest calculated by reference to
the Eurodollar Rate.
European Acquisition. The purchase on one occasion by Century Aluminum
(directly or indirectly) of the majority of the stock or assets of a European
entity which is a Related Business.
European Subsidiary. One or more direct or indirect subsidiaries of Century
Aluminum used to consummate the European Acquisition.
Event of Default. See ss.13.1.
Existing Facility. See ss.11.17.
Fee Letter. The Fee Letter, dated as of March 9, 2001, among the Borrowers,
the Agent and the Arranger.
Fees. The Commitment Fees, the Letter of Credit Fee, the Closing Fee, the
Agent's Fee and all other fees payable under ss.4.6.
First Mortgage Notes. $325,000,000 principal amount Eleven and Three
Quarters percent (11 3/4 %) Senior Secured First Mortgage Notes due 2008 issued
by Century Aluminum, dated April 2, 2001.
First Mortgage Note Change of Control.
(a) With respect to Century Aluminum, any "person" or "group" (as such
terms are used for purposes of Section 13(d) and 14(d) of the Securities
and Exchange Act of 1934 (the "Exchange Act")), other than (i) Glencore and
(ii) any Person both the Capital Stock and the Voting Stock of which (or in
the case of a trust, the beneficial interest in which) is owned eighty
percent (80%) by Glencore, is or becomes the "beneficial owner" (as such
term is used in Rules 13d-3 under the Exchange Act) directly or indirectly,
of more than forty percent (40%) of the total voting power of the Voting
Stock of Century Aluminum, provided that indirect beneficial ownership of
more than forty percent (40%) of the total voting power of the Voting Stock
of Century Aluminum through direct or indirect ownership of Voting Stock or
Capital Stock of Glencore by (x) the then-current or former officers or
employees of Glencore or any of its Subsidiaries (the "Glencore Employees")
and/or (y) by any Person controlled by the Glencore Employees shall not be
deemed to constitute a Change of Control if the composition of the Glencore
Employees continues to be comprised in a manner consistent with the manner
in which it is comprised on the Closing Date; or
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(b) During a period of two (2) consecutive years after the Closing
Date, individuals who at the beginning of such period constituted the board
of directors of Century Aluminum, together with any new directors whose
election by the board of directors or whose nomination for election by the
stockholders of Century Aluminum was approved by a majority of the
directors still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the board of
directors of Century Aluminum then in office.
Fleet. Fleet Capital Corporation, in its individual capacity.
Fleet Blocked Account. See ss.8.13.1
GAAP. (i) When used in ss.10 or in calculating the Leverage Ratio for the
determination of the Applicable Margin, whether directly or indirectly through
reference to a capitalized term used therein, means (A) principles that are
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, in effect for the fiscal year
ended on the Balance Sheet Date and giving effect to the changes required by
F.A.S. 133, and (B) to the extent consistent with such principles, the
accounting practice of Century Aluminum reflected in its financial statements
for the year ended on the Balance Sheet Date, and (ii) when used in general,
other than as provided above, means principles that are (A) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors, as in effect from time to time, and (B) consistently
applied with past financial statements of Century Aluminum, provided that in
each case referred to in this definition of "GAAP" a certified public accountant
would, insofar as the use of such accounting principles is pertinent, be in a
position to deliver an unqualified opinion (other than a qualification regarding
changes in GAAP) as to financial statements in which such principles have been
properly applied.
Glencore. Glencore International AG, a Swiss corporation, and its
Subsidiaries.
Glencore Hawesville Acquisition. (a) The purchase by Glencore from NSA of
(i) the fifth (5th) pot line at the Hawesville Facility, (ii) a twenty percent
(20%) interest in Century Kentucky, LLC and (iii) a twenty percent (20%)
undivided interest in certain assets at the Hawesville Facility, for
approximately one-fifth (1/5th ) of the purchase price to be paid to Southwire
Company pursuant to the Hawesville Acquisition and (b) the purchase by Glencore
of approximately $25,000,000 of Century Aluminum's 8% Cumulative Convertible
Preferred Stock.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, its by-laws, partnership agreement or other
organizational documents, including without limitation the operating agreement
of a limited liability company, and all shareholder agreements, voting trusts
and similar arrangements applicable to any of its equity interests.
Governmental Authority. Any foreign, federal, state, provincial, regional,
local, municipal or other government, or any department, commission, board,
bureau, agency, public authority or instrumentality thereof, or any court or
arbitrator.
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Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any of the Borrowers
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
Guarantors. Collectively, Vialco, Skyliner and each other Domestic Company
Subsidiary of any Borrower (other than an existing Borrower and Century
Kentucky, LLC).
Guarantees. Collectively, (a) the Guaranty, dated or to be dated on or
prior to the Closing Date, made by Skyliner and Vialco in favor of the Agent and
(b) the several Guarantees, executed and delivered from time to time by any
other Subsidiary of a Borrower (other than an existing Borrower and Century
Kentucky, LLC), in favor of the Lenders and the Agent pursuant to which each
Guarantor guaranties to the Lenders and the Agent the payment and performance of
the Obligations, in each case in the form of Exhibit I hereto.
Hawesville Acquisition. The purchase by Century Aluminum of one hundred
percent (100%) of the outstanding shares of stock of Metalsco and certain other
assets from Southwire Company for approximately $460,000,000.
Hawesville Facility. The land, pot lines and related facilities and
fixtures from time to time located at the NSA aluminum reduction facility
located at Hawesville, Hancock County, Kentucky.
Hazardous Substances. See ss.7.18(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(iii) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person,
(iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(v) every obligation of such Person under any Capitalized Lease,
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(vi) every obligation of such Person under any Synthetic Lease.
(vii) all (A) sales by such Person of (x) accounts or general
intangibles for money due or to become due, (y) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (z) other receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person
relating thereto or a disposition of defaulted receivables for
collection and not as a financing arrangement, and (B) obligations of
such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection
therewith,
(viii) every obligation of such Person (an "equity related
purchase obligation") (x) to purchase, redeem, retire or otherwise
acquire for value any shares of capital stock of any class issued by
such Person, or (y) to purchase, redeem, retire or otherwise acquire
for value any warrants, options or other rights to acquire any such
shares, or any rights measured by the value of such shares, warrants,
options or other rights,
(ix) Derivative Obligations,
(x) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor and such terms are
enforceable under applicable law,
(xi) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the legal effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of
clauses (i) through (x) (the "primary obligation") of another Person
(the "primary obligor"), in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such
Person (A) to purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such primary obligation,
(B) to purchase property, securities or services for the purpose of
assuring the payment of such primary obligation, or (C) to maintain
working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary
obligor to pay such primary obligation.
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The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (v) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (w) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than any Borrower or any of its wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (x) any synthetic lease shall be the stipulated loss value,
termination value or other equivalent amount, (y) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred and (z) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price.
Indenture. The Indenture dated as of April 2, 2001, among Century Aluminum,
the guarantors party thereto and Wilmington Trust Company as Trustee relating to
the First Mortgage Notes.
Ineligible Securities. Securities which may not be underwritten or dealt in
by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C.ss.24, Seventh), as amended.
Interest Payment Date. (i) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes the Drawdown
Date of such Base Rate Loan and (ii) as to any Eurodollar Rate Loan in respect
of which the Interest Period is (A) three (3) months or less, the last day of
such Interest Period and (B) more than three (3) months, the date that is three
(3) months from the first day of such Interest Period and, in addition, the last
day of such Interest Period.
Interest Period. With respect to each Loan, (i) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrowers in a Loan Request
or as otherwise required by the terms of this Credit Agreement (A) for any Base
Rate Loan, the last day of the calendar quarter and (B) for any Eurodollar Rate
Loan, 1, 2, 3, or 6 months; and (ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such Loan and
ending on the last day of one of the periods set forth above, as selected by the
Borrowers in a Conversion Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
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(b) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(c) if the Borrowers shall fail to give notice as provided in
ss.2.7.1, the Borrowers shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the continuance
of all Base Rate Loans as Base Rate Loans on the last day of the then
current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Eurodollar
Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date.
Interim Concentration Account. See ss.8.13.1.
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98) as promulgated by the Institute
of International Banking Law & Practice, Inc., or any successor code of standby
letter of credit practices among banks adopted by the Issuing Bank in the
ordinary course of its business as a standby letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
In-Transit Alumina. Alumina owned by any Borrower, which otherwise
qualifies as Eligible Inventory, and which is being transported within the
United States by an Approved Shipper to one or more Permitted Inventory
Locations owned or leased by such Borrower and such alumina is insured in a
manner reasonably acceptable to the Agent.
Investments. All expenditures made and all obligations (contingent or
otherwise) for the acquisition of stock or Indebtedness of, or for loans,
advances, capital contributions or transfers of property to, or in respect of
any guaranties (or other commitments as described under Indebtedness), or
obligations of, any Person. In determining the aggregate amount of Investments
outstanding at any particular time: (i) the amount of any Investment represented
by a guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (ii) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (iii) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (iv) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (ii) may be deducted when paid; and (v) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
IR Bonds. The Hancock County, Kentucky Solid Waste Disposal Facilities
Revenue Bonds (NSA Ltd. Project), Series 1998 in the original principal amount
of $7,815,000.
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Issuing Bank. With respect to any Letter of Credit, Fleet National Bank, a
national banking association, and any successor Issuing Bank.
Lenders. (a) The financial institutions listed on Schedule 1 hereto (other
than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto (in accordance with the requirements hereof) pursuant
to an Assignment and Acceptance.
Letter of Credit. See ss.4.1.1.
Letter of Credit Application. See ss.4.6.
Letter of Credit Exposure. At any time, the sum of (a) the Maximum Drawing
Amount with respect to all Letters of Credit, and (b) all Unpaid Reimbursement
Obligations.
Letter of Credit Fee. See ss.4.6.
Letter of Credit Guaranty. Any guaranty pursuant to which the Agent or any
Affiliate or Subsidiary of the Agent shall guaranty the payment or performance
by the Borrowers of their reimbursement obligations under any letter of credit.
Letter of Credit Office. The Agent's letter of credit office located at 400
Galleria Parkway, Atlanta, Georgia, or such other place as the Agent may from
time to time designate.
Letter of Credit Participation. See ss.4.1.4.
Leverage Ratio. As of any date of determination, the ratio of (a) Combined
Total Funded Debt as of such date multiplied by a fraction, the numerator of
which is the lesser of (i) three hundred and sixty five (365) days and (ii) the
number of days since the Closing Date and the denominator of which is three
hundred and sixty five (365) to (b) Combined EBITDA for the four consecutive
fiscal quarters then ended (or such shorter period beginning on the Closing Date
and ending on the last day of the most recently ended fiscal quarter).
Lien. Any mortgage, security interest, pledge, hypothecation, assignment,
attachment, deposit arrangement, encumbrance, lien (statutory, judgment or
otherwise), charge (whether fixed or floating), preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including any similar such interest arising under the laws of any applicable
domestic or foreign jurisdiction and including any conditional sale or other
title retention agreement, any financing lease involving substantially the same
economic effect as any of the foregoing and the filing of any financing
statement under the UCC or comparable law of any domestic or foreign
jurisdiction).
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the Commitment Letter, any Letter of Credit
Guaranty the Security Documents and any interest rate protection agreement
between any Borrower and a Lender evidencing Derivative Obligations.
Loan Request. See ss.2.6.
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Loans. Revolving credit loans made or to be made by the Lenders to the
Borrowers pursuant to ss.2.
Local Account. See ss.8.13.1.
Majority Lenders. As of any date, the Lenders holding at least fifty-one
percent (51%) of the outstanding principal amount of the Notes on such date; and
if no such principal is outstanding, the Lenders whose aggregate Revolving
Credit Commitments constitutes at least fifty-one percent (51%) of the Total
Revolving Credit Commitment.
Materially Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a materially adverse effect on the business, Properties,
operations, prospects or condition, financial or otherwise, of the
Borrowers, their Subsidiaries and the European Subsidiary on a combined
basis, taken as a whole;
(b) a materially adverse effect on the ability of any of the
Borrowers, their Subsidiaries and the European Subsidiary on a combined
basis, taken as a whole to perform any of their payment or other
obligations under any Loan Document to which it is a party; or
(c) any material impairment of the validity or enforceability of any
Loan Document or any material impairment of the rights, remedies or
benefits available to the Agent or any Lender under any Loan Document.
Maturity Date. March 31, 2006.
Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries
may at any time draw under outstanding Letters of Credit, as such aggregate
amount may be reduced from time to time pursuant to the terms of the Letters of
Credit.
Metalsco. As defined in the Preamble.
Minimum Reserve Amount. $30,000,000.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Mt. Holly Owners Agreement. The Amended and Restated Owners Agreement,
dated as of January 26, 1996, relating to Berkeley's ownership interest in the
Mt. Holly aluminum facility.
Non-Collateral Proceeds. Cash which does not belong to the Borrowers or
Guarantors or which is not proceeds of the Collateral.
Non-Setoff Agreement. The (a) Non-Setoff Agreement, dated as of April 2,
2001, between Glencore Ltd., Century Aluminum and the Agent and (b) any other
Non-Setoff Agreement, executed and delivered on or after the Closing Date, by
any other Person, in form and substance satisfactory to the Agent.
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Note Record. A Record with respect to a Note.
Notes. See ss.2.4.
NSA. As defined in the preamble hereto.
Obligations. All indebtedness, obligations and liabilities of the Borrowers
and their Subsidiaries to any of the Lenders, the Issuing Bank and the Agent,
individually or collectively, existing on the date of this Credit Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Applications, Letters of Credit, any Derivative
Obligations with any of the Lenders or other instruments at any time evidencing
any thereof.
Operating Accounts. See ss.2.6.2.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Owners Agreement. The Owners Agreement, dated as of April 2, 2001, among
NSA, Glencore Acquisition I LLC and Century Kentucky, LLC relating to the
operation of the Hawesville Facility.
Payment Office. The Agent's office located at One Constitution Plaza,
Hartford, Connecticut, or such other place that the Agent may from time to time
designate.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Pechiney Net Worth Calculation. See ss.8.4(d).
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreements.
Permitted Acquisition. Any Acquisition (other than the European
Acquisition) after the Closing Date by any Borrower or any Subsidiary of a
Borrower of any business so long as, in each case, either the Majority Lenders
have given their written consent to such Acquisition or all of the following
conditions are satisfied:
(a) the aggregate purchase price (and the related fees and expenses
incurred in connection therewith) of such Acquisition, plus all other
Acquisitions (other than the European Acquisition) consummated after the
Closing Date, shall not exceed $25,000,000;
(b) the target is a Domestic Company in a Related Business;
(c) the Acquisition is on friendly terms;
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(d) after giving effect to the Acquisition, the assets comprising such
business (as used in this definition, the "Acquired Assets") shall be owned
or leased exclusively by such Borrower or such Subsidiary and substantially
all of the Acquired Assets shall be located in the United States;
(e) any Indebtedness incurred or assumed in connection with the
Acquisition is Permitted Indebtedness or its incurrence is consented to by
the Majority Lenders;
(f) the surviving entity is a Borrower or a Guarantor;
(g) if the Acquired Assets are owned or leased by a newly-formed or
newly-acquired Subsidiary of Century Aluminum, such Subsidiary (together
with any Subsidiary thereof and any parent of such Subsidiary that is not
already a Guarantor) shall have executed and delivered to the Agent and the
Lenders (A) an Accession Agreement substantially in the form attached
hereto as Exhibit F pursuant to the terms of which such Subsidiary (and
such parent or parents, if applicable) (i) becomes a party to this Credit
Agreement as a Borrower or executes a Guaranty, (ii) becomes a party to the
Security Agreement as an Assignor, and becomes a party to any of the other
Loan Documents as the Agent may reasonably request, and (iii) agrees to
perform and observe all of the obligations and covenants of a Borrower or a
Subsidiary of a Borrower hereunder, and of the appropriate party under any
Loan Document to which it becomes a party, and (B) such other Security
Documents covering collateral of the same type as the Collateral in form
and substance satisfactory to the Agent as may be reasonably required by
the Agent;
(h) the Borrowers and their Subsidiaries shall have complied with the
requirements of ss.8.15 hereof;
(i) the Borrowers shall have Borrowing Availability (assuming
pro-forma covenant compliance) after giving effect to the Acquisition of at
least (A) $20,000,000 if the Obligations are rated "BB-" or higher by
Standard and Poor's Rating Group or "Ba3" or higher by Moody's Investors
Service, Inc. or (B) $25,000,000 in all circumstances other than those
listed in part (A) of this paragraph (i);
(j) the Agent shall have received satisfactory audits or independent
accountant reviews of the target company;
(k) no Default or Event of Default is continuing immediately prior to
such Acquisition, and no Default or Event of Default would result from such
Acquisition;
(l) the Agent shall have received satisfactory evidence that the
business to be acquired has complied with, and, following the consummation
of the Acquisition, is in compliance with, in all material respects all
Applicable Laws, (if Real Estate is being acquired as part of the
Acquisition, the Agent shall have received a phase-one environmental survey
reasonably satisfactory to the Agent);
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(m) reports of auditors with respect to Accounts Receivable and
inventory components of the acquisition to be included in the Borrowing
Base (including verification with respect to the amount, aging, identity
and credit of the respective account debtors and verification as to value,
location and respective type of inventory) satisfactory to the Agent shall
have been delivered to the Agent prior to inclusion of the target company's
assets in the Borrowing Base;
(n) prior to the closing of the Acquisition, the Borrowers have
delivered to the Agent the definitive acquisition documents between the
applicable Borrower or Subsidiary of a Borrower and the applicable selling
entities; and
(o) the Agent shall have received to the extent requested by the
Agent, a favorable legal opinion addressed to the Lenders and the Agent, in
form and substance satisfactory to the Agent, from counsel (including any
local counsel, as applicable) to the Borrowers.
Permitted Distributions. Distributions permitted by ss.9.4.
Permitted Indebtedness. Indebtedness permitted by ss.9.1.
Permitted Inventory Locations. The distribution locations and manufacturing
facilities of the Borrowers or an Approved Party located in the United States
and listed on Schedule 2 hereto, as such Schedule 2 may be supplemented from
time to time with the consent of the Agent.
Permitted Liens. Liens, security interests and other encumbrances permitted
by ss.9.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Property. Any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
RCRA. See ss.7.18(a).
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrowers or any of their Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
Reference Banks. Fleet National Bank, and any other Lender identified by
the Agent as a reference bank if Fleet Capital Corporation is not the Agent.
Register. See ss.19.3.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Issuing Bank and the Lenders on account of any drawing under any Letter of
Credit as provided in ss.4.2.
Related Business. The business of reducing, refining, processing and
selling alumina, primary aluminum and aluminum products, and any business
reasonably related, incidental or ancillary thereto
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Revolving Credit Commitment. With respect to each Lender, the amount set
forth on Schedule 1 hereto as the amount of such Lender's commitment to make
Loans to, and to participate in the issuance, extension and renewal of Letters
of Credit for the account of, the Borrowers, as the same may be reduced from
time to time; or if such commitment is terminated pursuant to the provisions
hereof, zero.
RISC. Ravenswood International Sales, Inc., a Barbados corporation.
SARA. See ss.7.18(a).
Section 20 Subsidiary. A Subsidiary of the bank holding company controlling
any Lender, which Subsidiary has been granted authority by the Federal Reserve
Board to underwrite and deal in certain Ineligible Securities.
Security Agreement. The Security Agreement, dated or to be dated on or
prior to the Closing Date, between the Borrowers, the Guarantors and the Agent
in the form of Exhibit J hereto.
Security Documents. The Guarantees, the Security Agreement, the Agency
Account Agreements, the Customs Agent Agreements and all other instruments and
documents, including without limitation UCC financing statements, required to be
executed or delivered pursuant to any Security Document.
Security Instrument. Any security agreement, chattel mortgage, assignment,
financing or similar statement or notice, continuation statement, other
agreement or Instrument or amendment or supplement to any thereof, providing
for, evidencing or perfecting any Lien.
Settlement. The making or receiving of payments, in immediately available
funds, by the Lenders, to the extent necessary to cause each Lender's actual
share of the outstanding amount of Loans (after giving effect to any Loan
Request) to be equal to such Lender's Commitment Percentage of the outstanding
amount of such Loans (after giving effect to any Loan Request), in any case
where, prior to such event or action, the actual share is not so equal.
Settlement Amount. See ss.2.10.1.
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Agent, on any
Business Day following a day on which the account officers of the Agent active
upon the Borrower's account become aware of the existence and continuance of an
Event of Default, (d) any Business Day on which the amount of Loans outstanding
from Fleet plus Fleet's Commitment Percentage of the Letter of Credit Exposure
is equal to or greater than Fleet's Commitment Percentage of the Total Revolving
Credit Commitment, (e) the Business Day immediately following any Business Day
on which the amount of Loans outstanding increases or decreases by more than
$10,000,000 as compared to the previous Settlement Date, (f) any day on which
any conversion of a Base Rate Loan to a Eurodollar Rate Loan occurs, or (g) any
Business Day on which (i) the amount of outstanding Loans decreases and (ii) the
amount of the Agent's Loans outstanding equals zero Dollars ($0).
Settling Lender. See ss.2.10.1.
Skyliner. Skyliner, Inc., a Delaware corporation.
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Subordinated Debt. Unsecured Indebtedness of the Borrowers or any Guarantor
that is expressly subordinated and made junior to the payment and performance in
full of the Obligations, and evidenced as such by an intercreditor agreement or
by another written instrument containing subordination provisions in form and
substance approved by the Agent in writing.
Subordination Documents. Documents, instruments or agreements evidencing
Subordinated Debt.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock; provided, however, that when used with respect to
the Borrowers and the Guarantors, the term Subsidiary shall not include the
European Subsidiary.
Synthetic Lease. Any lease treated as an operating lease under GAAP and as
a loan or financing for U.S. income tax purposes.
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Lenders, as in effect from time to time.
Type. As to any Loan, its nature as a Base Rate Loan or a Eurodollar Rate
Loan.
UCC. The Uniform Commercial Code, as in effect in the applicable
jurisdiction.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Issuing Bank in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation or obligation
under any Letter of Credit Guaranty for which the Borrowers do not reimburse the
Issuing Bank, the Agent or the Lenders (as applicable) on the date specified in,
and in accordance with, ss.4.2.
Vialco. Virgin Islands Alumina Corporation LLC, a Delaware limited
liability company.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
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1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any Applicable Law includes any amendment or
modification to such Applicable Law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by GAAP, which terms
are defined in the Uniform Commercial Code as in effect in the State of New
York, have the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the Uniform Commercial
Code.
(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean "to
but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the result
of negotiation among, and have been reviewed by counsel to, among others,
the Agent and the Borrower and are the product of discussions and
negotiations among all parties. Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Agent or
any of the Lenders merely on account of the Agent's or any Lender's
involvement in the preparation of such documents.
(m) References in ss.7.14 and in ss.9.2(i) to the Agent shall be
deemed references to Fleet in its capacity as Agent.
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2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrowers and the Borrowers may borrow, repay, and reborrow from time to time
from the Closing Date up to but not including the Maturity Date upon notice by
the Borrowers to the Agent given in accordance with ss.2.6, such sums as are
requested by the Borrowers up to a maximum aggregate amount outstanding (after
giving effect to all amounts requested) at any one time equal to such Lender's
Revolving Credit Commitment minus such Lender's Commitment Percentage of all
Letter of Credit Exposure, provided that the sum of the outstanding amount of
the Loans (after giving effect to all amounts requested) plus the Letter of
Credit Exposure shall not at any time exceed the lesser of (i) the Total
Revolving Credit Commitment and (ii) the Borrowing Base. The Loans shall be made
pro rata in accordance with each Lender's Commitment Percentage. Each request
for a Loan hereunder shall constitute a representation and warranty by the
Borrowers that the conditions set forth in ss.11, in the case of the conditions
to be satisfied on the Closing Date, and ss.12, in the case of all other Loans,
have been satisfied on the date of such request.
2.2. Unused Revolving Credit Commitment Fee. The Borrowers agree to pay to
the Agent for the accounts of the Lenders in accordance with their respective
Commitment Percentages a commitment fee (the "Commitment Fee") in an amount
equal to the Applicable Margin for Commitment Fees then in effect per annum
multiplied by the average daily amount during such calendar quarter or portion
thereof by which the Total Revolving Credit Commitment minus the Letter of
Credit Exposure exceeds the outstanding amount of Revolving Credit Loans during
such calendar quarter. The Commitment Fee shall be payable quarterly in arrears
on the first day of each calendar quarter for the immediately preceding calendar
quarter (or portion thereof), commencing on the first such date following the
date hereof, with a final payment on the Maturity Date or any earlier date on
which the Revolving Credit Commitments shall terminate.
2.3. Reduction of Total Revolving Credit Commitment. The Borrowers shall
have the right at any time and from time to time upon five (5) Business Days
prior written notice to the Agent to reduce by $5,000,000 or an integral
multiple thereof or terminate entirely the Total Revolving Credit Commitment,
whereupon the Revolving Credit Commitments of the Lenders shall be reduced pro
rata in accordance with their respective Commitment Percentages of the amount
specified in such notice or, as the case may be, terminated. Promptly after
receiving any notice of the Borrowers delivered pursuant to this ss.2.3, the
Agent will notify the Lenders of the substance thereof. Upon the effective date
of any such reduction or termination, the Borrowers shall pay to the Agent for
the respective accounts of the Lenders the full amount of any Revolving Credit
Commitment Fee then accrued on the amount of the reduction. The Total Revolving
Credit Commitment shall never be reduced pursuant to this ss.2.3 to an amount
less than the sum of (a) the then outstanding amount of the Loans and (b) the
Maximum Drawing Amount and all Reimbursement Obligations. No reduction or
termination of the Revolving Credit Commitments may be reinstated.
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2.4. The Revolving Credit Notes. The Loans shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of Exhibit B hereto
(each a "Note"), dated as of the Closing Date and completed with appropriate
insertions. One Note shall be payable to the order of each Lender in a principal
amount equal to such Lender's Revolving Credit Commitment or, if less, the
outstanding amount of all Loans made by such Lender, plus interest accrued
thereon, as set forth below. Each Borrower irrevocably authorizes each Lender to
make or cause to be made, at or about the time of the Drawdown Date of any Loan
or at the time of receipt of any payment of principal on such Lender's Note, an
appropriate notation on such Lender's Note Record reflecting the making of such
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the Loans set forth on such Lender's Note Record shall be prima facie
evidence of the principal amount thereof owing and unpaid to such Lender, but
the failure to record, or any error in so recording, any such amount on such
Lender's Note Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Note to make payments of principal or interest
on any Note when due.
2.5. Interest on Loans. Except as otherwise provided in ss.5.12,
(a) Each Base Rate Loan shall bear interest for the period commencing
with the Drawdown Date thereof and ending on the last day of the Interest
Period with respect thereto at the rate per annum of the Base Rate plus the
Applicable Margin.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum of the
Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(c) The Borrowers promise to pay interest on the Loans, or any portion
thereof outstanding during such Interest Period, in arrears on each
Interest Payment Date with respect thereto.
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2.6. Requests for Loans.
2.6.1. General. The Borrowers shall give to the Agent (a) written
notice in the form of Exhibit C hereto, (b) telephonic notice, or (c)
electronic transmittal in the form of Exhibit C hereto, of each Loan
requested hereunder (any such request a "Loan Request") not later than
12:00 noon (Chicago, Illinois, time) on the proposed Drawdown Date of any
Base Rate Loan and (ii) three (3) Eurodollar Business Days prior to the
proposed Drawdown Date of any Eurodollar Rate Loan; provided that at all
times during the continuance of a Default or Event of Default, each
telephonic notice shall be confirmed in a writing in the form of Exhibit C
hereto. Each such notice shall specify (A) the principal amount of the Loan
requested, (B) the proposed Drawdown Date of such Loan, (C) the Interest
Period for such Loan and (D) the Type of such Loan. Promptly upon receipt
of any such notice, the Agent shall notify each of the Lenders thereof.
Each Loan Request shall be irrevocable and binding on each of the Borrowers
and shall obligate the Borrowers to accept the Loan requested from the
Lenders on the proposed Drawdown Date. Each Loan Request for Eurodollar
Rate Loans shall be in a minimum aggregate amount of $1,000,000 or an
integral multiple of $100,000 in excess thereof. Unless the Borrowers
specifically direct the Agent in writing not to accept or act upon
telephonic or electronic Loan Requests from any Borrower, neither the Agent
nor any Lender shall have any liability to the Borrowers for any loss or
damage suffered by the Borrowers as a result of Agent's or any Lender's
honoring any Loan Request communicated to it telephonically or
electronically and purporting to have been sent to Agent or a Lender by an
Authorized Officer of any Borrower, and neither the Agent nor any Lender
shall have any duty to verify the origin of any such communication or the
authority of the Person sending it.
2.6.2. Swing Line. Notwithstanding the notice and minimum amount
requirements set forth in ss.2.6.1 but otherwise in accordance with the
terms and conditions of this Credit Agreement, the Agent may, in its sole
discretion and without conferring with the Lenders, make Loans to the
Borrowers (i) by entry of credits to Century Aluminum's operating account
(No. 563-90229) or any other account(s) of the Borrowers (the "Operating
Accounts") with the Agent or its Affiliates to cover checks or other
charges which the applicable Borrower has drawn or made against such
account or (ii) in an amount as otherwise requested by the Borrowers. The
Borrowers hereby request and authorize the Agent to make from time to time
such Loans by means of appropriate entries of such credits sufficient to
cover checks and other charges then presented for payment from an Operating
Account or as otherwise so requested. The Agent and the Borrowers
acknowledge and agree that the making of such Loans shall, in each case, be
subject in all respects to the provisions of this Credit Agreement as if
they were Loans covered by a Loan Request (other than the requirement for
an immediate Settlement) including, without limitation, the limitations set
forth in ss.2.1 and the requirements that the applicable provisions of
ss.11 (in the case of Loans made on the Closing Date) and ss.12 be
satisfied. All actions taken by the Agent pursuant to the provisions of
this ss.2.6.2 shall be conclusive and binding on the Borrowers and the
Lenders absent the Agent's gross negligence or willful misconduct. Loans
made pursuant to this ss.2.6.2 shall be Base Rate Loans until converted in
accordance with the provisions of the Credit Agreement and, prior to a
Settlement, such interest shall be for the account of the Agent.
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2.7. Conversion Options.
2.7.1. Conversion to Different Type of Loan. The Borrowers may elect
from time to time to convert any outstanding Loan to a Loan of another
Type, provided that (i) with respect to any such conversion of a Eurodollar
Rate Loan to a Base Rate Loan, the Borrowers shall give the Agent at least
one (1) Business Day prior written notice of such election; (ii) with
respect to any such conversion of a Base Rate Loan to a Eurodollar Rate
Loan, the Borrowers shall give the Agent at least three (3) Eurodollar
Business Days prior written notice of such election; (iii) with respect to
any such conversion of a Eurodollar Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto and (iv) no Loan may be converted into a Eurodollar Rate
Loan when any Default or Event of Default has occurred and is continuing.
On the date on which such conversion is being made each Lender shall take
such action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its Eurodollar Lending Office, as
the case may be. All or any part of outstanding Loans of any Type may be
converted into a Loan of another Type as provided herein, provided that any
partial conversion shall be in a minimum aggregate principal amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof. Each
Conversion Request relating to the conversion of a Revolving Credit Loan to
a Eurodollar Rate Loan shall be irrevocable by the Borrowers.
2.7.2. Continuation of Type of Loan. Any Loan of any Type may be
continued as a Loan of the same Type upon the expiration of an Interest
Period with respect thereto by compliance by the Borrowers with the notice
provisions contained in ss.2.7.1; provided that no Eurodollar Rate Loan may
be continued as such when any Default or Event of Default has occurred and
is continuing, and during any Default or Event of Default Eurodollar Rate
Loans shall be automatically converted to a Base Rate Loan on the last day
of the first Interest Period relating thereto ending during the continuance
of any Default or Event of Default of which officers of the Agent active
upon the Borrowers' account have actual knowledge. In the event that the
Borrowers fail to provide any such notice with respect to the continuation
of any Eurodollar Rate Loan as such, then such Eurodollar Rate Loan shall
be automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto. The Agent shall notify the Lenders and
the Borrowers promptly when any such automatic conversion contemplated by
this ss.2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, (a) the aggregate principal amount of
all Eurodollar Rate Loans having the same Interest Period shall not be less
than $1,000,000 or an integral multiple of $100,000 in excess thereof and
(b) no more than five (5) Eurodollar Rate Loans shall be outstanding at any
time.
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2.8. Funds for Loan.
2.8.1. Funding Procedures. Not later than 2:00 p.m. (Chicago,
Illinois, time) on the proposed Drawdown Date of any Loan, each of the
Lenders will make available to the Agent, at the Agent's Payment Office, in
immediately available funds, the amount of such Lender's Commitment
Percentage of the amount of the requested Loan. Upon receipt from each
Lender of such amount, and upon receipt of the documents required by
ss.ss.11 and 12 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the
Borrowers the aggregate amount of such Loan made available to the Agent by
the Lenders. The failure or refusal of any Lender to make available to the
Agent at the aforesaid time and place on any Drawdown Date the amount of
its Commitment Percentage of the requested Loan shall not relieve any other
Lender from its several obligation hereunder to make available to the Agent
the amount of such other Lender's Commitment Percentage of any requested
Loan.
2.8.2. Advances by Agent. The Agent may, unless notified to the
contrary by any Lender prior to a Drawdown Date, assume that such Lender
has made available to the Agent on such Drawdown Date the amount of such
Lender's Commitment Percentage of the Loans to be made on such Drawdown
Date, and the Agent may (but it shall not be required to), in reliance upon
such assumption, make available to the Borrowers a corresponding amount. If
any Lender makes available to the Agent such amount on a date after such
Drawdown Date, such Lender shall pay to the Agent on demand an amount equal
to the product of (i) the average computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by the Agent
for federal funds acquired by the Agent during each day included in such
period, times (ii) the amount of such Lender's Commitment Percentage of
such Loans, times (iii) a fraction, the numerator of which is the number of
days that elapse from and including such Drawdown Date to the date on which
the amount of such Lender's Commitment Percentage of such Loans shall
become immediately available to the Agent, and the denominator of which is
365. A statement of the Agent submitted to such Lender with respect to any
amounts owing under this paragraph shall be prima facie evidence of the
amount due and owing to the Agent by such Lender. If the amount of such
Lender's Commitment Percentage of such Loans is not made available to the
Agent by such Lender within three (3) Business Days following such Drawdown
Date, the Agent shall be entitled to recover such amount from the Borrowers
on demand, with interest thereon at the rate per annum applicable to the
Loans made on such Drawdown Date.
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2.9. Change in Borrowing Base.
(a) The Borrowing Base shall be determined by the Agent by reference
to the Borrowing Base Report required to be delivered pursuant to
ss.8.4(f)(A).
(b) The Agent may, in its reasonable discretion, from time to time,
reduce the Borrowing Base by such amounts ("Reserves") as the Agent may
from time to time establish and revise (a) to reflect events, conditions,
contingencies or risks which do or may adversely affect either (A) any
Collateral, the rights of the Agent or any of the Lenders in any Collateral
or its value or (B) the security interest and other rights of the Agent or
any of the Lenders in the Collateral (including the enforceability,
perfection and priority thereof) or (b) to reflect the belief of the Agent
that any Borrowing Base Report or other collateral report or financial
information furnished by or on behalf of the Borrowers to the Agent or any
of the Lenders is or may have been incomplete, inaccurate or misleading in
any material respect. Reserves may include, but are not limited to:
reserves to reflect (a) an increase in the dilution of Accounts Receivable,
(b) material changes in the number of days turnover in inventory, (c) the
deterioration in any material respect of the liquidation value of inventory
or a change in the mix of inventory, (d) taxes and other governmental
charges, whether ad valorem, personal property or otherwise and whether or
not the tax claims therefor may have priority over the Agent's security
interest in any of the Collateral, (e) any customs, duty, freight or other
out-of-pocket costs or expenses required or advisable to "land" any
Eligible Inventory the purchase of which is supported by a Letter of Credit
and (f) any offset claims which an account debtor has against any Account
Receivable.
(c) The Agent shall give to the Borrowers written notice of any change
in the Borrowing Base determined by the Agent. Such notice shall be
effective immediately upon its receipt by the Borrowers. Notwithstanding
anything contained in this Agreement to the contrary, it shall not
constitute an Event of Default (but shall constitute a Default) to the
extent that the Loans, and all Letter of Credit Exposure exceeds the
Borrowing Base as adjusted pursuant to this Section 2.9 until five (5) days
after the Borrowers receipt of notice of such change in the Borrowing Base.
2.10. Settlements.
2.10.1. General. On each Settlement Date, the Agent shall, not later
than 12:00 noon (Chicago, Illinois, time), give telephonic or facsimile
notice (i) to the Lenders and the Borrowers of the respective outstanding
amount of Loans made by the Agent on behalf of the Lenders from the
immediately preceding Settlement Date through the close of business on the
prior day and the amount of any Eurodollar Rate Loans to be made (following
the giving of notice pursuant to ss.2.6.1(ii)) on such date pursuant to a
Loan Request and (ii) to the Lenders of the amount (a "Settlement Amount")
that each Lender (a "Settling Lender") shall pay to effect a Settlement of
any Loan. A statement of the Agent submitted to the Lenders and the
Borrowers or to the Lenders with respect to any amounts owing under this
ss.2.10 shall be prima facie evidence of the amount due and owing. Each
Settling Lender shall, not later than 2:00 p.m. (Chicago, Illinois, time)
on such Settlement Date, effect a wire transfer of immediately available
funds to the Agent in the amount of the Settlement Amount for such Settling
Lender. All funds advanced by any Lender as a Settling Lender pursuant to
this ss.2.10 shall for all purposes be treated as a Loan made by such
Settling Lender to the applicable Borrower and all funds received by any
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Lender pursuant to this ss.2.10 shall for all purposes be treated as
repayment of amounts owed with respect to Loans made by such Lender. In the
event that any bankruptcy, reorganization, liquidation, receivership or
similar cases or proceedings in which any of the Borrowers are a debtor
prevent a Settling Lender from making any Loan to effect a Settlement as
contemplated hereby, such Settling Lender will make such dispositions and
arrangements with the other Lenders with respect to such Loans, either by
way of purchase of participations, distribution, pro tanto assignment of
claims, subrogation or otherwise as shall result in each Lender's share of
the outstanding Loans being equal, as nearly as may be, to such Lender's
Commitment Percentage of the outstanding amount of the Loans.
2.10.2. Failure to Make Funds Available. The Agent may, unless
notified to the contrary by any Settling Lender prior to a Settlement Date,
assume that such Settling Lender has made or will make available to the
Agent on such Settlement Date the amount of such Settling Lender's
Settlement Amount, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. If any Settling Lender makes available to the Agent
such amount on a date after such Settlement Date, such Settling Lender
shall pay to the Agent on demand an amount equal to the product of (i) the
average computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Agent for federal funds acquired
by the Agent during each day included in such period, times (ii) the amount
of such Settlement Amount, times (iii) a fraction, the numerator of which
is the number of days that elapse from and including such Settlement Date
to the date on which the amount of such Settlement Amount shall become
immediately available to the Agent, and the denominator of which is 360. A
statement of the Agent submitted to such Settling Lender with respect to
any amounts owing under this ss.2.10.2 shall be prima facie evidence of the
amount due and owing to the Agent by such Settling Lender. If such Settling
Lender's Settlement Amount is not made available to the Agent by such
Settling Lender within three (3) Business Days following such Settlement
Date, the Agent shall be entitled to recover such amount from the
applicable Borrower on demand, with interest thereon at the rate per annum
applicable to the Loans as of such Settlement Date.
2.10.3. No Effect on Other Lenders. The failure or refusal of any
Settling Lender to make available to the Agent at the aforesaid time and
place on any Settlement Date the amount of such Settling Lender's
Settlement Amount shall not (i) relieve any other Settling Lender from its
several obligations hereunder to make available to the Agent the amount of
such other Settling Lender's Settlement Amount or (ii) impose upon any
Lender, other than the Settling Lender so failing or refusing, any
liability with respect to such failure or refusal or otherwise increase the
Revolving Credit Commitment of such other Lender.
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2.11. Repayments of Revolving Credit Loans Prior to Event of Default.
2.11.1. Credit for Funds Received in Fleet Blocked Account. Prior to
the occurrence of an Event of Default as to which the account officers of
the Agent active upon the Borrowers' account have actual knowledge, (i) all
funds and cash proceeds in the form of money, checks and like items
received in the Fleet Blocked Account as contemplated by ss.8.13 shall be
credited, on the same Business Day on which the Agent determines that good
collected funds have been received, and, prior to the receipt of good
collected funds, on a provisional basis until final receipt of good
collected funds, and applied as contemplated by ss.2.11.2, (ii) all funds
and cash proceeds in the form of a wire transfer received in the Fleet
Blocked Account as contemplated by ss.8.13 shall be credited on the same
Business Day as the Agent's receipt of such amounts (or up to such later
date as the Agent determines that good collected funds have been received),
and applied as contemplated by ss.2.11.2, and (iii) all funds and cash
proceeds in the form of an automated clearing house transfer received in
the Fleet Blocked Account as contemplated by ss.8.13 shall be credited, on
the next Business Day following the Agent's receipt of such amounts (or up
to such later date as the Agent determines that good collected funds have
been received), and applied as contemplated by ss.2.11.2. For purposes of
the foregoing provisions of this ss.2.11.1, the Agent shall not be deemed
to have received any such funds or cash proceeds on any day unless received
by the Agent before 1:00 p.m. (Chicago, Illinois, time) on such day. Each
of the Borrowers further acknowledges and agrees that any such provisional
credits or credits in respect of wire or automatic clearing house funds
transfers shall be subject to reversal if final collection in good funds of
the related item is not received by, or final settlement of the funds
transfer is not made in favor of, the Agent in accordance with the Agent's
customary procedures and practices for collecting provisional items or
receiving settlement of funds transfers.
2.11.2. Application of Payments Prior to Event of Default.
(a) Prior to the occurrence of an Event of Default of which the
account officers of the Agent active on the Borrowers' account have
knowledge, all funds transferred to the Fleet Blocked Account and for
which the Borrowers have received credits shall be applied to the
Obligations as follows:
(i) first, to pay amounts then due and payable under this
Credit Agreement, the Notes and the other Loan Documents;
(ii) second, to reduce Loans made by the Agent pursuant
to ss.2.6.2 and for which Settlement has not then been made;
(iii) third, to reduce other Loans which are Base Rate
Loans;
(iv) fourth, to reduce Loans which are Eurodollar Rate
Loans; and
(v) fifth, except as otherwise required by ss.4.2(b) and
(c), to an Operating Account specified by Century Aluminum.
(b) All prepayments of Eurodollar Rate Loans prior to the end of
an Interest Period shall obligate the Borrowers to pay any Breakage
Costs associated with such Eurodollar Rate Loans in accordance with
ss.5.11. Prior to the occurrence of an Event of Default, the Borrowers
may elect to avoid such Breakage Costs by having such funds placed in
an Operating Account.
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(c) All prepayments of the Loans pursuant to this ss.2.11.2 shall
be allocated among the Lenders making such Loans, in proportion, as
nearly as practicable, to the respective unpaid principal amount of
such Loans outstanding, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in proportion.
Prior to any Settlement Date, however, all prepayments of the Loans
shall be applied in accordance with this ss.2.11.2, first to
outstanding Loans of the Agent.
2.12. Repayments of Loans After Event of Default. Following the occurrence
and during the continuance of an Event of Default of which the account officers
of the Agent active on the Borrowers' account have knowledge, all funds
transferred to the Fleet Blocked Account and for which the Borrowers have
received credits shall be applied to the Obligations in accordance with ss.13.4.
3. REPAYMENT OF THE LOANS.
3.1. Maturity. The Borrowers absolutely and unconditionally and jointly and
severally promise to pay on the Maturity Date, and there shall become absolutely
due and payable on the Maturity Date, all of the Loans outstanding on such date,
together with any and all accrued and unpaid interest thereon and all fees and
expenses incurred by the Lenders and the Agent in connection therewith and
payable by the Borrowers hereunder.
3.2. Mandatory Repayments of Loans. If at any time the sum of the
outstanding amount of the Loans, and all Letter of Credit Exposure exceeds the
lesser of (i) the Total Revolving Credit Commitment and (ii) the Borrowing Base,
then the Borrowers shall immediately pay the amount of such excess to the Agent
for the respective accounts of the Lenders for application: first, to any Unpaid
Reimbursement Obligations; second, to the Loans; and third, to provide to the
Agent cash collateral for Reimbursement Obligations as contemplated by ss.4.2(b)
and (c). Each payment of any Unpaid Reimbursement Obligations or prepayment of
Loans shall be allocated among the Lenders, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Lender's Note, with adjustments to
the extent practicable to equalize any prior payments or repayments not exactly
in proportion.
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3.3. Optional Repayments of Loans. The Borrowers shall have the right, at
their election, to repay the outstanding amount of the Loans, as a whole or in
part, at any time without penalty or premium (but subject to ss.5.11). Except
for payments applied in accordance with ss.2.11.2, the Borrowers shall give the
Agent, no later than 11:00 a.m., Chicago, Illinois, time, at least three (3)
Business Days prior written notice of any proposed prepayment pursuant to this
ss.3.3 of Base Rate Loans, and four (4) Eurodollar Business Days notice of any
proposed prepayment pursuant to this ss.3.3 of Eurodollar Rate Loans, in each
case specifying the proposed date of prepayment of Loans and the principal
amount to be prepaid. Each such partial prepayment of the Loans shall be in an
integral multiple of $1,000,000 and shall be applied, in the absence of
instruction by the Borrowers, first to the principal of Base Rate Loans and then
to the principal of Eurodollar Rate Loans, at the Agent's option. Each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Lender's Note,
with adjustments to the extent practicable to equalize any prior repayments not
exactly in proportion.
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitments.
4.1.1. Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof and the execution and delivery by the Borrowers of a
letter of credit application on the Issuing Bank's customary form (a
"Letter of Credit Application"), the Agent shall cause the Issuing Bank on
behalf of the Lenders and in reliance upon the agreement of the Lenders set
forth in ss.4.1.4 and upon the representations and warranties of the
Borrowers contained herein, in its individual capacity, to issue, extend
and renew for the account of a Borrower one or more standby or documentary
letters of credit (individually, a "Letter of Credit"), in such form as may
be requested from time to time by the applicable Borrower and agreed to by
the Issuing Bank; provided, however, that, after giving effect to such
request, (a) the Letter of Credit Exposure shall not exceed $10,000,000 at
any one time and (b) the sum of (i) the Letter of Credit Exposure plus,
(ii) the amount of all Loans outstanding shall not exceed the lesser of (A)
the Total Revolving Credit Commitment and (B) the Borrowing Base.
4.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the Issuing Bank. In
the event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
4.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (ii) have an expiry date no later than 365 days from
the date of issuance and a final expiry date no later than fourteen (14)
days (or, if the Letter of Credit is confirmed by a confirmer or otherwise
provides for one or more nominated persons, forty-five (45) days) prior to
the Maturity Date. Each Letter of Credit so issued, extended or renewed
shall be subject to the Uniform Customs or, in the case of a standby Letter
of Credit, either the Uniform Customs or the International Standby
Practices.
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4.1.4. Reimbursement Obligations of Lenders. Each Lender severally
agrees that it shall be absolutely liable, without regard to the occurrence
of any Default or Event of Default or any other condition precedent
whatsoever, to the extent of such Lender's Commitment Percentage, to
reimburse the Agent as issuer of the Letter of Credit Guaranty or, as
applicable, the Issuing Bank, on demand for the amount of each draft paid
by the Issuing Bank under each Letter of Credit to the extent that such
amount is not reimbursed by the Borrowers pursuant to ss.4.2 (such
agreement for a Lender being called herein the "Letter of Credit
Participation" of such Lender).
4.1.5. Participations of Lenders. Each such payment made by a Lender
shall be treated as the purchase by such Lender of a participating interest
in the Borrowers' Reimbursement Obligation under ss.4.2 in an amount equal
to such payment. Each Lender shall share in accordance with its
participating interest in any interest which accrues pursuant to ss.4.2.
4.2. Reimbursement Obligation of the Borrowers. In order to induce the
Agent to issue the Letter of Credit Guaranty, and the Issuing Bank to issue,
extend and renew each Letter of Credit and the Lenders to participate therein,
each Borrower hereby jointly and severally agrees to reimburse or pay to the
Agent or, as applicable the Issuing Bank, for the account of the Agent, Issuing
Bank or (as the case may be) the Lenders, with respect to each Letter of Credit
issued, extended or renewed by the Issuing Bank hereunder,
(a) except as otherwise expressly provided in ss.4.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored
by the Issuing Bank, or the Issuing Bank otherwise makes a payment with
respect thereto, (i) the amount paid by the Issuing Bank under or with
respect to such Letter of Credit, and (ii) the amount of any taxes, fees,
charges or other costs and expenses whatsoever incurred by the Issuing Bank
or any Lender in connection with any payment made by the Issuing Bank or
any Lender under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Revolving
Credit Commitment to an amount less than the Maximum Drawing Amount, an
amount equal to such difference, which amount shall be held by the Issuing
Bank or by the Agent for the benefit of the Lenders, the Issuing Bank and
the Agent as cash collateral for all Reimbursement Obligations, and
(c) upon the termination of the Total Revolving Credit Commitment, or
the acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with ss.13, an amount equal to the then
Maximum Drawing Amount on all Letters of Credit, which amount shall be held
by the Issuing Bank or by the Agent for the benefit of the Lenders, the
Issuing Bank and the Agent as cash collateral for all Reimbursement
Obligations.
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Each such payment shall be made to the Issuing Bank at the Issuing Bank's Letter
of Credit Office in immediately available funds. Interest on any and all amounts
remaining unpaid by the Borrower under this ss.4.2 at any time from the date
such amounts become due and payable (whether as stated in this ss.4.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Issuing Bank on demand at the rate specified
in ss.5.12 for overdue principal on the Revolving Credit Loans.
4.3. Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Issuing Bank
shall notify the Borrowers of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrowers fails to reimburse the Issuing
Bank as provided in ss.4.2 on or before the date that such draft is paid or
other payment is made by the Issuing Bank, the Issuing Bank may at any time
thereafter notify the Lenders of the amount of any such Unpaid Reimbursement
Obligation. No later than 3:00 p.m. (Boston time) on the Business Day next
following the receipt of such notice, each Lender shall make available to the
Agent, at the Agent's Payment Office, in immediately available funds, such
Lender's Commitment Percentage of such Unpaid Reimbursement Obligation, together
with an amount equal to the product of (i) the average, computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Issuing Bank for federal funds acquired by the Issuing Bank during each day
included in such period, times (ii) the amount equal to such Lender's Commitment
Percentage of such Unpaid Reimbursement Obligation, times (iii) a fraction, the
numerator of which is the number of days that elapse from and including the date
the Issuing Bank paid the draft presented for honor or otherwise made payment to
the date on which such Lender's Commitment Percentage of such Unpaid
Reimbursement obligation shall become immediately available to the Issuing Bank,
and the denominator of which is 360. The responsibility of the Agent and the
Issuing Bank to the Borrower and the Lenders shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
4.4. Obligations Absolute. Each Borrower's obligations under this ss.4
shall be joint and several and absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Default or Event of
Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which any Borrower may have or have had against the Issuing
Bank, the Agent any Lender or any beneficiary of a Letter of Credit. Each of the
Borrowers further agrees with the Issuing Bank, the Agent and the Lenders that
the Issuing Bank, the Agent and the Lenders shall not be responsible for, and
the Borrowers' Reimbursement Obligations under ss.4.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrowers, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrowers against the beneficiary of
any Letter of Credit or any such transferee. The Issuing Bank, the Agent and the
Lenders shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. Each Borrower agrees that
any action taken or omitted by the Issuing Bank, the Agent or any Lender under
or in connection with each Letter of Credit and the related drafts and
documents, if done in good faith, shall be binding upon each of the Borrowers
and shall not result in any liability on the part of the Issuing Bank, the Agent
or any Lender to any of the Borrowers. Notwithstanding the foregoing, the
Borrowers shall have no obligation hereunder to any Person indemnified hereunder
with respect to liabilities arising solely from such indemnified Person's gross
negligence or willful misconduct.
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4.5. Reliance by Issuer. To the extent not inconsistent with ss.4.4, the
Issuing Bank and the Agent shall be entitled to rely, and shall be fully
protected in relying upon, any Letter of Credit, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Issuing Bank and the Agent. The
Issuing Bank and the Agent shall be fully justified in failing or refusing to
take any action under this Credit Agreement unless it shall first have received
such advice or concurrence of the Majority Lenders as it reasonably deems
appropriate or it shall first be indemnified to its reasonable satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Issuing Bank
and the Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Credit Agreement in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and all future holders of the
Notes or of a Letter of Credit Participation.
4.6. Letter of Credit Fee. The Borrowers shall pay to the Agent a fee (in
each case, a "Letter of Credit Fee") in respect of Letters of Credit on the
average daily Maximum Drawing Amount at a rate per annum equal to (a) with
respect to each standby Letter of Credit, the Applicable Margin for Eurodollar
Rate Loans per annum from time to time applicable and (b) with respect to each
documentary Letter of Credit, the Applicable Margin for Eurodollar Rate Loans
per annum from time to time applicable minus one-half of one percent (1/2%),
such Letter of Credit Fees being payable quarterly in arrears on the first day
of each calendar quarter and on the Maturity Date. A portion of such Letter of
Credit Fees equal to one-quarter of one percent (1/4%) per annum shall be
payable to the Agent for its own account and the remainder of such Letter of
Credit Fees shall be payable to the Agent for the ratable accounts of the
Lenders in accordance with their respective Commitment Percentages. The
Borrowers shall also pay to the Issuing Bank, at such time or times as such
charges are customarily made by the Issuing Bank, the Issuing Bank's customary
issuance fees or amendment fees, as the case may be, and the Issuing Bank's
customary time negotiation fees per document examination or other administrative
fees.
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5. CERTAIN GENERAL PROVISIONS.
5.1. Closing Fee. The Borrowers agree to pay to the Agent on the Closing
Date a closing fee (the "Closing Fee") in the amounts and at the times set forth
in the Commitment Letter and Fee Letter.
5.2. Agent's Fee. The Borrowers shall pay to the Agent, for the Agent's own
account, an Agent's fee (the "Agent's Fee") in the amounts and at the times set
forth in the Commitment Letter and Fee Letter
5.3. Funds for Payments.
5.3.1. Payments to Agent. All payments of principal, interest,
Reimbursement Obligations, Fees and any other amounts due hereunder or
under any of the other Loan Documents shall be made on the due date thereof
to the Agent in Dollars, for the respective accounts of the Lenders and the
Agent, at the Agent's Payment Office or at such other place that the Agent
may from time to time designate, in each case at or about 12:00 p.m.
(Chicago, Illinois, time or other local time at the place of payment) and
in immediately available funds.
5.3.2. No Offset, etc. All payments by the Borrowers hereunder and
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof
or taxing or other authority therein unless the Borrowers are compelled by
law to make such deduction or withholding. If any such obligation is
imposed upon the Borrowers with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrowers will pay
to the Agent, for the account of the Lenders or (as the case may be) the
Agent, on the date on which such amount is due and payable hereunder or
under such other Loan Document, such additional amount in Dollars as shall
be necessary to enable the Lenders or the Agent to receive the same net
amount which the Lenders or the Agent would have received on such due date
had no such obligation been imposed upon the Borrowers. The Borrowers will
deliver promptly to the Agent certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made
by the Borrowers hereunder or under such other Loan Document.
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5.4. Computations. All computations of interest on (a) Base Rate Loans and
of Commitment Fees or other fees shall, unless otherwise expressly provided
herein, be based on a 365-day year (or 366-day year, as the case may be) and
paid for the actual number of days elapsed, and (b) Eurodollar Rate Loans and
Letter of Credit Fees shall, unless otherwise expressly provided herein, be
based on a 360-day year. Except as otherwise provided in the definition of the
term "Interest Period" with respect to Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the Note Records from time to
time shall be considered correct and binding on the Borrowers unless within ten
(10) Business Days after receipt of any notice by the Agent or any of the
Lenders of such outstanding amount, the Agent or such Lender shall notify the
Borrower to the contrary.
5.5. Inability to Determine Eurodollar Rate. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine or be notified by the Majority Lenders that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrowers and the
Lenders) to the Borrowers and the Lenders. In such event (i) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (ii) each
Eurodollar Rate Loan will automatically, on the last day of the then current
Interest Period relating thereto, become a Base Rate Loan, and (iii) the
obligations of the Lenders to make Eurodollar Rate Loans shall be suspended
until the Agent or the Majority Lenders determine that the circumstances giving
rise to such suspension no longer exist, whereupon the Agent or, as the case may
be, the Agent upon the instruction of the Majority Lenders, shall so notify the
Borrowers and the Lenders.
5.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Borrowers and the other Lenders and thereupon (i) the
commitment of such Lender to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Lender's Loans then outstanding as Eurodollar Rate Loans, if any, shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurodollar Rate Loans or within such earlier period as
may be required by law. The Borrowers hereby agree promptly to pay the Agent for
the account of such Lender, upon demand by such Lender, any additional amounts
necessary to compensate such Lender for any costs incurred by such Lender in
making any conversion in accordance with this ss.5.6, including any interest or
fees payable by such Lender to lenders of funds obtained by it in order to make
or maintain its Eurodollar Rate Loans hereunder.
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5.7. Additional Costs, etc. If any present or future Applicable Law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, such
Lender's Revolving Credit Commitment or the Loans (other than franchise
taxes or taxes based upon or measured by the income or profits of such
Lender or the Agent), or
(b) materially change the basis of taxation (except for changes in
franchise taxes or taxes on income or profits) of payments to any Lender of
the principal of or the interest on any Loans or any other amounts payable
to any Lender or the Agent under this Credit Agreement or any of the other
Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of credit
issued by, or commitments of an office of any Lender, or
(d) impose on any Lender or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Lender's Revolving Credit
Commitment, or any class of loans, letters of credit or commitments of
which any of the Loans or such Lender's Commitments forms a part, and the
result of any of the foregoing is
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Lender's Revolving Credit Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Lender or the Agent
hereunder on account of such Lender's Revolving Credit Commitment, any
Letter of Credit or any of the Loans, or
(iii) to require such Lender or the Agent to make any payment or
to forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such
Lender or the Agent from the Borrowers hereunder,
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then, and in each such case, the Borrowers will, upon demand made by such Lender
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Lender or the Agent such
additional amounts as will be sufficient to compensate such Lender or the Agent
for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum.
5.8. Capital Adequacy. If after the date hereof any Lender or the Agent
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or Governmental
Authority with appropriate jurisdiction, or (ii) compliance by such Lender or
the Agent or any corporation controlling such Lender or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Lender's or the Agent's commitment with
respect to any Loans to a level below that which such Lender or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or the Agent's then existing policies with respect
to capital adequacy and assuming full utilization of such entity's capital) by
any amount deemed by such Lender or (as the case may be) the Agent to be
material, then such Lender or the Agent may notify the Borrower of such fact. To
the extent that the amount of such reduction in the return on capital is not
reflected in the Base Rate, the Borrowers agree to pay such Lender or (as the
case may be) the Agent for the amount of such reduction in the return on capital
as and when such reduction is determined upon presentation by such Lender or (as
the case may be) the Agent of a certificate in accordance with ss.5.10 hereof.
Each Lender shall allocate such cost increases among its customers in good faith
and on an equitable basis.
5.9. Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of ss.ss.5.7 or 5.8 with respect to
such Lender, it will, if requested by the Borrowers, use reasonable efforts
(subject to overall policy consideration of such Lender) to designate another
lending office for any Loans affected by such event, provided that such
designation is made on such terms that such Lender and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this ss.5.9 shall affect or postpone any of the obligations of the
Borrowers or the right of any Lender provided in ss.ss.5.7 or 5.8.
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5.10. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.5.7 or 5.8 and an explanation of such amounts which
are due, submitted by any Lender or the Agent to the Borrowers, shall be
conclusive, absent manifest error, that such amounts are due and owing.
5.11. Indemnity. Each Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and against any loss, cost or expense (collectively,
"Breakage Costs") that such Lender may sustain or incur as a consequence of (i)
default by the Borrowers in payment of the principal amount of or any interest
on any Eurodollar Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by such Lender to lenders
of funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrowers in making a borrowing or conversion after the Borrowers
have given (or are deemed to have given) a Loan Request, notice or a Conversion
Request relating thereto in accordance with ss.2.6 or ss.2.7 or (iii) the making
of any payment of a Eurodollar Rate Loan or the making of any conversion of any
such Loan to a Base Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including interest or fees
payable by such Lender to lenders of funds obtained by it in order to maintain
any such Loans.
5.12. Interest After Default.
5.12.1. Overdue Amounts. Overdue principal and (to the extent
permitted by Applicable Law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall
bear interest compounded monthly and payable on demand at a rate per annum
equal to two percent (2.00%) above the Base Rate until such amount shall be
paid in full (after as well as before judgment).
5.12.2. Amounts Not Overdue. During the continuance of an Event of
Default the principal of the Revolving Credit Loans not overdue shall,
until such Event of Default has been cured or remedied or such Event of
Default has been waived by the Majority Lenders pursuant to ss.26, bear
interest at a rate per annum equal to the greater of (i) two percent
(2.00%) above the rate of interest otherwise applicable to such Revolving
Credit Loans pursuant to ss.2.5 and (ii) the rate of interest applicable to
overdue principal pursuant to ss.5.12.1.
5.13. No Legal Impediment. Neither the Issuing Bank nor any Lender shall
have any obligation to make any Loan or to participate in the issuance,
extension or renewal of any Letter of Credit if any change shall have occurred
in any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Lender would make it illegal for such Lender to make
such Loan or to participate in the issuance, extension or renewal of such Letter
of Credit or in the reasonable opinion of the Issuing Bank would make it illegal
for the Issuing Bank to issue, extend or renew such Letter of Credit.
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5.14. Governmental Regulation. Neither the Issuing Bank nor any Lender
shall have any obligation to make any Loan or to participate in the issuance,
extension or renewal of any Letter of Credit unless such Lender or Issuing Bank
shall have received such statements in substance and form reasonably
satisfactory to such Lender or Issuing Bank as such Lender or Issuing Bank shall
require for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
5.15. Concerning Joint and Several Liability of the Borrowers
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodations to be provided
by the Agent, the Issuing Bank and the Lenders under this Credit Agreement,
for the mutual benefit, directly and indirectly, of each of the Borrowers
and in consideration of the undertakings of each of the Borrowers to accept
joint and several liability for the obligations of each of them.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with each other Borrower, with
respect to the payment and performance of all of the Obligations, it being
the intention of the parties hereto that all the Obligations shall be the
joint and several obligations of all of the Borrowers without preferences
or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to
perform any of such Obligations in accordance with the terms thereof, then
in each such event each other Borrower will make such payment with respect
to, or perform, such Obligation.
(d) The obligations of each Borrower under the provisions of this
ss.5.15 constitute the absolute and unconditional obligations of such
Borrower enforceable against it to the full extent permitted under the
terms hereof, irrespective of the validity, regularity or enforceability of
this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided for herein, each Borrower
hereby waives notice of acceptance of its joint and several liability,
notice of the Loans made under this Credit Agreement, notice of the
occurrence of any Default or Event of Default, or of any demand for any
payment under this Credit Agreement, notice of any action at any time taken
or omitted by the Agent, the Issuing Bank or the Lenders under or in
respect of any of the Obligations, any requirement of diligence or to
mitigate damages and, generally, all demands, notices and other formalities
of every kind in connection with this Credit Agreement. Each Borrower
hereby assents to, and waives notice of, any extension or postponement of
the time for the payment of any of the Obligations, the acceptance of any
partial payment thereon, any waiver, consent or other action or
acquiescence by the Agent, the Issuing Bank or the Lenders at any time or
times in respect of any default by any Borrowers or Guarantors in the
performance or satisfaction of any term, covenant, condition or provision
of this Credit Agreement, any and all other indulgences whatsoever by the
Agent, the Issuing Bank or the Lenders in respect of any of the obligations
hereunder, and the taking, addition, substitution or release, in whole or
in part, at any time or times, of any security for any of such obligations
or the addition, substitution or release, in whole or in part, of any
Borrower or any Guarantor. Without limiting the generality of the
foregoing, each Borrower assents to any other action or delay in acting or
failure to act on the part of the Agent, the Issuing Bank or the Lenders
including, without limitation, any failure strictly or diligently to assert
any right or to pursue any remedy or to comply fully with Applicable Laws
thereunder, which might, but for the provisions of this ss.5.15, afford
grounds for terminating, discharging or relieving such Borrower, in whole
or in part, from any of its Obligations under this ss.5.15, it being the
intention of each Borrower that, so long as any of the Obligations remain
unsatisfied, the Obligations of such Borrower under this ss.5.15 shall not
be discharged except by performance and then only to the extent of such
performance. Except as otherwise expressly provided for herein, the joint
and several liability of the Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or
any other change whatsoever in the name, membership, constitution or place
of formation of any Borrower or the Agent, the Issuing Bank or the Lenders.
If at any time, any payment, or any part thereof, made in respect of any of
the Obligations, is rescinded or must otherwise be restored or returned by
the Agent, the Issuing Bank or the Lenders upon the insolvency, bankruptcy
or reorganization of any of the Borrowers or Guarantors, or otherwise, the
provisions of this ss.5.15 will forthwith be reinstated in effect, as
though such payment had not been made.
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5.16. Replacement of Lender.
(a) In the event that any Lender makes a demand for payment under
ss.5.7 or ss.5.8 or notifies the Agent of any circumstances requiring
payment pursuant to ss.5.6 or if the Borrowers are required to make any
payment to the Lender pursuant to ss.5.3.2, the Borrowers may within 120
days of such demand, if no Default or Event of Default then exists, (i)
reduce the Total Revolving Credit Commitment, in the full amount of such
Lender's Commitment Percentage of the Total Revolving Credit Commitment and
repay such Lender in full or (ii) replace such Lender with an Eligible
Assignee in accordance with ss.19.1 (including execution of an Assignment
and Acceptance). If the Borrowers accomplish the replacement or repayment
of such Lender within 120 days following the demand, the Borrowers shall
only owe any such Lenders amounts under ss.5.6, ss.5.7 or ss.5.8, as
applicable, hereof through the date of replacement or repayment. If the
Borrowers do not accomplish either replacement or repayment of such Lender
within such 120 days, the Borrowers shall owe such Lender in accordance
with the terms of any written agreement reached between Lender and the
Borrowers, and, if no such agreement has been reached, the Borrowers shall
owe such Lender in accordance with the terms and provisions of ss.5.6,
ss.5.7 or ss.5.8, as applicable. If the Total Revolving Credit Commitment
is reduced by the Borrower pursuant to this ss.5.16(a), the Borrowers and
the Lenders agree that the Commitment Percentages of each Lender will be
automatically ratably adjusted to reflect such reduction of the Total
Revolving Credit Commitment.
(b) If (i) there exists no Default or Event of Default on any such
date and no Default or Event of Default shall be caused by the action
permitted below and (ii) any Lender refuses to consent to any amendment,
waiver or consent to any provision hereof or in any Loan Document in
accordance with the terms of ss.26 (other than an amendment to increase the
Revolving Credit Commitment of such Lender), but to which each other Lender
has previously agreed, then, the Borrowers may, with the prior written
consent of the Agent, within ninety (90) days after the date of such
consent, amendment or waiver, replace such Lender in whole with another
Eligible Assignee, pursuant to an Assignment and Acceptance and otherwise
in accordance with the terms of ss.19.
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6. COLLATERAL SECURITY AND GUARANTIES.
6.1. Security of Borrower. On or before the Closing Date, the Obligations
shall be secured by a perfected first priority security interest (subject only
to Permitted Liens entitled to priority under Applicable Law) in all Collateral
of the Borrowers, whether now owned or hereafter acquired, pursuant to the terms
of the Security Documents to which each Borrower is a party.
6.2. Guaranties and Security of Guarantors. The Obligations shall also be
guaranteed pursuant to the terms of the Guarantees. The obligations of the
Guarantors under the Guarantees shall be in turn secured on or before the
Closing Date, by a perfected first priority security interest (subject only to
Permitted Liens entitled to priority under Applicable Law) in all Collateral and
Acquisition Collateral of each such Guarantor, whether now owned or hereafter
acquired, pursuant to the terms of the Security Documents to which such
Guarantor is a party.
7. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants to the Lenders, the Issuing Bank and
the Agent as follows:
7.1. Corporate Authority.
7.1.1. Incorporation; Good Standing. Each of the Borrowers and each of
their Subsidiaries (i) is a corporation, partnership or limited liability
company duly organized and validly existing, duly organized or established
under the laws of its state of organization, (ii) is in good standing under
the laws of the relevant state of organization, (iii) has all requisite
power to own its property and conduct its business as now conducted and as
presently contemplated, and (iv) is in good standing as a foreign
corporation or entity and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a failure
to be so qualified would not have a Materially Adverse Effect.
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7.1.2. Authorization. The execution, delivery and performance of this
Credit Agreement and the other Loan Documents to which the Borrowers or any
of their Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the authority of such
Person, (ii) have been duly authorized by all necessary proceedings, (iii)
do not conflict with or result in any breach or contravention of any
provision of Applicable Law, or any Contractual Obligation or Governing
Document of any of the Borrowers or any of their Subsidiaries.
7.1.3. Enforceability.
The execution and delivery of this Credit Agreement and the other Loan
Documents to which any of the Borrowers or any of their Subsidiaries is or
is to become a party will result in valid and legally binding obligations
of such Person enforceable against it in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
7.2. Governmental Approvals. Except for the transfer of certain
environmental permits and notices to governmental authorities, the execution,
delivery and performance by any of the Borrowers and any of their Subsidiaries
of this Credit Agreement and the other Loan Documents to which any of the
Borrowers or any of their Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby do not require any Approval that
has not already been obtained.
7.3. Title to Properties; Leases. Except as indicated on Schedule 7.3
hereto, the Borrowers and their Subsidiaries own all of the assets reflected in
the combined balance sheet of Century Aluminum and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except Property sold or
otherwise disposed of in the ordinary course of business since that date),
subject to no Liens or other rights of others except Permitted Liens.
7.4. Financial Statements and Projections.
7.4.1. Fiscal Year. The Borrowers and each of their Subsidiaries have
a fiscal year which is the twelve (12) months ending on December 31 of each
calendar year.
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7.4.2. Financial Statements. There has been furnished to each of the
Lenders (a) the consolidated balance sheet of Century Aluminum and its
Subsidiaries as at the Balance Sheet Date, and the consolidated statement
of income and cash flow of Century Aluminum and its Subsidiaries for the
2000 fiscal year, certified by Deloitte & Touche, and (b) the consolidated
balance sheet of NSA as at the Balance Sheet Date, and the consolidated
statement of income of NSA for the 2000 fiscal year, certified by Ernst &
Young, LLP. Such balance sheets and statements of income and cash flow have
been prepared in accordance with GAAP and fairly present the financial
condition of Century Aluminum and NSA respectively as of the date thereof
and the results of operations for the fiscal year then ended. There are no
contingent liabilities of Century Aluminum or its Subsidiaries or NSA as of
such date involving material amounts, known to the officers of Century
Aluminum, which were not disclosed in such balance sheets and the notes
related thereto.
7.4.3. Projections. The projections of the annual operating budgets of
Century Aluminum and its Subsidiaries on a consolidated basis, balance
sheets and cash flow statements for the 2001 to 2006 fiscal years, copies
of which have been delivered to each Lender, disclose all material
assumptions made with respect to general economic, financial and market
conditions used in formulating such projections. To the knowledge of
Century Aluminum or any of its Subsidiaries, no facts exist that
(individually or in the aggregate) insofar as can reasonably be foreseen
would result in any material change in any of such projections. The
projections are based upon reasonable estimates and assumptions, have been
prepared on the basis of the assumptions stated therein and reflect the
reasonable estimates of Century Aluminum and its Subsidiaries of the
results of operations and other information projected therein.
7.5. No Material Changes, etc. Since the Balance Sheet Date there has
occurred no materially adverse change in the Properties, operations, financial
condition, business or prospects of the Borrowers and their Subsidiaries taken
as a whole as shown on or reflected in the consolidated balance sheet of Century
Aluminum and its Subsidiaries as at the Balance Sheet Date, or the consolidated
statement of income for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any Materially Adverse Effect.
Since the Balance Sheet Date, the Borrowers have not made any Distribution other
than Permitted Distributions and the purchase of the stock of Metalsco pursuant
to the Hawesville Acquisition.
7.6. Franchises, Patents, Copyrights, etc. Each of the Borrowers and their
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
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7.7. Litigation. Except as set forth in Schedules 7.7 and 7.18 hereto or as
disclosed in the financial statements delivered to the Agent pursuant to
ss.7.4.2, there are no actions, suits, proceedings or investigations of any kind
pending or to the best of each Borrowers' knowledge, threatened against any of
the Borrowers or any of their Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined, could be
reasonably expected to, either in any case or in the aggregate, (a) have a
Materially Adverse Effect or (b) result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet of Century Aluminum and its
Subsidiaries, or (c) which question the validity of this Credit Agreement or any
of the other Loan Documents.
7.8. No Materially Adverse Contracts, etc. None of the Borrowers nor any of
their Subsidiaries is subject to any Governing Document, Contractual Obligation
or Applicable Law that has or in so far as can reasonably be foreseen is
expected in the future to have a Materially Adverse Effect.
7.9. Compliance with Other Instruments, Laws, etc. None of the Borrowers
nor any of their Subsidiaries is in violation of any provision of Applicable Law
or of its Governing Documents, or Contractual Obligations (including any
Acquisition Documents and/or Subordination Documents) in a manner that would be
reasonably likely to result in the imposition of substantial penalties or cause
a Materially Adverse Effect.
7.10. Tax Status. Each of the Borrowers and their Subsidiaries (i) have
made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which any of them is subject,
(ii) have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (iii) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply.
7.11. No Event of Default. No Default or Event of Default has occurred and
is continuing.
7.12. Holding Company and Investment Company Acts. None of the Borrowers
nor any of their Subsidiaries is a "holding company", or a "subsidiary company"
of a "holding company", or an affiliate" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
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7.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any Lien on any Property of the Borrowers or any of their
Subsidiaries.
7.14. Perfection of Security Interest. Each of the Borrowers and the
Guarantors have delivered to, or deposited with, the Agent all documents and
instruments necessary for the filings, assignments, pledges and all other
actions to be taken that are necessary or advisable, under Applicable Law, to
establish and perfect the Agent's security interest in the Collateral. The
Collateral and the Agent's rights with respect to the Collateral are not subject
to any setoff, claims, withholdings or other defenses except for Permitted
Liens. The Borrowers or Subsidiaries of the Borrowers party to the Security
Agreement are the owners of their respective Collateral free from any Lien,
except for Permitted Liens.
7.15. Certain Transactions. Except for arm's length transactions pursuant
to which the Borrowers or any of their Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than such Borrowers or
any of their Subsidiaries could obtain from third parties, none of the officers,
directors, or employees of the Borrowers or any of their Subsidiaries is
presently a party to any transaction with the Borrowers or any of their
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of any of the Borrowers, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
7.16. Employee Benefit Plans.
7.16.1. In General. Except as disclosed on Schedule 7.16, each
Employee Benefit Plan and each Guaranteed Pension Plan has been maintained
and operated in compliance in all material respects with the provisions of
ERISA and, to the extent applicable, the Code, including but not limited to
the provisions thereunder respecting prohibited transactions and the
bonding of fiduciaries and other persons handling plan funds as required by
ss.412 of ERISA. The Borrowers have heretofore delivered to the Agent the
most recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under
ss.103(d) of ERISA, with respect to each Guaranteed Pension Plan.
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7.16.2. Terminability of Welfare Plans. Except as disclosed on
Schedule 7.16, no Employee Benefit Plan, which is an employee welfare
benefit plan within the meaning of ss.3(1) or ss.3(2)(B) of ERISA, provides
retiree group health benefits, except as required by Title I, Part 6 of
ERISA or applicable state insurance laws.
7.16.3. Guaranteed Pension Plans. Except as disclosed on Schedule
7.16, each contribution required to be made to a Guaranteed Pension Plan,
whether required to be made to avoid the incurrence of an accumulated
funding deficiency, the notice or lien provisions of ss.302(f) of ERISA, or
otherwise, has been timely made. No waiver of an accumulated funding
deficiency or extension of amortization periods has been received with
respect to any Guaranteed Pension Plan, and none of the Borrowers nor any
ERISA Affiliate are obligated to or has posted security in connection with
an amendment to a Guaranteed Pension Plan pursuant to ss.307 of ERISA or
ss.401(a)(29) of the Code. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the
Borrowers or any ERISA Affiliate with respect to any Guaranteed Pension
Plan and there has not been any ERISA Reportable Event (other than an ERISA
Reportable Event as to which the requirement of 30 days notice has been
waived), or any other event or condition which presents a material risk of
termination of any Guaranteed Pension Plan by the PBGC. As of the Closing
Date, based on the latest valuation of each Guaranteed Pension Plan (which
in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed for
that valuation, the aggregate benefit liabilities of all such Guaranteed
Pension Plans within the meaning of ss.4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans by more
than $20,000,000, disregarding for this purpose the benefit liabilities and
assets of any Guaranteed Pension Plan with assets in excess of benefit
liabilities.
7.16.4. Multiemployer Plans. None of the Borrowers nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under ss.4201 of ERISA or as a
result of a sale of assets described in ss.4204 of ERISA. None of the
Borrowers nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
ss.4241 or ss.4245 of ERISA or is at risk of entering reorganization or
becoming insolvent, or that any Multiemployer Plan intends to terminate or
has been terminated under ss.4041A of ERISA.
7.17. Use of Proceeds.
7.17.1. General. The Borrowers will (a) use the proceeds of the Loans
and (b) obtain Letters of Credit solely (i) to fund the purchase price of
the Hawesville Acquisition, the European Acquisition, any Permitted
Acquisitions, and related fees and expenses in connection with any of the
foregoing, (ii) to refinance existing Indebtedness of the Borrowers, (iii)
to fund future capital expenditures and/or (iv) for working capital and
general corporate purposes.
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7.17.2. Regulations U and X. No portion of any Loan is to be used, and
no portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.17.3. Ineligible Securities. No portion of the proceeds of any Loans
is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of knowingly purchasing, or providing credit support for
the purchase of, during the underwriting or placement period or within
thirty (30) days thereafter, any Ineligible Securities underwritten or
privately placed by a Section 20 Subsidiary.
7.18. Environmental Compliance. The Borrowers have taken all reasonable
steps to investigate the condition and usage of the Real Estate and the
operations conducted thereon and, based upon such investigation, has determined
that, except as disclosed on Schedule 7.18 hereto, and to the best of each
Borrowers' knowledge:
(a) none of the Borrowers, any of their Subsidiaries or any operator
of the Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or regulation
pertaining to environmental matters, including without limitation, those
arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 as amended ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986 ("SARA"), the Federal Clean Water Act, the Federal Clean Air
Act, the Toxic Substances Control Act, or any Applicable Law relating to
health, safety or the environment (hereinafter "Environmental Laws"), which
violation could reasonably be likely to have Materially Adverse Effect;
(b) except as would not be reasonably likely to have a Materially
Adverse Effect, none of the Borrowers nor any of their Subsidiaries has
received notice from any third party including any Governmental Authority,
(i) that any one of them has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible party
under CERCLA with respect to a site listed on the National Priorities List,
40 C.F.R. Part 300 Appendix B; (ii) that any hazardous waste, as defined by
42 U.S.C. ss.6903(5), any hazardous substances as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.9601(33) and any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or disposed
of has been found at any site at which a Governmental Authority or other
third party has conducted or has ordered that any of the Borrowers or any
of their Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or
shall be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the release of Hazardous
Substances;
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(c) except as would not be reasonably likely to have a Materially
Adverse effect: (i) no portion of the Real Estate has been used for the
handling, processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank or
other underground storage receptacle for Hazardous Substances is located on
any portion of the Real Estate; (ii) in the course of any activities
conducted by the Borrower, its Subsidiaries or operators of its properties,
no Hazardous Substances have been generated or are being used on the Real
Estate except in accordance with applicable Environmental Laws; (iii) there
have been no releases (i.e. any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping) or threatened releases of Hazardous
Substances on, upon, into or from the properties of any of the Borrowers or
their Subsidiaries; (iv) there have been no releases on, upon, from or into
any real property in the vicinity of any of the Real Estate which, through
soil or groundwater contamination, may have come to be located on the Real
Estate; and (v) in addition, any Hazardous Substances that have been
generated on any of the Real Estate and transported offsite from the Real
Estate have been treated or disposed of in accordance with applicable
Environmental Laws, which transporters and facilities have been and are, to
the best of each Borrower's knowledge, operating in compliance with such
permits and applicable Environmental Laws; and
(d) Except for the transfers of certain environmental permits and
notices to governmental authorities in connection with the Hawesville
Acquistion, none of the Borrowers and their Subsidiaries or any of the Real
Estate is subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the recording or delivery to other
Persons of an environmental disclosure document or statement by virtue of
the transactions set forth herein and contemplated hereby.
7.19. Subsidiaries, etc. All of the Subsidiaries of each of the Borrowers
and their Subsidiaries are set forth on Schedule 7.19. Except as set forth on
Schedule 7.19 hereto, neither the Borrowers nor any of their Subsidiaries are
engaged in any joint venture or partnership with any other Person.
7.20. Bank Accounts. Schedule 7.20 sets forth the account numbers and
location of all Local Accounts, Interim Concentration Accounts and other bank
accounts of each of the Borrowers and Guarantors as of the Closing Date.
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7.21. Chief Executive Office. Set forth on Schedule 7.21 hereto is a
complete and accurate list of the chief executive office or registered office,
as applicable, of each of the Borrowers and each of their Guarantors, at which
location such Person keeps its books and records.
7.22. Insurance. Each of the Borrowers and each of their Subsidiaries
maintains with financially sound and reputable insurers insurance with respect
to its Properties and businesses against such casualties and contingencies as
are in accordance with sound business practices for businesses engaged in
similar activities in similar geographic areas, with the details of such
coverage being more fully described on Schedule 7.22 hereto.
7.23. Disclosure. None of this Credit Agreement or any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to the Borrowers or any of their Subsidiaries in the case
of any document or information not furnished by it or any of its Subsidiaries)
necessary in order to make the statements herein or therein not misleading.
There is no fact known to any of the Borrowers or any of their Subsidiaries
which could be reasonably expected to have a Materially Adverse Effect,
exclusive of effects resulting from changes in general economic conditions,
commodity prices, legal standards or regulatory conditions.
8. AFFIRMATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letters of Credit:
8.1. Punctual Payment. Each Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Fees, and all other amounts provided for in this Credit
Agreement and the other Loan Documents to which any of the Borrowers or any of
their Subsidiaries is a party, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
8.2. Maintenance of Office. Each of the Borrowers and the Guarantors will
maintain its chief executive office at the location set forth in Schedule 7.21
hereto, or at such other place in the United States of America as such Borrower
shall designate upon written notice to the Agent, where notices, presentations
and demands to or upon such Borrower in respect of the Loan Documents to which
such Borrower is a party may be given or made.
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8.3. Records and Accounts. The Borrowers will (i) keep, and cause each of
their Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with GAAP, (ii)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of their properties and
the properties of their Subsidiaries, contingencies, and other reserves, and
(iii) at all times engage Deloitte & Touche or other independent certified
public accountants satisfactory to the Agent as the independent certified public
accountants of the Borrowers and their Subsidiaries and will not permit more
than thirty (30) days to elapse between the cessation of such firm's (or any
successor firm's) engagement as the independent certified public accountants of
the Borrowers and their Subsidiaries and the appointment in such capacity of a
successor firm as shall be satisfactory to the Agent.
8.4. Financial Statements, Certificates and Information. The Borrowers will
deliver to the Agent:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of Century Aluminum, commencing
with the fiscal year ended December 31, 2001, the consolidated balance
sheet of Century Aluminum and its Subsidiaries, and the related
consolidated statement of income and consolidated statements of retained
earnings and cash flow for such year, each setting forth in comparative
form the figures for the previous fiscal year and all such consolidated
statements to be in reasonable detail, prepared in accordance with GAAP,
and certified without qualification by Deloitte & Touche or by other
independent certified public accountants satisfactory to the Agent,
together with (i) a written statement from such accountants to the effect
that they have read a copy of this Credit Agreement, and that, in making
the examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default arising as a result of the
Borrowers' failure to comply with any of the covenants contained in ss.10,
or, if such accountants shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such statement any such
Default or Event of Default; provided that such accountants shall not be
liable to the Lenders for failure to obtain knowledge of any Default or
Event of Default and (ii) copies of any management letters delivered to any
of the Borrowers by such accountants in connection with such accountants'
preparation of such consolidated and consolidating financial statements;
(b) as soon as practicable, but in any event not later than forty-five
(45) days after the end of each of the first three (3) fiscal quarters in
each fiscal year of Century Aluminum, commencing with the fiscal quarter
ending March 31, 2001, copies of the unaudited consolidated balance sheet
of Century Aluminum and its Subsidiaries as at the end of such quarter, and
the related consolidated statement of income and consolidated statement of
retained earnings and cash flow for such quarter and for the portion of
Century Aluminum's fiscal year then elapsed, all in reasonable detail and
prepared in accordance with GAAP, together with a certification by an
Authorized Officer of Century Aluminum that the information contained in
such financial statements fairly presents the financial position of Century
Aluminum and its Subsidiaries on the date thereof (subject to year-end
adjustments);
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(c) as soon as practicable, but in any event within thirty (30) days
after the end of each month in each fiscal year of Century Aluminum, (i)
unaudited monthly consolidated financial statements of Century Aluminum and
its Subsidiaries for such month, (ii) unaudited monthly consolidating
financial statements of Century Aluminum and its Subsidiaries for such
month and (iii) unaudited monthly combined financial statements of the
Borrowers and the Guarantors for such month and the portion of Century
Aluminum's fiscal year and fiscal quarter ended through such date, each
prepared in accordance with GAAP, together with a certification by an
Authorized Officer of Century Aluminum that the information contained in
such financial statements fairly presents the financial condition of
Century Aluminum and its Subsidiaries on the date thereof (subject to
year-end adjustments);
(d) beginning with the compliance certificate relating to the period
ending December 31, 2001, simultaneously with the delivery of the financial
statements referred to in subsection (c) for periods ending on the last day
of a fiscal quarter of Century Aluminum, a statement certified by an
Authorized Officer of Century Aluminum in substantially the form of Exhibit
D hereto (a "Compliance Certificate"), setting forth in reasonable detail
computations (i) of the Applicable Margins, (ii) evidencing compliance with
the covenants contained in ss.10 and (iii) Century Aluminum's consolidated
net worth ("Pechiney Net Worth Calculation");
(e) promptly after the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of Century Aluminum;
(f) within (A) fifteen (15) days after the end of each calendar month
or at such earlier time as the Agent may reasonably request, a Borrowing
Base Report setting forth the Borrowing Base as at the end of such calendar
month or other date so requested by the Agent, and (B) if at any time the
Borrowing Availability is less than $10,000,000, during such time, three
(3) Business Days after the end of each calendar week, (i) a report of the
sales and collections of each of the Borrowers for the immediately
preceding calendar week, and (ii) other information as may from time to
time be requested by the Agent relating to the Borrowers' inventory, which
information can be provided by the Borrowers without substantially
disrupting their respective businesses.
(g) within fifteen (15) days after the end of each calendar month, an
Accounts Receivable aging report;
(h) not later than thirty (30) days following the beginning of each
fiscal year, beginning with the fiscal year commencing on January 1, 2002,
operating budgets and forecasts by division of the Borrowers and Guarantors
with respect to such fiscal year, prepared (x) on a consolidated basis and
(y) on a quarterly basis, in form satisfactory to the Agent; and
(i) from time to time such other financial data and information
(including accountants', management letters) as the Agent may reasonably
request.
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8.5. Notices.
8.5.1. Defaults. The Borrowers will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed
default (whether or not constituting an Event of Default) under this Credit
Agreement, or any other material note or evidence of indebtedness,
indenture or other material obligation to which or with respect to which
the Borrowers or any of their Subsidiaries are a party or obligor, whether
as principal, guarantor, surety or otherwise, the Borrowers shall forthwith
give written notice thereof to the Agent, describing the notice or action
and the nature of the claimed default.
8.5.2. Environmental Events. The Borrowers will promptly give notice
to the Agent (i) of any material violation of any Environmental Law that
any of the Borrowers or any of their Subsidiaries reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any Governmental Authority and
(ii) upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency of
potential environmental liability, of any Governmental Authority, that is
reasonably likely to have a Materially Adverse Effect.
8.5.3. Notification of Claim against Collateral. The Borrowers will,
promptly upon becoming aware thereof, notify the Agent in writing of any
setoff, claims to which any of the Collateral, or the Agent's rights with
respect to the Collateral, are subject and which are reasonably likely to
have a Materially Adverse Effect.
8.5.4. Notices of Litigation and Judgments. The Borrowers will, and
will cause each of their Subsidiaries to, give notice to the Agent in
writing within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings
affecting any of the Borrowers or any of their Subsidiaries or to which any
of the Borrowers or any of their Subsidiaries is or becomes a party
involving an uninsured claim against any of the Borrowers or any of their
Subsidiaries that could reasonably be expected to have a Materially Adverse
Effect and stating the nature and status of such litigation or proceedings.
Each of the Borrowers will, and will cause each of their Subsidiaries to,
give notice to the Agent, in writing, in form and detail satisfactory to
the Agent, within ten (10) days of any judgment not covered by insurance,
final or otherwise, against any of the Borrowers or any of their
Subsidiaries in an amount in excess of $1,000,000.
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8.5.5. Notification of Delinquent Payments and Pechiney Net Worth
Calculation. The Borrowers will, promptly upon becoming aware thereof,
notify the Agent in writing (a) of a delinquency by Berkeley in the weekly
payment of owner's and operating expenses required to be paid by Berkeley
under the owner's agreement with Alumax of South Carolina, Inc. in
connection with the Mt. Holly Facility located in Berkeley City, South
Carolina, or (b) if the Borrowers' Pechiney Net Worth Calculation shall
fall below $200,000,000.
8.6. Corporate Existence; Maintenance of Properties. The Borrowers will do
or cause to be done all things necessary to preserve and keep in full force and
effect their corporate or partnership existence, rights and franchises and those
of their Subsidiaries and will not, and will not cause or permit any of their
Subsidiaries to, convert to a limited liability company or a limited liability
partnership. They (i) will cause all of their properties and those of their
Subsidiaries used or useful in the conduct of their business or the business of
their Subsidiaries to be maintained and kept in good operating condition,
ordinary wear and tear excepted, and (ii) will, and will cause each of their
Subsidiaries to, continue to engage primarily in the businesses now conducted by
them and in related businesses; provided that nothing in this ss.8.6 shall
prevent the Borrowers from discontinuing the operation and maintenance of any of
their properties or any of those of their Subsidiaries if such discontinuance
is, in the judgment of the Borrowers, desirable in the conduct of its or their
business and that do not have a Materially Adverse Effect.
8.7. Insurance. Century Aluminum will maintain with financially sound and
reputable insurers insurance with respect to the Borrowers' and their
Subsidiaries' properties and business against such casualties and contingencies
as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be reasonable and prudent and
in accordance with the terms of the Security Agreements.
8.8. Taxes. Each of the Borrowers will, and will cause each of their
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a Lien upon any of its Property; provided that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if such
Borrower or such Subsidiary shall have set aside on its books adequate reserves
with respect thereto.
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8.9. Inspection of Properties and Books, etc.
8.9.1. General. Each Borrower shall permit the Lenders, through the
Agent or any of the Lenders' other designated representatives, to visit and
inspect any of the properties of the Borrowers or any of their
Subsidiaries, to examine the books of account of the Borrowers and their
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrowers and their
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or any
Lender may reasonably request.
8.9.2. Collateral Reports. No more frequently than three (3) times
during each calendar year, or more frequently as determined by the Agent if
an Event of Default shall have occurred and be continuing, upon the request
of the Agent, the Borrowers will obtain and deliver to the Agent, or, if
the Agent so elects, will cooperate with the Agent in the Agent's
obtaining, a report of an independent collateral auditor satisfactory to
the Agent (which may be affiliated with one of the Lenders) with respect to
the Accounts Receivable and inventory components included in the Borrowing
Base, which report shall indicate whether or not the information set forth
in the Borrowing Base Report most recently delivered is accurate and
complete in all material respects based upon a review by such auditors of
the Accounts Receivable (including verification with respect to the amount,
aging, identity and credit of the respective account debtors and the
billing practices of the Borrowers or Guarantors) and inventory (including
verification as to the value, location and respective types). All such
collateral value reports shall be conducted and made at the expense of the
Borrowers; provided, however, so long as no Default or Event of Default
exists, the Agent may not conduct more than one (1) such collateral report
during any 12 month period in which the Loans outstanding plus Letter of
Credit Exposure do not exceed $10,000,000.
8.10. Compliance with Laws, Contracts, Licenses, and Permits. Except where
non-compliance would not be reasonably likely to have a Materially Adverse
Effect, each of the Borrowers will, and will cause each of their Subsidiaries
to, comply with (i) the Applicable Laws wherever their business is conducted,
including all Environmental Laws, (ii) the provisions of its Governing
Documents, (iii) all their Contractual Obligations and (iv) all applicable
decrees, orders, and judgments. The Borrowers will, or (as the case may be) will
cause their Subsidiaries to, immediately take or cause to be taken all
reasonable steps within the power of the Borrowers or any such Subsidiary to
obtain any Approval at any time required to be obtained and furnish the Agent
and the Lenders with evidence thereof.
8.11. Employee Benefit Plans. Each of the Borrowers will (i) promptly upon
filing the same with the Department of Labor or Internal Revenue Service upon
request of the Agent, furnish to the Agent a copy of the most recent actuarial
statement required to be submitted under ss.103(d) of ERISA and Annual Report,
Form 5500, with all required attachments, in respect of each Guaranteed Pension
Plan and (ii) promptly upon receipt or dispatch, furnish to the Agent any
notice, report or demand sent or received in respect of a Guaranteed Pension
Plan under ss.ss.302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or
in respect of a Multiemployer Plan, under ss.ss.4041A, 4202, 4219, 4242, or 4245
of ERISA.
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8.12. Use of Proceeds. The Borrowers will use the proceeds of their Loans
and will obtain Letters of Credit solely for the purposes set forth in ss.7.17.
8.13. Bank Accounts.
8.13.1. General. On or prior to the Closing Date, the Borrowers and
Guarantors will, (i) establish depository blocked accounts with Fleet
National Bank (the "Fleet Blocked Account") under the sole and exclusive
dominion and control of the Agent for the benefit of the Lenders and the
Agent, in the name of Century Aluminum, (ii) instruct all account debtors
and other obligors, pursuant to notices of assignment and instruction
letters in form and substance satisfactory to the Agent, to remit all cash
proceeds of Accounts Receivable to (x) local depository accounts ("Local
Accounts") or concentration depository accounts ("Interim Concentration
Accounts") with Fleet National Bank or any other financial institutions
which have entered into three-party blocked account agreements and, if
applicable, lock box agreements (collectively, "Agency Account Agreements")
in form and substance satisfactory to the Agent, (y) the Fleet Blocked
Account or (z) the Commingled Account with respect to Commingled
Receivables, (iii) direct all depository institutions with Local Accounts
to cause all funds held in each such Local Account to be transferred no
less frequently than once each day to, and only to, an Interim
Concentration Account or the Fleet Blocked Account, (iv) direct all
depository institutions with Interim Concentration Accounts to cause all
funds of the Borrowers and their Subsidiaries held in such Interim
Concentration Accounts to be transferred daily to, and only to, the Fleet
Blocked Account, (v) direct all depository institutions with Commingled
Accounts to cause all proceeds of the Collateral in the Commingled Accounts
to be transferred daily (or with respect to proceeds of Accounts Receivable
due from Beck Aluminum Corporation, no less frequently than weekly) to, and
only to, the Interim Concentration Accounts or the Fleet Blocked Account
and (vi) at all times ensure that immediately upon any of the Borrowers' or
any of their Subsidiaries' receipt of any funds constituting cash proceeds
of any Collateral, all such amounts shall have been deposited in a Local
Account, an Interim Concentration Account, a Commingled Account or the
Fleet Blocked Account. The Borrowers shall immediately provide the Agent
with notice amending Schedule 7.20 if any new Local Accounts, Interim
Concentration Accounts and other bank accounts of the Borrowers and
Guarantors are opened after the Closing Date.
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8.13.2. Acknowledgment of Application. The Borrowers hereby agrees
that all amounts received by the Agent in the Fleet Blocked Account will be
under the sole and exclusive dominion and control of the Agent, for the
accounts of the Lenders and the Agent, to be applied in accordance ss.2.11
or ss.2.12 as applicable or as otherwise permitted by this Credit
Agreement.
8.14. Ownership of Subsidiaries. Except as otherwise permitted by ss.9.5
hereof, Century Aluminum shall, directly or indirectly through one or more
Subsidiaries, maintain legal and beneficial ownership of one hundred percent
(100%) of the equity interests of each of the other Borrowers and the Borrowers
shall maintain legal and beneficial ownership of one hundred percent (100%)
(other than qualifying shares required to be held by directors pursuant to
Applicable Law) of the equity interests of each of the other Guarantors;
provided, that the Borrowers shall be permitted to dissolve RISC, Vialco,
Metalsco, Skyliner and NSA with the consent of the Agent.
8.15. Permitted Acquisitions. (a)In the case of any property acquired by
any of the Borrowers or any of their Subsidiaries in connection with a Permitted
Acquisition which constitutes Collateral (i) pledge such Collateral (to the
maximum extent permitted by Applicable Law) to the Agent as security for the
payment in full of all the Obligations, pursuant to documentation satisfactory
to the Agent, and (ii) perform any filings, recordings or other actions
necessary in the reasonable judgment of the Agent to create in favor of the
Agent a perfected first-priority security interest in all such Collateral
(subject only to Permitted Liens).
(b) Deliver to the Agent within ten (10) days after the date of any
Permitted Acquisition, true, complete, and correct copies of each
instrument of transfer, officer's certificate, legal opinion and other
material instrument or agreement executed and delivered by the applicable
seller and/or the applicable Borrower or Subsidiary of a Borrower in
connection with such Permitted Acquisition.
8.16. Environmental Reports, etc.. Within fifteen (15) days of the
Borrowers' receipt thereof, the Borrowers will make available for the Agent's
review at one central location reasonably agreed upon by the Borrowers and the
Agent, copies of all material environmental assessment reports, any material
plans of the Borrowers for remediation and all other material environmental
communications with environmental regulatory agencies.
8.17. Further Assurances. Each of the Borrowers will, and will cause each
of the Guarantors to, cooperate with the Lenders and the Agent and execute such
further instruments and documents as the Lenders or the Agent shall reasonably
request to carry out to their satisfaction the transactions contemplated by this
Credit Agreement and the other Loan Documents.
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9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligations to issue, extend or renew any Letters of Credit:
9.1. Restrictions on Indebtedness. The Borrowers will not, and will not
permit any of the Guarantors to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Lenders, the Issuing Bank and the Agent
arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(c) Subordinated Debt; provided that the aggregate principal amount of
such Indebtedness of the Borrowers and their Subsidiaries shall not exceed
the aggregate amount of $3,000,000 at any one time;
(d) Indebtedness incurred in connection with the acquisition after the
date hereof of any real or personal property by a Borrower or a Guarantor
or under any Capitalized Lease, provided that the aggregate principal
amount of such Indebtedness of the Borrowers and the Guarantors shall not
exceed the aggregate amount of $5,000,000 at any one time;
(e) Derivative Obligations to the extent permitted by ss.9.14;
(f) Indebtedness existing on the date hereof and listed and described
on Schedule 9.1 hereto;
(g) Indebtedness of a Borrower or Guarantor to another Borrower or
Guarantor;
(h) commissions and other transfers payable by Century WV to RISC in
accordance with applicable Code regulations to satisfy RISC's federal
income tax liabilities and to pay for reasonable accounting and corporate
maintenance expenses;
(i) the First Mortgage Notes and guaranties thereof by the Guarantors
and the Borrowers, upon the terms and conditions set forth in the
Indenture;
(j) Indebtedness of up to $7,815,000 principal amount under the IR
Bonds assumed pursuant to the Hawesville Acquisition;
(k) Indebtedness consisting of contingent adjustments to the purchase
price of the Hawesville Acquisition in accordance with the purchase
documents as in effect on the Closing Date;
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(l) repurchases of stock to the extent permitted by Section 9.4; and
(m) other Indebtedness; provided that the aggregate principal amount
of such Indebtedness of the Borrowers and the Guarantors shall not exceed
the aggregate amount of $1,000,000 at any one time.
9.2. Restrictions on Liens. The Borrowers will not, and will not permit any
of the Guarantors to, (i) create or incur or suffer to be created or incurred or
to exist any Lien upon any of their Property whether now owned or hereafter
acquired, or upon the income or profits therefrom; (ii) transfer any of such
Property or the income or profits therefrom for the purpose of subjecting the
same to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (iii) acquire, or agree to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (iv) suffer to
exist for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; (v) sell, assign, pledge or otherwise
transfer any "receivables" as defined in clause (vii) of the definition of the
term "Indebtedness," with or without recourse; or (vi) enter into or permit to
exist any arrangement or agreement, enforceable under Applicable Law, which
directly or indirectly prohibits the Borrowers or the Guarantors from creating
or incurring any Lien on Collateral other than in favor of the Agent for the
benefit of the Lenders and the Agent under the Loan Documents and other than
customary anti-assignment provisions in leases and licensing agreements entered
into by a Borrower or a Guarantor in the ordinary course of its business;
provided, that the Borrowers or any Subsidiary may create or incur or suffer to
be created or incurred or to exist:
(a) Liens in favor of a Borrower on all or part of the assets of
Subsidiaries of such Borrower securing Indebtedness owing by Subsidiaries
of such Borrower to such Borrower;
(b) Liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or Liens on properties to secure claims
for labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations or similar laws, or to secure the
performance of bids, tenders or contracts (other than for the repayment of
borrowed money) or to secure indemnity, performance or other similar bonds
for the performance of bids, tenders or contracts (other than for the
repayment of borrowed money) or to secure statutory obligations (other than
Liens arising under ERISA or Environmental Laws) or surety or appeal bonds,
or to secure indemnity, performance or other similar bonds in the ordinary
course of business;
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(d) Liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal (or
liens securing an appeal bond) so long as execution is not levied
thereunder or in respect of which such Borrower or such Guarantor shall at
the time in good faith be prosecuting an appeal or proceedings for review
and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(e) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens on properties, (i) in existence less than 120 days from
the date of creation thereof in respect of obligations not overdue, or (ii)
which are being contested by appropriate proceedings diligently pursued;
(f) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which a Borrower or Guarantor is a party, and other
minor Liens or encumbrances none of which in the opinion of the Borrowers
interferes materially with the use of the property affected in the ordinary
conduct of the business of the Borrowers and the Guarantors, which defects
do not individually or in the aggregate have a Materially Adverse Effect;
(g) Liens existing on the date hereof and listed on Schedule 9.2
hereto;
(h) purchase money security interests in or purchase money mortgages
on real or personal property acquired after the date hereof to secure
purchase money Indebtedness of the type and amount permitted by ss.9.1(d),
incurred in connection with the acquisition of such property, which
security interests or mortgages cover only the real or personal property so
acquired;
(i) Liens in favor of the Agent for the benefit of the Lenders and the
Agent under the Loan Documents;
(j) (I) Liens in favor of holders of the First Mortgage Notes and the
trustee and any other agent therefor referred to in the Indenture and
related security documents and (II) transfers referred to in clause (ii) of
the introductory paragraph to this Section 9.2, claims or demands referred
to in clause (iv) of the introductory paragraph to this Section 9.2 and
arrangements or agreements referred to in clause (vi) of the introductory
paragraph to this Section 9.2, in each case to the extent they arise in
connection with the First Mortgage Notes; provided that such Liens, claims,
demands, arrangements or agreements do not extend to the Collateral (other
than restrictions contained in the First Mortgage Notes on the ability to
grant Liens to secure Indebtedness other than the Obligations);
(k) Liens to secure the IR Bonds; and
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(l) Liens, claims, demands and arrangements under the Owners Agreement
and the Mt. Holly Owners Agreement, so long as such Liens, claims, demands
and arrangements (A) do not relate to the Accounts Receivable, and (B) to
the extent they relate to inventory of the Borrowers, such Liens, claims,
demands and arrangements are subject to (x) in the case of the Mt. Holly
Owners Agreement, the bailee letter between Fleet Capital Corporation and
Alumax of South Carolina, Inc., dated as of April 26, 2000, and (y) in the
case of the Owners Agreement, a Non-Setoff Agreement in the form of Exhibit
K hereto.
9.3. Restrictions on Investments. None of the Borrowers will, and will not
permit any of the Guarantors to, make or permit to exist or to remain
outstanding any Investment except that the Borrowers and the Guarantors may make
Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by the
Borrower or Guarantor;
(b) demand deposits, certificates of deposit, bankers acceptances and
time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Moody's
Investors Service, Inc., and not less than "A 1" if rated by Standard and
Poor's Rating Group;
(d) mutual funds, money markets, and other pooled investment vehicles
which invest in investments of the type set forth in items (a), (b) and (c)
above;
(e) Investments existing on the date hereof and listed on Schedule 9.3
hereto;
(f) Investments with respect to Indebtedness permitted by ss.9.1(g) so
long as such entities remain Borrowers or Guarantors;
(g) Investments consisting of the Guarantees;
(h) Investments constituting Permitted Acquisitions;
(i) Investments consisting of promissory notes received as proceeds of
asset dispositions permitted by 9.5.2;
(j) Investments made by any Borrower or any Guarantor (i) in or to
Century Kentucky, LLC to fund the general operating activities of the
Hawesville Facility to the extent required from time to time by the Owners
Agreement plus up to $500,000 and (ii) as required by the Mt. Holly Owners
Agreement to fund the general operating activities of the Mt. Holly
aluminum facility;
(k) Investments made by any Borrower or any Guarantor in or to any
other Borrower or Guarantor;
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(l) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $1,000,000 in the aggregate at any time
outstanding;
(m) Derivative Obligations;
(n) equipment or real property to be used in the business of a
Borrower or Guarantor so long as the acquisition costs to such Borrower or
Guarantor of such equipment or real property constitute Capital
Expenditures permitted hereunder;
(o) goods held for sale or lease or to be used by such Borrower or
Guarantor in the ordinary course of business;
(p) current assets arising from the sale or lease of goods or the
rendition of services in the ordinary course of business of such Borrower
or Guarantor;
(q) Investments by the Borrowers or Guarantors consisting of the
purchase price or expenses incurred in the European Acquisition and
capitalization of, and intercompany loans to the European Subsidiary not to
exceed $15,000,000 in the aggregate at any time outstanding; provided, that
the Borrowers shall have Borrowing Availability after giving effect to the
European Acquisition of at least (A) $20,000,000 if the Obligations are
rated "BB-" or higher by Standard and Poor's Rating Group or "Ba3 or higher
by Moody's Investors Service, Inc. or (B) $25,000,000 in all circumstances
other than listed in part (A) of this paragraph (q);
(r) one or more contributions by Century WV of up to an aggregate of
300 acres of land to one or more Persons to facilitate the construction of
a power facility at Ravenswood, West Virginia;
(s) the "Reconstitution" permitted by Section 9.1.3 of the Owners
Agreement;
(t) the Hawesville Acquisition; and
(u) Investments consisting of the guarantees of the First Mortgage
Notes, including pursuant to the security documents with respect thereto.
9.4. Distributions. The Borrowers and the Guarantors will not make any
Distributions; provided, however, that so long as no Default or Event of Default
has occurred and is continuing, or would result therefrom, (a) Subsidiaries of
the Borrowers (including any Borrower) may make Distributions in the form of
cash dividends to a Borrower or any Guarantor, (b) Century Aluminum may make
Distributions relating to the purchase of the stock of Metalsco pursuant to the
Hawesville Acquisition on the Closing Date, (c) Century Aluminum may repurchase
stock of officers, directors and employees and former officers, directors and
employees so long as such repurchases to not exceed $4,000,000 per fiscal year
and $8,000,000 in the aggregate following the Closing Date, (d) Century Aluminum
may redeem, repurchase or make other Distributions on account of its preferred
stock or common stock so long as such payments do not exceed $2,500,000 per
fiscal year, provided that any amount permitted to be paid in any fiscal year
may be paid in any subsequent fiscal year, and (e) in addition to the
Distributions permitted in the foregoing clauses (a), (b), (c) and (d), Century
Aluminum may make Distributions (including for the purposes referred to in the
foregoing clauses (a), (b), (c) and (d) above) so long as the amount of all such
Distributions does not exceed $5,000,000 in the aggregate for any fiscal year.
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9.5. Merger, Consolidation and Disposition of Assets.
9.5.1. Mergers and Acquisitions. The Borrowers will not, and will not
permit any of their Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course of
business consistent with past practices) except for (a) the merger or
consolidation of one or more of the Subsidiaries of a Borrower with and
into a Borrower or Guarantor, (b) the merger or consolidation of two or
more Subsidiaries of any of the Borrowers so long as the surviving entity
is a Borrower or a Guarantor or (c) Investments permitted by Sections
9.3(h),(k),(n),(o),(p),(q), (r), (s), (t) or (u).
9.5.2. Disposition of Assets. The Borrowers will not, and will not
permit any of their Subsidiaries to, become a party to or agree to or
effect any disposition of material assets, other than (a) the sale of
inventory, the licensing of intellectual property, and the disposition of
obsolete assets, in each case in the ordinary course of business consistent
with past practices, (b) the Glencore Hawesville Acquisition, (c)
Investments permitted by Section 9.3(a), (b), (c), (d), (k), (r), (s), (t)
or (u), (d) any sale of stock or assets of the European Subsidiary, (e)
sales of electrical power, including for load management purposes, in the
ordinary course of business, and (f) dispositions of other assets not
consisting of Collateral which individually and in the aggregate do not
have a fair market value in excess of $25,000,000.
9.6. Sale and Leaseback. The Borrowers will not, and will not permit any of
their Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby any Borrower or any Subsidiary of any Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that such Borrower or such Subsidiary of a Borrower intends
to use for substantially the same purpose as the property being sold or
transferred.
9.7. Compliance with Environmental Laws. The Borrowers will not, and will
not permit any of their Subsidiaries to, (i) except to the extent required in
the day-to-day conduct of their business, use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (ii) except to the extent required in the day-to-day conduct of
their business, generate any Hazardous Substances on any of the Real Estate or
own or operate any underground tank or other underground storage receptacle for
any Hazardous Substances in any manner that would materially violate any
Environmental Law or bring such Real Estate into material violation of any
Environmental Law, or (iii) otherwise conduct any activity at any Real Estate or
use any Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law, except any such
use or violation as would not be reasonably likely to have a Materially Adverse
Effect.
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9.8. Employee Benefit Plans. None of the Borrowers nor any ERISA Affiliate
will,
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for any of the Borrowers or any of their Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether or
not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a Lien on the assets of any of the Borrowers or
any of their Subsidiaries pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant toss.307 of ERISA orss.401(a)(29) of the Code;
or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans by more than $100,000,000, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in excess of
benefit liabilities.
9.9. Business Activities. The Borrowers will not, and will not permit any
of their Subsidiaries to engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in Related Businesses.
9.10. Fiscal Year. The Borrowers will not, and will not permit any of the
Guarantors to, change the date of the end of their fiscal year from that set
forth in ss.7.4.1.
9.11. Transactions with Affiliates. Except as set forth on Schedule 9.11
and except for transactions solely between or among any Borrowers or Guarantors,
the Borrowers will not, and will not permit any of their Subsidiaries to, engage
in any transaction with any Affiliate (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such Affiliate or, to the knowledge of any of the Borrowers, any corporation,
partnership, trust or other entity in which any such Affiliate has a substantial
interest or is an officer, director, trustee or partner, on terms more favorable
to such Person than would have been obtainable on an arm's-length basis in the
ordinary course of business.
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9.12. Bank Accounts. The Borrowers will not, and will not permit any of
their Subsidiaries to, (i) establish any bank accounts other than those Local
Accounts, Interim Concentration Accounts and other accounts, all listed on
Schedule 7.20, without the Agent's prior written consent, (ii) violate in any
material respect directly or indirectly any Agency Account Agreement or other
bank agency or lock box agreement in favor of the Agent for the benefit of the
Lenders and the Agent with respect to such account, or (iii) deposit into any of
the payroll accounts listed on Schedule 7.20 any amounts in excess of amounts
necessary to pay current payroll obligations from such accounts.
9.13. Limitations on Operation of Subsidiaries. The Borrowers will not
permit any Subsidiary which is not a Borrower or a Guarantor to (a) engage in
any business or operations of any kind, (b) have any Indebtedness owing to any
Borrower or any Guarantor, or (c) hold assets of more than $100,000 in the
aggregate, at any time unless such Subsidiary becomes a Borrower or a Guarantor
pursuant to the provisions of this Credit Agreement and the other Loan
Documents; provided, however, that Century Kentucky, LLC may engage in the
business and operations, incur Indebtedness (other than Indebtedness for money
borrowed) and hold assets, all as contemplated by the Owners Agreement.
9.14. Derivative Obligations. The Borrowers will not, and will not permit
any of their Subsidiaries to, enter into any Derivative Obligation except for
(a) Derivative Obligations with any of the Lenders under interest rate
protection agreements or foreign exchange agreements or (b) Derivative
Obligations entered into for bona fide hedging purposes, and not for speculative
purposes.
10. FINANCIAL COVENANTS OF THE BORROWER.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letters of Credit:
10.1. Capital Expenditures. The Borrowers will not permit the aggregate
amount of Capital Expenditures of the Borrowers and their Subsidiaries to exceed
(a) during the 2001 fiscal year, $30,000,000 (excluding the Hawesville
Acquisition and the European Acquisition), and (b) during each fiscal year
thereafter, the sum of (i) $20,000,000 plus (ii) fifty percent (50%) of Combined
EBITDA (on an annualized basis in respect of Subsidiaries owned for less than
the full previous fiscal year) in excess of $90,000,000 for the immediately
preceding fiscal year (excluding the European Acquisition).
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11. REVOLVING CREDIT CLOSING CONDITIONS.
The obligations of the Lenders to make the Loans and of the Issuing Bank to
issue any Letters of Credit shall be subject to the satisfaction of the
following conditions precedent on or prior to the Closing Date:
11.1. Proceedings and Loan Documents.
11.1.1. Proceedings. All actions required of the Borrowers in
connection with the transactions contemplated by this Credit Agreement, the
other Loan Documents and all other documents incident thereto shall be
satisfactory in substance and in form to the Lenders and to the Agent and
the Agent's Special Counsel, and the Lenders, the Agent and such counsel
shall have received all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably
request.
11.1.2. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance satisfactory to
each of the Lenders. Each Lender shall have received a fully executed copy
of each such document.
11.2. Certified Copies of Charter Documents. Each of the Lenders shall have
received from each of the Borrowers and each Guarantor a copy, certified by an
Authorized Officer, secretary or assistant secretary of such Person to be true
and complete on the Closing Date, of each of (i) its charter or other
incorporation documents as in effect on such date of certification, and (ii) its
by-laws as in effect on such date.
11.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each of the Borrowers and each of the
Guarantors of this Credit Agreement and the other Loan Documents to which it is
or is to become a party shall have been duly and effectively taken, and evidence
thereof satisfactory to the Lenders shall have been provided to each of the
Lenders.
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11.4. Incumbency Certificate. Each of the Lenders shall have received an
incumbency certificate, dated as of the Closing Date, covering the Borrowers and
the Guarantors signed by an Authorized Officer of the Borrowers and the
Guarantors, and giving the name and bearing a specimen signature of each
individual who shall be authorized: (i) to sign, in the name and on behalf of
each of such Borrower or such Guarantor, each of the Loan Documents to which
such Borrower or such Guarantor is or is to become a party; (ii) in the case of
the Borrowers, to make Loan Requests and Conversion Requests and to apply for
Letters of Credit; and (iii) to give notices and to take other action on its
behalf under the Loan Documents.
11.5. Validity of Liens.
After the filings, recordings and other actions referred to in this Section
11.5 have been made, the Security Documents shall be effective to create in
favor of the Agent a legal, valid and enforceable first priority (except for
Permitted Liens entitled to priority under Applicable Law) security interest in
and Lien upon the Collateral. The Agent shall have received all documents and
instruments necessary for the filings and recordings and other actions necessary
or desirable in the opinion of the Agent to protect and preserve such security
interests. The Agent shall have received evidence thereof in form and substance
satisfactory to the Agent.
11.6. Perfection Certificates and UCC Search Results. The Agent shall have
received a completed and fully executed Perfection Certificate covering each of
the Borrowers and Guarantors and the Agent shall have received the results of
UCC searches with respect to the Collateral, indicating no Liens other than
Permitted Liens and otherwise in form and substance satisfactory to the Agent.
11.7. Certificates of Insurance. The Agent shall have received a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance with
the provisions of the Security Agreements.
11.8. Agency Account Agreements. The Borrowers shall have established the
Fleet Blocked Account, and the Agent shall have received an Agency Account
Agreement executed by each depository institution with a Local Account or an
Interim Concentration Account.
11.9. Borrowing Base Report and Borrowing Availability. The Agent shall
have received from the Borrowers the initial Borrowing Base Report dated as of
the Closing Date, using financial information as of February 28, 2001 and such
Borrowing Base Report shall evidence that, after giving effect to all
transactions to occur on the Closing Date, the Borrowers shall have Borrowing
Availability, under ss.2.1 of the Credit Agreement on the Closing Date, of not
less than $10,000,000.
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11.10. Accounts Receivable Aging Report, Etc.. The Agent shall have
received from the Borrowers the most recent Accounts Receivable aging report of
the Borrowers and their Subsidiaries dated as of the end of February and the
Borrowers shall have notified the Agent in writing on the Closing Date of any
material deviation from the Accounts Receivable values reflected in such
Accounts Receivable aging report and shall have provided the Agent with such
supplementary documentation as the Agent may reasonably request.
11.11. Solvency Certificate. Each of the Lenders shall have received an
officer's certificate of Century Aluminum dated as of the Closing Date as to the
solvency of the Borrowers and the Guarantors following the consummation of the
transactions contemplated herein and in form and substance satisfactory to the
Lenders.
11.12. Litigation. As of the Closing Date, there shall be no actions,
suits, proceedings or investigations of any kind pending or, to the best of any
of the Borrowers' knowledge, threatened against any of the Borrowers or any of
their Subsidiaries before any Governmental Authority, that (a) if adversely
determined, would, either in any case or in the aggregate, (i) be reasonably
likely to have a Materially Adverse Effect or (ii) result in any substantial
liability not adequately covered by insurance, or (b) question the validity or
enforceability of any of the Loan Documents, or any action taken or to be taken
pursuant hereto or thereto.
11.13. Material Adverse Effect. Since the Balance Sheet Date there shall
have occurred no Materially Adverse Effect.
11.14. Opinion of Counsel. Each of the Lenders and the Agent shall have
received favorable legal opinions addressed to the Lenders and the Agent, dated
as of the Closing Date, in form and substance satisfactory to the Lenders and
the Agent, from each of Curtis, Mallet-Prevost, Colt & Mosle, LLP and Bowles,
Rice, McDavid, Graff & Love, PLLC, counsel to the Borrowers and the Guarantors.
11.15. Payment of Fees. The Borrowers shall have paid to the Lenders or the
Agent, as appropriate, any Fees due pursuant to ss.ss.4.6, 5.1 and 5.2.
11.16. Financial Statements and Projections. The Agent shall have received
copies of the financial statements and projections described in ss.7.4.
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11.17. Payoff Letter. The Agent shall have received a payoff letter from
Fleet National Bank, indicating the amount of the loan obligations of the
Borrowers, if any, and terminating the commitments under the Revolving Credit
and Term Loan Agreement dated as of March 31, 1999, among certain of the
Borrowers, the lenders thereto, and Fleet Capital Corporation as administrative
agent and collateral agent (the "Existing Facility"), to be discharged on the
Closing Date.
11.18. Disbursement Instructions. The Agent shall have received
disbursement instructions from the Borrowers, indicating that a portion of the
proceeds of the Loan, in an amount equal to the aggregate loan obligations of
the Borrowers to Fleet National Bank pursuant to the Existing Facility, are paid
to Fleet National Bank.
11.19. Consummation of the Hawesville Acquisition and Glencore Hawesville
Acquisitions. The Hawesville Acquisition and the Glencore Hawesville Acquisition
shall close on the Closing Date on terms substantially similar to those
previously disclosed to the Agent. The Agent shall receive fully executed copies
of each of the agreements, documents and instruments executed in connection with
the Hawesville Acquisition and the Glencore Hawesville Acquisition.
11.20. Proceeds of First Mortgage Notes. On the Closing Date (a) the
issuance of the First Mortgage Notes shall be consummated substantially in
accordance with the Preliminary Offering circular dated March 9, 2001 or
otherwise on terms and conditions reasonably satisfactory to the Agent, and (b)
the Century Aluminum shall receive a minimum of $315,000,000 in gross cash
proceeds from the sale of the First Mortgage Notes, the net proceeds of which
shall be applied in full to the purchase price in connection with the Hawesville
Acquisition and fees and expenses in connection with the First Mortgage Notes,
this Agreement, the Hawesville Acquisition and the Glencore Hawesville
Acquisition. The Agent shall receive at such time fully executed copies of each
of the agreements, documents and instruments executed in connection with the
First Mortgage Notes.
11.21. Updated Collateral Audit. The Agent shall have reviewed and been
satisfied with the update of the collateral audit of the Borrower and the
Guarantors performed by the Agent's field examiners.
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12. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loans and of the Issuing Bank to
issue, extend or renew any Letter of Credit, in each case whether on or after
the Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
12.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrowers and the Guarantors
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate do not result in a Materially Adverse Effect, and to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
12.2. Borrowing Base Report. The Agent shall have received the most recent
Borrowing Base Report required to be delivered to the Agent in accordance with
ss.8.4(f) and, if requested by the Agent, a Borrowing Base Report dated within
five (5) days of the Drawdown Date of such Loan or of the date of issuance,
extension or renewal of such Letter of Credit.
12.3. Permitted Acquisitions. Prior to the making of each Loan, the
proceeds of which are to be used to fund an Acquisition, all conditions
precedent for such Acquisition to be a Permitted Acquisition set forth in the
definition thereof shall have been satisfied or waived and an Authorized Officer
of the applicable Borrower shall have delivered to the Agent an officer's
certificate certifying that such conditions have been met.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
13.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Loans
or any Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;
(b) any of the Borrowers or any of the Guarantors shall fail to pay
any interest on the Loans, any Fees, or other sums due hereunder or under
any of the other Loan Documents, when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(c) any of the Borrowers shall fail to comply with any of its
covenants contained in ss.ss.8.1, 8.2, 8.4 (except for 8.4(f)(B) and (g)),
8.5 through 8.10, 8.12, 8.13, 8.14, 8.15, 9.1 through 9.6, 9.9 through 9.14
or 10;
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(d) any of (i) the Borrowers shall fail to comply with its covenants
contained in ss.ss.8.4(f)(B) and 8.4(g) for two (2) days after written or
telephonic notice of such failure has been given to the Borrowers by the
Agent or (ii) the Borrowers or the Guarantors shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this ss.13.1) for thirty
(30) days after written notice of such failure has been given to the
Borrowers by the Agent;
(e) any representation or warranty of any of the Borrowers or the
Guarantors in this Credit Agreement or any of the other Loan Documents or
in any other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) any of the Borrowers or any of their Subsidiaries shall fail to
pay at maturity, or within any applicable period of grace, any obligation
for borrowed money or credit received (including, without limitation, the
First Mortgage Notes and the IR Bonds) or in respect of any Capitalized
Leases, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing borrowed money or credit received (including, without limitation,
the First Mortgage Notes and the IR Bonds) or in respect of any Capitalized
Leases for such period of time as would permit (assuming the giving of
appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof, or any
such holder or holders shall rescind or shall have a right to rescind the
purchase of any such obligations;
(g) any of the Borrowers or any of their Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its inability
to pay or generally fail to pay its debts as they mature or become due, or
shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any of the Borrowers or any of their
Subsidiaries or of any substantial part of the assets of any of the
Borrowers or any of their Subsidiaries or shall commence any case or other
proceeding relating to any of the Borrowers or any of their Subsidiaries
under any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law of any jurisdiction, now
or hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or application
shall be filed or any such case or other proceeding shall be commenced
against any of the Borrowers or any of their Subsidiaries and any of the
Borrowers or any of their Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within sixty (60) days following the filing
thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the Borrowers or
any of their Subsidiaries bankrupt or insolvent, or approving a petition in
any such case or other proceeding, or a decree or order for relief is
entered in respect of any of the Borrowers or any Subsidiary of any
Borrower in an involuntary case under federal bankruptcy laws as now or
hereafter constituted;
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(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than forty (40) days, whether or not consecutive, any
final judgment (not adequately covered by insurance with respect to which
the relevant insurance company has acknowledged coverage or for which
adequate reserves are not maintained on the consolidated balance sheet of
the Borrowers) against any of the Borrowers or any of their Subsidiaries
that, with other outstanding final judgments, undischarged, against any of
the Borrowers or any of their Subsidiaries exceeds in the aggregate
$3,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Agent's security interests or Liens in a
substantial portion of the Collateral shall cease to be perfected, or shall
cease to have the priority contemplated by the Security Documents in each
case otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Lenders or
other than due to an act or omission of the Agent or any Lender, or any
action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of any of the Borrowers or any of the Guarantors party thereto or
any of their respective stockholders, or any court or any other
Governmental Authority of competent jurisdiction shall make a determination
that, or issue a judgment, order, decree or ruling to the effect that, any
one or more of the Loan Documents is illegal, invalid or unenforceable in
accordance with the terms thereof;
(k) any of the Borrowers or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in
an aggregate amount exceeding $1,000,000, or any of the Borrowers or any
ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of
ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding
$1,000,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of ss.302(f)(1)
of ERISA), provided that the Agent determines in its reasonable discretion
that such event (A) could be expected to result in liability of any of the
Borrowers or any of their Subsidiaries to the PBGC or such Guaranteed
Pension Plan in an aggregate amount exceeding $1,000,000 and (B) could
constitute grounds for the termination of such Guaranteed Pension Plan by
the PBGC, for the appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed Pension Plan or for the
imposition of a Lien in favor of such Guaranteed Pension Plan; or (ii) the
appointment by a United States District Court of a trustee to administer
such Guaranteed Pension Plan; or (iii) the institution by the PBGC of
proceedings to terminate such Guaranteed Pension Plan;
(l) any of the Borrowers or any of their Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any court or
any administrative or regulatory agency from conducting any material part
of its business and such order shall continue in effect for more than
thirty (30) days;
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(m) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of any of the Borrowers or any of
their Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a Materially Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
any of the Borrowers or any of their Subsidiaries if such loss, suspension,
revocation or failure to renew would have a Materially Adverse Effect;
(o) a First Mortgage Note Change of Control shall have occurred and
the Borrowers shall not have demonstrated to the satisfaction of the Agent
that the Borrowers have commitments sufficient to redeem in full the First
Mortgage Notes;
(p) any person (other than Glencore) or group of persons (within the
meaning of the Exchange Act) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of fifty-one percent (51%) or more of
the outstanding shares of common stock of Century Aluminum; or
(q) Century Aluminum shall (subject to ss.8.6 hereof) at any time,
directly or indirectly through one or more Subsidiaries, legally or
beneficially own less than one hundred percent (100%) of the shares of the
capital stock and other outstanding equity interests of each of the
Borrowers (other than itself) and the other Guarantors.
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Lenders shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes and the other Loan Documents and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided that in the event of any
Event of Default specified in ss.ss.13.1(g), 13.1(h) or 13.1(j), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Lender.
13.2. Termination of Commitments. If any one or more of the Events of
Default specified in ss.13.1(g) or ss.13.1(h) shall occur with respect to any
Borrower, any unused portion of the credit hereunder shall forthwith terminate
and each of the Lenders shall be relieved of all further obligations to make
Loans to the Borrowers and the Issuing bank shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, or if on any Drawdown Date or
other date for issuing, extending or renewing any Letter of Credit the
conditions precedent to the making of the Loans to be made on such Drawdown Date
or (as the case may be) to issuing, extending or renewing such Letter of Credit
on such other date are not satisfied, the Agent may and, upon the request of the
Majority Lenders, shall, by notice to the Borrowers, terminate the unused
portion of the credit hereunder, and upon such notice being given such unused
portion of the credit hereunder shall terminate immediately and each of the
Lenders shall be relieved of all further obligations to make Loans and the Agent
shall be relieved of all further obligations to issue, extend or renew Letters
of Credit. No termination of the credit hereunder shall relieve the Borrowers or
any of the Guarantors of any of the Obligations.
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13.3. Remedies. In case any one or more of the Events of Default shall have
occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to ss.13.1, each Lender, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Majority Lenders but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Agent or the holder of any Note or purchaser of any Letter of
Credit Participation is intended to be exclusive of any other remedy and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
13.4. Distribution of Collateral Proceeds. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, the
Agent or any Lender, as the case may be, receives any monies in connection with
the enforcement of any the Security Documents, as the case may be, or otherwise
with respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all
or any of the rights, remedies, powers and privileges of the Agent under
this Credit Agreement or any of the other Loan Documents or in respect of
the Collateral or in support of any provision of adequate indemnity to the
Agent against any taxes or Liens which by law shall have, or may have,
priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations (other than Derivative
Obligations) in such order or preference as the Majority Lenders may
determine; provided, however, that (i) distributions shall be made (A) pari
passu among Obligations with respect to the Agent's Fee payable pursuant to
ss.5.2 and all other Obligations (other than Derivative Obligations) and
(B) with respect to each type of Obligation owing to the Lenders, such as
interest, principal, Fees and expenses, among the Lenders pro rata, and
(ii) the Agent may in its discretion make proper allowance to take into
account any Obligations not then due and payable;
(c) Third, to the Obligations which are Derivative Obligations pro
rata among such Banks who are participants in such Derivative Obligations;
(d) Fourth, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Lenders and the Agent of all of the
Obligations to the payment of any obligations required to be paid pursuant
to ss.9-504(1)(c) of the UCC of the State of New York; and
(e) Fifth, the excess, if any, shall be returned to the Borrowers or
to such other Persons as are entitled thereto.
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14. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Lenders to the Borrowers and any securities or other property of the Borrowers
in the possession of such Lender may be applied to or set off by such Lender
against the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrowers to such Lender. Each of the Lenders agrees
with each other Lender that (i) if an amount to be set off is to be applied to
Indebtedness of the Borrowers to such Lender, other than Indebtedness evidenced
by the Notes held by such Lender or constituting Reimbursement Obligations owed
to such Lender, such amount shall be applied ratably to such other Indebtedness
and to the Indebtedness evidenced by all such Notes held by such Lender or
constituting Reimbursement Obligations owed to such Lender, and (ii) if such
Lender shall receive from any of the Borrowers, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Notes held by, or constituting Reimbursement Obligations
owed to, such Lender by proceedings against any of the Borrowers at law or in
equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall retain and apply to
the payment of the Note or Notes held by, or Reimbursement Obligations owed to,
such Lender any amount in excess of its ratable portion of the payments received
by all of the Lenders with respect to the Notes held by, and Reimbursement
Obligations owed to, all of the Lenders, such Lender will make such disposition
and arrangements with the other Lenders with respect to such excess, either by
way of distribution, pro tanto assignment of claims, subrogation or otherwise as
shall result in each Lender receiving in respect of the Notes held by it or
Reimbursement obligations owed it, its proportionate payment as contemplated by
this Credit Agreement; provided that if all or any part of such excess payment
is thereafter recovered from such Lender, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such recovery, but
without interest.
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15. THE AGENT.
15.1. Authorization.
(a) The Agent is authorized to take such action on behalf of each of
the Lenders and to exercise all such powers as are hereunder and under any
of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent.
(b) The relationship between the Agent and each of the Lenders is that
of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Lenders. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other fiduciary
relationship between the Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Agent is nevertheless a
"representative" of the Lenders, as that term is defined in Article 1 of
the UCC, for purposes of actions for the benefit of the Lenders and the
Agent with respect to all collateral security and guaranties contemplated
by the Loan Documents. Such actions include the designation of the Agent as
"secured party" or the like on all financing statements and other documents
and instruments, whether recorded or otherwise, relating to the attachment,
perfection, priority or enforcement of any security interests in collateral
security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Lenders and the Agent.
15.2. Employees and Agents. The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Credit Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrowers.
15.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
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15.4. No Representations.
15.4.1. General. The Agent shall not be responsible for the execution
or validity or enforceability of this Credit Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any instrument at any
time constituting, or intended to constitute, collateral security for the
Notes, or for the value of any such collateral security or for the
validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of any
of the Borrowers or any of their Subsidiaries, or be bound to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for the Notes
or to inspect any of the properties, books or records of any of the
Borrowers or any of their Subsidiaries. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by
any of the Borrowers or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. The Agent has not made nor
does it now make any representations or warranties, express or implied, nor
does it assume any liability to the Lenders, with respect to the credit
worthiness or financial conditions of any of the Borrowers or any of their
Subsidiaries. Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement.
15.4.2. Closing Documentation, etc. For purposes of determining
compliance with the conditions set forth in ss.10, 11 and 12, each Lender
that has executed this Credit Agreement shall be deemed to have consented
to, approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Agent or the Arranger to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder
to be to be consent to or approved by or acceptable or satisfactory to such
Lender, unless an officer of the Agent or the Arranger active upon the
Borrowers' account shall have received notice from such Lender not less
than five (5)days prior to the Closing Date, specifying such Lender's
objection thereto and such objection shall not have been withdrawn by
notice to the Agent or the Arranger to such effect on or prior to the
Closing Date.
15.5. Payments.
15.5.1. Payments to Agent. A payment by any of the Borrowers to the
Agent hereunder or any of the other Loan Documents for the account of any
Lender shall constitute a payment to such Lender. The Agent agrees promptly
to distribute to each Lender such Lender's pro rata share of payments
received by the Agent for the account of the Lenders except as otherwise
expressly provided herein or in any of the other Loan Documents.
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15.5.2. Distribution by Agent. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under
the Notes or under any of the other Loan Documents might involve it in
liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either repay to
the Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
15.5.3. Delinquent Lenders. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (i) to make available to the Agent its pro rata share of
any Loan or to purchase any Letter of Credit Participation or (ii) to
comply with the provisions of ss.14 with respect to making dispositions and
arrangements with the other Lenders, where such Lender's share of any
payment received, whether by setoff or otherwise, is in excess of its pro
rata share of such payments due and payable to all of the Lenders, in each
case as, when and to the full extent required by the provisions of this
Credit Agreement, shall be deemed delinquent (a "Delinquent Lender") and
shall be deemed a Delinquent Lender until such time as such delinquency is
satisfied. A Delinquent Lender shall be deemed to have assigned any and all
payments due to it from the Borrowers, whether on account of outstanding
Loans, Unpaid Reimbursement Obligations, interest, fees or otherwise, to
the remaining nondelinquent Lenders for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Lender hereby authorizes the
Agent to distribute such payments to the nondelinquent Lenders in
proportion to their respective pro rata shares of all outstanding Loans and
Unpaid Reimbursement Obligations. A Delinquent Lender shall be deemed to
have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Lenders, the Lenders'
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment
causing such delinquency.
15.6. Holders of Notes. The Agent may deem and treat the payee of any Note
or the purchaser of any Letter of Credit Participation as the absolute owner or
purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee
or transferee.
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15.7. Indemnity. The Lenders ratably agree hereby to indemnify and hold
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or such affiliate has not
been reimbursed by the Borrowers as required by ss.16), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
15.8. Agent as Lender. In its individual capacity, Fleet shall have the
same obligations and the same rights, powers and privileges in respect to its
Revolving Credit Commitments and the Loans made by it, and as the holder of any
of the Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also the Agent.
15.9. Resignation. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Lenders and the Borrowers. Upon any
such resignation, the Majority Lenders shall have the right to appoint a
successor Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to each of the
Borrowers. If no successor Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
financial institution having a rating of not less than "A" or its equivalent by
Standard & Poor's Corporation. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation, the provisions of
this Credit Agreement and the other Loan Documents shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as Agent.
15.10. Notification of Defaults and Events of Default; Delivery of
Information; Etc..
(a) Each Lender hereby agrees that, upon learning of the existence of
a Default or an Event of Default, it shall promptly notify the Agent
thereof. The Agent hereby agrees that upon receipt of any notice under this
ss.15.10 it shall promptly notify the other Lenders of the existence of
such Default or Event of Default.
(b) The Agent hereby agrees that upon receipt of any of the financial
statements, certificates or information delivered to the Agent under ss.8.4
it shall promptly deliver copies thereof to the other Lenders.
(c) The Agent hereby agrees that upon receipt of any notice under
ss.8.5 it shall promptly notify the other Lenders of the content of such
notice.
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15.11. Duties in the Case of Enforcement. In case one of more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (i) so requested by
the Majority Lenders and (ii) the Lenders have provided to the Agent such
additional indemnities and assurances against expenses and liabilities as the
Agent may reasonably request, proceed to enforce the provisions of the Security
Documents, as the case may be, authorizing the sale or other disposition of all
or any part of the Collateral and exercise all or any such other legal and
equitable and other rights or remedies as it may have in respect of such
Collateral. The Majority Lenders may direct the Agent in writing as to the
method and the extent of any such sale or other disposition, the Lenders hereby
agreeing to indemnify and hold the Agent, harmless from all liabilities incurred
in respect of all actions taken or omitted in accordance with such directions,
provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
15.12. Replacement of Agent. Notwithstanding anything to the contrary
contained in this Credit Agreement, at any time that Fleet's Commitment
Percentage shall be less than fifteen percent (15%), the Borrowers may, so long
as no Default or Event of Default is then continuing, replace Fleet as Agent;
provided, however, that any successor Agent proposed by the Borrowers shall be
subject to the approval of the Majority Lenders. Upon the acceptance of any
appointment as Agent hereunder by the Borrower, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the Agent, and Fleet in its capacity as Agent shall be discharged
from its duties and obligations hereunder. After any such replacement, the
provisions of this Credit Agreement and the other Loan Documents shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by Fleet while it was acting as Agent.
16. EXPENSES AND INDEMNIFICATION.
16.1. Expenses. The Borrowers agree to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by any of the Agent, the
Issuing Bank or any of the Lenders (other than franchise taxes and taxes based
upon any of the Agent's, the Issuing Bank's or any Lender's net income) on or
with respect to the transactions contemplated by this Credit Agreement (the
Borrowers hereby agreeing to indemnify each of the Agent, the Issuing and each
Lender with respect thereto), (iii) the reasonable fees, expenses and
disbursements of the Agent's Special Counsel or any local counsel to the Agent
incurred in connection with the preparation, syndication, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, any amendments, modifications, approvals, consents or
waivers hereto or hereunder, or the cancellation of any Loan Document upon
payment in full in cash of all of the Obligations or pursuant to any terms of
such Loan Document for providing for such cancellation, (iv) the fees, expenses
and disbursements of the Agent or any of its affiliates incurred by the Agent or
such affiliate in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering and appraisal
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charges, (v) any fees, costs, expenses and bank charges, including bank charges
for returned checks, incurred by the Agent in establishing, maintaining or
handling agency accounts, lock box accounts and other accounts for the
collection of any of the Collateral; (vi) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Lender or the Agent, and reasonable
consulting, accounting, appraisal, audit investment banking and similar
professional fees and charges) incurred by any Lender or the Agent in connection
with (A) the enforcement of or preservation of rights under any of the Loan
Documents against any of the Borrowers or any of the Guarantors or the
administration thereof after the occurrence of a Default or Event of Default and
(B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Lender's or the Agent relationship with any
of the Borrowers or any of the Guarantors and (vii) all reasonable fees,
expenses and disbursements of any Lender or the Agent incurred in connection
with UCC searches, UCC filings or mortgage recordings.
16.2. Indemnification. The Borrowers agree to indemnify and hold harmless
the Arranger, the Issuing Bank, the Agent, the Lenders and each of their
Affiliates from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (i) any actual or proposed use by the
Borrowers or any of their Subsidiaries of the proceeds of any of the Loans or
Letters of Credit, (ii) the reversal or withdrawal of any provisional credits
granted by the Agent upon the transfer of funds from lock box, bank agency or
concentration accounts or in connection with the provisional honoring of checks
or other items, (iii) any actual or alleged infringement of any patent,
copyright, trademark, service mark or similar right of any of the Borrowers or
any of the Guarantors comprised in the Collateral, (iv) the Borrowers or any of
the Guarantors entering into or performing this Credit Agreement or any of the
other Loan Documents or (v) with respect to any of the Borrowers and their
Subsidiaries and their respective Properties, the violation of any Environmental
Law, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
therefor, the Arranger, the Issuing Bank, the Lenders and the Agent and their
Affiliates shall be entitled to select their own counsel and, in addition to the
foregoing indemnity, the Borrowers agree to pay promptly the reasonable fees and
expenses of such counsel. Notwithstanding the foregoing, the Borrowers shall
have no obligation hereunder to any Person indemnified hereunder with respect to
liabilities arising solely from such indemnified Person's gross negligence or
willful misconduct. If, and to the extent that the obligations of any of the
Borrowers under this ss.16.2 are unenforceable for any reason, each of the
Borrowers hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under Applicable Law.
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16.3. Survival. The covenants contained in this ss.16 shall survive payment
or satisfaction in full of all other Obligations.
17. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
17.1. Sharing of Information with Section 20 Subsidiary. The Borrowers
acknowledge that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrowers or one or more of
their Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. Each Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with the Agent and
each Lender any information delivered to such Section 20 Subsidiary by such
Borrower or any of its Subsidiaries, and (b) the Agent and each Lender to share
with such Section 20 Subsidiary any information delivered to such Agent or such
Lender by such Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Lender to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of Obligations.
17.2. Confidentiality. Each of the Lenders and the Agent agrees, on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrowers or any of their
Subsidiaries pursuant to this Credit Agreement that is identified by such Person
as being confidential at the time the same is delivered to the Lenders or the
Agent, provided that nothing herein shall limit the disclosure of any such
information (a) after such information shall have become public other than
through a violation of this ss.17, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of the Lenders or the
Agent, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Lender or the Agent, or to auditors or accountants, (e) to
the Agent, any of the Lenders or any Section 20 Subsidiary, (f) in connection
with any litigation to which any one or more of the Lenders, the Agent or any
Section 20 Subsidiary is a party, or in connection with the enforcement of
rights or remedies hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Lender as provided in ss.17.1 or (h) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant agrees to be bound by the provisions of ss.19.6.
Moreover, the Agent, the Lenders and any Section 20 Subsidiary is hereby
expressly permitted by the Borrowers to refer to any of the Borrowers and their
Subsidiaries in connection with any advertising, promotion or marketing
undertaken by such Agent, such Lender or such Section 20 Subsidiary and, for
such purpose, such Agent, such Lender or such Section 20 Subsidiary may utilize
any trade name, trademark, logo or other distinctive symbol associated with any
of the Borrowers or any of their Subsidiaries or any of their businesses.
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17.3. Prior Notification. Unless specifically prohibited by Applicable Law
or court order, each of the Lenders and the Agent shall, prior to disclosure
thereof, notify the Borrowers of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) or pursuant to legal
process.
17.4. Other. In no event shall any of the Lenders or the Agent be obligated
or required to return any materials furnished to it or any Section 20 Subsidiary
by the Borrowers or any of their Subsidiaries. The obligations of each Lender
under this ss.17 shall supersede and replace the obligations of such Lender
under any confidentiality letter in respect of this financing signed and
delivered by such Lender to the Borrowers prior to the date hereof and shall be
binding upon any assignee of, or purchaser of any participation in, any interest
in any of the Loans or Reimbursement Obligations from any Lender.
18. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of any of the Borrowers or any of their
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Lenders, the Issuing Bank and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of any of the Loans and the issuance, extension or renewal of any
Letters of Credit, as herein contemplated, and shall continue in full force and
effect so long as any Letter of Credit or any amount due under this Credit
Agreement or the Notes or any of the other Loan Documents remains outstanding or
any Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letter of Credit, and for such further
time as may be otherwise expressly specified in this Credit Agreement. All
statements contained in any certificate or other paper delivered to any Lender,
the Issuing Bank or the Agent at any time by or on behalf of any of the
Borrowers or any of the Guarantors pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Borrowers or such Guarantor hereunder.
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19. ASSIGNMENT AND PARTICIPATION.
19.1. Conditions to Assignment by Lenders. Except as provided herein, each
Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentages and Commitments and the same portion of
the Loans at the time owing to it, the Notes held by it and its participating
interest in the risk relating to any Letters of Credit); provided that (i) each
of the Agent and, unless a Default or Event of Default shall have occurred and
be continuing, the Borrower shall have given its prior written consent to such
assignment, which consent, in the case of the Borrowers, will not be
unreasonably withheld (any increase in costs to the Borrowers shall be
considered reasonable grounds for the Borrowers' withholding consent to such
assignment), (ii) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Credit Agreement, (iii) each assignment shall be in the amount of
$5,000,000 or an integral multiple of $1,000,000 thereof, unless it is for all
of the assigning Lender's interests, rights and obligations under this Credit
Agreement, and (iv) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), an Assignment
and Acceptance, substantially in the form of Exhibit E hereto (an "Assignment
and Acceptance"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (ii) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Agent of the registration fee referred to in
ss.19.3, be released from its obligations under this Credit Agreement.
19.2. Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security interest or
mortgage,
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers and their Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the performance
or observance by the Borrowers and their Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of any
of their obligations under this Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
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(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in ss.7.4 and ss.8.4 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Lender, the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Credit Agreement are
required to be performed by it as a Lender;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements with the
assigning Lender satisfactory to such assignee with respect to its pro rata
share of Letter of Credit Fees in respect of outstanding Letters of Credit.
19.3. Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment
Percentage of, and principal amount of the Loans owing to and Letter of Credit
Participations purchased by, the Lenders from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrowers and
the Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Lender agrees to pay to the
Agent a registration fee in the sum of $3,500.
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19.4. New Notes. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (i) record the information contained therein in the
Register, and (ii) give prompt notice thereof to the Borrowers and the Lenders
(other than the assigning Lender). Within five (5) Business Days after receipt
of such notice, the Borrowers, at its own expense, shall execute and deliver to
the Agent, in exchange for each surrendered Note, a new Note to the order of
such Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained some portion of its obligations hereunder, a new Note to the order
of the assigning Lender in an amount equal to the amount retained by it
hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be
cancelled and returned to the Borrower.
19.5. Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (i) each such participation shall be in an amount of not less than
$5,000,000, (ii) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrowers, (iii) each Borrower and
the Agent shall continue to deal solely and directly with the selling Lender in
connection with the selling Lender's rights and obligations under this Credit
Agreement and the other Loan Documents, and (iv) no Lender shall transfer or
grant any participating interest under which the participant has rights to
approve any amendment to, or any consent or waiver with respect to, this Credit
Agreement or any other Loan Document, and all amounts payable by the Borrowers
hereunder shall be determined as if such Lender had not sold such participation;
except that, if amounts outstanding under this Credit Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Credit Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this Credit
Agreement.
19.6. Disclosure. The Borrowers agree that in addition to disclosures made
in accordance with standard and customary banking practices any Lender may
disclose information obtained by such Lender pursuant to this Credit Agreement
to assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation. For purposes of this ss.19.6
an assignee or participant or potential assignee or participant may include a
counterparty with whom such Lender has entered into or potentially might enter
into a derivative contract referenced to credit or other risks or events arising
under this Credit Agreement or any other Loan Document.
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19.7. Assignee or Participant Affiliated with the Borrowers. If any
assignee Lender is an Affiliate of any of the Borrowers, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Agent pursuant to ss.13.1 or
ss.13.2, and the determination of the Majority Lenders shall for all purposes of
this Credit Agreement and the other Loan Documents be made without regard to
such assignee Lender's interest in any of the Loans or Reimbursement
Obligations. If any Lender sells a participating interest in any of the Loans or
Reimbursement Obligations to a participant, and such participant is a Borrower
or an Affiliate of any of the Borrowers, then such transferor Lender shall
promptly notify the Agent of the sale of such participation. A transferor Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Agent pursuant to ss.13.1 or ss.13.2 to the
extent that such participation is beneficially owned by a Borrower or any
Affiliate of any of the Borrowers, and the determination of the Majority Lenders
shall for all purposes of this Credit Agreement and the other Loan Documents be
made without regard to the interest of such transferor Lender in the Loans or
Reimbursement Obligations to the extent of such participation.
19.8. Miscellaneous Assignment Provisions. Any assigning Lender shall
retain its rights to be indemnified pursuant to ss.16 with respect to any claims
or actions arising prior to the date of such assignment. On or before the date
it becomes a party to this Credit Agreement and from time to time thereafter
upon any change in status rendering any certificate or document previously
delivered pursuant to ss.5.7 invalid or inaccurate, each Lender that is
organized under the laws of a jurisdiction outside the United States shall (but,
with respect to any renewal or change in status, if legally able to do so)
deliver to the Borrowers and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes, and each
such Lender shall comply with all Applicable Laws with respect to such exemption
and any renewal or extension thereof. If any Reference Bank transfers all of its
interest, rights and obligations under this Credit Agreement, the Agent shall,
in consultation with the Borrowers and with the consent of the Borrowers and the
Majority Lenders, appoint another Lender to act as a Reference Bank hereunder.
Anything contained in this ss.19 to the contrary notwithstanding, any Lender may
at any time pledge all or any portion of its interest and rights under this
Credit Agreement (including all or any portion of its Notes) to any of the
twelve (12) Federal Reserve Banks organized under ss.4 of the Federal Reserve
Act, 12 U.S.C. ss.341. No such pledge or the enforcement thereof shall release
the pledgor Lender from its obligations hereunder or under any of the other Loan
Documents.
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19.9. Assignment by Borrowers. None of the Borrowers shall assign or
transfer any of their rights or obligations under any of the Loan Documents
without the prior written consent of each of the Lenders.
20. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrower, at Century Aluminum Company, 2511 Garden Road,
Building A, Suite 200, Monterey, CA 93940, Attention: Mr. Daniel Krofcheck,
or at such other address for notice as the Borrowers shall last have
furnished in writing to the Person giving the notice;
(b) if to the Agent, at 1 South Wacker Drive, Suite 1400, Chicago,
Illinois, 60606, Attention: Audrey Pengelly, Senior Vice President or such
other address for notice as the Agent shall last have furnished in writing
to the Person giving the notice;
(c) if to any Lender, at such Lender's address set forth on Schedule 1
hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
21. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWERS AGREE THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON ANY OF THE BORROWERS BY MAIL AT THE
ADDRESS SPECIFIED IN ss.20. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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22. HEADINGS.
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
23. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss.26.
25. WAIVER OF JURY TRIAL.
Each of the Borrowers hereby waives its right to a jury trial with respect
to any action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, each of the Borrowers hereby waives
any right it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. Each of the Borrowers
(i) certifies that no representative, agent or attorney of any Lender or the
Agent has represented, expressly or otherwise, that such Lender or the Agent
would not, in the event of litigation, seek to enforce the foregoing waivers and
(ii) acknowledges that the Agent and the Lenders have been induced to enter into
this Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
(a) Any consent or approval required or permitted by this Credit Agreement
to be given by the Lenders may be given, and any term of this Credit Agreement,
the other Loan Documents or any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Borrowers or any
of their Subsidiaries of any terms of this Credit Agreement, the other Loan
Documents or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrowers and the written consent of the Majority Lenders. Notwithstanding the
foregoing:
(i) the rate of interest on the Notes (other than interest accruing
pursuant to ss.5.12.2 following the effective date of any waiver
by the Majority Lenders of the Default or Event of Default
relating thereto) or the amount of any Commitment Fees or Letter
of Credit Fees may not be decreased without the written consent
of each Lender affected thereby;
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(ii) No Lender's Revolving Credit Commitment may be increased without
the written consent of such Lender and the Borrower;
(iii) the Maturity Date may not be postponed without the written
consent of each Lender affected thereby;
(iv) the advance rates set forth in the definition of Borrowing Base
may not be increased without the written consent of all of the
Lenders,
(v) this ss.26 and the definitions of Majority Lenders may not be
amended, without the written consent of all of the Lenders;
(vi) the definition of Minimum Reserve Amount may not be amended,
without the written consent of the Agent and Lenders holding at
least sixty-six and two thirds percent (66 2/3%) of the
outstanding principal amount of the Notes on such date, and if
no such principal is outstanding, the Lenders whose aggregate
Revolving Credit Commitments constitutes at least sixty-six and
two thirds percent (66 2/3%) of the Total Revolving Credit
Commitment;
(vii) the amount of the Agent's Fee payable for the Agent's account
and ss.15 may not be amended without the written consent of the
Agent; and the amount of any fees in respect of Letters of
Credit payable for the Issuing Bank's account may not be amended
without the written consent of the Issuing Bank;
(viii) no such amendment, modification, waiver or release which would
release any Collateral (except any permitted asset sale under
ss.9.5 or as otherwise expressly permitted in this Agreement and
the other Loan Documents) from the lien of the Security
Documents shall be effective without the written consent of each
Lender;
(ix) no such amendment, modification, waiver or release which would
have the effect of reducing the principal amount of any Loan of
any Lender shall be effective without the written consent of
each Lender affected thereby.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or any Lender in exercising any right shall operate as
a waiver thereof or otherwise be prejudicial thereto. No notice to or demand
upon any of the Borrowers shall entitle any of the Borrowers to other or further
notice or demand in similar or other circumstances.
(b) Notwithstanding anything to the contrary contained in clause (a) above,
the Agent may (i) enter into amendments to the Security Documents or Replacement
Security Documents, as the case may be, for the purpose of adding additional
Subsidiaries of the Borrowers as parties thereto and (ii) enter into security
documents to satisfy the requirements of ss.ss.8.15 and 8.17, in each case
without the consent of the Majority Lenders.
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(c) Notwithstanding anything to the contrary contained above in this ss.26,
Schedules 7.19, 7.20 and 7.21 may be supplemented or amended and restated by the
Borrowers in connection with any Permitted Acquisition, to the extent that such
supplement or amendment and restatement reflects changes that are permitted by
this Credit Agreement and the other Loan Documents. Such supplement or amendment
and restatement shall become effective upon the Borrowers' delivery of the same
to the Agent, together with a certificate of an Authorized Officer of Century
Aluminum that such supplement or amendment and restatement reflects changes that
are permitted by this Credit Agreement and the other Loan Documents. The Agent
shall promptly distribute to each Lender a copy of such supplement or amendment
and restatement, together with the certificate of the Authorized Officer of
Century Aluminum referred to above.
27. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
CENTURY ALUMINUM COMPANY
By: ___________________________________
Name:
Title:
CENTURY ALUMINUM OF WEST VIRGINIA, INC.
By: ___________________________________
Name:
Title:
BERKELEY ALUMINUM, INC.
By: ___________________________________
Name:
Title:
CENTURY KENTUCKY, INC.
By: ___________________________________
Name:
Title:
METALSCO, LTD.
By: ___________________________________
Name:
Title:
NSA, Ltd., by Metalsco, LTD., its
General Partner
By: ___________________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
individually and as Agent.
By: ___________________________________
Name: Mark K. Gertzof
Title: Senior Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: ___________________________________
Name:
Title:
CONGRESS FINANCIAL CORPORATION
By: ___________________________________
Name:
Title:
LASALLE BUSINESS CREDIT, INC.
By: ___________________________________
Name:
Title:
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: ___________________________________
Name:
Title:
NATIONAL BANK OF CANADA
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
CITIZENS BUSINESS CREDIT COMPANY, a
Division of Citizens Leasing, Inc.,
a Massachusetts Corporation
By: ___________________________________
Name:
Title: