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EXHIBIT 10.10
WAIVER AND AMENDMENT NO. 1 TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF SEPTEMBER 15, 1999
WAIVER AND AMENDMENT NO. 1 (this "Amendment") dated as of September 15,
1999 to the Revolving Credit and Term Loan Agreement, dated as of March 31, 1999
(as amended, restated, modified or supplemented and in effect from time to time,
the "Credit Agreement"), by and among (a) CENTURY ALUMINUM COMPANY ("Century
Aluminum"), (b) BERKELEY ALUMINUM, INC. ("Berkeley"), (c) CENTURY ALUMINUM OF
WEST VIRGINIA, INC. ("Century WV"), (d) CENTURY CAST PLATE, INC. ("Cast Plate"
and together with Century Aluminum, Berkeley and Century WV, the "Borrowers" and
each individually a "Borrower"), (e) the Lenders (as defined in the Credit
Agreement), (f) BANKBOSTON, N.A. as Issuing Bank and as Agent (as such terms are
defined in the Credit Agreement), and (g) THE CIT GROUP/BUSINESS CREDIT, INC.,
as Co-Agent (as defined in the Credit Agreement). Capitalized terms used but not
defined in this Amendment have the same meanings herein as in the Credit
Agreement, as amended hereby.
WHEREAS, the Borrowers have advised the Lenders and the Agent that the
Borrowers desire to (a) sell to Pechiney Rolled Products, LLC ("Pechiney") one
hundred percent (100%) of the capital stock of Cast Plate, a wholly-owned
subsidiary of Century Aluminum (the "Cast Plate Sale"), pursuant to the Stock
and Asset Purchase Agreement, dated as of July 26, 1999, between Century
Aluminum, Century WV and Pechiney (the "Purchase Agreement") and (b) sell to
Pechiney the Rolling Assets (as such term is defined in the Purchase Agreement)
owned by Century WV and used in Century WV's rolling mill business (the "Rolling
Mill Sale") pursuant to the Purchase Agreement; and
WHEREAS, the Borrowers have requested that (a) the Lenders waive certain
provisions of the Credit Agreement solely to the extent required to permit the
Cast Plate Sale and the Rolling Mill Sale, (b) in connection with the Cast Plate
Sale, the Lenders direct the Agent to release the security interests over the
assets of Cast Plate (the "Cast Plate Assets") granted by Cast Plate to secure
the Obligations pursuant to the Security Agreement, dated as of March 31, 1999,
from the Borrowers and certain subsidiaries of the Borrowers, in favor of the
Agent, for the benefit of the Agent, the Issuing Bank and the Lenders (the
"Security Agreement"), (c) in connection with the Rolling Mill Sale, the Lenders
direct the Agent to release the security interests over the Rolling Assets of
Century WV granted by Century WV to secure the Obligations pursuant to the
Security Agreement, and (d) in connection with the Rolling Mill Sale, permit the
Borrowers to amend and/or replace certain PBGC Documents in order to, among
other things, terminate the security interests in certain Rolling Assets granted
to the PBGC and provided for therein; and
WHEREAS, the Borrowers have requested that in connection with the
foregoing the Lenders reduce the Total Revolving Credit Commitment to
$75,000,000; and
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WHEREAS, the Lenders and the Agent have advised the Borrowers that they
are prepared to grant such waivers and to so amend the Credit Agreement, on the
terms, subject to the conditions and in reliance on the representations
contained herein;
NOW, THEREFORE, in consideration of the foregoing premises, on the terms
and subject to the conditions set forth herein, the parties hereto hereby agree
as follows:
SECTION 1. WAIVERS. Subject to satisfaction of each of the conditions
set forth in Section 6 below, the Lenders hereby:
(a) waive compliance by the Borrowers with the provisions of
Section 8.3 and 10.5.2 of the Credit Agreement solely to the extent
required to permit the consummation of the Rolling Mill Sale in
accordance with the terms of the Purchase Agreement and to permit the
release of the security interests in the Rolling Assets in connection
with the Rolling Mill Sale;
(b) waive compliance by the Borrowers with the provisions of
Section 8.3, 9.6, 9.15 and 10.5.2 of the Credit Agreement solely to the
extent required to permit the consummation of the Cast Plate Sale in
accordance with the terms of the Purchase Agreement and to permit the
release of the security interests in the Cast Plate Assets in connection
with the Cast Plate Sale; and
(c) waive compliance by the Borrowers with the provisions of
Section 10.8 of the Credit Agreement solely to the extent required to
permit the amendment and/or replacement of the PBGC Documents to, among
other things, permit the release of the security interests in the
Rolling Assets currently pledged to the PBGC by the Borrowers.
Such waivers shall be effective as of the Effective Date (as hereinafter
defined). On the Effective Date, the Lenders hereby agree that they shall direct
the Agent to, and the Agent shall promptly, execute such documents, prepared by
the Borrower, as the Borrower shall reasonably request to evidence each such
release.
SECTION 2. AMENDMENT TO CREDIT AGREEMENT. Subject to satisfaction of
each of the conditions set forth in Section 5 below, each of the undersigned
Borrowers, the Agent and the undersigned Lenders agrees to amend the Credit
Agreement by amending and restating Schedule 1 in its entirety to read as set
forth in the new Schedule 1 attached hereto.
SECTION 3. REMOVAL OF CAST PLATE FROM CREDIT AGREEMENT. From and after
the Effective Date, Century Cast Plate, Inc. ("Cast Plate") shall cease to be a
party to the Credit Agreement or any other Loan Document. Any reference to the
Borrowers, Borrower, Assignors or Assignor contained in the
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Credit Agreement or any other Loan Document shall, from and after the Effective
Date, not include Cast Plate.
SECTION 4. PROHIBITION ON BORROWERS' ABILITY TO BORROW. During the
period from the Effective Date through to such date as the Borrowers, the Agent
and each of the Lenders have entered into a further amendment to the Credit
Agreement (the "Subsequent Amendment"), the Borrowers the Agent and the Lenders
hereby acknowledge and agree that (a) the Borrowers shall be prohibited from
making any Loan Request or requesting the issuance of any Letter of Credit, (b)
the Lenders shall have no obligation to make any Loan to any Borrower, and (c)
the Issuing Bank shall have no obligation to issue any Letter of Credit in favor
of any Borrower. The Subsequent Amendment will amend various definitions, terms
and conditions contained in the Credit Agreement, including without limitation,
amendments to certain of the financial covenants, in order to reflect changes in
the Borrowers' business resulting from the Cast Plate Sale and the Rolling Mill
Sale. Such Subsequent Amendment shall be in form and substance satisfactory to
the Agent, the Lenders and the Borrowers.
SECTION 5. REPRESENTATION AND WARRANTIES. Each of the Borrowers hereby
represents and warrants to each of the Lenders, the Issuing Bank and the
Co-Agents as follows:
(a) Representations and Warranties in Credit Agreement. Each of
the representations and warranties of the Borrowers and their
Subsidiaries contained in the Credit Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection
with the Credit Agreement (i) were true and correct when made and (ii)
after giving effect to this Amendment, continue to be true and correct
on the date hereof (except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the
other Loan Documents, as amended hereby, and changes occurring in the
ordinary course of business that singly or in the aggregate are not
materially adverse, and to the extent that such representations and
warranties relate expressly to an earlier date).
(b) Authority. The execution and delivery by each of the
Borrowers of the Amendment, the Sale Documents (as hereinafter defined)
and the amended PBGC Documents (collectively, the "Documents") and the
performance by each of the Borrowers of its agreements and obligations
under the Documents (i) are within its corporate authority (ii) have
been duly authorized by all necessary proceedings, (iii) do not and will
not conflict with or result in any breach or contravention or any
provisions of Applicable Law, or any Contractual Obligation or Governing
Document, (iv) require any waivers, consents or approvals by any of its
creditors which have not been obtained, or (v) require any Approval
which has not been obtained.
(c) Enforceability of Obligations. This Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and
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binding obligations of the Borrowers enforceable against the Borrowers
in accordance with their respective terms, 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.
(d) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
SECTION 6. CONDITION TO EFFECTIVENESS. This Amendment shall become
effective as of September 21, 1999, upon satisfaction of each of the following
conditions precedent (the "Effective Date").
(a) Execution and Delivery of the Amendment. The Agent shall have
received duly executed counterparts of this Amendment which, when taken
together bear the authorized signatures of each of the parties thereto,
and which are each in form and substance satisfactory to the Agent.
(b) Execution of Acquisition Documents. The Purchase Agreement
and each other material agreement and document relating to the Rolling
Mill Sale and the Cast Plate Sale (the "Sale Documents") shall have been
duly executed and delivered by each of the parties thereto, shall be in
full force and effect.
(c) Completion of Sale. The Rolling Mill Sale and the Cast Plate
Sale, including all of the terms and conditions thereof, shall have been
duly approved by the board of directors and (if required by Applicable
Law) the shareholders of the parties thereto.
(d) Application of Cash Proceeds of Sale. Contemporaneously with
the consummation of the Rolling Mill Sale and the Cast Plate Sale, the
Borrowers shall have paid to the Agent, for application to outstanding
Loans under the Credit Agreement, an amount equal to all of the
Revolving Credit Loans outstanding at such time under the Credit
Agreement.
(e) Representations and Warranties. The Agent shall be satisfied
that the representations and warranties set forth in Section 5 hereof
are true and correct on and as of the Effective Date.
SECTION 7. AFFIRMATION AND ACKNOWLEDGMENT OF THE BORROWERS. Each of the
Borrowers hereby ratifies and confirms all of its Obligations to the Lenders and
the each of the Borrowers hereby affirms its absolute and unconditional promise
to pay to the Lenders the Loans and all other amounts due under the Credit
Agreement, as amended hereby.
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SECTION 8. MISCELLANEOUS PROVISIONS. From and after the date hereof,
this Amendment shall be deemed a Loan Document for all purposes of the Credit
Agreement and the other Loan Documents and each reference to Loan Documents in
the Credit Agreement and the other Loan Documents shall be deemed to include
this Amendment. Any breach by any Borrower of the covenants and obligations of
such Borrower contained herein shall be an immediate Event of Default. Except as
expressly provided herein, this Amendment shall not, by implication or
otherwise, limit, impair, constitute a waiver of or otherwise affect any rights
or remedies of the Agent or the Lenders under the Credit Agreement or the other
Loan Documents, nor alter, modify, amend or in any way affect any of the
obligations or covenants contained in the Credit Agreement or any of the other
Loan Documents, all of which are ratified and confirmed in all respects and
shall continue in full force and effect. This Amendment may be executed in any
number of counterparts, but all of such counterparts shall together constitute
but one and the same agreement. Delivery of an executed counterpart of a
signature page by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Amendment. In making proof of this
Amendment, it shall not be necessary to produce or account for more than one
such counterpart
SECTION 9. APPLICABLE LAW. THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS
AN AGREEMENT UNDER SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
SECTION 10. EXPENSES. The Borrowers hereby agree to pay to the Agent, on
demand by the Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Agent in connection with this Amendment (including reasonable
legal fees).
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as
a sealed instrument as of the date first set forth above.
CENTURY ALUMINUM COMPANY
By: /s/ Daniel J. Krofcheck
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Name: Daniel J. Krofcheck
Title: Treasurer
CENTURY ALUMINUM OF WEST VIRGINIA, INC.
By: /s/ Daniel J. Krofcheck
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Name: Daniel J. Krofcheck
Title: Treasurer
BERKELEY ALUMINUM, INC.
By: /s/ Daniel J. Krofcheck
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Name: Daniel J. Krofcheck
Title: Treasurer
CENTURY CAST PLATE, INC.
By: /s/ Daniel J. Krofcheck
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Name: Daniel J. Krofcheck
Title: Treasurer
BANKBOSTON, N.A., individually and as Agent
By: /s/ Neal Hesler
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Name: Neal Hesler
Title: Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.,
Individually and as Co-Agent
By: /s/ Bond Harberts
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Name: Bond Harberts
Title: Assistant Vice President
CITIZENS BUSINESS CREDIT COMPANY,
a division of CITIZENS LEASING INC.
By: /s/ Ronald A. Donatelli
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Name: Ronald A. Donatelli
Title: Senior Vice President
COMERICA BANK
By: /s/ Gregory A. Wernette
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Name: Gregory A. Wernette
Title: Vice President
CONGRESS FINANCIAL CORPORATION
By: /s/ Brett Mook
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Name: Brett Mook
Title: Vice President
FLEET CAPITAL CORPORATION
By: /s/ Audrey A. Pangelly
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Name: Audrey A. Pangelly
Title: Senior Vice President
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GREEN TREE FINANCIAL SERVICING CORP.
By: /s/ Christopher A. Gouskos
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Name: Christopher A. Gouskos
Title: Senior Vice President
HELLER FINANCIAL, INC.
By: /s/ Richard J. Holsten
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Name: Richard J. Holsten
Title: Assistant Vice President
LASALLE BUSINESS CREDIT, INC.
By: /s/ Herbert M. Kidd II
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Name: Herbert M. Kidd II
Title: Senior Vice President
NATIONAL BANK OF CANADA
By: /s/ Eric L. Moore
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Name: Eric L. Moore
Title: Vice President
By: /s/ Donald P. Haddad
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Name: Donald P. Haddad
Title: Vice President
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SCHEDULE 1
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BANKS COMMITMENT REVOLVING CREDIT
(DOMESTIC & EURODOLLAR LENDING OFFICES) PERCENTAGE COMMITMENT
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BANKBOSTON, N.A.
100 Federal Street 12.500% $9,375,000.00
Boston, MA 02110
Fax: (617) 434-2309
Attn: Neal Hesler
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THE CIT GROUP/BUSINESS CREDIT, INC.
10 South LaSalle Street 12.500% $9,375,000.00
Chicago, IL 60603
Fax: (312) 443-0139
Attn: Bond Harberts
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CITIZENS BUSINESS CREDIT COMPANY
6 PPG Place, Suite 820 7.500% $5,625,000.00
Pittsburgh, PA 15222
Fax: (412) 391-2580
Attn: Ron Donatelli
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COMERICA BANK 8.333% $6,250,000.00
3201 Enterprise Parkway, Suite 190
Beechwood, OH 44122
Fax: (216) 514-6230
Attn: Calvin G. Moore
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CONGRESS FINANCIAL CORPORATION 9.167% $6,875,000.00
150 South Wacker Drive, Suite 2200
Chicago, IL 60606
Fax: (312) 332-0424
Attn: Brett Mook
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FLEET CAPITAL CORPORATION 10.556% $7,916,666.66
1 South Wacker Drive, Suite 1400
Chicago, IL 60606
Fax: (312) 332-6510
Attn: Audrey Pengelly
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GREEN TREE FINANCIAL SERVICING CORP.
100 North Point Center East, Suite 200 9.167% $6,875,000.00
Alpharetta, GA 30022
Fax: (770) 772-3786
Attn: Hugh Morris
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HELLER FINANCIAL, INC.
150 East 42nd Street 10.556% $7,916,666.67
New York, NY 10017
Fax: (212) 880-7002
Attn: Richard Holtson
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LASALLE BUSINESS CREDIT
135 S. LaSalle Street, Suite 400 10.555% $7,916,666.67
Chicago, IL 60603
Fax: (312) 904-0291
Attn: Bent Hammeleff
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NATIONAL BANK OF CANADA
301 Grant Street, Suite 3440 9.166% $6,875,000.00
Pittsburgh, PA 15129
Fax: (412) 281-4603
Attn: Eric L. Moore
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TOTAL 100.00% $75,000,000.00
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