1
E X E C U T I O N C O P Y
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 17, 1996, is by and between KAISER ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation (the "Company"), KAISER ALUMINUM
CORPORATION, a Delaware corporation (the "Parent Guarantor"), the various
financial institutions that are or may from time to time become parties to the
Credit Agreement referred to below (collectively, the "Lenders" and,
individually, a "Lender"), and BANKAMERICA BUSINESS CREDIT, INC., a Delaware
corporation, as agent (in such capacity, together with its successors and
assigns in such capacity, the "Agent") for the Lenders. Capitalized terms
used, but not defined, herein shall have the meanings given to such terms in
the Credit Agreement, as amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders and
the Agent are parties to the Credit Agreement, dated as of February 15, 1994,
as amended by the First Amendment to Credit Agreement, dated as of July 21,
1994, the Second Amendment to Credit Agreement, dated as of March 10, 1995, the
Third Amendment to Credit Agreement and Acknowledgement, dated as of July 20,
1995, the Fourth Amendment to Credit Agreement, dated as of October 17, 1995,
the Fifth Amendment to Credit Agreement dated as of December 11, 1995 and the
Sixth Amendment to Credit Agreement dated as of October 1, 1996 (the "Credit
Agreement"); and
WHEREAS, the parties hereto have agreed to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
1.1 Amendments to Article I: Definitions.
A. Section 1.1 of the Credit Agreement is further hereby
amended by adding the following definitions in the appropriate alphabetical
order:
"'Additional New Senior Debt' means Indebtedness of the
Company or any of its Subsidiaries under the Additional New
Senior Notes, the Additional New Senior Indentures, or any
guaranty of such Indebtedness."
1
2
"'Additional New Senior Debt Instruments' means the Additional
New Senior Notes, the Additional New Senior Indentures, and
all other Instruments and agreements executed and delivered by
the Company or any of its Subsidiaries in connection
therewith."
"'Additional New Senior Indentures' means one or more
indentures between the Company, and AJI, KJC, KFC, KAAC, KMH,
KSM, Texas Holdings and Texas Sierra, as Subsidiary
Guarantors, and the trustee named therein, pursuant to which
the Additional New Senior Notes will be issued, as amended,
supplemented, restated, or otherwise modified from time to
time in accordance with the terms of any such indenture and
this Agreement."
"'Additional New Senior Notes' means the promissory notes in a
principal amount not exceeding $50,000,000 issued by the
Company in one or more tranches pursuant to the Additional New
Senior Indentures, as amended, supplemented, restated, or
otherwise modified from time to time in accordance with the
terms of the Additional New Senior Indentures and this
Agreement and all other promissory notes accepted from time to
time in substitution therefor or renewal thereof in accordance
with the terms of the Additional New Senior Indentures and
this Agreement."
1.2 Amendments to Article IX: Covenants.
A. Section 9.1.1 of the Credit Agreement is hereby
amended by (i) adding the phrase ", any Additional New Senior Debt Instrument"
after the phrase "any Senior Debt Instrument" contained in clause (d)(ii)(B)
thereof, and (ii) adding the phrase ", any Additional New Senior Debt
Instrument" after the phrase "any New Senior Debt Instrument" each time it
appears in clause (h) thereof.
B. Section 9.1.10 of the Credit Agreement is hereby
amended by (i) adding the phrase ", the Additional New Senior Indentures" after
the phrase "the New Senior Indenture" the first time it appears in clause
(b)(ii) thereof, and (ii) adding the phrase ", or the Additional New Senior
Indentures" after the phrase "the New Senior Indenture" the second time it
appears in clause (b)(ii) thereof.
C. Section 9.1.10 of the Credit Agreement is hereby
further amended by (i) adding the phrase ", the Additional New Senior
Indentures" after the phrase "the New Senior Indenture" the first time it
appears in clause (c)(i) thereof and (ii) adding the phrase ", or the
Additional New Senior Indentures" after the phrase "the New Senior Indenture"
the second time it appears in clause (c)(i) thereof.
D. Section 9.2.2 of the Credit Agreement is hereby
amended by amending clause (b)(i) to read in its entirety as follows:
2
3
"(i) Indebtedness of the Company in respect of (A) the Senior
Debt, (B) the New Senior Debt, provided that (1) the aggregate principal amount
thereof does not exceed $200,000,000, (2) such Indebtedness is unsecured, (3)
such Indebtedness is issued on or prior to February 1, 1997, (4) such
Indebtedness does not mature prior to February 15, 2002 and (5) the New Senior
Indenture is substantially in the form of the Senior Indenture, (C) the
Additional New Senior Debt, provided that (1) the aggregate principal amount
thereof does not exceed $50,000,000, (2) such Indebtedness is unsecured, (3)
such Indebtedness is issued on or prior to March 1, 1997, (4) such Indebtedness
does not mature prior to February 15, 2002 and (5) the Additional New Senior
Indentures are substantially in the form of the New Senior Indenture, and (D)
Contingent Obligations of AJI, KJC, KFC, KAAC, KMH, KSM, Texas Holdings and
Texas Sierra as a 'Subsidiary Guarantor' (under and as defined in the Senior
Indenture, the New Senior Indenture, the Additional New Senior Indentures and
the Subordinated Indenture) in respect of the Senior Debt, the New Senior Debt,
the Additional New Senior Debt and the Subordinated Debt, respectively;"
E. Section 9.2.6 of the Credit Agreement is hereby
amended by adding the phrase "any Additional New Senior Debt," after the phrase
"any New Senior Debt," contained in clause (b)(iv) thereof.
F. Section 9.2.11 of the Credit Agreement is hereby
amended by adding the phrase "or the Additional New Senior Indentures" after
the phrase "the New Senior Indenture" contained in the paragraph following
clause (k) thereof.
G. Section 9.2.13 of the Credit Agreement is hereby
amended by (i) adding the phrase ", any Additional New Senior Debt" after the
phrase "any New Senior Debt" contained in clause (a) thereof, (ii) adding the
phrase ", Additional New Senior Debt" after the phrase "New Senior Debt" each
time it appears in clause (c) thereof, (iii) adding the phrase ", Additional
New Senior Debt" after the phrase "New Senior Debt" contained in clause (d)
thereof, and (iv) adding the phrase ", to deliver any certificate and opinion
permitted to be given to the trustee under any similar provisions of the
Additional New Senior Indentures with respect to any 'Subsidiary Guarantor'
(under and as defined in the Additional New Senior Indentures)" after the
phrase "Subordinated Indenture)" contained in clause (e) thereof.
H. Section 9.2.15 of the Credit Agreement is hereby
amended by adding the phrase ", the Additional New Senior Indentures" after
the phrase "the Senior Indenture" contained therein.
I. Section 9.2.19 of the Credit Agreement is hereby
amended by adding the phrase ", the Additional New Senior Debt Instruments"
after the phrase "the Senior Debt Instruments" contained therein.
3
4
1.3 Amendments to Article X: Events of Default.
A. Section 10.1.11 of the Credit Agreement is hereby
amended by (i) adding the phrase ", any Additional New Senior Debt Instrument"
after the phrase "any New Senior Debt Instrument" contained therein and (ii)
adding the phrase ", any Additional New Senior Debt" after the phrase "any New
Senior Debt" contained therein.
Section 2. Conditions to Effectiveness.
This Amendment shall become effective as of the date hereof
only when the following conditions shall have been satisfied and notice thereof
shall have been given by the Agent to the Parent Guarantor, the Company and
each Lender (the date of satisfaction of such conditions and the giving of such
notice being referred to herein as the "Seventh Amendment Effective Date"):
A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Parent Guarantor, the
Company, the Agent and the Required Lenders (or notice of the approval of this
Amendment by the Required Lenders satisfactory to the Agent shall have been
received by the Agent).
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company and the Parent Guarantor approving and
authorizing the execution, delivery and performance of this Amendment,
certified by its corporate secretary or an assistant secretary as being in full
force and effect without modification or amendment as of the date of execution
hereof by the Company or the Parent Guarantor, as the case may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing this Amendment;
(3) For each Lender an opinion, addressed to the
Agent and each Lender, from Kramer, Levin, Naftalis & Frankel, in form and
substance satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 3. Company's Representations and Warranties.
In order to induce the Lenders and the Agent to enter into
this Amendment and to amend the Credit Agreement in the manner provided herein,
the Parent Guarantor and the Company represent and warrant to each Lender and
the Agent that, as of the Seventh
4
5
Amendment Effective Date after giving effect to the effectiveness of this
Amendment, the following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
delivery of this Amendment by the Company and the Parent Guarantor and the
performance of the Credit Agreement as amended by this Amendment (the "Amended
Agreement") by the Company and the Parent Guarantor are within such Obligor's
corporate powers and have been duly authorized by all necessary corporate
action on the part of the Company and the Parent Guarantor, as the case may be.
B. No Conflict. The execution and delivery by the
Company and the Parent Guarantor of this Amendment and the performance by the
Company and the Parent Guarantor of the Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Senior Indenture or the
Subordinated Indenture or contravene any other contractual restriction where
such a contravention has a reasonable possibility of having a Materially
Adverse Effect or contravene any law or governmental regulation or court decree
or order binding on or affecting such Obligor or any of its Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Obligor's properties or any of the
properties of any Subsidiary of such Obligor, other than pursuant to the Loan
Documents.
C. Binding Obligation. This Amendment has been duly
executed and delivered by the Company and the Parent Guarantor and this
Amendment and the Amended Agreement constitute the legal, valid and binding
obligations of the Company and the Parent Guarantor, enforceable against the
Company and the Parent Guarantor in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally and by
general principles of equity.
D. Governmental Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other Person is required
for the due execution, delivery or performance of this Amendment by the Company
or the Parent Guarantor.
E. Incorporation of Representations and Warranties from
Credit Agreement. Each of the statements set forth in Section 7.2.1 of the
Credit Agreement is true and correct.
5
6
Section 4. Acknowledgement and Consent.
The Company is a party to the Company Collateral Documents, in
each case as amended through the date hereof, pursuant to which the Company has
created Liens in favor of the Agent on certain Collateral to secure the
Obligations. The Parent Guarantor is a party to the Parent Collateral
Documents, in each case as amended through the date hereof, pursuant to which
the Parent Guarantor has created Liens in favor of the Agent on certain
Collateral and pledged certain Collateral to the Agent to secure the
Obligations of the Parent Guarantor. Certain Subsidiaries of the Company are
parties to the Subsidiary Guaranty and/or one or more of the Subsidiary
Collateral Documents, in each case as amended through the date hereof, pursuant
to which such Subsidiaries have (i) guarantied the Obligations and/or (ii)
created Liens in favor of the Agent on certain Collateral. The Company, the
Parent Guarantor and such Subsidiaries are collectively referred to herein as
the "Credit Support Parties", and the Company Collateral Documents, the Parent
Collateral Documents, the Subsidiary Guaranty and the Subsidiary Collateral
Documents are collectively referred to herein as the "Credit Support
Documents".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement as amended by this
Amendment and consents to the amendment of the Credit Agreement effected as of
the date hereof pursuant to this Amendment.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect. Each Credit Support Party hereby confirms
that each Credit Support Document to which it is a party or otherwise bound and
all Collateral encumbered thereby will continue to guaranty or secure, as the
case may be, the payment and performance of all obligations guaranteed or
secured thereby, as the case may be.
Each Credit Support Party (other than the Company and the
Parent Guarantor) acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the amendments to the Credit Agreement effected pursuant
to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or
any other Loan Document shall be deemed to require the consent of such Credit
Support Party to any future amendments to the Credit Agreement.
6
7
Section 5. Miscellaneous.
A. Reference to and Effect on the Credit Agreement and
the Other Loan Documents.
(1) On and after the Seventh Amendment Effective
Date, each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO SUCH LAWS RELATING TO CONFLICTS OF LAWS.
C. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provision hereof.
D. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts and by the different parties on separate
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
E. Severability. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Amendment or affecting the validity or enforceability of such provisions in any
other jurisdiction.
7
8
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered as of the day and year first above written.
KAISER ALUMINUM CORPORATION KAISER ALUMINUM & CHEMICAL
CORPORATION
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
---------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
BANKAMERICA BUSINESS CREDIT, BANKAMERICA BUSINESS CREDIT,
INC., as Agent INC.
By: /s/ MICHAEL J. JASAITIS By: /s/ MICHAEL J. JASAITIS
---------------------------------------- ---------------------------------------
Name: Michael J. Jasaitis Name: Michael J. Jasaitis
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL TRUST THE CIT GROUP/BUSINESS
AND SAVINGS ASSOCIATION CREDIT, INC.
By: By:
---------------------------------------- ---------------------------------------
Name Printed: Name Printed:
--------------------- ---------------------
Its: Its:
--------------------------------------- --------------------------------------
CONGRESS FINANCIAL CORPORATION HELLER FINANCIAL, INC.
(WESTERN)
By: By:
---------------------------------------- ---------------------------------------
Name Printed: Name Printed:
--------------------- ---------------------
Its: Its:
--------------------------------------- --------------------------------------
LA SALLE NATIONAL BANK NATIONAL WESTMINSTER BANK
PLC
By: By:
---------------------------------------- ---------------------------------------
Name Printed: Name Printed:
--------------------- ---------------------
Its: Its:
--------------------------------------- --------------------------------------
8
9
TRANSAMERICA BUSINESS CREDIT ABN AMRO BANK N.V.
CORPORATION San Francisco International Branch
by: ABN AMRO North America,
Inc., as agent
By: By:
---------------------------------------- ---------------------------------------
Name Printed: Name Printed:
------------------------------ -----------------------------
Its: Its:
--------------------------------------- --------------------------------------
By:
---------------------------------------
Name Printed:
-----------------------------
Its:
--------------------------------------
9
10
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, KAISER ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM INTERNATIONAL, INC.
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
10
11
KAISER BAUXITE COMPANY KAISER EXPORT COMPANY
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER MICROMILL HOLDINGS, LLC KAISER SIERRA MICROMILLS, LLC
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Treasurer of Kaiser Aluminum Its: Treasurer
& Chemical Corporation
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /s/ KAREN A. TWITCHELL By: /s/ KAREN A. TWITCHELL
-------------------------------------- ---------------------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
11