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EXHIBIT 10.34
TENTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is entered into as of May 11, 1998 by and among Century Aluminum of West
Virginia, Inc. (formerly known as Ravenswood Aluminum Corporation), a Delaware
corporation ("Ravenswood"), and Berkeley Aluminum, Inc., a Delaware corporation
("Berkeley"; together with Ravenswood, referred to hereinafter each individually
as a "Borrower" and collectively as the "Borrowers"), the financial institutions
listed on the signature pages hereof (such financial institutions, together with
their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders") and BankAmerica
Business Credit, Inc., a Delaware corporation, as agent for the Lenders (in its
capacity as agent, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Agent and the financial institutions from
time to time a party thereto have entered into that certain Loan and Security
Agreement dated as of January 30, 1996 (as from time to time amended, restated,
supplemented or otherwise modified, the "Loan Agreement");
WHEREAS, the Loan Agreement has been amended on February 27, 1996, on
March 27, 1996, on July 22, 1996, on December 20, 1996, on February 7, 1997, on
July 18, 1997, on November 7, 1997, on February 13, 1998 and on March 16, 1998;
and
WHEREAS, the Borrowers and the Lenders wish to further amend the Loan
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrowers by the Lenders, the parties hereto
hereby agree as follows:
1. Definitions. Unless otherwise specified herein, capitalized terms used
in this Amendment shall have the same meanings assigned to them in the
Loan Agreement.
2. Amendment of Loan Agreement. Subject to the conditions contained in
Section 3 below, the Loan Agreement is hereby amended, effective as of
the date hereof, as follows:
(a) The definitions of "Adjusted Tangible Assets" and "Adjusted
Tangible Net Worth" are hereby deleted from Section 1.1 of the
Loan Agreement.
(b) The definition of "Applicable Margin" appearing in Section 1.1
of the Loan Agreement is hereby amended and restated to read
in its entirety as follows:
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"'Applicable Margin' means on any date the
applicable per annum percentage set forth below based
upon the Level as shown in the certificate of the
chief financial officer of each Borrower described in
Section 7.2(d) then most recently delivered to the
Agent and the Lenders:
Base LIBOR
Level Rate Margin Rate Margin
----- ----------- -----------
I 0.250% 1.500%
II 0.375% 1.625%
III 0.500% 1.750%
IV 0.750% 2.000%
; provided, however, that for the period from June 1,
1998 through and including the later of (x) January
31, 1999 and (y) the date of the required delivery by
the Borrowers to the Agent of the certificate
pursuant to Section 7.2(d) with respect to the
Borrowers' Fiscal Year ending December 31, 1998, the
Applicable Margins shall be Level III; provided
further, however, that, if the Borrowers shall have
failed to deliver to the Agent and the Lenders by the
date required hereunder any certificate pursuant to
Section 7.2(d), then from the date such certificate
was required to be delivered until the date of such
delivery the Applicable Margins shall be deemed to be
Level IV. Except as otherwise expressly provided in
the immediately preceding sentence, each change in
the Applicable Margins shall take effect with respect
to all outstanding Loans on the Business Day
immediately succeeding the day on which such
certificate is received by the Agent. Notwithstanding
the foregoing, no reduction in the Applicable Margins
shall be effected if a Default or an Event of Default
shall have occurred and be continuing on the date
when such change would otherwise occur, it being
understood that on the Business Day immediately
succeeding the day on which such Default or Event of
Default is either waived or cured (assuming no other
Default or Event of Default shall be then pending),
the Applicable Margins shall be reduced (on a
prospective basis) in accordance with the then most
recently delivered certificate."
(c) The definition of "Capital Expenditures" appearing in Section
1.1 of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"'Capital Expenditures' means all payments
due (whether or not paid) during a Fiscal Year in
respect of the cost of any fixed asset or
improvement, or replacement, substitution, or
addition thereto, which has a useful life of more
than one year, including, without limitation, those
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costs arising in connection with the direct or
indirect acquisition of such asset by way of
increased product or service charges or offset items
or in connection with a Capital Lease. Restricted
Investments permitted under Section 9.10(v) shall be
deemed to be Capital Expenditures for purposes of
this Agreement. In connection therewith, and without
limiting the generality of the preceding sentence,
any support, either in the form of Ravenswood's
making a loan to Century or by the issuance of any
Century Letter of Credit, provided to Century by
Ravenswood in connection with a Permitted Century
Restricted Investment shall be deemed to be a Capital
Expenditure of Ravenswood, in an amount equal to the
principal amount of the loan or the face principal
amount of such Century Letter of Credit, for purposes
of this Agreement, provided, however, that if any
Century Letter of Credit expires or is canceled
without a drawing occurring thereunder, then the
amount of the Capital Expenditure related to such
Century Letter of Credit shall be deemed to have been
reversed."
(d) The following definition of "Century Letter of Credit" is
hereby added to Section 1.1 of the Loan Agreement in the
appropriate alphabetical order:
"'Century Letter of Credit' means any letter
of credit that may be issued under the terms and
conditions of this Agreement at the request of
Ravenswood and Century and for the account of Century
in connection with a Permitted Century Restricted
Investment. All references to a 'Letter of Credit' or
the 'Letters of Credit' in this Agreement shall be
deemed to include reference to the Century Letters of
Credit, and all references to the applicable Borrower
with respect to the Century Letters of Credit shall
be deemed to be references to Ravenswood."
(e) The following definition of "Century SPV Subsidiary" is hereby
added to Section 1.1 of the Loan Agreement in the appropriate
alphabetical order:
"'Century SPV Subsidiary' means a Subsidiary
of Century formed to hold the equity interests or
assets being acquired in connection with a Permitted
Century Restricted Investment in which Ravenswood
provides support to Century as more specifically
described in Section 9.10(v)(m)."
(f) The definition of "Fixed Charges" appearing in Section 1.1 of
the Loan Agreement is hereby amended and restated to read in
its entirety as follows:
"'Fixed Charges' means for any period as to
the Borrowers and Century on a consolidated basis,
the sum of (a) interest expense, plus (b) income
taxes paid (excluding, for Fiscal Year 1996, not more
than $8,000,000 of income taxes paid in such Fiscal
Year which were deferred from Fiscal Year 1995), plus
(c) pension contributions paid (excluding the initial
payment of $12,500,000 made in Fiscal Year 1996
pursuant to the PBGC Debt Agreement), plus (d)
post-retirement benefits (other than
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pension benefits) paid, plus (e) all amounts paid by
or allocated to Berkeley as a partner in the
Partnership under that certain sale and leaseback
transaction between the Partnership and Berkeley
County, South Carolina of certain items of personal
property located at the Mount ▇▇▇▇▇ South Carolina
facility."
(g) The definition of "Level" appearing in Section 1.1 of the Loan
Agreement is hereby amended and restated to read in its
entirety as follows:
"'Level' means, in reference to the
Applicable Margin, and includes, Level I, Level II,
Level III or Level IV, whichever is in effect at the
relevant time."
(h) The definition of "Level I" appearing in Section 1.1 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"'Level I' shall exist when the Fixed Charge
Coverage Ratio for the previous four fiscal quarter
period is greater than or equal to 1.95 to 1.0."
(i) The definition of "Level II" appearing in Section 1.1 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"'Level II' shall exist when the Fixed
Charge Coverage Ratio for the previous four fiscal
quarter period is greater than or equal to 1.85 to
1.0 but less than 1.95 to 1.0."
(j) The definition of "Level III" appearing in Section 1.1 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"'Level III' shall exist when the Fixed
Charge Coverage Ratio for the previous four fiscal
quarter period is greater than or equal to 1.75 to
1.0 but less than 1.85 to 1.0."
(k) The following definition of "Level IV" is hereby added to
Section 1.1 of the Loan Agreement in the appropriate
alphabetical order:
"'Level IV' shall exist when the Fixed
Charge Coverage Ratio for the previous four fiscal
quarter period is less than 1.75 to 1.0."
(l) The following definition of "Permitted Century Restricted
Investment" is hereby added to Section 1.1 of the Loan
Agreement in the appropriate alphabetical order:
"'Permitted Century Restricted Investment'
means a Restricted Investment by any Century SPV
Subsidiary that is permitted under Section 9.10(v)."
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(m) The definition of "Restricted Investment" appearing in Section
1.1 of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"'Restricted Investment' means any
acquisition of property by either Borrower, any of
their respective Subsidiaries, Century or any of the
Century SPV Subsidiaries in exchange for cash or
other property, whether in the form of an acquisition
of stock, debt, or other indebtedness or obligation,
or the purchase or acquisition of any other property,
or a loan, advance, capital contribution, or
subscription, except acquisitions of the following:
(a) Equipment or Real Estate to be used in the
business of a Borrower so long as the acquisition
costs thereof constitute Capital Expenditures
permitted hereunder, and Equipment or Real Estate to
be used in the business of a Century SPV Subsidiary;
(b) goods held for sale or lease or to be used by a
Borrower or a Century SPV Subsidiary in the ordinary
course of business; (c) current assets arising from
the sale or lease of goods or the rendition of
services in the ordinary course of business of a
Borrower or a Century SPV Subsidiary; (d) direct
obligations of the United States of America, or any
agency thereof, or obligations guaranteed by the
United States of America, provided that such
obligations mature within one year from the date of
acquisition thereof; (e) certificates of deposit
maturing within one year from the date of
acquisition, bankers' acceptances, Eurodollar bank
deposits, or overnight bank deposits, in each case
issued by, created by, or with a bank or trust
company organized under the laws of the United States
or any state thereof having capital and surplus
aggregating at least $100,000,000; (f) commercial
paper given a rating of "A2" or better by Standard &
Poor's Corporation or "P2" or better by ▇▇▇▇▇'▇
Investors Service, Inc. and maturing not more than 90
days from the date of creation thereof; and (g)
assets acquired by Century as permitted by Section
9.28."
(n) The definition of "Stated Termination Date" appearing in
Section 1.1 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"'Stated Termination Date' means the fifth
Anniversary Date."
(o) The definition of "Subsidiary" appearing in Section 1.1 of the
Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"'Subsidiary' of a Person means any
corporation, association, partnership, joint venture
or other business entity of which more than fifty
percent (50.0%) of the voting stock or other equity
interests (in the case of Persons other than
corporations) is owned or controlled directly or
indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof.
Unless the context otherwise clearly requires,
references herein to a 'Subsidiary' refer to a
Subsidiary of a Borrower."
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(p) The following definition of "Suppressed Availability" is
hereby added to Section 1.1 of the Loan Agreement in the
appropriate alphabetical order:
"'Suppressed Availability' means the amount
by which Availability-Berkeley and
Availability-Ravenswood would be increased if each
were not limited by the specific dollar amounts
referred to in clause (a) of each such definition."
(q) The definition of "Unused Letter of Credit Subfacility"
appearing in Section 1.1 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"'Unused Letter of Credit Subfacility' means
an amount equal to $55,000,000 minus the sum of (a)
the aggregate undrawn amount of all outstanding
Letters of Credit plus (b) the aggregate unpaid
reimbursement obligations with respect to all Letters
of Credit."
(r) Section 2.4(a) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(a) Agreement to Cause Issuance. Subject to
the terms and conditions of this Agreement, and in
reliance upon the representations and warranties of
the Borrowers herein set forth, the Agent agrees to
take reasonable steps to cause to be issued for the
account of each Borrower (or, in the case of the
Century Letters of Credit, for the account of
Century, it being understood and agreed, however,
that all references to the 'applicable Borrower' with
respect to a Letter of Credit shall, when used in
connection with the Century Letters of Credit, be
deemed to be references to Ravenswood) and to provide
credit support or other enhancement in connection
with one or more stand-by or documentary letters of
credit (each such letter of credit, a 'Letter of
Credit' and such letters of credit, collectively, the
'Letters of Credit', and such terms shall include the
Century Letters of Credit) in accordance with this
Section 2.4 from time to time during the term of this
Agreement."
(s) Sub-paragraph (1) of Section 2.4(c) of the Loan Agreement is
hereby amended and restated to read in its entirety as
follows:
"(1) The Borrower (or Century, in the case
of the Century Letters of Credit) for which a Letter
of Credit is requested shall have delivered to the
proposed issuer of such Letter of Credit, at such
times and in such manner as such proposed issuer may
prescribe, an application in form and substance
satisfactory to such proposed issuer for the issuance
of the Letter of Credit and such other documents as
may be required pursuant to
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the terms thereof, and the form and terms of the
proposed Letter of Credit shall be satisfactory to
the Agent and such proposed issuer; and"
(t) Sub-paragraph (1) of Section 2.4(d) of the Loan Agreement is
hereby amended and restated to read in its entirety as
follows:
"(1) Request for Issuance. Ravenswood shall
give the Agent five (5) Business Days' prior written
notice, containing the original signature of an
authorized officer of the applicable Borrower (and,
in the case of the Century Letters of Credit, also
containing the original signature of an authorized
officer of Century), requesting the issuance of a
Letter of Credit. The Agent will use its best efforts
and offer its standard letter of credit
indemnifications to induce an issuer to issue Letters
of Credit hereunder. Such notice shall be irrevocable
and shall specify the original face amount of the
Letter of Credit requested, the effective date (which
date shall be a Business Day) of issuance of such
requested Letter of Credit, whether such Letter of
Credit may be drawn in a single or in partial draws,
the date on which such requested Letter of Credit is
to expire (which date shall be a Business Day), the
purpose for which such Letter of Credit is to be
issued, and the beneficiary of the requested Letter
of Credit. Ravenswood shall attach to such notice the
proposed form of the Letter of Credit that the Agent
is requested to cause to be issued."
(u) Section 2.4(e) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(e) Payments Pursuant to Letters of Credit.
(1) Payment of Letter of Credit
Obligations. Each Borrower agrees to reimburse the
issuer for any draw under any Letter of Credit issued
for its benefit immediately upon demand, and to pay
the issuer of the Letter of Credit the amount of all
other obligations and other amounts payable to such
issuer under or in connection with any Letter of
Credit immediately when due, irrespective of any
claim, setoff, defense or other right which either
Borrower may have at any time against such issuer or
any other Person. In addition, each of Ravenswood and
Century agrees to reimburse the issuer for any draw
under any Century Letter of Credit immediately upon
demand, and to pay the issuer of the Century Letter
of Credit the amount of all other obligations and
other amounts payable to such issuer under or in
connection with any Century Letter of Credit
immediately when due, irrespective of any claim,
setoff, defense or other right which either Borrower
or Century may have at any time against such issuer
or any other Person.
(2) Revolving Loans to Satisfy
Reimbursement Obligations. In the event that the
issuer of any Letter of Credit honors a
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draw under such Letter of Credit and the applicable
Borrower (or Century, in the case of the Century
Letters of Credit) shall not have repaid such amount
to the issuer of such Letter of Credit pursuant to
Section 2.4(e)(1), the Agent shall, upon receiving
notice thereof, notify each Lender thereof, and each
Lender shall unconditionally pay to the Agent, for
the account of such issuer, as and when provided
hereinbelow, an amount equal to such Lender's Pro
Rata Share of the amount of such payment in Dollars
and in same day funds. If the Agent so notifies the
Lenders prior to 11:00 a.m. (Chicago time) on any
Business Day, each Lender shall make available to the
Agent the amount of such payment, as provided in the
immediately preceding sentence, on such Business Day.
Such amounts paid by the Lenders to the Agent shall
constitute Revolving Loans which shall be deemed to
have been requested by Ravenswood on behalf of the
applicable Borrower (or on behalf of itself, in the
case of the Century Letters of Credit) pursuant to
Section 2.2 as set forth in Section 4.4."
(v) Sub-paragraph (4) of Section 2.4(f) of the Loan Agreement is
hereby amended and restated to read in its entirety as
follows:
"(4) Obligations Irrevocable. The
obligations of each Lender to make payments to the
Agent with respect to any Letter of Credit or with
respect to any credit support or enhancement provided
through the Agent with respect to a Letter of Credit,
and the obligations of each Borrower to make payments
to the Agent, for the account of the Lenders, shall
be irrevocable, not subject to any qualification or
exception whatsoever, including, without limitation,
any of the following circumstances:
(i) any lack of validity or
enforceability of this Agreement or any of the other
Loan Documents;
(ii) the existence of any claim,
setoff, defense or other right which either Borrower
(or Century, in the case of the Century Letters of
Credit) may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any
Letter of Credit (or any Person for whom any such
transferee may be acting), any Lender, the Agent, the
issuer of such Letter of Credit, or any other Person,
whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying
transactions between either Borrower, Century or any
other Person and the beneficiary named in any Letter
of Credit);
(iii) any draft, certificate or any
other document presented under the Letter of Credit
proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
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(iv) the surrender or impairment of
any security for the performance or observance of any
of the terms of any of the Loan Documents; or
(v) the occurrence of any Default
or Event of Default."
(w) Section 2.4(g) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(g) Recovery or Avoidance of Payments. In
the event any payment by or on behalf of either
Borrower (or Century, in the case of the Century
Letters of Credit) received by the Agent with respect
to any Letter of Credit (or any guaranty by either
Borrower or Century or reimbursement obligation of
either Borrower or Century relating thereto) and
distributed by the Agent to the Lenders on account of
their respective participations therein is thereafter
set aside, avoided or recovered from the Agent in
connection with any receivership, liquidation or
bankruptcy proceeding, the Lenders shall, upon demand
by the Agent, pay to the Agent their respective Pro
Rata Shares of such amount set aside, avoided or
recovered, together with interest at the rate
required to be paid by the Agent upon the amount
required to be repaid by it."
(x) Section 2.6 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"2.6 FX Transactions. Ravenswood may request
and BABC may, in its sole and absolute discretion,
arrange for Ravenswood to enter into FX Transactions
with the Bank. Each Borrower agrees to indemnify and
hold BABC harmless from all losses, liabilities,
costs, expenses and claims incurred by BABC arising
from or related to such FX Transactions pursuant to
the FX Indemnity. Each Borrower agrees to pay the
Bank all amounts owing to the Bank pursuant to the FX
Transactions. Ravenswood agrees that it shall provide
to the Bank and BABC a certified copy of resolutions
of the Board of Directors of Ravenswood authorizing
Ravenswood to enter into the FX Transactions with the
Bank prior to Ravenswood's entering into any FX
Transaction with the Bank. Ravenswood understands and
agrees that the Bank shall require Ravenswood to pay
to the Bank sufficient cash to settle each FX
Transaction one (1) Business Day prior to the
settlement date of each FX Transaction. Ravenswood
further agrees to negotiate with the Bank to enter
into an International Foreign Exchange Master
Agreement relating to the FX Transactions on or
before July 15, 1998. Each Borrower acknowledges and
agrees that Ravenswood's entering into the FX
Transactions with the Bank (a) is in the sole and
absolute discretion of the Bank, (b) is subject to
all rules and regulations of the Bank, and (c) is due
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to the Bank relying on the FX Indemnity of BABC to
the Bank with respect to all risks of loss associated
with the FX Transactions."
(y) Section 3.7 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"3.7 Audit Fees. So long as an Event of
Default shall have occurred and be continuing or if
the Borrowers' aggregate Availability (including for
this purpose the Borrowers' aggregate Suppressed
Availability) is less than $25,000,000 at any time,
the Borrowers agree to pay to the Agent, solely for
its own account, all costs and fees reasonably
incurred by the Agent's internal auditors in
connection with audits of the Borrower performed by
such auditors during the term of this Agreement
(including reasonably incurred travel and other
out-of-pocket expenses in connection with such
audits) and each auditor of the Agent shall be billed
at a rate of $500 per day, all of which shall be
payable by Borrowers on demand."
(z) Article 3 of the Loan Agreement is hereby amended by the
addition thereto of a new Section 3.8, which new Section 3.8
shall read in its entirety as follows:
"3.8 Agent's Fee. The Borrowers agree to pay
to the Agent, for its own account, an agent's fee
(the 'Agent's Fee'), payable quarterly in advance,
with each quarterly payment to be in the amount of
$6,250. The initial Agent's Fee shall be payable as
of June 1, 1998, and on the first day of each
September, December, March and June thereafter. All
such Agent's Fees, once paid, shall be fully earned
and nonrefundable."
(aa) The following sentence is hereby added to the end of Section
4.2 of the Loan Agreement, immediately following the last
sentence thereof:
"If this Agreement is terminated at any time prior to
January 31, 2000, other than as a result of
acceleration of the Loans, the Borrowers shall pay to
the Agent, for the account of the Lenders, an early
termination fee equal to $150,000; provided that no
early termination fee shall be payable if either (i)
the Revolving Credit Loans are refinanced prior to
January 31, 2000 by a facility agented by Bank of
America or any of its Affiliates, or (ii) the
Revolving Credit Loans are refinanced prior to
January 31, 2000 in connection with a Restricted
Investment (whether refinanced concurrently with or
following such Restricted Investment) by a facility
agented by a Person other than Bank of America or any
of its Affiliates, provided that, as a condition
precedent to the effectiveness of this clause (ii),
either (A) a majority in number of the Lenders (which
majority must include BABC or another Affiliate of
Bank of America) participate in such refinancing, or
(B) both of the following conditions are satisfied:
(1) the Borrowers shall have given both BABC and Bank
of America the opportunity to offer to
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the Borrowers a refinancing commitment letter for the
purpose of extending such refinancing prior to or at
the same time as the Borrowers solicit refinancing
commitments from other lenders, and both of BABC and
Bank of America shall have declined to offer a
refinancing commitment upon the terms requested by
the Borrowers, and (2) if the Borrowers accept a
refinancing commitment from a lender other than BABC
or Bank of America and close such refinancing
transaction, the Borrowers shall deliver a copy of
the executed loan document to the Agent, which shall
evidence to the Agent in the exercise of its
reasonable discretion that the terms and conditions
accepted by the Borrowers from the other lender(s)
were the same as or more favorable to the Borrowers
than those requested by the Borrowers in clause (i)
above."
(bb) The first sentence of Section 4.5 of the Loan Agreement is
hereby amended and restated to read in its entirety as
follows:
"Aggregate principal and interest payments shall be
apportioned ratably among the Lenders (according to
the unpaid principal balance of the Loans to which
such payments relate held by each Lender) and
payments of the fees (excluding, however, the Agent's
Fee) shall, as applicable, be apportioned ratably
among the Lenders."
(cc) Subparagraph (c) of Section 6.9 of the Loan Agreement is
hereby amended and restated to read in its entirety as
follows:
"(c) If an Event of Default shall have
occurred and be continuing or if the Borrowers'
aggregate Availability (including for this purpose
the Borrowers' aggregate Suppressed Availability) is
less than $25,000,000 at any time, the Agent may at
its election, and at the direction of the Majority
Lenders, the Agent shall, send a notice (an
'Activation Notice') to each bank at which a Payment
Account or lock-box is maintained directing that all
amounts from time to time on deposit therein shall be
transferred on a daily basis to a collection account
in the name of Agent for the benefit of the Lenders.
Otherwise, all such amounts on deposit shall be
transferred to the applicable Borrower's disbursement
accounts."
(dd) Section 9.10 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.10 Capital Change; Restricted
Investments. None of Century, any Century SPV
Subsidiary, the Borrowers or the Borrowers'
respective Subsidiaries shall make any change in its
capital structure which could have a Material Adverse
Effect or, except as otherwise permitted hereby, make
any Restricted Investment, including without
limitation, any Restricted Investment by either
Borrower in Glencore, Vialco Holdings, any Affiliate
of Glencore or Vialco Holdings, the Discontinued
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Subsidiaries, Vialco, RRC or any Subsidiary of either
Borrower, other than (i) Restricted Investments by
Ravenswood in Berkeley and RISC existing as of the
date hereof, (ii) existing investments by Ravenswood
in RRC and Vialco, (iii) the existing investment by
Berkeley in the Partnership and capital contributions
by Berkeley to the Partnership as required from time
to time under the Owners Agreement as in effect on
the Closing Date, (iv) existing investments by
Century in Ravenswood, and (v) Restricted Investments
by any Century SPV Subsidiary or by either Borrower
in the equity interests or assets of another Person
(the "Target"), provided that:
(a) the Target is
engaged in a line or lines of business of the type
described in Section 9.18 or, in the case of a
Restricted Investment by any Century SPV Subsidiary,
in such line or lines of business or in lines of
semi-fabricated and fabricated aluminum businesses;
(b) on the date of
such Restricted Investment and after giving effect
thereto, no Event of Default shall have occurred and
be continuing, including, without limitation,
pursuant to Sections 9.23 or 9.25;
(c) such Restricted
Investment shall not subject the Agent or any Lender
to regulatory or third party approvals in connection
with the exercise of its rights and remedies under
this Agreement or any of the other Loan Documents;
(d) such Restricted
Investment shall be consensual and shall have been
approved by the Target's board of directors or other
governing body;
(e) except for
Restricted Investments by the Century SPV
Subsidiaries that are otherwise permitted under the
terms of this Section 9.10(v), the business and
assets of the Target acquired in such Restricted
Investment shall be acquired free and clear of all
Liens except to the extent permitted pursuant to
Section 9.19;
(f) except for
Restricted Investments by the Century SPV
Subsidiaries that are otherwise permitted under the
terms of this Section 9.10(v), no Debt, contingent
obligations, Guaranties or other liabilities shall be
incurred or assumed in connection with such
Restricted Investment except to the extent permitted
pursuant to Section 9.13;
(g) the sum of (x) all
amounts incurred or assumed in connection with all
Restricted Investments by the Borrowers described in
this Section 9.10(v) (including all Debt, Guaranties,
29
13
contingent obligations and other liabilities incurred
or assumed by the Borrowers in connection therewith),
plus (y) all cash consideration paid and all
transaction costs incurred in connection with all
Restricted Investments by the Borrowers and the
Century SPV Subsidiaries described in this Section
9.10(v), shall not exceed $30,000,000 in the
aggregate during the period of time commencing on May
11, 1998 and through and including the date of any
such Restricted Investment, provided that, in the
case of Restricted Investments by the Century SPV
Subsidiaries, the amounts included in the calculation
of this sum shall be limited to the amounts contained
in the support provided to Century by Ravenswood
(whether by Ravenswood's making a loan to Century or
by the issuance of any Century Letter of Credit) in
connection with such Restricted Investments;
(h) the Agent shall receive
(i) not less than ten (10) Business Days' prior
written notice of such proposed Restricted Investment
by either Borrower, which notice shall include a
reasonably detailed description thereof, together
with copies of the legal documents relating to such
Restricted Investment and a certificate of an officer
of the Borrowers demonstrating in reasonable detail
that such Restricted Investment is permitted under
the terms of this Agreement, and (ii) not less than
five (5) Business Days' prior written notice of such
proposed Restricted Investment by any Century SPV
Subsidiary, which notice shall include a reasonably
detailed description thereof, together with a
certificate of an officer of Century stating that
such Restricted Investment is permitted under the
terms of this Agreement;
(i) except for Restricted
Investments by the Century SPV Subsidiaries that are
otherwise permitted under the terms of this Section
9.10(v), on or prior to the date of such Restricted
Investment, the Agent shall have received, in form
and substance satisfactory to the Agent, all lien
search results and other documents reasonably
requested by the Agent;
(j) the Borrowers'
aggregate Availability, after giving effect to the
payment of the cash portion of the purchase price of,
and all closing fees, costs and expenses related to,
such Restricted Investment but without including in
the calculation of Availability any assets acquired
in such Restricted Investment, and with all
obligations of the Borrowers being current, exceeds
$20,000,000 and is projected by the Borrowers to
exceed $20,000,000 for the period of ninety (90) days
after the date of such Restricted Investment;
(k) the Century SPV
Subsidiaries and the Borrowers together shall not
acquire the equity interests and/or assets of more
than two Targets;
30
14
(l) in the case of a Borrower's
making such Restricted Investment, all of the
following terms and conditions shall also apply:
(i) on or prior to the
proposed date of such Restricted Investment, the
Agent will be granted a first and prior perfected
security interest in all equity interests and all
Accounts, Inventory and General Intangibles being
acquired pursuant to such Restricted Investment
(subject only to Permitted Liens in the case of the
acquired assets);
(ii) if such Restricted
Investment is an acquisition of equity interests, the
acquired Target shall become a wholly-owned
Subsidiary of such Borrower;
(iii) if such Restricted
Investment is an acquisition of equity interests,
after such acquisition is completed neither Borrower
shall be permitted to make any further Restricted
Investments in the acquired Target;
(iv) if such Restricted
Investment is an acquisition of the assets of a
Target, such assets shall be acquired directly by
such Borrower;
(v) if such Restricted
Investment is an acquisition of the assets of a
Target, any Accounts and Inventory acquired by such
Borrower pursuant to such Restricted Investment shall
not be included in determining such Borrower's
Availability until the Agent shall have completed a
satisfactory review of such Accounts and Inventory;
and
(vi) the Borrowers shall
have executed such documents and taken such actions
as may be required by the Agent in connection with
the pledging of equity interests and assets as
outlined in clause (l)(i) above; and
(m) in the case of any
Century SPV Subsidiary's making such Restricted
Investment, all of the following terms and conditions
shall also apply:
(i) in connection with such
Restricted Investment, Ravenswood shall provide
support to Century either by making a loan from
Ravenswood to Century or by requesting that a Century
Letter of Credit be issued under the terms and
conditions of this Agreement, and the sum of the
aggregate principal amount of all such loans and the
aggregate face amount of all such Century Letters of
Credit
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15
shall not exceed the difference between (x)
$30,000,000 and (y) all amounts incurred, assumed
and/or paid in connection with all Restricted
Investments by the Borrowers during the period of
time commencing on May 11, 1998 and through and
including the date of such Restricted Investment; and
in either such case Century shall execute and deliver
to Ravenswood a promissory note in the principal
amount of such loan or the face amount of such
Century Letter of Credit, which note shall be payable
to the order of Ravenswood, and endorsed by
Ravenswood to the order of the Agent and delivered to
the Agent, and which note shall otherwise be
satisfactory in form and substance to the Agent;
(ii) on or prior to the
proposed date of such Restricted Investment, to
secure the payment of the promissory note described
in the preceding clause (i), Century shall grant or
cause to be granted to Ravenswood, and Ravenswood
shall assign to the Agent, a first and prior
perfected security interest in the equity of such
Century SPV Subsidiary, and Century shall agree that
it shall not sell, transfer, convey, pledge or
otherwise assign, dispose of or ▇▇▇▇▇ ▇ ▇▇▇▇ on or a
security interest in such equity of such Century SPV
Subsidiary, and Century shall agree that it shall
not, and it shall not permit such Century SPV
Subsidiary to, sell, transfer, convey or otherwise
assign or dispose of the equity being acquired by
such Century SPV Subsidiary pursuant to such
Restricted Investment (it being understood and
agreed, however, that Century or such Century SPV
Subsidiary may pledge or ▇▇▇▇▇ ▇ ▇▇▇▇ on or a
security interest in the equity being acquired by
such Century SPV Subsidiary);
(iii) Century and/or such
Century SPV Subsidiary shall have executed such
documents and taken such actions as may be required
by the Agent in connection with the pledging of the
equity interests described in the preceding clause
(ii); and
(iv) concurrently with the
first such occasion in which Ravenswood shall provide
support to Century as described in the preceding
clause (i), Century and the Borrowers shall pay to
the Agent, for the account of the Lenders, a
transaction fee in the amount of $75,000, which
transaction fee shall be fully earned by the Lenders
as of the date of payment thereof, and such fee shall
constitute a Revolving Loan which shall be deemed to
have been requested by Ravenswood on behalf of
Century and the Borrowers pursuant to Section 2.2 as
set forth in Section 4.4."
(ee) Section 9.12 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.12 Guaranties. Neither Borrower and none
of their respective Subsidiaries shall make, issue,
or become liable on any Guaranty, except
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16
Guaranties in favor of the Agent, except (i) the
Letter of Credit, if any, issued to ASC in connection
with that certain letter agreement dated as of
November 21, 1995 between ASC and Century, as in
effect on the Closing Date, (ii) in accordance with
the terms hereof, such Letters of Credit as
Ravenswood may be required to provide pursuant to
Section 3.11 of the Supply Agreement, as in effect on
the Closing Date, (iii) other Letters of Credit
issued in accordance with the terms of this
Agreement, and (iv) the Guaranty provided by
Ravenswood in favor of the Agent and the Lenders in
accordance with the terms hereof with respect to the
Century Letters of Credit."
(ff) Section 9.15 of the Loan Agreement is hereby amended by adding
a new "clause (vi)" immediately following "clause (v)", which
new "clause (vi)" shall read in its entirety as follows:
"(vi) Additional Transaction with Century:
Ravenswood may make a loan to Century in accordance
with the terms of this Agreement in connection with
any Permitted Century Restricted Investment and/or
provide a Guaranty in favor of the Agent and the
Lenders in accordance with the terms of this
Agreement with respect to the Century Letters of
Credit."
(gg) Section 9.21 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.21 New Subsidiaries. Neither Borrower and
none of their respective Subsidiaries shall, directly
or indirectly, organize, create, acquire or permit to
exist any Subsidiary other than those specifically
identified by the Borrowers to the Agent on the
Closing Date pursuant to Section 8.5, except that (a)
either Borrower may form a wholly-owned Subsidiary
for the sole purpose of owning all of the capital
stock of a Subsidiary (other than Berkeley)
specifically identified by the Borrowers to the Agent
on the Closing Date pursuant to Section 8.5; (b)
Century may form a Subsidiary for the purpose of
holding all or certain of the Discontinued Operations
prior to the IPO; and (c) the Borrowers may form
and/or acquire wholly-owned Subsidiaries in
connection with Restricted Investments by the
Borrowers permitted under Section 9.10(v)."
(hh) Section 9.23 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.23 Capital Expenditures. Neither Borrower
shall make or incur any Capital Expenditures if,
after giving effect thereto, the aggregate amount of
all Capital Expenditures by the Borrowers on a
consolidated basis would exceed $60,000,000 during
Fiscal Year 1998, $40,000,000 during Fiscal Year 1999
or $40,000,000 during Fiscal Year 2000 and each
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17
Fiscal Year thereafter. Any amount of such limitation
not spent in any one Fiscal Year may be spent in the
succeeding Fiscal Year(s), provided that, on the date
of any such carryover, no Event of Default shall have
occurred and be continuing."
(ii) Section 9.24 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.24 Intentionally Omitted."
(jj) Section 9.25 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.25 Fixed Charge Coverage Ratio. The
Borrowers will maintain a Fixed Charge Coverage Ratio
for each period set forth below of not less than the
ratio set forth below opposite such period:
Period Ratio
------- ---------
the four consecutive fiscal quarters 1.60:1.00
ended March 31, 1998
the four consecutive fiscal quarters 1.65:1.00
ended June 30, 1998
the four consecutive fiscal quarters 1.65:1.00
ended September 30, 1998
the four consecutive fiscal quarters 1.65:1.00
ended December 31, 1998
the four consecutive fiscal quarters 1.70:1.00
ended March 31, 1999
the four consecutive fiscal quarters 1.80:1.00
ended June 30, 1999
the four consecutive fiscal quarters 1.85:1.00
ended September 30, 1999
the four consecutive fiscal quarters 1.85:1.00
ended December 31, 1999
the four consecutive fiscal quarters 1.90:1.00
ended March 31, 2000
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18
the four consecutive fiscal quarters 1.90:1.00
ended June 30, 2000
the four consecutive fiscal quarters 1.90:1.00
ended September 30, 2000
the four consecutive fiscal quarters 1.90:1.00"
ended December 31, 2000 and on the
last day of each fiscal quarter thereafter
(kk) Section 9.28 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.28 Century. Century shall be a holding
company with no assets and no Debts other than (i)
the capital stock of Ravenswood, (ii) the Parent
Guaranty, (iii) the obligation to pay certain
intercompany accounts to Vialco as permitted in
Section 9.15(iii), (iv) prior to the IPO, the
Discontinued Operations, (v) a guaranty by Century in
favor of the West Virginia Workers' Compensation
Division, pursuant to which Century guarantees the
payment of all obligations owed by Ravenswood under
the workers' compensation laws of West Virginia;
provided that the payment of any and all obligations
of Ravenswood to Century arising under or in
connection with such guaranty shall be subordinate in
payment to the payment of the Obligations, (vi) the
equity interests in the Century SPV Subsidiaries, and
equity interests and assets acquired by the Century
SPV Subsidiaries and Debts incurred by the Century
SPV Subsidiaries in connection with a Permitted
Century Restricted Investment, (vii) equity interests
in other Subsidiaries of Century that are not Century
SPV Subsidiaries, and (viii) such assets as are
necessary or incidental to the conduct of its
business. On or prior to the date on which the IPO is
consummated, Century shall divest the Discontinued
Operations. Except as provided in the preceding
sentence, Century shall not pay any Distributions to
Glencore prior to the IPO. After the IPO has been
consummated, Glencore shall own no more than
forty-nine percent (49%) of the outstanding capital
stock of Century."
(ll) Section 14.12(a) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(a) Each of the Lenders agrees that it shall not,
without the express consent of all Lenders, and that
it shall, to the extent it is lawfully entitled to do
so, upon the request of all Lenders, set off against
the Obligations, any amounts owing by such Lender to
either Borrower or any accounts of either Borrower
now or hereafter maintained with such Lender. Each of
the Lenders further agrees that it shall not, unless
specifically requested to do so by the Agent, take or
cause to be taken any action to enforce its
35
19
rights under this Agreement or against either
Borrower, including, without limitation, the
commencement of any legal or equitable proceedings,
to foreclose any Lien on, or otherwise enforce any
security interest in, any of the Collateral."
(mm) Clause (f) of Section 15.7 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"(f) costs of appraisals, inspections, and
verifications of the Collateral permitted hereunder,
including, without limitation, travel, lodging, and
meals for inspections of the Collateral and each
Borrower's operations by the Agent's and each of the
Lenders' agents plus, so long as an Event of Default
shall have occurred and be continuing or the
Borrowers' aggregate Availability (including for this
purpose the Borrowers' aggregate Suppressed
Availability) is less than $25,000,000 at any time,
the Agent's then customary charge for field
examinations and audits and the preparation of
reports thereof (such charge is currently $500 per
day (or portion thereof) for each agent or employee
of the Agent with respect to each field examination
or audit);"
3. Conditions. The effectiveness of the amendments stated in this
Amendment is subject to the following conditions precedent or
concurrent:
(a) Amendment. This Amendment shall have been duly executed by all
parties hereto and Century Aluminum Company, and delivered to
the Agent;
(b) No Default. No Default or Event of Default under the Loan
Agreement, as amended hereby, shall have occurred and be
continuing;
(c) Warranties and Representations. The warranties and
representations of each Borrower contained in this Amendment,
the Loan Agreement, as amended hereby, and the other Loan
Documents shall be true and correct as of the effective date
hereof and as of the date of the Borrowers' execution hereof,
with the same effect as though made on each such date, except
to the extent that such warranties and representations
expressly relate to an earlier date, in which case such
warranties and representations shall have been true and
correct as of such earlier date;
(d) Officer's Certificates. An Officer's Certificate of each
Borrower shall have been duly executed and delivered to the
Agent certifying that (i) there have been no amendments or
other modifications to the certificate of incorporation or
bylaws of such Borrower since the Closing Date (except, in the
case of Ravenswood, for the amendment relating to its name
change), (ii) such Borrower is in good standing in its state
of incorporation, the state in which the principal place of
business of such Borrower is located and all states in which
its activities require it to be qualified and/or licensed to
do business other than states in which the failure to be
qualified
36
20
and in good standing would not have a Material Adverse Effect,
(iii) such Borrower has the corporate power and authority to
execute, deliver and perform this Amendment, and (iv) the
persons executing this Amendment are the duly elected and
qualified officers of such Borrower and are authorized to
execute this Amendment on behalf of such Borrower;
(e) Amendment Fee. The Borrowers shall have paid to the Agent, for
the account of the Lenders, an amendment fee in the amount of
$150,000, which amendment fee shall be fully earned by the
Lenders as of the date of payment thereof; and
(f) Agent's Fee. The Borrowers shall have paid to the Agent, for
its own account, the initial Agent's Fee in the amount of
$6,250, which Agent's Fee shall be fully earned by the Agent
as of the date of payment thereof.
4. Representations and Warranties. The Borrowers jointly and severally
represent and warrant to the Agent and the Lenders that the execution,
delivery and performance by each Borrower of this Amendment and the
related Loan Documents are within each such Person's corporate powers,
have been duly authorized by all necessary corporate action (including,
without limitation, all necessary shareholder approval) of each such
Person, have received all necessary governmental approvals, and do not
and will not contravene or conflict with any provision of law
applicable to any such Person, the certificate or articles of
incorporation or bylaws of any such Person, or any order, judgment or
decree of any court or other agency of government or any contractual
obligation binding upon any such Person; and this Amendment, the Loan
Agreement and each Loan Document, each as amended hereby, is the legal,
valid and binding obligation of each Borrower, as applicable,
enforceable against each such Person in accordance with its terms.
5. No Waiver of Past Defaults. Nothing contained herein shall be deemed to
constitute a waiver of any Default or Event of Default that may
heretofore or hereafter occur or have occurred and be continuing or,
except as expressly provided herein, to modify any provision of the
Loan Agreement.
6. Reference to and Effect Upon Loan Agreement and other Loan Documents.
The Loan Agreement and the other Loan Documents, as amended hereby,
shall remain in full force and effect and are each hereby ratified and
confirmed, and those provisions of the Loan Agreement and the other
Loan Documents which by their respective terms continue beyond the
indefeasible payment in full of all of the Borrowers' Obligations shall
so continue. The execution, delivery and effectiveness of this
Amendment shall be limited precisely as written and shall not be deemed
to (i) be a consent to any waiver or modification of any other term or
condition of any Loan Document or (ii) prejudice any right, power or
remedy which the Agent or any Lender may now have or may have in the
future under or in connection with any Loan Document. Upon the
effectiveness of this Amendment, each reference in the Loan Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of
similar import shall mean and be a reference to the Loan Agreement as
amended hereby.
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7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS (AS OPPOSED TO
CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
10. Successors and Assigns. This Amendment shall be binding upon, and shall
inure to the sole benefit of, the Borrowers, the Agent and the Lenders,
and their respective successors and assigns.
11. Continued Effectiveness. Notwithstanding anything contained herein, the
terms of this Amendment are not intended to and do not serve to effect
a novation as to the Loan Agreement; instead, it is the express
intention of the parties hereto to reaffirm the Obligations created
under the Loan Agreement which are secured by the Collateral. The Loan
Agreement, as amended hereby, and each of the other Loan Documents
shall remain in full force and effect.
12. Costs, Expenses and Indemnity. The Borrowers affirm and acknowledge
that Section 15.7 and Section 15.11 of the Loan Agreement apply to this
Amendment and the transactions and agreements and documents
contemplated hereunder.
[signature page follows]
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22
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
CENTURY ALUMINUM OF WEST VIRGINIA, INC.
(formerly known as Ravenswood Aluminum Corporation),
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
BERKELEY ALUMINUM, INC.,
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
BANKAMERICA BUSINESS CREDIT, INC.,
as Agent and Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
LASALLE BUSINESS CREDIT, INC., as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
---------------------------------
Title: First Vice President
---------------------------------
GREEN TREE FINANCIAL SERVICING
CORPORATION, also known as GREEN TREE
CREDIT CORP., as Lender
By: /s/ C. A. Gouskos
----------------------------------------------
Title: Senior Vice President - General Manager
----------------------------------------------
FLEET CAPITAL CORPORATION, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
---------------------------------
▇▇▇▇▇▇ FINANCIAL, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
----------------------------------------------
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CONSENT OF THE GUARANTOR
The undersigned, CENTURY ALUMINUM COMPANY, a Delaware corporation (the
"Guarantor"), (i) consents to and approves the execution and delivery of this
Amendment by the parties hereto, (ii) agrees that this Amendment does not and
shall not limit or diminish in any manner the obligations of the Guarantor under
that certain Guaranty dated as of January 30, 1996 (the "Guaranty"), executed by
the Guarantor and delivered to the Agent, or under any of the other documents
executed and delivered by the Guarantor in connection with the Guaranty, and
agrees that such obligations of the Guarantor would not be limited or diminished
in any manner even if the Guarantor had not executed this Amendment, (iii)
agrees that this Amendment shall not be construed as requiring the consent of
the Guarantor in any other circumstance, (iv) reaffirms its obligations under
the Guaranty and such other related documents, and (v) agrees that the Guaranty
and such other related documents remain in full force and effect and are hereby
ratified and confirmed. Without limiting the generality of the foregoing, the
Guarantor agrees to perform and comply with each of the covenants contained in
sections 9.9 through 9.28 of the Loan Agreement, as amended by this Amendment,
which by their terms refer to the Guarantor, and further agrees not to cause or
permit either Borrower to violate any of such covenants.
The Guarantor further agrees that all terms, conditions and provisions
of the Loan Agreement relating to Letters of Credit (as defined in the Loan
Agreement) shall be deemed to apply to the Century Letters of Credit (as defined
in this Amendment), and that all agreements of the Borrowers contained in the
Loan Agreement with respect to the Letters of Credit shall be deemed to be
agreements of the Guarantor with respect to the Century Letters of Credit. In
furtherance and not in limitation of the foregoing:
(1) The Guarantor hereby specifically agrees to protect,
indemnify, pay and save the Lenders and the Agent harmless
from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) which any Lender or the Agent may
incur or be subject to as a consequence, direct or indirect,
of the issuance of any Century Letter of Credit or the
provision of any credit support or enhancement in connection
therewith.
(2) As among the Guarantor, the Lenders, and the Agent, the
Guarantor, subject to paragraphs (3) and (4) below, assumes
all risks of the acts and omissions of, or misuse of any of
the Century Letters of Credit by, the respective beneficiaries
of such Century Letters of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of the
application for the issuance of the Century Letters of Credit,
the Lenders and the Agent shall not be responsible for: (A)
the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any Person in
connection with the application for and issuance of and
presentation of drafts with respect to any of the Century
Letters of Credit, even if it should prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any Century Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part,
40
24
which may prove to be invalid or ineffective for any reason;
(C) the failure of the beneficiary of any Century Letter of
Credit to comply duly with conditions required in order to
draw upon such Century Letter of Credit; (D) errors,
omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required in
order make a drawing under any Century Letter of Credit or of
the proceeds thereof; (G) the misapplication by the
beneficiary of any Century Letter of Credit of the proceeds of
any drawing under such Century Letter of Credit; or (H) any
consequences arising from causes beyond the control of the
Lenders or the Agent, including, without limitation, any act
or omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Authority. None of the
foregoing shall affect, impair or prevent the vesting of any
rights or powers of the Agent or any Lender under this
Consent.
(3) In furtherance and extension, and not in limitation, of the
specific provisions set forth above, any action taken or
omitted by the Agent or any Lender under or in connection with
any of the Century Letters of Credit or any related
certificates, if taken or omitted in the absence of gross
negligence or willful misconduct, shall not put the Agent or
any Lender under any resulting liability to either Borrower or
the Guarantor or relieve each Borrower or the Guarantor of any
of its obligations under the Loan Agreement or hereunder to
any such Person.
(4) Nothing contained in this Consent shall be deemed to govern
the relation of the Guarantor and the issuer of any Century
Letter of Credit; it being understood that the Guarantor may
be requested to execute and deliver to the issuer of any
Century Letter of Credit such documents and agreements as such
issuer may require to issue such Century Letter of Credit.
Dated: as of May 11, 1998
CENTURY ALUMINUM COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Treasurer
------------------------------------
41