<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31,1999.
Commission file number 0-27918
Century Aluminum Company
(Exact name of Registrant as specified in its Charter)
Delaware 13-3070826
(State of Incorporation) (IRS Employer Identification No.)
2511 Garden Road
Building A, Suite 200
Monterey, California 93940
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (831) 642-9300
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes |X| No |_|
The registrant had 20,202,205 shares of common stock outstanding at April
30, 1999.
<PAGE> 2
CENTURY ALUMINUM COMPANY
Index to Quarterly Report on Form 10-Q
For the Quarter Ended March 31, 1999
Part I - Financial Information
Item 1 - Financial Statements Page Number
Consolidated Balance Sheets as
of March 31, 1999
and December 31, 1998......................................... 1
Consolidated Statements of
Operations for the three months
ended March 31, 1999 and 1998................................. 2
Consolidated Statements of Cash
Flows for the three months
ended March 31, 1999 and 1998................................. 3
Notes to the Consolidated Financial Statements................ 4-10
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations........................ 11-18
Item 3 - Quantitative and Qualitative Disclosures About Market Risk. 19-20
Part II - Other Information
Item 1 - Legal Proceedings.......................................... 21
Item 6 - Exhibits and Reports on Form 8-K........................... 21
Signatures.......................................................... 22
Exhibit Index....................................................... 23-24
<PAGE> 3
CENTURY ALUMINUM COMPANY
CONSOLIDATED BALANCE SHEETS
(Dollars in Thousands)
(Unaudited)
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
-------- ------------
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash ...................................................................... $ 8 $ 12
Restricted cash equivalents ............................................... 5,815 5,814
Accounts receivable, trade - net .......................................... 85,464 74,948
Due from affiliates ....................................................... 9,186 16,036
Inventories ............................................................... 198,879 197,705
Prepaid and other assets .................................................. 8,031 9,006
-------- ------------
Total current assets ................................................. 307,383 303,521
PROPERTY, PLANT AND EQUIPMENT - NET ............................................ 229,937 227,320
OTHER ASSETS ................................................................... 17,005 14,789
-------- ------------
TOTAL ................................................................ $554,325 $ 545,630
======== ============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable, trade ................................................... $ 38,192 $ 37,450
Due to affiliates ......................................................... 7,363 15,146
Accrued and other current liabilities ..................................... 33,365 36,733
Accrued employee benefits costs - current portion ......................... 19,628 26,036
-------- ------------
Total current liabilities ............................................ 98,548 115,365
-------- ------------
REVOLVING TERM LOAN ............................................................ 117,237 89,389
ACCRUED PENSION BENEFITS COSTS - Less current portion .......................... 10,067 9,792
ACCRUED POSTRETIREMENT BENEFITS COSTS - Less current portion ................... 130,453 129,318
OTHER LIABILITIES .............................................................. 21,943 24,283
-------- ------------
Total noncurrent liabilities ......................................... 279,700 252,782
-------- ------------
SHAREHOLDERS' EQUITY:
Common Stock (one cent par value, 50,000,000 shares authorized; 20,202,205
shares outstanding at March 31, 1999 and 20,000,000 at December 31, 1998) 202 200
Additional paid-in capital ................................................ 164,406 161,953
Retained earnings ......................................................... 11,469 15,330
-------- ------------
Total shareholders' equity ........................................... 176,077 177,483
-------- ------------
TOTAL ................................................................ $554,325 $ 545,630
======== ============
</TABLE>
See notes to consolidated financial statements
1
<PAGE> 4
CENTURY ALUMINUM COMPANY
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Per Share Amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
---------------------------
1999 1998
--------- ---------
<S> <C> <C>
NET SALES:
Third-party customers ..................... $ 148,730 $ 153,357
Related parties ........................... 14,629 23,033
--------- ---------
163,359 176,390
COST OF GOODS SOLD ........................... 161,800 162,879
--------- ---------
GROSS PROFIT ................................. 1,559 13,511
SELLING, GENERAL AND
ADMINISTRATIVE EXPENSES ................... 4,272 4,457
--------- ---------
OPERATING INCOME (LOSS) ...................... (2,713) 9,054
INTEREST EXPENSE - Net ....................... (1,530) (688)
NET GAIN (LOSS) ON FORWARD CONTRACTS ......... (50) 1,028
OTHER EXPENSE ................................ (18) (288)
--------- ---------
INCOME (LOSS) BEFORE INCOME TAXES ............ (4,311) 9,106
INCOME TAX (EXPENSE) BENEFIT ................. 1,552 (3,278)
--------- ---------
NET INCOME (LOSS) ............................ $ (2,759) $ 5,828
========= =========
EARNINGS (LOSS) PER COMMON SHARE
Basic ..................................... $ (0.14) $ 0.29
========= =========
Diluted ................................... $ (0.14) $ 0.29
========= =========
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING
Basic ..................................... 20,202 20,000
========= =========
Diluted ................................... 20,312 20,259
========= =========
DIVIDENDS PER COMMON SHARE ................... $ 0.05 $ 0.05
========= =========
</TABLE>
See notes to consolidated financial statements
2
<PAGE> 5
CENTURY ALUMINUM COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in Thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
---------------------
1999 1998
--------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) ................................................ $ (2,759) $ 5,828
Adjustments to reconcile net income (loss) to net cash provided by
(used in) operating activities:
Depreciation and amortization ........................... 5,779 4,890
Deferred income taxes ................................... (125) --
Pension and other postretirement benefits ............... (4,909) (1,982)
Workers' compensation ................................... (5) --
Change in operating assets and liabilities:
Accounts receivable, trade - net ................... (10,516) 8,193
Due from affiliates ................................ 6,850 (4,002)
Inventories ........................................ (697) (396)
Prepaids and other assets .......................... 742 641
Accounts payable, trade ............................ 742 (11,605)
Due to affiliates .................................. (7,783) (5,517)
Accrued and other current liabilities .............. (3,456) 12,760
Other - net ........................................ (1,537) 183
--------- --------
Net cash provided by (used in) operating activities ..... (17,674) 8,993
--------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property, plant and equipment ........................ (9,371) (8,370)
Purchase price adjustment related to business acquisitions ....... 296 --
Restricted cash deposits ......................................... (1) (2)
--------- --------
Net cash used in investing activities ................... (9,076) (8,372)
--------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings ....................................................... 174,981 64,432
Repayment of borrowings .......................................... (147,133) (63,095)
Dividends ........................................................ (1,102) (1,000)
--------- --------
Net cash provided by financing activities ............... 26,746 337
--------- --------
NET INCREASE (DECREASE) IN CASH ...................................... (4) 958
CASH, BEGINNING OF PERIOD ............................................ 12 42
--------- --------
CASH, END OF PERIOD .................................................. $ 8 $ 1,000
========= ========
</TABLE>
See notes to consolidated financial statements
3
<PAGE> 6
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
1. General
Century Aluminum Company ("Century" or the "Company") is a holding company
whose principal subsidiary is Century Aluminum of West Virginia, Inc. ("Century
of West Virginia"), which operates a primary aluminum reduction facility and an
aluminum fabrication facility near Ravenswood, West Virginia. Century of West
Virginia, through its wholly-owned subsidiary Berkeley Aluminum, Inc.
("Berkeley"), holds a 26.67% interest in a partnership which operates a primary
aluminum reduction facility in Mt. Holly, South Carolina ("MHAC") and a 26.67%
undivided interest in the property, plant and equipment comprising MHAC. Century
Aluminum Company's other subsidiary is Century Cast Plate, Inc. ("Century Cast
Plate") which operates a cast aluminum plate business located in Vernon,
California. This business operates as a wholly-owned subsidiary of Century.
Glencore AG and Vialco Holdings Ltd., which are wholly-owned subsidiaries
of Glencore International AG (together with its subsidiaries, the "Glencore
Group") own 7,925,000 common shares, or 39.2% of the common shares outstanding
of the Company. Century and the Glencore Group enter into various transactions
such as the purchase and sale of primary aluminum, scrap aluminum, alumina and
metals risk management.
The accompanying unaudited interim consolidated financial statements of
the Company should be read in conjunction with the audited consolidated
financial statements for the year ended December 31, 1998. In management's
opinion, the unaudited interim consolidated financial statements reflect all
adjustments, which are of a normal and recurring nature, which are necessary for
a fair presentation, in all material respects, of financial results for the
interim periods presented. Operating results for the first three months of 1999
are not necessarily indicative of the results that may be expected for the year
ending December 31, 1999.
2. Inventories
Inventories consist of the following:
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
-------- ------------
<S> <C> <C>
Raw materials ................................ $ 74,560 $ 81,474
Work-in-process .............................. 77,368 71,045
Finished goods ............................... 28,292 25,858
Operating and other supplies ................. 18,659 19,328
-------- --------
$198,879 $197,705
======== ========
</TABLE>
At March 31, 1999 and December 31, 1998, approximately 88% and 90%,
respectively, of inventories were valued at the lower of last-in, first-out
("LIFO") cost or market. The excess of
4
<PAGE> 7
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
the LIFO cost (or market, if lower) of inventory over the first-in, first-out
("FIFO") cost was approximately $22,813 and $20,150 at March 31, 1999 and
December 31, 1998, respectively.
3. Bank Revolving Credit Facility
On January 30, 1996 Century of West Virginia and Berkeley entered into a
bank revolving credit facility ("Facility") with BankAmerica Business Credit,
Inc. ("Bank of America"). The Facility provided for a revolving credit facility
that consisted of borrowings and letters of credit up to $150 million in the
aggregate. On March 31, 1999, the Company refinanced the borrowings outstanding
and terminated the Facility.
On February 24, 1999, the Company entered into an agreement with
BankBoston, N.A. and the CIT Group/Business Credit, Inc. ("Bank Agreement") to
provide up to $180,000 of credit facilities to refinance indebtedness, to
finance certain capital expenditures and for other general corporate purposes.
The borrowing base for purposes of determining availability is based upon
certain eligible inventory and receivables. The credit facilities consist of a
revolving loan of up to $160,000 and a term loan of $20,000. On March 31, 1999,
the Company closed on the revolving loan. The revolving loan is secured by
Century of West Virginia's, Berkeley's and Century Cast Plate's inventory and
receivables. To the extent the Company draws on the term loan, the credit
facilities will be secured by a first priority security interest in all of
Century of West Virginia's, Berkeley's and Century Cast Plate's inventory,
receivables, property, plant and equipment and stock of certain subsidiaries.
The credit facilities have a variable interest rate and mature five years from
the closing date. Subject to certain limitations, the borrowers may select base
rate or LIBOR loans. The interest rate margins that the Company will pay are
dependent upon the Company's attainment of a defined coverage ratio. The
interest rate at March 31, 1999 was 8%. The Company expects to complete the
$20,000 term loan financing in the second quarter of 1999.
4. Equity
Changes in the Company's equity for the first three months of 1999 are as
follows:
<TABLE>
<CAPTION>
Additional Total
Common Paid-In Retained Shareholders'
Stock Capital Earnings Equity
------- ---------- -------- -------------
<S> <C> <C> <C> <C>
Balance, December 31, 1998 ........ $ 200 $ 161,953 $15,330 $177,483
Net loss .......................... (2,759) (2,759)
Dividends ......................... (1,102) (1,102)
Performance share unit conversion
to common stock ................ 2 2,453 2,455
------- --------- ------- --------
Balance, March 31, 1999 ........... $ 202 $ 164,406 $11,469 $176,077
======= ========= ======= ========
</TABLE>
5
<PAGE> 8
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
5. Contingencies and Commitments
Environmental Contingencies
The Company's operations are subject to various environmental laws and
regulations. The Company has spent, and expects to spend in the future,
significant amounts for compliance with those laws and regulations.
Pursuant to an Environmental Protection Agency ("EPA") order issued in
September 1994 under Section 3008(h) (the "3008(h) order") of the Resource
Conservation and Recovery Act ("RCRA"), Century of West Virginia is performing
remediation measures at a former oil pond area and in connection with cyanide
contamination in the groundwater. The Company also is conducting a RCRA facility
investigation ("RFI") and a corrective measures study ("CMS") to evaluate and
develop corrective alternatives for any areas that have contamination exceeding
certain levels. The Company anticipates that the RFI will not be completed
before mid 1999. Once the RFI and CMS are complete, the EPA will assess the need
for clean up, and if any clean up is required, a subsequent order will be
issued. At this time, the Company is unable to determine the extent of clean-up
measures, if any, that may be required. However, the Company is aware of some
environmental contamination at Century of West Virginia, and it is likely that
clean-up activities will be required in at least some areas of the facility. The
Company believes a significant portion of this contamination is attributable to
the operations of a prior owner and will be the financial responsibility of that
owner, as discussed below.
Prior to the Company's acquisition of the Century of West Virginia
facility, Kaiser Aluminum & Chemical Corporation ("Kaiser") owned and operated
the facility for approximately thirty years. Many of the conditions which the
Company is required to investigate under the 3008(h) order arise out of
activities which occurred during Kaiser's ownership and operation, and with
respect to those conditions, Kaiser will be responsible for the costs of the RFI
and required cleanup under the terms of the purchase agreement ("Kaiser Purchase
Agreement"). In addition, Kaiser retained title to certain land within the
Century of West Virginia premises and retains full responsibility for those
areas. Under current environmental laws, the Company may be required to
remediate any contamination discovered during or after completion of the RFI,
which contamination was discharged from areas which Kaiser previously owned or
operated, or for which Kaiser has retained ownership or responsibility. However,
if such remediation is required, the Company believes that Kaiser will be liable
for some or all of the costs thereof pursuant to the Kaiser Purchase Agreement.
The Company is aware of two areas of contamination in the soil and
groundwater at its previously owned Virgin Islands Alumina Company ("Vialco")
facility. At the first of these areas, the Company has removed quantities of
contaminated soils and has transported and disposed of such soils in approved
facilities. In addition, it has begun a bioremediation program that it believes
will fulfill the remaining legal requirements with respect to such soils. In the
6
<PAGE> 9
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
second area, the Company believes that a substantial amount of the contamination
originated from an adjacent refinery owned by Hess Oil Virgin Islands, Inc.
("HOVIC"). The Company further believes that the vast majority of any
contamination that did not originate from HOVIC was caused by releases on the
property that predated Vialco's ownership and will not be the legal
responsibility of Vialco. Pursuant to the Acquisition Agreement by which Vialco
sold the premises to St. Croix Alumina, L.L.C., a subsidiary of Alcoa Alumina
and Chemicals L.L.S. ("St. Croix"), Vialco retained liability for environmental
conditions existing at the time of the sale only to the extent such conditions
arose from operation of the facility by Vialco. In addition, indemnification
arises only if the conditions require remediation or give rise to claims under
the laws in effect at the time of sale. Finally, St. Croix may not request
indemnity from Vialco until St. Croix has spent $300 on such environmental
conditions and Vialco's indemnity is capped at $18,000. Management of the
Company does not believe that the retained liability, if any, will have a
material adverse effect on the Company's financial condition, results of
operations or liquidity.
It is the Company's policy to accrue for costs associated with
environmental assessments and remedial efforts when it becomes probable that a
liability has been incurred and the costs can be reasonably estimated. The
aggregate environmental related accrued liabilities were $1,574 and $1,374 at
March 31, 1999 and December 31, 1998, respectively. All accruals have been
recorded without giving effect to any possible future insurance or Kaiser
indemnity proceeds. With respect to ongoing environmental compliance costs,
including maintenance and monitoring, such costs are expensed as incurred.
Because of the issues and uncertainties described above, and the Company's
inability to predict the requirements of future environmental laws, there can be
no assurance that future capital expenditures and costs for environmental
compliance will not have a material adverse effect on the Company's future
financial condition, results of operations or liquidity. Based upon all
available information, management does not believe that the outcome of these
environmental matters will have a material adverse effect on the Company's
financial condition, results of operations or liquidity.
Legal Contingencies
Century of West Virginia is a named defendant (along with other companies)
in approximately 2,029 civil actions brought by individuals seeking to recover
compensatory and/or punitive damages in connection with alleged asbestos-related
diseases. All plaintiffs have been employees of independent contractors who
claim to have been exposed to asbestos in the course of performing services at
various facilities, including the Century of West Virginia facility. The cases
are typically resolved based upon factual determinations as to the facilities at
which the plaintiffs worked, the periods of time during which work was
performed, the type of work performed and the conditions in which work was
performed. If the plaintiffs' work was performed during the period when Kaiser
owned the Century of West Virginia facility, Kaiser has retained responsibility,
pursuant to the terms of the Kaiser Purchase Agreement, for defense
7
<PAGE> 10
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
and indemnity. If a plaintiff is shown to have worked at the Century of West
Virginia facility after the time Century of West Virginia purchased the facility
from Kaiser, Kaiser assumes the defense and liability, subject to a reservation
of rights against Century of West Virginia. The Company believes it is unlikely
that existing or potential plaintiffs were exposed to asbestos at the Century of
West Virginia facility after Century of West Virginia purchased the facility
from Kaiser. There are currently 10 actions pending by individuals who claim
exposure after Century of West Virginia's assumption of the premises. Those
matters have been settled for nominal amounts, pending completion of settlement
papers. While the impact of the asbestos proceedings is impossible to predict,
the Company believes that the ultimate resolution will not have a material
adverse effect on the Company's financial condition, results of operations or
liquidity.
The Company has pending against it or may be subject to various other
lawsuits, claims and proceedings related primarily to employment, commercial,
environmental and safety and health matters. Although it is not presently
possible to determine the outcome of these matters, management believes their
ultimate disposition will not have a material adverse effect on the Company's
financial condition, results of operations or liquidity.
Commitments
The Company and a public utility have a fixed price power supply
agreement, covering the period from July 1, 1996 through July 31, 2003.
On January 23, 1996, the Company and the Pension Benefit Guaranty
Corporation ("PBGC") entered into an agreement (the "PBGC Agreement") which
provided that the Company make scheduled cash contributions to its pension plan
for hourly employees in 1996, 1997, 1998 and 1999. The Company made its
scheduled contributions for 1996, 1997 and 1998 and estimates that its scheduled
contribution in the remaining year will be $7,000 above the minimum required
contribution under Section 412 of the Internal Revenue Code. The Company has
granted the PBGC a first priority security interest in (i) the property, plant
and equipment at its Century of West Virginia facility and (ii) all of the
outstanding shares of Berkeley. In addition, Century must grant the PBGC a first
priority security interest in the first $50,000 of the property, plant and
equipment of any business or businesses that the Company acquires. The Company,
at its discretion, may, however, substitute Berkeley's undivided interest in the
Mt. Holly Facility in lieu of any such after-acquired property, plant and
equipment as well as the shares of Berkeley.
Other
Century of West Virginia's hourly employees, which comprise 72% of the
Company's workforce, are represented by the United Steelworkers of America and
are currently working under a four and one-half year labor agreement which
expires May 31, 1999. Although the Company anticipates a new labor agreement
will be negotiated by May 31, 1999, failure to reach
8
<PAGE> 11
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
a labor agreement could have a material adverse affect on the Company's
financial condition, results of operations or liquidity.
6. Fixed-Price Commitments and Forward Contracts
The Company produces primary aluminum products and manufactures aluminum
sheet and plate products and manages the risks of each accordingly through the
issuance of fixed-price commitments and financial instruments.
The Company had fixed price commitments to sell 516.1 million pounds and
543.9 million pounds of primary, scrap aluminum and sheet and plate products at
March 31, 1999 and December 31, 1998, respectively. Of the total fixed-price
sales commitments, 25.8 million pounds and 34.6 million pounds at March 31, 1999
and December 31, 1998, respectively, were with the Glencore Group. In addition,
the Company had fixed price commitments to purchase 182.2 million pounds and
190.8 million pounds of aluminum and alloy raw materials at March 31, 1999 and
December 31, 1998, respectively. Of the total fixed-price purchase commitments,
153.1 million pounds and 162.1 million pounds at March 31, 1999 and December 31,
1998, respectively, were with the Glencore Group.
In order to manage the Company's exposure to fluctuating commodity prices,
the Company enters into forward sales and purchase contracts for primary
aluminum that will be settled in cash. At March 31, 1999 and December 31, 1998,
the Company had forward sales contracts, primarily with the Glencore Group, for
65.6 million pounds. At March 31, 1999 and December 31, 1998, the Company had
forward purchase contracts, primarily with the Glencore Group, for 16.3 million
and 18.0 million pounds, respectively. Forward purchase and sales contracts at
March 31, 1999 are scheduled for settlement at various dates in 1999. Based on
market prices at March 31, 1999, these contracts could be settled by the Company
receiving approximately $3,213. The actual settlement will be based on market
prices on the respective settlement dates.
The Company entered into a long-term supply agreement for 936 million
pounds of alumina annually, beginning January 1, 1996. The Company will pay a
fixed price for alumina with annual price increases of approximately 2.5%
through 2001. Pricing for the years 2002 through 2006 will be subject to
agreement between the parties.
7. Supplemental Cash Flow Information
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------
1999 1998
------ ------
<S> <C> <C>
Cash paid for:
Interest ................................ $2,241 $1,524
Income taxes ............................ 505 100
Cash received from income tax refunds ........ 356 5,542
</TABLE>
9
<PAGE> 12
CENTURY ALUMINUM COMPANY
Notes to Consolidated Financial Statements
Periods Ended March 31, 1999 and 1998
(Dollars in Thousands)
Business Segments
The Company's two reportable business segments are primary aluminum and
sheet and plate products. The primary aluminum segment produces rolling ingot,
t-ingot, extrusion billet and foundry ingot for internal use and sales to
customers. The sheet and plate segment produces a wide range of products such
as: brazing sheet for sale to automobile manufacturers, heat treated and
non-heat treated plate for sale to aerospace and defense manufacturers, heavy
gauge, wide- leveled coil for sale to heavy truck, truck trailer, marine and
rail car manufacturers and sheet and coil for sale to building products
manufacturers.
The accounting policies of the segments are the same as those described in
the Company's December 31, 1998, Form 10-K, except that intersegment revenues
are accounted for based upon a market-based standard established by the Company.
The Company evaluates segment performance based upon gross profit.
Century's business segments are strategic business units that manufacture
and sell different products. The two business segments are managed separately
and require different technology, manufacturing processes and sales and
marketing strategies. Information regarding the Company's business segments for
the three months ended March 31, 1999 and 1998 is summarized below:
<TABLE>
<CAPTION>
Corporate,
Sheet and Unallocated
1999 Primary Plate & Eliminations Total
---- ------- ----- -------------- -----
<S> <C> <C> <C> <C>
Net Sales
Third-party customers $ 13,343 $135,387 $ -- $148,730
Related party customers 14,629 -- -- 14,629
Intersegment 48,832 -- (48,832) --
Segment gross profit (loss) (4,157) 5,716 -- 1,559
<CAPTION>
Corporate,
Sheet and Unallocated
1998 Primary Plate & Eliminations Total
---- ------- ----- -------------- -----
<S> <C> <C> <C> <C>
Net Sales
Third-party customers $ 10,004 $143,353 $ -- $153,357
Related party customers 23,033 -- -- 23,033
Intersegment 59,430 -- (59,430) --
Segment gross profit (loss) 10,803 2,750 (42) 13,511
</TABLE>
10
<PAGE> 13
FORWARD-LOOKING STATEMENTS - CAUTIONARY STATEMENT UNDER
THE PRIVATE SECURITIES REFORM ACT OF 1995.
This quarterly report on Form 10-Q contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. Words such as "expects,"
"anticipates," "forecasts," "intends," "plans," "believes," "projects," and
"estimates" and variations of such words and similar expressions are intended to
identify such forward-looking statements. These statements include, but are not
limited to, statements regarding new business and customers, contingencies, Year
2000 readiness, environmental matters and liquidity under "Part I, Item 2 -
Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Part I, Item 3 - Quantitative and Qualitative Disclosures About
Market Risk" and "Part II, Item 1 Legal Proceedings." These statements are not
guarantees of future performance and involve risks and uncertainties and are
based on a number of assumptions that could ultimately prove to be wrong. Actual
results and outcomes may vary materially from what is expressed or forecast in
such statements. Among the factors that could cause actual results to differ
materially are: general economic and business conditions; changes in demand for
the Company's products and services or the products of the Company's customers;
fixed asset utilization; competition; the risk of technological changes and the
Company's competitors developing more competitive technologies; the Company's
dependence on certain important customers; the availability and terms of needed
capital; risks of loss from environmental liabilities; and other risks detailed
in this report. The Company undertakes no obligation to update publicly any
forward-looking statements, whether as a result of new information, future
events or otherwise.
The following information should be read in conjunction with the Company's 1998
Form 10-K along with the consolidated financial statements and related footnotes
included within the Form 10-K.
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Overview
The Company is an integrated manufacturer of primary aluminum and a broad
range of value-added and specialized flat-rolled sheet and plate aluminum
products. The aluminum industry is highly cyclical and the market price of
aluminum (which trades as a commodity) has been volatile from time to time. In
turn, prices of flat-rolled sheet and plate aluminum products have reflected
this volatility as well as fluctuations attributable to general and
industry-specific economic conditions. However, there is less price volatility
in the higher value-added products such as plate. The principal elements
comprising the Company's cost of goods sold are raw materials, energy and labor.
The major raw materials and energy sources used by the Company in its production
process
11
<PAGE> 14
are alumina, aluminum scrap, coal tar, pitch, petroleum coke, aluminum fluoride
and electricity.
The cash price for primary aluminum on the London Metal Exchange ("LME")
continued its decline in the first quarter of 1999, falling to a five year low
on March 5. The average cash price per tonne in the first quarter of 1999 was
$1,195. This is a decline of $88 per tonne from 1998's fourth quarter average of
$1,283 per tonne and a decline of $268 per tonne from 1998's first quarter
average of $1,463 per tonne.
Demand for flat rolled products in the first quarter of 1999 has been firm in
both the building construction and transportation areas, but demand and orders
have been declining for aerospace sheet and plate.
Results of Operations
Century's financial highlights include:
<TABLE>
<CAPTION>
Three months ended March 31,
---------------------------------------
1999 1998
------------- ----------
(in thousands, except per share data)
<S> <C> <C>
Net sales
Third-party customers $ 148,730 $ 153,357
Related-party customers 14,629 23,033
Net income (loss) $ (2,759) $ 5,828
Earnings (loss) per share - basic $ (0.14) $ 0.29
</TABLE>
In 1998, the Company adopted SFAS 131, "Disclosures about Segments of an
Enterprise and Related Information." Century's operations consist of two
segments: primary aluminum and sheet and plate aluminum products. The Company
evaluates segment performance based upon gross profit. The Company uses a
market-based transfer price to record intersegment sales.
12
<PAGE> 15
Primary Aluminum
<TABLE>
<CAPTION>
Three months ended March 31,
-----------------------------------------
1999 1998
----------- -----------
(in thousands)
<S> <C> <C>
Net sales
Third-party customers $ 13,343 $ 10,004
Related-party customers 14,629 23,033
Intersegment 48,832 59,430
Gross profit (loss) $ (4,157) $ 10,803
Third-party shipments 19,145 12,654
Related-party shipments 25,852 32,125
Intersegment shipments 77,759 78,805
</TABLE>
The primary aluminum segment produces t-ingot, rolling ingot, extrusion billet
and foundry ingot for internal use and sales to customers. A significant portion
of this segment's sales is to a related party: Glencore.
Net sales for the segment decreased $15.7 million (or 16.9%) in the first
quarter of 1999 to $76.8 million from $92.5 million in the first quarter of
1998. Shipments decreased 828 thousand pounds (or 0.7%) in the first quarter of
1999 to 122.8 million pounds from 123.6 million pounds in the first quarter of
1998. Substantially all of the reduction in revenue is attributable to the
decline in the LME price for primary aluminum and its influence upon the
realized prices for Century's primary aluminum.
The decreased revenue experienced in the first quarter of 1999 was only
partially offset by cost improvements at the Company's primary operations.
Therefore, gross profit declined by $15.0 million.
13
<PAGE> 16
Sheet and Plate Aluminum Products
<TABLE>
<CAPTION>
Three months ended March 31,
-----------------------------------------
1999 1998
----------- -----------
(in thousands)
<S> <C> <C>
Net sales
Direct customers $ 134,299 $ 141,161
Toll customers 1,088 2,192
Gross profit $ 5,716 $ 2,750
Direct shipments 113,751 114,618
Toll shipments 4,405 7,154
</TABLE>
The sheet and plate aluminum segment produces a wide range of products such as:
brazing sheet for sale to automobile manufacturers: heat treated and non-heat
treated plate for sale to aerospace and defense manufacturers; heavy gauge,
wide-leveled coil for sale to heavy truck, truck trailer, marine and rail car
manufacturers and sheet and coil for sale to building products manufacturers.
Net sales for the segment decreased $8.0 million (or 5.6%) in the first quarter
of 1999 to $135.4 million from $143.4 million in the first quarter of 1998.
Shipments decreased 3.6 million pounds (or 3.0%) in the first quarter of 1999 to
118.2 million pounds from 121.8 million pounds in the first quarter of 1998.
This lower volume caused net sales to drop $5.7 million. The average realized
price in the first quarter of 1999 was $0.05 per pound lower than the average
realized price in the first quarter of 1998. Most of the reduction in the
average realized price is attributable to the decline in the LME price for
primary aluminum and its influence upon the realized prices for Century's sheet
and plate products.
Gross profit for the segment increased by $3.0 million in the first quarter of
1999 to $5.7 million from $2.7 million in the first quarter of 1998. The
increase in gross profit was the result of the shift in product mix from lower
margin to higher margin products and the positive impact of lower LME prices on
aluminum raw material costs.
Interest Expense. Interest expense increased $842 thousand in the first quarter
of 1999 (or 122.4%) over interest expense in the first quarter of 1998. Interest
expense increased due to an increase in the amount of debt outstanding in the
first quarter of 1999.
Net Gains on Forward Contracts. The Company recorded a loss of $50 thousand from
its forward contract activity in the first quarter of 1999 versus a gain of $1.0
million in the first quarter of 1998. Rising LME prices in the first quarter of
1999 reduced the market value of the Company's forward contracts relative to
their December 31, 1998 value, resulting in a loss. Declining LME prices in the
first quarter of 1998 increased the
14
<PAGE> 17
market value of the Company's forward contracts relative to their December 31,
1997 market value, resulting in a gain.
Net Income. The Company lost $2.8 million in the first quarter of 1999 versus
net income of $5.8 million in the first quarter of 1998. The lower LME price for
primary aluminum and its influence upon realized prices were the principal
reason for the reduction in its earnings.
Liquidity and Capital Resources
Working capital amounted to $208.8 million and $188.2 million at March 31,
1999 and December 31, 1998, respectively. The Company's liquidity requirements
arise primarily from working capital needs, capital investments and debt
service.
The Company's statements of cash flows for the three months ended March
31, 1999 and 1998 are summarized below (dollars in thousands):
<TABLE>
<CAPTION>
1999 1998
--------- ---------
<S> <C> <C>
Net cash from (used in) operating activities......... $ (17,674) $ 8,993
Net cash used in investing activities................ (9,076) (8,372)
Net cash from financing activities................... 26,746 337
--------- ---------
Increase (decrease) in cash.......................... $ (4) $ 958
========= =========
</TABLE>
Operating activities used $17.7 million in net cash during the first
quarter of 1999. Contributing to the reduction in cash was the Company's net
loss of $2.8 million, growth in accounts receivable due to an increase in sales
over the prior quarter's sales, a pension contribution of $5.0 million, and
payments to Glencore for metal activity that occurred during the fourth quarter
of 1998. In the first quarter of 1998, operating activities provided $9.0
million in net cash to the Company. Net income and a reduction in accounts
receivable caused by a change in product/customer mix added to the positive cash
flow, partially offset by payments for metal purchases, maintenance expenditures
and capital expenditures that were accrued at December 31, 1997.
The Company's net cash used in investing activities was $9.1 million and
$8.4 million during the quarters ended March 31, 1999 and 1998, respectively.
Capital expenditures were $9.4 million and $8.4 million for the quarters ended
March 31, 1999 and 1998, respectively. The Company used these expenditures to
purchase, modernize or upgrade production equipment, maintain facilities and
comply with environmental regulations.
Net cash flows from financing activities were $26.7 million and $337
thousand during the first quarters of 1999 and 1998, respectively.
On January 30, 1996 Century of West Virginia and Berkeley entered into a
bank revolving credit facility ("Facility") with BankAmerica Business Credit,
Inc. ("Bank of
15
<PAGE> 18
America"). The Facility provided for a revolving credit facility that consisted
of borrowings and letters of credit up to $150.0 million in the aggregate. On
March 31, 1999, the Company refinanced the borrowings outstanding and terminated
the Facility.
On February 24, 1999, the Company entered into an agreement with
BankBoston, N.A. and the CIT Group/Business Credit, Inc. ("Bank Agreement") to
provide up to $180.0 million of credit facilities to refinance indebtedness, to
finance certain capital expenditures and for other general corporate purposes.
The borrowing base for purposes of determining availability is based upon
certain eligible inventory and receivables. The credit facilities consist of a
revolving loan of up to $160.0 million and a term loan of $20.0 million. On
March 31, 1999, the Company closed on the revolving loan. The revolving loan is
secured by Century of West Virginia's, Berkeley's and Century Cast Plate's
inventory and receivables. See Note 3 to Consolidated Financial Statements
appearing in Part I, Item 1.
Pursuant to an agreement with the Pension Benefit Guaranty Corporation
("PBGC Agreement"), the Company is required to make scheduled contributions to
its pension plan for hourly employees in 1999. The Company estimates that its
scheduled contribution will be approximately $7.0 million above the minimum
required contribution under Section 412 of the Internal Revenue Code.
The Company believes that cash flows from operations and funds available
under its bank agreements will be sufficient to fund its working capital
requirements, capital expenditures, pension funding and debt service
requirements in the near term and for the foreseeable future.
Environmental Expenditures and Other Contingencies
The Company has incurred and, in the future, will continue to incur
capital expenditures and operating expenses for matters relating to
environmental control, remediation, monitoring and compliance. The aggregate
environmental related accrued liabilities were $1.6 million at March 31, 1999,
and $1.4 million at December 31, 1998. The Company believes that compliance with
current environmental laws and regulations is not likely to have a material
adverse effect on the Company's financial condition, results of operations or
liquidity; however, environmental laws and regulations have changed rapidly in
recent years and the Company may become subject to more stringent environmental
laws and regulations in the future. In addition, the Company may be required to
conduct remediation activities in the future pursuant to various orders issued
by the EPA and West Virginia Department of Environmental Protection. There can
be no assurance that compliance with more stringent environmental laws and
regulations that may be enacted in the future, or future remediation costs,
would not have a material adverse effect on the Company's financial condition,
results of operations or liquidity.
The Company is a defendant in several actions relating to various aspects
of its business. While it is impossible to predict the ultimate disposition of
any litigation, the Company does not believe that any of these lawsuits, either
individually or in the
16
<PAGE> 19
aggregate, will have a material adverse effect on the Company's financial
condition, results of operations or liquidity.
See Note 5 to Consolidated Financial Statements appearing in Part I, Item
1.
Year 2000 Compliance Program
The Company began its Year 2000 program in September 1996, using funds
from its annual information services budget. In August 1997, the Board of
Directors approved $8.7 million of funding for this program and for installation
of new systems. At the same time, the Company allocated approximately 30 people
(from both inside and outside resources) to the effort. To date, the Company has
incurred $5.6 million in total costs relating to Year 2000 compliance, which is
approximately 50% of the Company's total information technology budget for the
period (including the August 1997 authorization). The Company estimates total
Year 2000 compliance costs will be about $6.0 million. Century has not had to
defer any of its information technology projects due to its Year 2000 compliance
efforts.
The Company's inventory of potentially affected systems (both information
technology and non-information technology) is 99% complete. Major systems have
been determined to be Year 2000 compliant. Each of the Company's business units
has a Year 2000 compliance plan in place, establishing timetables, staff and
responsibilities. Each of the Company's business units conducted its own
inventory, identified its mission-critical systems and is upgrading or replacing
those systems that were not Year 2000 compliant.
Each business unit reports the results of its Year 2000 program quarterly
to a corporate steering committee. This central coordination allows the Company
to evaluate and, if necessary, remedy common applications or software only once,
reducing costs. The Company expects to complete all software and hardware
testing and implementation by the end of the second quarter of 1999.
The Company expects to formulate its Year 2000 contingency plan at the end
of the second quarter of 1999, once the Company has completed its final
remediation testing and implementation. The primary goal is to ensure that the
Company can continue to produce and invoice for production. The Company's plan
will emphasize uninterrupted production, accounting, staffing and delivery, as
well as address potential banking, raw material supply and utility failures.
While the Company has not detailed its contingency plans, it is developing an
emergency response team for each business unit to be on hand for the turn of the
millennium. Each team will be made up of senior staff and an information systems
representative. Each unit site will be equipped with satellite telephones to
insure communications in the event of a telephone outage. All locations will
thus be able to report problems.
The Company has sent questionnaires to 349 selected vendors and suppliers,
inquiring as to their Year 2000 readiness. To date, the Company has received
responses to 99% of the questionnaires from those vendors and suppliers. If
vendors and suppliers
17
<PAGE> 20
do not respond, or there is evidence of noncompliance, the Company contacts
those vendors and suppliers directly for more detailed information. The Company
intends to have its key vendor and supplier review complete in the second
quarter of 1999. In addition to the foregoing, the Company has visited critical
vendors in order to conduct in person reviews of their Year 2000 readiness
preparations. A six page audit form questionnaire is sent to these vendors in
advance of the meetings and is used as a form for discussions with these
critical vendors. If the Company concludes that any of its material vendors or
suppliers are not Year 2000 compliant, the Company will identify alternative
sources for their products and services as part of its contingency plan, to the
extent possible. The Company has, for example, conducted such an interview with
its electrical supplier, since a disruption in electricity could result in a
shut down of the facilities. That visit involved a review of the preparations
being made by the Company's electrical supplier.
To date, the Company has received no indication that any third party
supplier or vendor may not have accurately assessed their state of readiness or
that they may have a Year 2000 problem which may have a material adverse affect
on the Company's results of operations. However, the risk remains that those
vendors and suppliers may not have accurately assessed their state of readiness.
The contingency plan which will be developed at the end of the second quarter
will address, where feasible, solutions to those identifiable risks.
New Accounting Standards
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities." SFAS No.
133 modifies the accounting for derivative and hedging activities and is
effective for fiscal years beginning after June 1999. The Company is currently
evaluating the potential impact SFAS No. 133 will have on its results of
operations and financial position.
18
<PAGE> 21
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Commodity Prices
Century produces primary aluminum products and manufactures aluminum sheet
and plate products. The Company's earnings are exposed to aluminum price
fluctuations. The Company manages this risk through the issuance of fixed price
commitments and financial instruments. The Company does not engage in trading or
speculative transactions. Although the Company has not materially participated
in the purchase of call options, in cases where Century sells forward primary
aluminum, it may purchase call options to preserve the benefit from price
increases significantly above forward sales prices. In addition, it may purchase
put options to protect itself from price decreases.
The Company had fixed price commitments to sell 516.1 million pounds of
primary, scrap aluminum and sheet and plate products at March 31, 1999. The
Company had fixed price commitments to purchase 182.2 million pounds of aluminum
and alloy raw materials at March 31, 1999. In addition, the Company has a
long-term supply agreement for 936.0 million pounds of alumina annually;
whereby, the Company will pay a fixed price for alumina with annual price
increases of approximately 2.5% through 2001.
At March 31, 1999, the Company had entered into 16.3 million pounds of
forward primary aluminum purchase contracts, primarily with the Glencore Group,
to mitigate the risk of commodity price fluctuations inherent in a portion of
its anticipated future sales of aluminum sheet and plate products. At March 31,
1999, the Company had also entered into 65.6 million pounds of forward primary
aluminum sales contracts with the Glencore Group to mitigate the risk of
commodity price fluctuations inherent in a portion of its inventory and fixed
price purchase commitments. These contracts will be settled in cash at various
dates in 1999. Based on market prices at March 31, 1999, these financial
instruments could be settled by the Company receiving approximately $3.2
million. The actual settlement will be based on market prices at the respective
settlement dates.
A hypothetical $0.10 per pound increase in the market price of primary
aluminum is estimated to have an unfavorable impact of $4.9 million on net
income for the three months ended March 31, 1999 as a result of the forward
primary aluminum purchase and sale contracts entered into by the Company at
March 31, 1999. The effect of the hypothetical change of $0.10 per pound was
calculated using a parallel shift in the March 31, 1999 forward price curve for
primary aluminum. The price curve takes into account the time value of money, as
well as future expectations regarding the price of primary aluminum. Actual
changes in commodity prices may differ from hypothetical changes. This
quantification of the Company's exposure to the commodity price of aluminum is
necessarily limited, as it does not take into consideration the Company's
inventory or fixed price commitments, or the offsetting impact upon the purchase
price of raw materials and sales price of aluminum products.
19
<PAGE> 22
All gains and losses from forward contract activity are reported
separately in the statements of operations. Unrealized gains or losses on the
forward primary aluminum contracts, realized gains or losses from the cash
settlement of the forward primary aluminum contracts, and reversals of prior
period unrealized losses are reported as either gains or losses on forward
contracts.
Century monitors its overall position, and its metals risk management
activities are subject to the management, control and direction of senior
management. These activities are regularly reported to the Board of Directors of
Century.
Interest Rates
The Company is exposed to interest rate volatility with regard to its
variable rate revolving term debt of $117.2 million at March 31, 1999. The
primary exposure is movement in the U.S. Treasury rates and LIBOR. A
hypothetical 1% increase in these interest rates would increase annual interest
expense by approximately $1.2 million. Actual changes in interest rates may
differ from hypothetical changes. This analysis does not take into effect other
changes that might occur in the economic environment due to such changes in
short term interest rates.
20
<PAGE> 23
Part II. OTHER INFORMATION
Item 1. Legal Proceedings - None.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 3.2 - Amended and Restated Bylaws of Century Aluminum Company,
dated March 5, 1999.
Exhibit 10.1 - Revolving Credit and Term Loan Agreement among Century
Aluminum Company, Century Aluminum of West Virginia, Inc., Berkeley
Aluminum, Inc., and Century Cast Plate, Inc., as Borrowers, various
lending institutions, as lenders, BankBoston, N.A., as Agent, The CIT
Group/Business Credit, Inc., as Co-Agent, and BancBoston Robertson
Stephens Inc., as Arranger, dated as of March 31, 1999.
Exhibit 10.2 - Employment Agreement between Century Aluminum Company and
Craig A. Davis.
Exhibit 10.3 - Employment Agreement between Century Aluminum Company and
Gerald A. Meyers.
Exhibit 10.4 - Employment Agreement between Century Aluminum Company and
Gerald J. Kitchen.
Exhibit 10.5- Employment Agreement between Century Aluminum Company and
David W. Beckley.
Exhibit 10.6 - Amendment to Severance Protection Agreement between Century
Aluminum Company and Craig A. Davis.
Exhibit 10.7 - Amendment to Severance Protection Agreement between Century
Aluminum Company and Gerald A. Meyers.
Exhibit 10.8 - Amendment to Severance Protection Agreement between Century
Aluminum Company and Gerald J. Kitchen.
Exhibit 10.9 - Amendment to Severance Protection Agreement between Century
Aluminum Company and David W. Beckley.
Exhibit 27.0 - Financial Data Schedule
(b) Reports on Form 8-K
The Company filed no reports on Form 8-K during the quarter ended March
31, 1999.
21
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Century Aluminum Company
Date: May 14, 1999 By: /s/ Craig A. Davis
------------------- ------------------------------------------------
Craig A. Davis
Chairman/Chief Executive Officer
Date: May 14, 1999 By: /s/ David W. Beckley
------------------- ------------------------------------------------
David W. Beckley
Executive Vice-President/Chief Financial Officer
22
<PAGE> 25
Exhibit Index
Exhibit
Number Description
- ------------ ---------------------------------------------------------------
3.2 Amended and Restated Bylaws of Century Aluminum Company, dated
March 5, 1999.
10.1 Revolving Credit and Term Loan Agreement among Century
Aluminum Company, Century Aluminum of West Virginia, Inc.,
Berkeley Aluminum, Inc., and Century Cast Plate, Inc., as
Borrowers, various lending institutions, as lenders,
BankBoston, N.A., as Agent, The CIT Group/Business Credit,
Inc., as Co-Agent, and BancBoston Robertson Stephens Inc., as
Arranger, dated as of March 31, 1999.
10.2 Employment Agreement between Century Aluminum Company and
Craig A. Davis.
10.3 Employment Agreement between Century Aluminum Company and
Gerald A. Meyers.
10.4 Employment Agreement between Century Aluminum Company and
Gerald J. Kitchen.
10.5 Employment Agreement between Century Aluminum Company and
David W. Beckley.
10.6 Amendment to Severance Protection Agreement between Century
Aluminum Company and Craig A. Davis.
10.7 Amendment to Severance Protection Agreement between Century
Aluminum Company and Gerald A. Meyers.
10.8 Amendment to Severance Protection Agreement between Century
Aluminum Company and Gerald J. Kitchen.
10.9 Amendment to Severance Protection Agreement between Century
Aluminum Company and David W. Beckley.
23
<PAGE> 26
27.0 Financial Data Schedule
24
<PAGE> 1
AMENDED AND RESTATED
BY-LAWS
of
CENTURY ALUMINUM COMPANY
(As Amended on March 5, 1999)
Offices
1. The corporation may have offices at such places within or without
the State of Delaware as the board of directors may from time to time determine
or as the business of the corporation may require.
<PAGE> 2
Stockholders' Meetings
Place of all meetings. All meetings of stockholders shall be held at such place
or places in or outside the State of Delaware as the board of directors may from
time to time determine or as may be designated in the notice of meeting or
waiver of notice thereof, subject to any provisions of the laws of Delaware.
Annual meeting of stockholders. The annual meeting of stockholders shall be held
each year on such date, and at such time as shall be fixed by the board of
directors. Written notice of the time and place of the annual meeting shall be
given by mail to each stockholder entitled to vote at least ten days prior to
the date thereof, unless waived as provided by Article IX of these Bylaws.
Notice of Stockholder Proposals. 61. At an annual meeting of stockholders, only
such business shall be conducted, and only such proposals shall be acted upon,
as shall have been brought before the annual meeting (i) by, or at the direction
of, the board of directors or (ii) by any stockholder who complies with the
notice procedures set forth in this Section of the Bylaws. For a proposal to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary, and such proposal
must be a proper matter for stockholder action under the Delaware General
Corporation Law and a proper matter for consideration at such meeting under the
Certificate of Incorporation and these By-laws. To be timely, a stockholder's
notice must be delivered to, or mailed and received at, the principal executive
offices of the corporation not less than forty-five (45) days prior to the date
on which the corporation first mailed its proxy materials for the prior year's
annual meeting of stockholders. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the proposal desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the corporation's books,
of the stockholder proposing such business, (iii) the class and number of shares
which are beneficially owned by the stockholder on the date of such stockholder
notice and (iv) any material interest of the stockholder in such proposal.
If the presiding officer of the annual meeting determines that a stockholder
proposal was not made in accordance with the terms of this Section, he shall so
declare at the annual meeting and any such proposal shall not be acted upon at
the annual meeting. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the board of directors, but, in connection with such reports,
no business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
Special meetings of stockholders. Special meetings of stockholders may be called
at any time by order of the board of directors or the executive committee only.
Notice of all such meetings of the stockholders, stating the time, place, and
the purposes thereof shall be given by mail as soon as possible to each
stockholder entitled to vote thereat at his address as it appears on the records
of the corporation not less than the minimum nor more than the maximum number of
days prior to the scheduled date thereof permitted under the laws of Delaware,
unless such notice is waived as provided in Article IX of these Bylaws.
<PAGE> 3
Stockholders are not permitted to submit additional matters or proposals for
consideration at any special meeting.
Voting at stockholders' meetings. Except as otherwise provided by the laws of
the State of Delaware or the Restated Certificate of Incorporation or any
amendment thereto, at all meetings of the stockholders, each stockholder shall
be entitled to one vote for each share of Stock registered in his or her name on
the books of the corporation on the record date fixed for the determination of
stockholders entitled to vote at the meeting pursuant to Article VI or, if not
so determined, as prescribed under the laws of Delaware.
Quorum at stockholders' meetings. At any stockholders' meeting, a majority of
the combined voting power of the issued and outstanding shares of Stock entitled
to vote thereat represented in person or by proxy shall constitute a quorum,
except as otherwise provided by the laws of the State of Delaware or by the
Restated Certificate of Incorporation. In the absence of a quorum at any
meeting, or any adjourned session thereof, the stockholders of the corporation
represented in person or by proxy and entitled to vote, by a majority vote, or,
if no stockholders are present, any officer entitled to preside or act at the
meeting, may adjourn any meeting from time to time, and the meeting may be held
as adjourned without further notice. When a quorum is present at any meeting, a
majority in interest of the combined voting power of the issued and outstanding
shares of Stock entitled to vote represented thereat shall decide any question
brought before such meeting unless the question is one upon which, by express
provision of law or of the Restated Certificate of Incorporation or of these
Bylaws, a different vote is required, in which case such express provision shall
govern.
List of stockholders to be filed, etc. At least ten days before every election
of directors, a complete list of the stockholders entitled to vote at the
election, arranged in alphabetical order, shall be prepared by the secretary.
Such list shall be open at the place where such election is to be held for ten
days, subject to examination by any stockholder, and shall be produced and kept
at the time and place of election during the whole time thereof and subject to
the inspection of any stockholder who may be present. Upon the willful neglect
or refusal of the directors to produce such a list at any election, they shall
be ineligible to any office at such election. The original or duplicate stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of this corporation or to vote in person or by
proxy at such election.
Board of Directors
Number and qualification. Directors shall be elected at each annual meeting of
stockholders, or at a special meeting held in lieu thereof as above provided,
who shall serve until the election and qualification of their respective
successors or until their earlier resignation or removal as provided in the
Restated Certificate of Incorporation and these Bylaws. The number of directors
shall be fixed from time to time exclusively pursuant to a resolution adopted by
a majority of the board of directors but in no event shall such number be less
than three (3) or more than nine (9). In case of any increase in the number of
directors between elections by the stockholders, the additional directorships
shall be considered vacancies and shall be filled in the manner prescribed in
Article V of these Bylaws. Directors need not be stockholders.
<PAGE> 4
Powers of directors. The business and affairs of the corporation shall be
carried on by or under the direction of the board of directors, which shall have
all the powers authorized by the laws of Delaware, subject to such limitations
as may be provided by the Restated Certificate of Incorporation or these Bylaws.
Compensation of directors. The board of directors may from time to time by
resolution authorize the payment of fees or compensation to the directors for
services as such to the corporation, including, but not limited to, fees and
traveling expenses for attendance at all meetings of the board or of the
executive or other committees, and determine the amount of such fees and
compensation. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
Directors' meetings. Meetings of the board of directors may be held either
within or outside the State of Delaware. A quorum shall be at least one-half of
the number of directors, but not less than two directors. Except as otherwise
provided in the laws of the State of Delaware, the Restated Certificate of
Incorporation or these Bylaws, the affirmative vote of a majority of the
directors present at any meeting in which a quorum is present shall be required
for the taking of any action by the board of directors.
The board of directors elected at any stockholders' meeting shall at the close
of that meeting, without further notice if a quorum of directors be then
present, or as soon thereafter as may be convenient, hold a meeting for the
election of officers and the transaction of any other business. At such meeting
they shall elect a president, one or more vice presidents, a secretary and a
treasurer, and such other officers as they may deem proper, none of whom need be
members of the board of directors.
The board of directors may from time to time provide for the holding of regular
meetings with or without notice and may fix the times and places at which such
meetings are to be held. Meetings other than regular meetings may be called at
any time by the president and must be called by the president or by the
secretary or an assistant secretary upon the written request of any director.
Notice of each meeting, other than a regular meeting (unless required by the
board of directors), shall be given to each director by mailing the same to each
director at his residence or business address at least two days before the
meeting or by delivering the same to him personally or by telephone or telegraph
to him at least one day before the meeting unless, in case of exigency, the
president or secretary shall prescribe a shorter notice to be given personally
or by telephone, telegraph, telefax, cable or wireless to all or any one or more
of the directors at their respective residences or places of business.
Notice of all meetings shall state the time and place of such meeting, but need
not state the purposes thereof unless otherwise required by statute, the
Restated Certificate of Incorporation, the Bylaws, or the board of directors.
Executive committee. The board of directors may by resolution passed by a
majority of the whole board provide for an executive committee of two or more
directors and shall elect the members thereof to serve during the pleasure of
the board and may designate one of such members to act as chairman. The board
may at any time change the membership of
<PAGE> 5
the committee, fill vacancies in it, designate alternate members to replace any
absent or disqualified members at any meeting of the committee, or dissolve it.
During the intervals between the meetings of the board of directors, the
executive committee shall possess and may exercise any or all of the powers of
the board of directors in the management of the business and affairs of the
corporation to the extent authorized by resolution adopted by a majority of the
entire board of directors, subject to such limitations as may be imposed by the
laws of Delaware.
The executive committee may determine its rules of procedure and the notice to
be given of its meetings, and it may appoint such committees and assistants as
it shall from time to time deem necessary. A majority of the members of the
committee shall constitute a quorum.
Other committees. The board of directors by resolution may provide for such
other standing or special committees as it deems desirable and may discontinue
the same at its pleasure. Each such committee shall have the powers and perform
such duties, not inconsistent with law, as may be assigned to it by the board of
directors.
Notice of Nominations. At any annual meeting of stockholders, only
persons who are nominated in accordance with the procedures set forth in the
Bylaws shall be eligible to serve as directors. Nominations of persons for
election to the board of directors may be made at a meeting of stockholders (a)
by or at the direction of the board of directors or (b) by any stockholder who
is a stockholder of record at the time of giving of notice provided for in this
Section, who shall be entitled to vote for the election of directors at the
meeting and who complies with the notice procedures set forth in this Section.
Such nominations, other than those made by or at the direction of the board of
directors, shall be made pursuant to timely notice in writing to the Secretary.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not less than
forty-five (45) days prior to the date on which the corporation first mailed its
proxy materials for the prior year's annual meeting of stockholders. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
corporation's books, of such stockholder to be supporting such nomination and
(ii) the class and number of shares which are beneficially owned by such
stockholder. At the request of the board of directors, any person nominated to
the board of directors for election as a director shall furnish to the Secretary
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible to serve
as a director unless nominated in accordance with the procedures set forth in
this Bylaw. The chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed in the Bylaws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section, a stockholder shall
also comply with all applicable requirements of the Securities Exchange
<PAGE> 6
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section.
Chairman of the Board. The Chairman of the Board (hereinafter sometimes called
the "Chairman") if appointed by the board of directors, when present shall
preside at all meetings of the stockholders, the board of directors and the
Executive Committee. The Chairman shall perform such other duties as the board
of directors or Executive Committee may prescribe from time to time.
Action without meetings. Any action required or permitted to be taken at any
meeting of the board of directors or any committee thereof may be taken without
a meeting if all members of the board of directors or committee, as the case may
be, consent thereto in writing and the writing is filed with the minutes of the
proceedings of the board of directors or such committee.
Officers
Titles and election. The officers of this corporation shall be a president, one
or more vice presidents, a secretary and a treasurer who shall be elected at the
annual meeting of the board of directors and who shall hold office at the
pleasure of the board, except as may otherwise be approved by the board or
executive committee, or until his earlier resignation, removal or other
termination of employment. Any person may hold more than one office if the
duties thereof can be consistently performed by the same person, and to the
extent permitted by law.
The board of directors, in its discretion, may at any time elect or appoint a
chairman of the board of directors, who shall be a director, and one or more
vice presidents, assistant secretaries and assistant treasurers and such other
officers or agents as it may deem advisable, all of whom shall hold office at
the pleasure of the board, except as may otherwise be approved by the board or
executive committee, or until his earlier resignation, removal or other
termination of employment, and shall have such authority and shall perform such
duties as may be prescribed or determined from time to time by the board.
The board of directors may require any officer, agent or employee to give bond
for the faithful performance of his duties in such form and with such sureties
as the board may require.
<PAGE> 7
Duties. Subject to such extension, limitations, and other provisions as the
board of directors or the Bylaws may from time to time prescribe, the following
officers shall have the following powers and duties:
President. The president shall be the chief executive officer of the
corporation, shall exercise the powers and authority and perform all of the
duties commonly incident to his office, shall in the absence of the Chairman
preside at all meetings of the stockholders and of the board of directors if he
is a director, and shall perform such other duties as the board of directors or
executive committee shall specify from time to time. The president or a vice
president, unless some other person is thereunto specifically authorized by the
board of directors or executive committee, shall sign all bonds, debentures,
promissory notes, deeds and contracts of the corporation. The same individual
may be elected or appointed Chairman of the Board and president.
Vice President. The vice president or vice presidents shall perform such duties
as may be assigned to them by the board of directors and, in the absence or
disability of the president, unless otherwise determined by the board, the vice
presidents in order of seniority shall exercise all powers and duties pertaining
to the office of president.
Secretary. The secretary shall keep the minutes of all meetings of stockholders
and of the board of directors, give and serve all notices, attend to such
correspondence as may be assigned to him, keep in safe custody the seal of the
corporation, and affix such seal to all such instruments properly executed as
may require it, and shall have such other duties and powers as the board of
directors shall prescribe from time to time.
Treasurer. The treasurer, subject to the order of the board of directors, shall
have the care and custody of the moneys, funds, valuable papers and documents of
the corporation (other than his own bond, if any, which shall be in the custody
of the president), and shall have and exercise, under the supervision of the
board of directors, all the powers and duties commonly incident to his office.
He shall deposit all funds of the corporation in such bank or banks, trust
company or trust companies, or with such firm or firms doing a banking business
as the board of directors shall designate. He may endorse for deposit or
collection all checks, notes, etc. payable to the corporation or to its order.
He shall keep accurate books of account of the corporation's transactions, which
shall be the property of the corporation, and, together with all its property in
his possession, shall be subject at all times to the inspection and control of
the board of directors. The treasurer shall be subject in every way to the order
of the board of directors, and shall render to the board of directors and/or the
president of the corporation, whenever they may require it, an account of all
his transactions and of the financial condition of the corporation.
Delegation of authority. The board of directors or the Executive Committee may
at any time delegate the powers and duties of any officer for the time being to
any other officer, director or employee.
Salaries. The compensation of the Chairman of the Board, the president, all vice
presidents, the secretary and the treasurer shall be fixed by the board of
directors or the executive committee, and the fact that any officer is a
director shall not preclude him from receiving compensation or from voting upon
the resolution providing the same.
<PAGE> 8
Resignations, Removals and Vacancies
Resignations. Any director, officer, or agent may resign at any time by giving
written notice thereof to the board of directors, the president, or the
secretary. Any such resignation shall take effect at the time specified therein
or, if the time be not specified, upon receipt thereof; and unless otherwise
specified therein, the acceptance of any resignation shall not be necessary to
make it effective.
Removals. 62. Directors. Except as may otherwise be prohibited or restricted
under the laws of Delaware, the Restated Certificate of Incorporation or these
Bylaws, the stockholders may remove any director from office, but only for cause
and only by the affirmative vote of the holders of at least sixty-six and two
thirds percent (66-2/3%) of the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors.
Officers. Subject to the provisions of any validly existing agreement, the board
of directors may at any meeting remove from office any officer, with or without
cause, and may elect or appoint a successor; provided that if action is to be
taken to remove the president, the notice of meeting or waiver of notice thereof
shall state that one of the purposes thereof is to consider and take action on
his removal.
Vacancies. 63. Directors. When the office of any director becomes vacant or
unfilled whether by reason of death, resignation, removal, increase in the
authorized number of directors or otherwise, such vacancy or vacancies may be
filled by a majority of the remaining director or directors, although less than
a quorum. Any director so elected by the board shall serve until the election
and qualification of his successor or until his earlier resignation or removal
as provided in these Bylaws. The directors may also reduce their authorized
number by the number of vacancies in the board, provided such reduction does not
reduce the board to less than the minimum authorized by the Restated Certificate
of Incorporation, these Bylaws or the laws of the State of Delaware.
Officers. The board of directors may at any time or from time to time fill any
vacancy among the officers of the corporation.
Capita1 Stock
Certificates of stock. Every stockholder shall be entitled to a certificate or
certificates for shares of the capital stock of the corporation in such form as
may be prescribed by the board of directors, duly numbered and setting forth the
number and kind of shares represented thereby. Such certificates shall be signed
by the Chairman, the president or a vice president and by the treasurer or an
assistant treasurer or by the secretary or an assistant secretary. Any of such
signatures and the corporate seal affixed to any stock certificate may be in
facsimile.
In case any officer who has signed, or whose facsimile signature has been used
on a certificate, has ceased to be an officer before the certificate has been
delivered, such certificate may nevertheless be adopted and issued and delivered
by the corporation, or its transfer agent, as though the officer who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon, had not ceased to be such officer of the corporation.
Transfer of stock. Shares of the capital stock of the corporation shall be
transferable only upon the books of the corporation by the holder in person or
by an attorney duly authorized and upon the surrender of the certificate or
certificates properly assigned and endorsed. If the corporation has a transfer
agent or agents or a transfer clerk and a
<PAGE> 9
registrar of transfers acting on its behalf, the signature of any officer or
representative thereof may be in facsimile.
The board of directors may appoint a transfer agent and one or more co-transfer
agents and a registrar of transfer and may make all such rules and regulations
as it deems expedient concerning the issue, transfer and registration of shares
of stock. The transfer books shall be closed for such a period as the board
shall direct previous to and on the day of the annual or any special meeting of
the stockholders and may also be closed by the board for such period as may be
advisable for dividend purposes, and during such time no stock shall be
transferable.
Record dates. 64. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix in advance a record date
which, in the case of a meeting, shall be not less than the minimum nor more
than the maximum number of days prior to the scheduled date of such meeting
permitted under the laws of Delaware and which, in the case of any other action,
shall be not more than the maximum number of days prior to any such action
permitted by the laws of Delaware. If no such record date is fixed by the board,
the record date shall be that prescribed by the laws of Delaware.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Lost certificates. In case of loss or mutilation or destruction of a certificate
of stock of this corporation, a duplicate certificate may be issued upon such
terms as may be determined or authorized by the board of directors or executive
committee or by the president if the board or the executive committee does not
do so.
Fiscal Year, Bank Deposits, Checks, etc.
Fiscal Year. The fiscal year of the corporation shall commence or end at such
time as the board of directors may designate.
Bank deposits, checks, etc. The funds of the corporation shall be deposited in
the name of the corporation or of any division thereof in such banks or trust
companies in the United States or elsewhere as may be designated from time to
time by the board of directors or executive committee, or by such officer or
officers as the board or executive committee may authorize to make such
designations.
All checks, drafts or other orders for the withdrawal of funds from any bank
account shall be signed by such person or persons as may be designated from time
to time by the board of directors or executive committee or as may be designated
by an officer or officers authorized by the board of directors or executive
committee to make such designations. The signatures on checks, drafts or other
orders for the withdrawal of funds may be in facsimile if authorized in the
designation.
<PAGE> 10
Books and Records
Place of keeping books. Unless otherwise expressly required by the laws of
Delaware, the books and records of this corporation may be kept outside of the
State of Delaware at such place or places as may be designated from time to time
by the board of directors.
Examination of books. Except as otherwise provided in the Restated Certificate
of Incorporation or in these Bylaws, the board of directors shall have power to
determine from time to time whether and to what extent and at what times and
places and under what conditions and regulations the accounts, records and books
of this corporation, or any of them, shall be open to the inspection of the
stockholders, and no stockholder shall have any right to inspect any account or
book or document of this corporation except as prescribed by statute or
authorized by express resolution of the stockholders or of the board of
directors.
Notices
Requirements of notice. Whenever notice is required to be given by statute or by
these Bylaws, it shall not mean personal notice unless so specified, but such
notice may be given in writing by depositing the same in a post office or letter
box, postpaid and addressed to the person to whom such notice is directed at the
address of such person on the records of the corporation, and such notice shall
be deemed given at the time when the same shall be thus mailed.
Waivers. Any stockholder, director or officer may, in writing or by telegram or
cable, at any time waive any notice or other formality required by statute or
these Bylaws. Such waiver of notice, whether given before or after any meeting,
shall be deemed equivalent to notice. Presence of a stockholder either in person
or by proxy at any stockholders' meeting and presence of any director at any
meeting of the board of directors shall constitute a waiver of such notice as
may be required by any statute or these Bylaws.
Seal
The corporate seal of the corporation shall consist of two concentric circles
between which shall be the name of the corporation and in the center of which
shall be inscribed "Corporate Seal, Delaware."
Powers of Attorney
The board of directors may authorize one or more of the officers of the
corporation to execute powers of attorney delegating to named representatives or
agents power to represent or act on behalf of the corporation, with or without
power of substitution.
In the absence of any action by the board or the executive committee, the
president, any vice president, the secretary or the treasurer of the corporation
may execute for
<PAGE> 11
and on behalf of the corporation waivers of notice of stockholders' meetings and
proxies for such meetings in any company in which the corporation may hold
voting securities.
Indemnification of Directors and Officers
Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment) against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (b) hereof with respect to proceedings seeking to
enforce rights to indemnification, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise.
Right of Claimant to Bring Suit. If a claim under paragraph (a) of this Section
is not paid in full by the corporation within sixty days after a written claim
has been received by the corporation, except in the case of a claim for expenses
incurred in defending a proceeding in advance of its final disposition, in which
case the applicable period shall be twenty days, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any
<PAGE> 12
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation.
Non-Exclusivity of Rights. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Restated Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Insurance. The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation, or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
Amendment or Repeal. Any repeal or modification of the foregoing provisions of
this Article XII shall not adversely affect any right of a director, officer,
employee or agent of the corporation in respect of any act or omission occurring
prior to the time of such repeal or modification.
Amendments
Subject to the provisions of the Restated Certificate of Incorporation, the
Bylaws may be altered, amended or repealed either by the affirmative vote of a
majority of the board of directors at any regular or special meeting of the
board of directors, or by the affirmative vote of the holders of record of at
least sixty-six and two thirds percent (66-2/3%) of the voting power of the
outstanding shares of capital stock of the corporation entitled to vote at an
annual meeting or at any special meeting at which a quorum shall be present,
provided that in each case notice of the proposed change was given in the notice
of the meeting of the board or the stockholders, or the form of consent thereof,
as the case may be.
<PAGE> 1
- --------------------------------------------------------------------------------
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of March 31, 1999
Among
CENTURY ALUMINUM COMPANY
CENTURY ALUMINUM OF WEST VIRGINIA, INC.,
BERKELEY ALUMINUM, INC.,
and
CENTURY CAST PLATE, INC.
as Borrowers
the Lending Institutions listed on Schedule 1 hereto
as Lenders,
BANKBOSTON, N.A.,
as Agent,
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Co-Agent,
and
BANCBOSTON ROBERTSON STEPHENS INC.,
as Arranger
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION.................................1
1.1. Definitions...................................................1
1.2. Rules of Interpretation.......................................23
2. THE REVOLVING CREDIT FACILITY...........................................24
2.1. Commitment to Lend............................................24
2.2. Unused Revolving Credit Commitment Fee........................24
2.3. Reduction of Total Revolving Credit Commitment................24
2.4. The Revolving Credit Notes....................................25
2.5. Interest on Revolving Credit Loans............................25
2.6. Requests for Revolving Credit Loans...........................25
2.6.1. General............................................25
2.6.2. Swing Line.........................................26
2.7. Conversion Options............................................26
2.7.1. Conversion to Different Type of Revolving Credit
Loan...............................................26
2.7.2. Continuation of Type of Revolving Credit Loan......26
2.7.3. Eurodollar Rate Loans..............................27
2.8. Funds for Revolving Credit Loan...............................27
2.8.1. Funding Procedures.................................27
2.8.2. Advances by Agent..................................27
2.9. Change in Borrowing Base......................................27
2.10. Settlements...................................................28
2.10.1. General...........................................28
2.10.2. Failure to Make Funds Available...................28
2.10.3. No Effect on Other Lenders........................29
2.11. Repayments of Revolving Credit Loans Prior to Event of
Default.......................................................29
2.11.1. Credit for Funds Received in Concentration
Account.....................................................29
2.11.2. Application of Payments Prior to Event of
Default.....................................................29
2.12. Repayments of Revolving Credit Loans After Event of Default...30
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.................................30
3.1. Maturity......................................................30
3.2. Mandatory Repayments of Revolving Credit Loans................30
3.3. Optional Repayments of Revolving Credit Loans.................30
4. THE TERM LOAN...........................................................31
4.1. Commitment to Lend............................................31
4.2. The Term Notes................................................31
4.3. Unused Term Loan Commitment Fee...............................31
4.4. Schedule of Installment Payments of Principal of Term
Loan; Certain Mandatory Prepayments..................................31
4.5. Optional Prepayment of Term Loan..............................32
4.6. Interest on Term Loan.........................................32
4.6.1. Interest Rates.....................................32
4.6.2. Notification by Borrowers..........................32
4.6.3. Amounts, etc.......................................33
5. LETTERS OF CREDIT.......................................................33
5.1. Letter of Credit Commitments..................................33
5.1.1. Commitment to Issue Letters of Credit..............33
5.1.2. Letter of Credit Applications......................33
5.1.3. Terms of Letters of Credit.........................33
5.1.4. Reimbursement Obligations of Lenders...............33
5.1.5. Participations of Lenders..........................33
5.2. Reimbursement Obligation of the Borrowers.....................33
<PAGE> 3
-ii-
5.3. Letter of Credit Payments.....................................35
5.4. Obligations Absolute..........................................35
5.5. Reliance by Issuer............................................35
5.6. Letter of Credit Fee..........................................36
6. CERTAIN GENERAL PROVISIONS..............................................36
6.1. Up front Fee..................................................36
6.2. Agent's Fee...................................................36
6.3. Funds for Payments............................................36
6.3.1. Payments to Agent..................................36
6.3.2. No Offset, etc.....................................36
6.4. Computations..................................................36
6.5. Inability to Determine Eurodollar Rate........................37
6.6. Illegality....................................................37
6.7. Additional Costs, etc.........................................37
6.8. Capital Adequacy..............................................38
6.9. Change of Lending Office......................................38
6.10. Certificate...................................................39
6.11. Indemnity.....................................................39
6.12. Interest After Default........................................39
6.12.1. Overdue Amounts...................................39
6.12.2. Amounts Not Overdue...............................39
6.13. No Legal Impediment...........................................39
6.14. Governmental Regulation.......................................39
6.15. Concerning Joint and Several Liability of the Borrowers.......39
6.16. Replacement of Lender.........................................40
7. COLLATERAL SECURITY AND GUARANTIES......................................41
7.1. Security of Borrower..........................................41
7.2. Guaranties and Security of Subsidiaries.......................41
7.3. Release of Collateral.........................................42
8. REPRESENTATIONS AND WARRANTIES..........................................42
8.1. Corporate Authority...........................................43
8.1.1. Incorporation; Good Standing.......................43
8.1.2. Authorization......................................43
8.1.3. Enforceability.....................................43
8.2. Governmental Approvals........................................43
8.3. Title to Properties; Leases...................................43
8.4. Financial Statements and Projections..........................43
8.4.1. Fiscal Year........................................43
8.4.2. Financial Statements...............................43
8.4.3. Projections........................................43
8.5. No Material Changes, etc......................................44
8.6. Franchises, Patents, Copyrights, etc..........................44
8.7. Litigation....................................................44
8.8. No Materially Adverse Contracts, etc..........................44
8.9. Compliance with Other Instruments, Laws, etc..................44
8.10. Tax Status....................................................44
8.11. No Event of Default...........................................44
8.12. Holding Company and Investment Company Acts...................44
8.13. Absence of Financing Statements, etc..........................44
8.14. Perfection of Security Interest...............................44
8.15. Certain Transactions..........................................45
8.16. Employee Benefit Plans........................................45
8.16.1. In General........................................45
8.16.2. Terminability of Welfare Plans....................45
8.16.3. Guaranteed Pension Plans..........................45
<PAGE> 4
-iii-
8.16.4. Multiemployer Plans...............................46
8.17. Use of Proceeds...............................................46
8.17.1. General...........................................46
8.17.2. Regulations U and X...............................46
8.17.3. Ineligible Securities.............................46
8.18. Environmental Compliance......................................46
8.19. Subsidiaries, etc.............................................48
8.20. Bank Accounts.................................................48
8.21. Year 2000 Problem.............................................48
8.22. Chief Executive Office........................................48
8.23. Insurance.....................................................48
8.24. Representations and Warranties in PBGC Documents..............48
8.25. Disclosure....................................................48
9. AFFIRMATIVE COVENANTS OF THE BORROWERS..................................48
9.1. Punctual Payment..............................................49
9.2. Maintenance of Office.........................................49
9.3. Records and Accounts..........................................49
9.4. Financial Statements, Certificates and Information............49
9.5. Notices.......................................................50
9.5.1. Defaults...........................................50
9.5.2. Environmental Events...............................50
9.5.3. Notification of Claim against Collateral...........51
9.5.4. Notices of Litigation and Judgments................51
9.6. Corporate Existence; Maintenance of Properties................51
9.7. Insurance.....................................................51
9.8. Taxes.........................................................51
9.9. Inspection of Properties and Books, etc.......................51
9.9.1. General............................................51
9.9.2. Collateral Reports.................................52
9.9.3. Environmental Assessments..........................52
9.10. Compliance with Laws, Contracts, Licenses, and Permits........52
9.11. Employee Benefit Plans........................................52
9.12. Use of Proceeds...............................................52
9.13. Additional Mortgaged Property.................................52
9.14. Bank Accounts.................................................53
9.14.1. General...........................................53
9.14.2. Acknowledgment of Application.....................53
9.15. Ownership of Subsidiaries.....................................53
9.16. Collateral for Loans..........................................53
9.17. Permitted Acquisitions........................................54
9.18. Interest Rate Protection Arrangements.........................54
9.19. UCC Searches..................................................54
9.20. Environmental Reports, etc....................................54
9.21. Further Assurances............................................54
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.............................54
10.1. Restrictions on Indebtedness..................................54
10.2. Restrictions on Liens.........................................55
10.3. Restrictions on Investments...................................56
10.4. Distributions.................................................57
10.5. Merger, Consolidation and Disposition of Assets...............58
10.5.1. Mergers and Acquisitions..........................58
10.5.2. Disposition of Assets.............................58
10.6. Sale and Leaseback............................................58
10.7. Compliance with Environmental Laws............................58
10.8. Subordinated Debt; PBGC Debt..................................58
<PAGE> 5
-iv-
10.9. Employee Benefit Plans........................................58
10.10. Business Activities...........................................59
10.11. Fiscal Year...................................................59
10.12. Transactions with Affiliates..................................59
10.13. Bank Accounts.................................................59
10.14. Limitations on Operation of Subsidiaries......................59
10.15. Derivative Obligations........................................59
11. FINANCIAL COVENANTS OF THE BORROWER....................................59
11.1. Fixed Charge Coverage Ratio...................................59
11.2. Capital Expenditures..........................................59
11.3. Consolidated Net Worth........................................60
12. REVOLVING CREDIT CLOSING CONDITIONS....................................60
12.1. Proceedings and Loan Documents................................61
12.1.1. Proceedings.......................................61
12.1.2. Loan Documents....................................61
12.1.3. PBGC Documents....................................61
12.2. Certified Copies of Charter Documents.........................61
12.3. Corporate Action..............................................61
12.4. Incumbency Certificate........................................61
12.5. Validity of Liens.............................................61
12.6. Perfection Certificates and UCC Search Results................61
12.7. Certificates of Insurance.....................................61
12.8. Agency Account Agreements.....................................61
12.9. Borrowing Base Report and Borrowing Availability..............61
12.10. Accounts Receivable Aging Report, Etc.........................62
12.11. Solvency Certificate..........................................62
12.12. Litigation....................................................62
12.13. Material Adverse Effect.......................................62
12.14. Opinion of Counsel............................................62
12.15. Payment of Fees...............................................62
12.16. Financial Statements and Projections..........................62
12.17. Payoff Letter.................................................62
12.18. Disbursement Instructions.....................................62
13. TERM LOAN CLOSING CONDITIONS...........................................62
13.1. Loan Documents etc............................................62
13.1.1. Loan Documents....................................62
13.1.2. PBGC Documents....................................62
13.2. Certified Copies of Charter Documents.........................63
13.3. Corporate Action..............................................63
13.4. Incumbency Certificate........................................63
13.5. Validity of Liens.............................................63
13.6. Perfection Certificates and UCC Search Results................63
13.7. Survey and Taxes..............................................63
13.8. Title Insurance...............................................63
13.9. Solvency Certificate..........................................63
13.10. Opinion of Counsel............................................63
13.11. Valuation.....................................................64
14. CONDITIONS TO ALL BORROWINGS...........................................64
14.1. Representations True; No Event of Default.....................64
14.2. Borrowing Base Report.........................................64
14.3. Permitted Acquisitions........................................64
15. EVENTS OF DEFAULT; ACCELERATION; ETC...................................64
15.1. Events of Default and Acceleration............................64
15.2. Termination of Commitments....................................67
15.3. Remedies......................................................67
<PAGE> 6
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15.4. Distribution of Collateral Proceeds...........................67
16. SETOFF.................................................................68
17. THE AGENT..............................................................69
17.1. Authorization.................................................69
17.2. Employees and Agents..........................................69
17.3. No Liability..................................................69
17.4. No Representations............................................69
17.4.1. General...........................................69
17.4.2. Closing Documentation, etc........................70
17.5. Payments......................................................70
17.5.1. Payments to Agent.................................70
17.5.2. Distribution by Agent.............................70
17.5.3. Delinquent Lenders................................70
17.6. Holders of Notes..............................................71
17.7. Indemnity.....................................................71
17.8. Agent as Lender...............................................71
17.9. Resignation...................................................71
17.10. Notification of Defaults and Events of Default; Delivery
of Information; Etc..................................................71
17.11. Duties in the Case of Enforcement.............................72
18. EXPENSES AND INDEMNIFICATION...........................................72
18.1. Expenses......................................................72
18.2. Indemnification...............................................72
18.3. Survival......................................................73
19. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION..........................73
19.1. Sharing of Information with Section 20 Subsidiary.............73
19.2. Confidentiality...............................................73
19.3. Prior Notification............................................74
19.4. Other.........................................................74
20. SURVIVAL OF COVENANTS, ETC.............................................74
21. ASSIGNMENT AND PARTICIPATION...........................................74
21.1. Conditions to Assignment by Lenders...........................74
21.2. Certain Representations and Warranties; Limitations;
Covenants............................................................75
21.3. Register......................................................77
21.4. New Notes.....................................................77
21.5. Participations................................................77
21.6. Disclosure....................................................77
21.7. Assignee or Participant Affiliated with the Borrowers.........77
21.8. Miscellaneous Assignment Provisions...........................78
21.9. Assignment by Borrowers.......................................78
22. NOTICES, ETC...........................................................78
23. GOVERNING LAW..........................................................79
24. HEADINGS...............................................................79
25. COUNTERPARTS...........................................................79
26. ENTIRE AGREEMENT, ETC..................................................79
27. WAIVER OF JURY TRIAL...................................................79
28. CONSENTS, AMENDMENTS, WAIVERS, ETC.....................................80
29. SEVERABILITY...........................................................81
<PAGE> 7
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Schedules and Exhibits
Schedule 1 Commitments; Banks' Offices
Schedule 2 Permitted Inventory Locations; Approved Parties
Schedule 8.3 Title to Properties; Leases
Schedule 8.7 Litigation
Schedule 8.16 Employee Benefit Plans
Schedule 8.18 Environmental
Schedule 8.19 Subsidiaries
Schedule 8.20 Bank Accounts
Schedule 8.22 Chief Executive Offices
Schedule 8.23 Insurance
Schedule 10.1 Permitted Existing Indebtedness
Schedule 10.2 Permitted Existing Liens
Schedule 10.3 Permitted Existing Investments
Exhibit A Form of Borrowing Base Report
Exhibit B Form of Revolving Credit Note
Exhibit C Form of Loan Request
Exhibit D Form of Term Note
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Accession Agreement
Exhibit H Form of Bailee Certificate
<PAGE> 8
REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
This REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of March 31,
1999, by and among (a) CENTURY ALUMINUM COMPANY, a Delaware corporation
("Century Aluminum"), (b) BERKELEY ALUMINUM, INC., a Delaware corporation
("Berkeley"), (c) CENTURY ALUMINUM OF WEST VIRGINIA, INC., a Delaware
corporation ("Century WV"), (d) CENTURY CAST PLATE, INC., a Delaware corporation
("Cast Plate" and, together with Century Aluminum, Berkeley and Century WV, the
"Borrowers" and each individually a "Borrower"), (e) the Lenders (as defined in
ss.1 below), (f) BANKBOSTON, N.A. as Issuing Bank and as Agent (as such terms
are defined in ss.1 below), and (g) THE CIT GROUP/BUSINESS CREDIT, INC., as
Co-Agent (as defined in ss.1 below).
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in
this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Accounts Receivable. All rights of any of the Borrowers to payment for
goods sold or leased in the ordinary course of business and all rights of any of
the Borrowers to payment for services rendered in the ordinary course of
business and all sums of money or other proceeds due thereon pursuant to
transactions with account debtors, except for that portion of the sum of money
or other proceeds due thereon that relate to sales, use or property taxes in
conjunction with such transactions, recorded on books of account in accordance
with GAAP.
Acquisition. Any transaction, or any series of related transactions,
consummated after the Initial Closing Date, in which a Borrower or any
Subsidiary of a Borrower (in one transaction or as the most recent transaction
in a series of transactions) (a) acquires any business or all or substantially
all of the assets of any Person or any division or business unit thereof,
whether through purchase of assets, merger or otherwise, (b) directly or
indirectly acquires control of at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors or (c) directly or indirectly acquires control of a majority ownership
in any partnership or joint venture.
Acquisition Documents. All agreements, documents and instruments executed
and/or delivered in connection with any Acquisition.
Acquisition Collateral. All of the property, rights and interests of the
Borrowers and their Subsidiaries acquired through a Permitted Acquisition.
Affiliate. Any Person that would be considered to be an affiliate of any
Borrower under Rule 144 of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if such Borrower were
issuing securities.
Agency Account Agreement. See ss.9.14.1.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time.
Agent. BankBoston, N.A. acting as administrative, documentation and
collateral agent for the Lenders, and any successor agent appointed pursuant to
ss.17.9.
<PAGE> 9
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Agent's Fee. See ss.6.2.
Agent's Special Counsel. Bingham Dana LLP or such other counsel as may be
approved by the Agent.
Applicable Law. As to any Person, any law (including common law), treaty,
rule or regulation, or any determination of any Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property, or to
which such Person or any of its Property is subject.
Applicable Margin. With respect to any Loan, Revolving Credit Commitment
Fees or Letter of Credit Fee, the applicable percentage set forth in the table
below opposite the Fixed Charge Coverage Ratio set forth therein as of the
relevant date of determination; provided, however, that for the period
commencing on the Initial Closing Date and ending on the date the Lenders
receive the financial statements and certificates required under ss.9.4(b) and
(d) for the fiscal quarter ended March 31, 2000, the Applicable Margin shall be
as set forth opposite Level III below.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Fixed Charge Base Rate Loans Eurodollar Rate Loans Revolving
Level Coverage Ratio ------------------------- -------------------------- Credit
Revolving Revolving Commitment
Credit Loans Term Loan Credit Loans Term Loan Fees
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
I Greater than or 0% 0.25% 1.75% 2.00% 0.375%
equal to 2.0:1.0
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
II Greater than or equal to 0% 0.25% 2.00% 2.25% 0.375%
1.75:1.0 but less than
2.0:1.0
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
III Greater than or equal to 0.25% 0.50% 2.25% 2.50% 0.375%
1.50:1.0 but less than
1.75:1.0
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
IV Less than 1.50:1.0 0.50% 0.75% 2.50% 2.75% 0.50%
- -------------------------------------------------------------------------------------------------------------
</TABLE>
Each change in the Applicable Margin resulting from a change in the Fixed
Charge Coverage Ratio shall be effective with respect to all Loans, Revolving
Credit Commitments and Letters of Credit outstanding on and after the date of
delivery to the Agent of the Compliance Certificate required by ss.9.4(d) (which
shall include attached thereto the financial statements and certificates
required by ss.9.4(a) or (b)) indicating such change until the date immediately
preceding the next delivery of such Compliance Certificate indicating another
such change. Notwithstanding the foregoing, (i) at any time during which the
Borrowers have failed to timely deliver such Compliance Certificate required by
ss.9.4(d) and the financial statements and certificates required by ss.9.4(a) or
(b), or (ii) at any time after the occurrence and during the continuance of an
Event of Default, the Fixed Charge Coverage Ratio shall be deemed to be in Level
IV for purposes of determining the Applicable Margin.
Approval. With respect to any of the Borrowers and any of their
Subsidiaries, each and every approval, consent, filing or registration by or
with any Governmental Authority, or any creditor or shareholder of such Borrower
or any of its Subsidiaries, necessary to authorize or permit the execution,
delivery and performance by such Borrower or such Subsidiary of any of the Loan
Documents to which it is a party, and to ensure the validity and enforceability
of such Loan Documents.
<PAGE> 10
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Approved Party. A consignee or bailee listed on Schedule 2 (as such
Schedule 2 may be supplemented from time to time with the consent of the Agent)
(a) from whom the Agent has received (i) a bailee letter substantially in the
form of Exhibit H hereto (a "Bailee Certificate") in connection with such
consignee's or bailee's possession of inventory of a Borrower, (ii) financing
statements in form and substance satisfactory to the Agent executed and
delivered by such Borrower as secured party/bailor and such possessor of such
inventory as debtor/bailee, for filing in the appropriate jurisdictions, (iii)
an assignment in form and substance satisfactory to the Agent by such secured
party/bailor to the Agent of the aforementioned financing statements, (b)
located in a jurisdiction in which appropriate Uniform Commercial Code financing
statements showing the applicable Borrower as debtor and the Agent as secured
party have been filed in the proper filing office or offices in order to perfect
the Agent's security interest therein in the Borrower's inventory in the
possession of such consignee or bailee, and (c) whose secured creditors have
received notice from the Agent, on behalf of the applicable Borrower, as to such
Borrower's interest in inventory owned by such Borrower and which is in the
possession of such consignee or bailee. Notwithstanding the inventory
eligibility requirements contained in the definition of "Eligible Inventory",
during the thirty (30) day period from and after the Initial Closing Date, (i)
any Bailee Certificate from any party in possession of inventory of the
Borrowers and (ii) any requirement of clause (a)(iii) and clause (c) hereof
which would be otherwise necessary in order that such inventory would constitute
"Eligible Inventory" shall not be required so long as the Agent shall have
otherwise perfected the Agent's security interest therein by filing in the
proper filing office or offices appropriate Uniform Commercial Code financing
statements showing such Borrower as debtor and the Agent as secured party.
Approved Shipper. A shipper (a) from whom the Agent has received a Bailee
Certificate in connection with such shipper's possession of inventory of a
Borrower (b) which transports such inventory through jurisdictions in which
appropriate Uniform Commercial Code financing statements showing the applicable
Borrower as debtor and the Agent as secured party have been filed in the proper
filing office or offices in order to perfect the Agent's security interest
therein in the Borrower's inventory in the possession of such shipper, and (c)
whose secured creditors have received notice from the Agent, on behalf of the
applicable Borrower, as to such Borrower's interest in inventory owned by such
Borrower and which is in the possession of such shipper. Notwithstanding the
inventory eligibility requirements contained in the definition of "Eligible
Inventory", during the thirty (30) day period from and after the Initial Closing
Date, (i) any Bailee Certificate from any shipper in possession of inventory of
the Borrowers and (ii) any requirement of clause (c) hereof which would be
otherwise necessary in order that such inventory would constitute "Eligible
Inventory" shall not be required so long as the Agent shall have otherwise
perfected the Agent's security interest therein by filing in the proper filing
office or offices appropriate Uniform Commercial Code financing statements
showing such Borrower as debtor and the Agent as secured party.
Arranger. BancBoston Robertson Stephens Inc., a Massachusetts corporation.
Assignment and Acceptance. See ss.21.1.
Authorized Officer. With respect to each Borrower or Subsidiary of a
Borrower, any of the president, chief executive officer, chief financial officer
or treasurer of such Borrower or such Subsidiary to the extent that such officer
is duly authorized by the respective Borrower or Subsidiary to sign, in the name
and on behalf of such Borrower or Subsidiary, the Loan Documents, and all
documents, instruments, certificates and other agreements contemplated in any
Loan Document, and to give notice and to take such other actions on behalf of
such Borrower or such Subsidiary under the Loan Documents.
Balance Sheet Date. December 31, 1998.
<PAGE> 11
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Bailee Certificate. As defined in the definition of "Approved Party".
Bank of America. BankAmerica Business Credit, Inc.
Base Rate. The higher of (i) the annual rate of interest publicly
announced from time to time by BKB at its head office in Boston, Massachusetts,
as its "base rate" and (ii) one-half of one percent (1/2%) above the Federal
Funds Effective Rate. For the purposes of this definition, "Federal Funds
Effective Rate" shall mean for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three funds brokers of
recognized standing selected by the Agent.
Base Rate Loans. Revolving Credit Loans and all or any portion of the Term
Loan bearing interest calculated by reference to the Base Rate.
Berkeley. As defined in the preamble.
BKB. BankBoston, N.A., a national banking association, in its individual
capacity.
BKB Concentration Account. See ss.9.14.1.
Borrowers. As defined in the preamble hereto.
Borrowing Availability. At any time, (a) the lesser of (i) the Borrowing
Base and (ii) the Total Revolving Credit Commitment, minus (b) the aggregate of
(i) the Letter of Credit Exposure and (ii) outstanding Revolving Credit Loans
(after giving effect to all amounts requested) as of the date of determination.
Borrowing Base. At the relevant time of reference thereto, an amount
determined by the Agent by reference to the most recent Borrowing Base Report,
which is equal to the sum of:
(a) (i) 85.00% of Eligible Accounts Receivable (from account debtors
other than Glencore) for which invoices have been issued and are payable
and (ii) the lesser of (i) 85.00% of Eligible Accounts Receivable from
Glencore for which invoices have been issued and are payable and (ii)
$10,000,000; plus
(b) the lesser of (i) 60.00% of the net book value of Eligible
Inventory determined on a first-in first-out basis and at lower of cost or
market in conformity with GAAP and (ii) $90,000,000; minus
(c) the Minimum Reserve Amount; plus;
(d) the Discretionary Amount;
as adjusted by the Agent in accordance with ss.2.9.
No assets (i) of Cast Plate or (ii) which are acquired in an Acquisition after
the Initial Closing Date (including after-acquired property of the type acquired
in any such Acquisition) shall be included in the Borrowing Base unless and
until a commercial finance examination acceptable to the Agent has been
<PAGE> 12
-5-
delivered to the Co-Agents and the Agent has made such adjustments to advance
rates criteria for Eligible Accounts Receivable, Eligible Inventory and Reserves
as the Agent determines appropriate in its reasonable discretion.
Borrowing Base Report. A Borrowing Base Report signed by an Authorized
Officer of Century Aluminum and in substantially the form of Exhibit A hereto.
Breakage Costs. See ss.6.11.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York, are open for the transaction of banking
business and, in the case of Eurodollar Rate Loans, also a day which is a
Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
Capital Expenditures. Amounts paid or Indebtedness incurred by any
Borrower or any of their Subsidiaries in connection with (i) the purchase or
lease by such Borrower or any of its Subsidiaries of Capital Assets that would
be required to be capitalized and shown on the balance sheet of such Person in
accordance with GAAP or (ii) the lease of any assets by any such Borrower or any
of its Subsidiaries as lessee under any synthetic lease referred to in clause
(vi) of the definition of the term "Indebtedness" to the extent that such assets
would have been Capital Assets had the synthetic lease been treated for
accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which any Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Cast Plate. As defined in the preamble.
Century Aluminum. As defined in the preamble.
Century WV. As defined in the preamble.
CERCLA. See ss.8.18(a).
CIT. The CIT Group/Business Credit, Inc., a New York corporation, in its
individual capacity.
Co-Agent. CIT acting as co-agent for the Lenders.
Co-Agents. Collectively, the Agent and the Co-Agent.
Code. The Internal Revenue Code of 1986.
Collateral. All of the property, rights and interests of the Borrowers and
their Subsidiaries that are subject to the security interests and mortgages
created by the Security Documents or, following the Term Loan Closing Date, the
Replacement Security Documents.
Collateral Agent. BKB, as collateral agent under the PBGC Intercreditor
Agreement.
<PAGE> 13
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Commitment. With respect to each Lender, such Lender's Term Loan
Commitment and Revolving Credit Commitment, if any.
Commitment Fees. The Term Loan Commitment Fee and the Revolving Credit
Commitment Fee.
Commitment Letter. The Commitment Letter agreement, dated as of February
23, 1999, between the Borrowers, the Co-Agents and the Arranger.
Commitment Percentage. With respect to each Lender, the percentage set
forth on Schedule 1 hereto as such Lender's percentage of the Total Commitment
of all of the Lenders, and with respect to the Term Loan, the Percentage amount
of each Lender's commitment to make the Term Loan as set forth in Schedule 1
hereto.
Compliance Certificate. See ss.9.4(d).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of Century Aluminum and its
Subsidiaries, consolidated in accordance with GAAP.
Consolidated EBIT. With respect to Century Aluminum for any fiscal period,
the Consolidated Net Income (or Deficit) of Century Aluminum and its
Subsidiaries for any period, plus to the extent deducted in determining
Consolidated Net Income (or Deficit), the sum of Consolidated Total Interest
Expense and taxes of Century Aluminum and its Subsidiaries for such period on a
consolidated basis, all determined in accordance with GAAP.
Consolidated EBITDA. With respect to Century Aluminum for any fiscal
period, the Consolidated Net Income (or Deficit) of Century Aluminum and its
Subsidiaries for such period plus to the extent deducted in determining
Consolidated Net Income (or Deficit), the sum of Consolidated Total Interest
Expense, taxes, depreciation and amortization of Century Aluminum and its
Subsidiaries for such period on a consolidated basis, all determined in
accordance with GAAP.
Consolidated Excess Cash Flow. With respect to any fiscal year of Century
Aluminum and its Subsidiaries, Consolidated EBITDA for such period minus,
without duplication, the sum of (a) cash payments during such year of tax of any
nature, (b) the amount of Capital Expenditures made during such fiscal year, (c)
Consolidated Total Interest Expense paid during such fiscal year, (d) all
scheduled payments of principal on Indebtedness (including obligations under
Capitalized Leases allocable to principal) that were required to be paid during
such fiscal year pursuant to any agreement or instrument to which Century
Aluminum or any of its Subsidiaries is a party, (e) the amount of Distributions
made during such fiscal year permitted by ss.10.4, and (f) the amount of all
scheduled payments that were required to be paid during such fiscal year under
the PBGC Documents, each determined in accordance with GAAP.
Consolidated Fixed Charges. With respect to any fiscal period, without
duplication, an amount equal to the sum of (a) Consolidated Total Interest
Expense for such fiscal period plus (b) the amount of all principal scheduled to
be paid by Century Aluminum and its Subsidiaries in respect of Indebtedness
(other than in respect of the PBGC Debt) during such period (including, without
limitation, the principal component of all Capitalized Lease obligations).
Consolidated Net Income (or Deficit). With respect to any fiscal period,
the consolidated net income (or deficit) of Century Aluminum and its
Subsidiaries, after deduction of all expenses, taxes, and
<PAGE> 14
-7-
other proper charges, determined in accordance with GAAP, after eliminating
therefrom all extraordinary nonrecurring items of income, and also excluding
therefrom any non-cash charges or gains, determined in accordance with GAAP,
related to hedging contracts (permitted under ss.10.15) until such time as such
contracts are settled.
Consolidated Net Worth. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less, to the extent otherwise includable in the
computations of Consolidated Net Worth, any equity subscriptions receivable.
Consolidated Total Assets. All assets ("consolidated balance sheet
assets") of Century Aluminum and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.
Consolidated Total Interest Expense. For any fiscal period, the aggregate
amount of interest required to be paid or accrued by Century Aluminum and its
Subsidiaries during such period on all Indebtedness of Century Aluminum and its
Subsidiaries outstanding during all or any part of such period, to the extent
such interest was or is required, in accordance with GAAP, to be reflected as an
item of expense, including payments consisting of interest in respect of any
Capitalized Lease, or any synthetic lease referred to in clause (vi) of the
definition of the term "Indebtedness," and including commitment fees, agency
fees, facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money.
Consolidated Total Liabilities. All liabilities of Century Aluminum and
its Subsidiaries determined on a consolidated basis in accordance with GAAP.
Contractual Obligation. With respect to any Person, any provision of any
security issued by such Person or of any contract, agreement, indenture,
mortgage, guarantee, debenture, pledge agreement or other document, instrument
or writing (whether by formal agreement, letter or otherwise) under which any
obligation is evidenced, assumed or undertaken, or any right to any Lien is
granted or perfected, and to which such Person is a party or by which it or any
of its Property is bound.
Conversion Request. A notice given by the Borrowers to the Agent of the
Borrowers' election to convert or continue a Loan in accordance with ss.2.7.
Credit Agreement. This Revolving Credit and Term Loan Agreement, including
the Schedules and Exhibits hereto.
Default. See ss.15.1.
Delinquent Lender. See ss.17.5.3.
Derivative Obligations: Every obligation of a Person under any forward
contract, futures contract, swap, option or other financing agreement or
arrangement (including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices.
Discretionary Amount. As at any date of determination, an amount
determined by the Agent in its sole and absolute discretion to preserve and
protect the Collateral, including but not limited to advances to fund payroll
and other advances necessary for the operation of the Borrowers, which amount
shall not exceed $5,000,000 at any time and which amount shall not be more than
$0.00 for more than any period of ten (10) consecutive days.
<PAGE> 15
-8-
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of any of the Borrowers, other than
dividends payable solely in shares of common stock of any of the Borrowers; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of any of the Borrowers, directly or indirectly through a Subsidiary of
any Borrower or otherwise; the return of capital by any of the Borrowers to its
shareholders as such; or any other distribution on or in respect of any shares
of any class of capital stock of any of the Borrowers.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Company. A company organized under the laws of the United States
or any state thereof.
Domestic Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan or the Term
Loan is made or is to be made, and the date on which any Revolving Credit Loan
is converted or continued in accordance with ss.2.7 or all or any portion of the
Term Loan is converted or continued in accordance with ss.4.5(b).
Eligible Accounts Receivable. The aggregate of the unpaid portions of
Accounts Receivable (net of any credits, rebates, contras, offsets, holdbacks or
other adjustments or commissions payable to third parties that are adjustments
to such Accounts Receivable) (i) that such Borrower reasonably and in good faith
determines to be collectible; (ii) that are with account debtors or other
obligors that (A) are not Affiliates of any Borrower or any Subsidiary of a
Borrower, (B) purchased the goods or services giving rise to the relevant
Account Receivable in an arm's length transaction, (C) are not insolvent or
involved in any case or proceeding, whether voluntary or involuntary, under any
bankruptcy, reorganization, arrangement, insolvency, adjustment of debt,
dissolution, liquidation or similar law of any jurisdiction and (D) are, in the
Agent's reasonable judgment, creditworthy; (iii) that are in payment of
obligations that have been fully performed, do not consist of progress billings
or bill and hold invoices and are not subject to dispute or any other similar
claims that would reduce the cash amount payable therefor; (iv) that are not
subject to any pledge, restriction, security interest or other Lien other than
those created by the Loan Documents; (v) in which the Agent has a valid and
perfected first priority security interest; (vi) that are not outstanding for
more than (A) sixty (60) days past the due date thereof or (B) 120 days past the
earlier to occur of the date of the respective invoice thereof and the date of
shipment; (vii) that are not due from an account debtor or other obligor located
in Minnesota unless such Borrower (A) has received a certificate of authority to
do business and is in good standing in such state or (B) has filed a notice of
business activities report with the appropriate office or agency of such state
for the current year; (viii) that are not due from any single account debtor or
other obligor if more than fifty percent (50%) of the aggregate amount of all
Accounts Receivable owing from such account debtor o other obligor would
otherwise not be Eligible Accounts Receivable; (ix) that are payable in Dollars
or in the lawful currency of Australia, New Zealand, Japan, Switzerland, or any
country which is a member of the European Union; (x) that are not payable from
an account debtor outside of the United States, unless such Accounts Receivable
are secured by a letter of credit in form and substance satisfactory to the
Agent and (A) the Agent has obtained a prior, perfected security interest in
such letter of credit or (B) which pursuant to the terms thereof, causes all
drawings made under such letter of credit to be payable solely to one of the
Operating Accounts; provided that in the Agent's discretion up to an additional
$5,000,000 in the aggregate of Accounts Receivable payable from an account
debtor outside of the United States may be considered Eligible Accounts
Receivable; (xi) that are not secured by a letter of credit unless (A) the Agent
has obtained a prior, perfected security interest in such letter of credit or
(B) pursuant to the terms thereof, all drawings made under such letter of credit
are payable solely to one of the Operating Accounts;
<PAGE> 16
-9-
and (xii) notwithstanding the foregoing clause (ii)(A) relating to Affiliates,
Accounts Receivable from Glencore may be considered Eligible Accounts Receivable
so long as such Accounts Receivable (a) are subject to a Non-Setoff Agreement
between the applicable Borrowers and Glencore, provided that no Accounts
Receivable of Glencore of the type described in paragraph four of the Non-Setoff
Agreement with Glencore Ltd. may be considered Eligible Accounts Receivable
hereunder, and (b) otherwise satisfy the eligibility criteria set forth in
clauses (i) through (xi) hereof.
Eligible Assignee. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with GAAP; (iii) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD; (iv) the central bank of any country which is a member of
the OECD; and (v) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution or other Person approved by the Agent, such approval
not to be unreasonably withheld.
Eligible Inventory. With respect to any Borrower, finished goods, work in
progress and raw materials (including saleable scrap) owned by such Borrower;
provided that Eligible Inventory shall not include any inventory (i) which
constitute stores and supplies, (ii) held on consignment, or not otherwise owned
by such Borrower, or of a type no longer sold by such Borrower, (iii) which has
been returned by a customer or is damaged or subject to any legal encumbrance
other than Permitted Liens, (iv) which is not in the possession of such Borrower
or Approved Party, at Permitted Inventory Locations unless (A) it is in transit
from one Permitted Inventory Location within the United States of America to
another Permitted Inventory Location within the United States of America, or (B)
is In-Transit Alumina, (v) as to which appropriate Uniform Commercial Code
financing statements showing such Borrower as debtor and the Agent as secured
party have not been filed in the proper filing office or offices in order to
provide the Agent with a valid and perfected first priority security interest
therein, (vi) which has been shipped to a customer of such Borrower regardless
of whether such shipment is on a consignment basis, or (vii) which is not
located within the United States of America, or (viii) which the Agent
reasonably deems to be obsolete or not marketable.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any of the Borrowers or any
ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.8.18(a).
EPA. See ss.8.18(b).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with any
of the Borrowers under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
<PAGE> 17
-10-
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or if
commercial banks in London are not open, such other eurodollar interbank market
as may be selected by the Agent in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate of interest equal to (i) the arithmetic average of the rates per
annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two Eurodollar Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurodollar Rate Loan of such Reference Bank to which such Interest Period
applies, divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans and all or any portion of
the Term Loan bearing interest calculated by reference to the Eurodollar Rate.
Event of Default. See ss.15.1.
Fees. The Commitment Fees, the Letter of Credit Fee, the Up Front Fee and
the Agent's Fee and all other fees payable under ss.5.6.
Fixed Charge Coverage Ratio. For any fiscal period, the ratio of (a)
Consolidated EBIT during such period, to (b) Consolidated Fixed Charges for such
period.
GAAP. (i) When used in ss.11 or in calculating the Fixed Charge Coverage
Ratio for the determination of the Applicable Margin, whether directly or
indirectly through reference to a capitalized term used therein, means (A)
principles that are consistent with the principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors, in effect for the
fiscal year ended on the Balance Sheet Date, and (B) to the extent consistent
with such principles, the accounting practice of Century Aluminum reflected in
its financial statements for the year ended on the Balance Sheet Date, and (ii)
when used in general, other than as provided above, means principles that are
(A) consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time,
and (B) consistently applied with past financial statements of Century Aluminum
adopting the same principles, provided that in each case referred to in this
definition of "GAAP" a certified public accountant would, insofar as the use of
such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in GAAP) as to
financial statements in which such principles have been properly applied.
<PAGE> 18
-11-
Glencore. Glencore International AG, a Swiss corporation, and its
Subsidiaries.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, its by-laws or other organizational documents,
including without limitation the operating agreement of a limited liability
company, and all shareholder agreements, voting trusts and similar arrangements
applicable to any of its equity interests.
Governmental Authority. Any foreign, federal, state, provincial, regional,
local, municipal or other government, or any department, commission, board,
bureau, agency, public authority or instrumentality thereof, or any court or
arbitrator.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any of the Borrowers
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
Guarantors. Collectively, RISC, Vialco and each other Subsidiary of any
Borrower (other than an existing Borrower) which becomes a party to a Guarantee
as a Guarantor thereunder.
Guarantees. Collectively, (a) the Guaranty, dated or to be dated on or
prior to the Initial Closing Date, made by RISC and Vialco in favor of the Agent
and (b) the several Guarantees, executed and delivered from time to time by any
other Subsidiary of a Borrower (other than an existing Borrower), in favor of
the Lenders and the Agent pursuant to which each Guarantor guaranties to the
Lenders and the Agent the payment and performance of the Obligations and each in
form and substance satisfactory to the Lenders and the Agent.
Hazardous Substances. See ss.8.18(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(v) every obligation of such Person under any Capitalized Lease,
(vi) every obligation of such Person under any lease (a "synthetic
lease") treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes,
<PAGE> 19
-12-
(vii) all (A) sales by such Person of (x) accounts or general
intangibles for money due or to become due, (y) chattel paper, instruments
or documents creating or evidencing a right to payment of money or (z)
other receivables (collectively "receivables"), whether pursuant to a
purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or
a disposition of defaulted receivables for collection and not as a
financing arrangement, and (B) obligations of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or
other amounts in connection therewith,
(viii) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of capital stock of any class issued by such Person, any
warrants, options or other rights to acquire any such shares, or any
rights measured by the value of such shares, warrants, options or other
rights,
(ix) Derivative Obligations,
(x) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent that such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor and such terms are enforceable under
applicable law,
(xi) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the legal effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(i) through (x) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (A) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (B) to purchase property, securities
or services for the purpose of assuring the payment of such primary
obligation, or (C) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (v) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (w) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than any Borrower or any of its wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (x) any synthetic lease shall be the stipulated loss value,
termination value or other equivalent amount, (y) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred and (z) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price.
Ineligible Securities. Securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. ss.24, Seventh), as amended.
<PAGE> 20
-13-
Initial Closing Date. The first date on which the conditions set forth in
ss.12 have been satisfied and any Revolving Credit Loans are to be made or any
Letter of Credit is to be issued hereunder.
Interest Payment Date. (i) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes the Drawdown
Date of such Base Rate Loan and (ii) as to any Eurodollar Rate Loan in respect
of which the Interest Period is (A) three (3) months or less, the last day of
such Interest Period and (B) more than three (3) months, the date that is three
(3) months from the first day of such Interest Period and, in addition, the last
day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan or all or any
relevant portion of the Term Loan, (i) initially, the period commencing on the
Drawdown Date of such Loan and ending on the last day of one of the periods set
forth below, as selected by the Borrowers in a Loan Request or as otherwise
required by the terms of this Credit Agreement (A) for any Base Rate Loan, the
last day of the calendar quarter and (B) for any Eurodollar Rate Loan, 1, 2, 3,
or 6 months; and (ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Revolving Credit Loan or all
or such portion of the Term Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrowers in a Conversion Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(c) if the Borrowers shall fail to give notice as provided in
ss.2.7.1, the Borrowers shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the continuance
of all Base Rate Loans as Base Rate Loans on the last day of the then
current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Eurodollar
Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date (if comprising a Revolving Credit
Loan) or the Term Loan Maturity Date (if comprising the Term Loan or a
portion thereof) shall end on the Revolving Credit Loan Maturity Date or
(as the case may be) the Term Loan Maturity Date.
Interim Concentration Account. See ss.9.14.1.
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98) as promulgated by the Institute
of International Banking Law & Practice, Inc., or any successor code of standby
letter of credit practices among banks adopted by the Issuing Bank in the
ordinary course of its business as a standby letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
<PAGE> 21
-14-
In-Transit Alumina. Alumina owned by any Borrower, which otherwise
qualifies as Eligible Inventory, and which is being transported within the
United States by an Approved Shipper to one or more Permitted Inventory
Locations owned or leased by such Borrower and such alumina is insured in a
manner reasonably acceptable to the Agent.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(iii) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (iv) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Issuing Bank. With respect to any Letter of Credit, BKB and any successor
Issuing Bank.
Lenders. (a) The financial institutions listed on Schedule 1 hereto (other
than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto (in accordance with the requirements hereof) pursuant
to an Assignment and Acceptance.
Letter of Credit. See ss.5.1.1.
Letter of Credit Application. See ss.5.6.
Letter of Credit Exposure. At any time, the sum of (a) the Maximum Drawing
Amount with respect to all Letters of Credit, and (b) all Unpaid Reimbursement
Obligations.
Letter of Credit Fee. See ss.5.6.
Letter of Credit Participation. See ss.5.1.4.
Lien. Any mortgage, security interest, pledge, hypothecation, assignment,
attachment, deposit arrangement, encumbrance, lien (statutory, judgment or
otherwise), charge (whether fixed or floating), preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including any similar such interest arising under the laws of any applicable
domestic or foreign jurisdiction and including any conditional sale or other
title retention agreement, any financing lease involving substantially the same
economic effect as any of the foregoing and the filing of any financing
statement under the UCC or comparable law of any domestic or foreign
jurisdiction).
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the PBGC Intercreditor Agreement, the
Commitment Letter, the Security Documents, the Replacement Security Documents
and any interest rate protection agreement between any Borrower and a Lender
evidencing Derivative Obligations.
Loan Request. See ss.2.6.
<PAGE> 22
-15-
Loans. The Revolving Credit Loans and the Term Loan.
Local Account. See ss.9.14.1.
Majority Lenders. As of any date, the Lenders holding at least fifty-one
percent (51%) of the outstanding principal amount of the Notes on such date; and
if no such principal is outstanding, the Lenders whose aggregate Commitments
constitutes at least fifty-one percent (51%) of the Total Commitment.
Material Real Estate. Any and all Real Estate of any Borrower or any
Subsidiary of a Borrower which, (a) if such Real Estate is leased by such
Borrower or such Subsidiary, has a lease the term of which exceeds three (3)
years and which has rental payments in excess of $200,000 per year or (b) if
such Real Estate is owned by such Borrower or such Subsidiary, has an appraised
value in excess of $500,000.
Materially Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a materially adverse effect on the business, Properties,
operations, prospects or condition, financial or otherwise, of the
Borrowers and their Subsidiaries on a combined basis, taken as a whole;
(b) a materially adverse effect on the ability of any of the
Borrowers and their Subsidiaries on a combined basis, taken as a whole to
perform any of their payment or other obligations under any Loan Document
to which it is a party; or
(c) any material impairment of the validity or enforceability of any
Loan Document or any material impairment of the rights, remedies or
benefits available to the Agent or any Lender under any Loan Document.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Membership Pledge Agreement. The LLC Membership Pledge Agreement, dated or
to be dated on or prior to the Term Loan Closing Date, between Century WV and
the Agent and in form and substance satisfactory to the Lenders and the Agent.
Minimum Reserve Amount. With respect to any date of determination of the
Borrowing Base, the applicable amount set forth in the table below. The Minimum
Reserve Amount shall be determined by reference to the Consolidated EBITDA of
Century Aluminum and its Subsidiaries for the last full fiscal quarter
immediately preceding such date of determination for which the Agent has
received the Compliance Certificate required by ss.9.4(d) (which shall include
attached thereto the financial statements required by ss.9.4(a) and ss.9.4(b));
provided, however, that (x) for the period commencing on the Initial Closing
Date and ending on the date the Lenders receive the financial statements and
certificates required under ss.9.4(b) and (d) for the fiscal quarter ended March
31, 1999, the Minimum Reserve Amount shall be $10,000,000 and (y) for any period
during which the Borrowers have failed to timely deliver such Compliance
Certificate required by ss.9.4(d) and the financial statements and certificates
required by ss.9.4(a) or (b), the Minimum Reserve Amount for any such period
shall be deemed to be $20,000,000.
<PAGE> 23
-16-
<TABLE>
<CAPTION>
Minimum
Quarterly Consolidated EBITDA Reserve Amount
----------------------------- --------------
<S> <C>
Greater than $10,000,000 $ 5,000,000
Less than or equal to $10,000,000 $10,000,000
but greater than $5,000,000
Less than or equal to $5,000,000 $15,000,000
but greater than $0
Less than or equal to $0 $20,000,000
</TABLE>
Mortgaged Property. Any Real Estate which is subject to any Mortgage.
Mortgages. The several mortgages and deeds of trust, executed and
delivered from time to time by any of the Borrowers and their Subsidiaries to
the Agent with respect to the fee and leasehold interests of such Borrowers and
such Subsidiaries in the Real Estate and in form and substance satisfactory to
the Lenders and the Agent.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Non-Setoff Agreements. The (a) Non-Setoff Agreement, dated as of March 31,
1999, between Glencore Ltd., Century Aluminum and the Agent and (b) any other
Non-Setoff Agreement, executed and delivered following the Initial Closing Date,
by any other Glencore entity, in form and substance satisfactory to the Agent.
Notes. The Term Notes and the Revolving Credit Notes.
Obligations. All indebtedness, obligations and liabilities of the
Borrowers and their Subsidiaries to any of the Lenders, the Issuing Bank and the
Agent, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Application, Letter of Credit, any Derivative
Obligation with any of the Lenders or other instruments at any time evidencing
any thereof.
Operating Accounts. See ss.2.6.2.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Patent Assignment. The several Patent Assignments, executed and delivered
from time to time by any Borrower or Guarantor in favor of the Agent and in form
and substance satisfactory to the Lenders and the Agent.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
<PAGE> 24
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PBGC Agreement. At any time, (a) prior to the Term Loan Closing Date, the
Agreement, dated as of January 23, 1996, between the PBGC, Glencore and certain
affiliates and subsidiaries of Glencore, Ravenswood Aluminum Corporation (now
known as Century Aluminum of West Virginia, Inc.), Berkeley and Century
Aluminum, as amended and in effect on the Initial Closing Date, and (b) after
the Term Loan Closing Date, the Agreement, dated or to be dated on or prior to
the Term Loan Closing Date, among the PBGC, the Borrowers and Vialco, in form
and substance satisfactory to the Co-Agents.
PBGC Debt. Payment obligations of the Borrowers required by the PBGC as
evidenced by the PBGC Documents.
PBGC Deeds of Trust. The (a) Deed of Trust, dated as of January 23, 1996,
granted by Ravenswood Aluminum Corporation (now known as Century Aluminum of
West Virginia, Inc.), to Jim P. Williams as trustee for the PBGC, in connection
with the Jackson County, West Virginia, Real Estate and (b) any Deed of Trust or
Leasehold Deed of Trust, executed and delivered following the Initial Closing
Date, granted by Cast Plate in favor of the PBGC, in connection with the Vernon,
California, Real Estate.
PBGC Deed Subordination Agreement. The Deed of Trust Subordination
Agreement, dated or to be dated on or prior to the Term Loan Closing Date, among
the PBGC and the Agent.
PBGC Documents. At any time the PBGC Agreement, the PBGC Intercreditor
Agreement, the PBGC Deeds of Trust, and (a) prior to the Term Loan Closing Date,
the PBGC Pledge Agreement, and each other document, instrument or agreement
related thereto, and (b) after the Term Loan Closing Date, the PBGC Deed
Subordination Agreement, and each other document, instrument or agreement
related thereto.
PBGC Intercreditor Agreement. At any time, (a) prior to the Term Loan
Closing Date, the Intercreditor Agreement, dated as of January 30, 1996, between
the PBGC, Bank of America, Ravenswood Aluminum Corporation (now known as Century
Aluminum of West Virginia, Inc.), Century Aluminum and Berkeley, as amended and
in effect on the Initial Closing Date and (b) after the Term Loan Closing Date,
the Intercreditor Agreement, dated or to be dated on or prior to the Term Loan
Closing Date, among the Agent, the Collateral Agent, the PBGC, Century Aluminum
and Century WV, and in form and substance satisfactory to the Lenders and the
Agent.
PBGC Pledge Agreement. The Security and Pledge Agreement, dated as of
January 23, 1996, between Ravenswood Aluminum Corporation (now known as Century
Aluminum of West Virginia, Inc.) and the PBGC.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreements.
Permitted Acquisition. Any Acquisition after the Initial Closing Date by
any Borrower or any Subsidiary of a Borrower of any business so long as, in each
case, either the Majority Lenders have given their written consent to such
Acquisition or all of the following conditions are satisfied:
(a) the aggregate purchase price (and the related fees and expenses
incurred in connection therewith) of such Acquisition, plus all
Acquisitions previously consummated, shall not exceed $25,000,000;
(b) the target is a Domestic Company in a Related Business;
(c) the Acquisition is on friendly terms;
<PAGE> 25
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(d) after giving effect to the Acquisition, the assets comprising
such business (as used in this definition, the "Acquired Assets") shall be
owned or leased exclusively by such Borrower or such Subsidiary and
substantially all of the Acquired Assets shall be located in the United
States;
(e) any Indebtedness incurred or assumed in connection with the
Acquisition is Permitted Indebtedness or its incurrence is consented to by
the Majority Lenders;
(f) the surviving entity is a Borrower or a Guarantor;
(g) if the Acquired Assets are owned or leased by a newly-formed or
newly-acquired Subsidiary of Century Aluminum, such Subsidiary (together
with any Subsidiary thereof and any parent of such Subsidiary that is not
already a Guarantor) shall have executed and delivered to the Agent and
the Lenders (A) an Accession Agreement substantially in the form attached
hereto as Exhibit G pursuant to the terms of which such Subsidiary (and
such parent or parents, if applicable) (i) becomes a party to this Credit
Agreement as a Borrower or executes a Guaranty, (ii) becomes a party to
the Security Agreement as an Assignor, becomes a party to the Stock Pledge
Agreement as a Pledgor, and become a party to any of the other Loan
Documents as the Agent may reasonably request, and (iii) agrees to perform
and observe all of the obligations and covenants of a Borrower or a
Subsidiary of a Borrower hereunder, and of the appropriate party under any
Loan Document to which it becomes a party, and (B) such other Security
Documents or Replacement Security Documents in form and substance
satisfactory to the Agent as may be reasonably required by the Agent;
(h) the Borrowers and their Subsidiaries shall have complied with
the requirements of ss.ss.9.13, 9.16 and 9.17 hereof;
(i) the Borrowers shall have demonstrated to the reasonable
satisfaction of the Co-Agents (based on, among other things, operating and
financial projections and pro forma financial statements delivered to the
Agent and certified by an Authorized Officer of Century Aluminum) that,
immediately after giving effect to the Acquisition (including the making
of any Loans and the incurrence of any Indebtedness required to finance
the Acquisition), all covenants (including covenants contained in ss.11 of
this Credit Agreement) contained herein (A) would have been satisfied on a
pro forma basis as at the end of and for the most recent four (4)
consecutive fiscal quarters of Century Aluminum for which financial
statements of Century Aluminum and its Subsidiaries have been delivered to
the Lenders in compliance with ss.9.4 hereof, and (B) will be satisfied on
a pro forma basis through the Revolving Credit Loan Maturity Date;
(j) the Borrowers shall have Borrowing Availability (assuming
pro-forma covenant compliance) of at least $30,000,000 after giving effect
to the Acquisition;
(k) the Co-Agents shall have received satisfactory audits or
independent accountant reviews of the target company;
(l) no Default or Event of Default is continuing immediately prior
to such Acquisition, and no Default or Event of Default would result from
such Acquisition;
(m) the Co-Agents shall have received satisfactory evidence that the
business to be acquired has complied with, and, following the consummation
of the Acquisition, is in compliance with, in all material respects all
Applicable Laws, (if Real Estate is being acquired as
<PAGE> 26
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part of the Acquisition, the Co-Agents shall have received a phase-one
environmental survey reasonably satisfactory to the Co- Agents);
(n) a commercial finance exam satisfactory to the Co-Agents shall
have been delivered to the Co-Agents prior to inclusion of the target
company's assets in the Borrowing Base;
(o) prior to the closing of the Acquisition, the Borrowers have
delivered to the Co-Agents the definitive acquisition documents between
the applicable Borrower or Subsidiary of a Borrower and the applicable
selling entities; and
(p) the Agent shall have received to the extent requested by the
Agent, a favorable legal opinion addressed to the Lenders and the
Co-Agents, in form and substance satisfactory to the Co- Agents, from
counsel (including any local counsel, as applicable) to the Borrowers.
Permitted Distributions. Distributions permitted by ss.10.4.
Permitted Indebtedness. Indebtedness permitted by ss.10.1.
Permitted Inventory Locations. The distribution locations and
manufacturing facilities of the Borrowers or an Approved Party located in the
United States and listed on Schedule 2 hereto, as such Schedule 2 may be
supplemented from time to time with the consent of the Agent.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.10.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Property. Any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
RCRA. See ss.8.18(a).
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrowers or any of their Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
Reference Banks. BKB, and any other Lender identified by the Agent as a
reference bank hereunder.
Register. See ss.21.3.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Issuing Bank and the Lenders on account of any drawing under any Letter of
Credit as provided in ss.5.2.
Replacement Security Documents. Collectively, (a) the Security Agreement
and all other instruments and documents, as amended and restated as of the Term
Loan Closing Date, and (b) the Mortgages, the Patent Assignment, the Trademark
Assignment, the Stock Pledge Agreement and the Membership Pledge Agreement with
each such document to provide for the second Lien of the PBGC and to subordinate
the PBGC's prior Lien on the Real Estate and capital stock of certain of the
Borrowers to
<PAGE> 27
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the Lien in favor of the Agent, including without limitation UCC financing
statements, required to be executed or delivered pursuant thereto, and each in
form and substance satisfactory to the Agent.
Restricted Permitted Liens. All Permitted Liens other than Liens in favor
of the PBGC under the PBGC Documents as permitted by ss.10.2(k).
Revolving Credit Collateral. Accounts Receivable, inventory, bank accounts
and certain other items relating to Accounts Receivable of the Borrowers and the
Guarantors as set forth in the Security Agreement.
Revolving Credit Commitment. With respect to each Lender, the amount set
forth on Schedule 1 hereto as the amount of such Lender's commitment to make
Revolving Credit Loans to, and to participate in the issuance, extension and
renewal of Letters of Credit for the account of, the Borrowers, as the same may
be reduced from time to time; or if such commitment is terminated pursuant to
the provisions hereof, zero.
Revolving Credit Commitment Fee. See ss.2.2.
Revolving Credit Loan Maturity Date. March 31, 2004.
Revolving Credit Loans. Revolving credit loans made or to be made by the
Lenders to the Borrowers pursuant to ss.2.
Revolving Credit Note Record. A Record with respect to a Revolving Credit
Note.
Revolving Credit Notes. See ss.2.4.
RISC. Ravenswood International Sales, Inc., a Barbados corporation.
SARA. See ss.8.18(a).
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
Security Agreement. The Security Agreement, dated or to be dated on or
prior to the Initial Closing Date, between the Borrowers, the Guarantors and the
Agent and in form and substance satisfactory to the Lenders and the Agent.
Security Documents. The Guarantees, the Security Agreement, the Agency
Account Agreements, and all other instruments and documents, including without
limitation UCC financing statements, required to be executed or delivered
pursuant to any Security Document.
Security Instrument. Any security agreement, chattel mortgage, assignment,
financing or similar statement or notice, continuation statement, other
agreement or Instrument or amendment or supplement to any thereof, providing
for, evidencing or perfecting any Lien.
Settlement. The making or receiving of payments, in immediately available
funds, by the Lenders, to the extent necessary to cause each Lender's actual
share of the outstanding amount of Revolving Credit Loans (after giving effect
to any Loan Request) to be equal to such Lender's
<PAGE> 28
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Commitment Percentage of the outstanding amount of such Revolving Credit Loans
(after giving effect to any Loan Request), in any case where, prior to such
event or action, the actual share is not so equal.
Settlement Amount. See ss.2.10.1.
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Agent, on any
Business Day following a day on which the account officers of the Agent active
upon the Borrower's account become aware of the existence of an Event of
Default, (d) any Business Day on which the amount of Revolving Credit Loans
outstanding from BKB plus BKB's Commitment Percentage of the Letter of Credit
Exposure is equal to or greater than BKB's Commitment Percentage of the Total
Revolving Credit Commitment, (e) the Business Day immediately following any
Business Day on which the amount of Revolving Credit Loans outstanding increases
or decreases by more than $10,000,000 as compared to the previous Settlement
Date, (f) any day on which any conversion of a Base Rate Loan to a Eurodollar
Rate Loan occurs, or (g) any Business Day on which (i) the amount of outstanding
Revolving Credit Loans decreases and (ii) the amount of the Agent's Revolving
Credit Loans outstanding equals zero Dollars ($0).
Settling Lender. See ss.2.10.1.
Stock Pledge Agreement. The Stock Pledge Agreement, dated or to be dated
on or prior to the Term Loan Closing Date, between the Borrowers and the Agent
and in form and substance satisfactory to the Lenders and the Agent.
Subordinated Debt. Unsecured Indebtedness of the Borrowers or any
Guarantor that is expressly subordinated and made junior to the payment and
performance in full of the Obligations, and evidenced as such by an
intercreditor agreement or by another written instrument containing
subordination provisions in form and substance approved by the Agent in writing.
Subordination Documents. The PBGC Intercreditor Agreement and any other
documents, instruments or agreements evidencing Subordinated Debt or the PBGC
Debt.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Survey. In relation to each Mortgaged Property (other than the Mortgaged
Property located in Ravenswood, West Virginia), an instrument survey of such
Mortgaged Property , dated as of a date satisfactory to the Agent, which shall
show the location of all buildings, structures, easements and utility lines on
such Mortgaged Property, shall be sufficient to remove the survey exception from
the Title Policy, shall show that all buildings and structures are within the
lot lines of such Mortgaged Property, shall not show any encroachments by
others, shall show the zoning district or districts in which such Mortgaged
Property is located in a flood hazard district as established by the Federal
Emergency Management Agency or any successor agency or is located in any flood
plain, flood hazard or wetland protection district established under federal,
state or local law.
Surveyor Certificate. In relation to each Mortgaged Property for which a
Survey has been conducted, a certificate executed by the surveyor who prepared
such Survey dated as of a recent date and containing such information relating
to such Mortgaged Property as the Agent or the Title Insurance Company may
require, such certificate to be satisfactory to the Agent in form and substance.
<PAGE> 29
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Term Loan. The term loan made or to be made by the Lenders to the
Borrowers on the Term Loan Closing Date in the aggregate principal amount of
$20,000,000 pursuant to ss.4.1.
Term Loan Closing Date. The first date on which the conditions set forth
in ss.13 have been satisfied and the Term Loan is to be made hereunder.
Term Loan Commitment. With respect to a Lender, the amount set forth on
Schedule 1 hereto as the amount of such Lender's commitment to make a Term Loan
to the Borrowers, as the same may be reduced from time to time; or if such
commitment is terminated pursuant to the provisions hereof, zero.
Term Loan Commitment Fee. See ss.4.3.
Term Loan Maturity Date. March 31, 2004.
Term Notes. See ss.4.2.
Term Note Record. A Record with respect to a Term Note.
Title Insurance Company. First American Title Insurance Company or such
other title company reasonably acceptable to the Agent.
Title Policy. In relation to each Mortgaged Property, an ALTA standard
form title insurance policy issued by the Title Insurance Company (with such
reinsurance or co-insurance as the Agent may require, any such reinsurance to be
with direct access endorsements) in such amount as may be reasonably determined
by the Agent insuring the priority of the Mortgage of such Mortgaged Property
and that a Borrower or one of their Subsidiaries holds marketable fee simple or
leasehold title (as the case may be) to such Mortgaged Property, subject only to
the encumbrances permitted by such Mortgage and which shall not insure over any
matter except to the extent that any such affirmative insurance is acceptable to
the Agent in its reasonable discretion, and shall contain such endorsements and
affirmative insurance as the Agent in its discretion may reasonably require (to
the extent that such endorsements and affirmative insurance can be obtained
without the benefit of obtaining a Survey for such Mortgaged Property),
including but not limited to (i) comprehensive endorsement, (ii) variable rate
of interest endorsement, (iii) usury endorsement, (iv) revolving credit
endorsement, (v) tie-in endorsement, (vi) doing business endorsement and (vii)
ALTA form 3.1 zoning endorsement.
Total Commitment. The sum of the Commitments of the Lenders, as in effect
from time to time.
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Lenders, as in effect from time to time.
Total Term Loan A Commitment. The sum of the Term Loan Commitments of the
Lenders, as in effect from time to time.
Trademark Assignments. The several Trademark Assignments, executed and
delivered from time to time by any Borrower or Guarantor in favor of the Agent
and in form and substance satisfactory to the Lenders and the Agent.
Type. As to any Revolving Credit Loan or all or any portion of the Term
Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
UCC. The Uniform Commercial Code, as in effect in the applicable
jurisdiction.
<PAGE> 30
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Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Issuing Bank in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrowers do not reimburse the Issuing Bank and the Lenders on the date
specified in, and in accordance with, ss.5.2.
Up Front Fee. See ss.6.1.
Vialco. Virgin Islands Alumina Corporation LLC, a Delaware limited
liability company.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any Applicable Law includes any amendment or
modification to such Applicable Law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by GAAP, which
terms are defined in the Uniform Commercial Code as in effect in the
Commonwealth of Massachusetts, have the meanings assigned to them therein,
with the term "instrument" being that defined under Article 9 of the
Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including."
<PAGE> 31
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(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among
others, the Agent and the Borrower and are the product of discussions and
negotiations among all parties. Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Agent or
any of the Lenders merely on account of the Agent's or any Lender's
involvement in the preparation of such documents.
(m) Following the Term Loan Closing Date, BKB shall act as
Collateral Agent for the Secured Parties (as defined in the PBGC
Intercreditor Agreement) pursuant to the PBGC Intercreditor Agreement with
respect to the Collateral granted to the Collateral Agent pursuant to the
Replacement Security Documents. Accordingly, references in this Credit
Agreement to BKB as Agent with respect to such Collateral and such
Replacement Security Documents shall be deemed references to BKB as
Collateral Agent. BKB acts as Agent for the Lenders and the Co-Agents
pursuant to this Credit Agreement with respect to the (i) Guarantees and
(ii) prior to the Term Loan Closing Date, the Security Documents. All
references in this Credit Agreement and in such Replacement Security
Documents to BKB as Agent shall be to BKB in such capacity and not in its
capacity as Collateral Agent. References in ss.8.14 and in ss.10.2(j) and
(k) to the Agent shall be deemed references to BKB in its capacity as
Agent and as Collateral Agent.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrowers and the Borrowers may borrow, repay, and reborrow from time to time
from the Initial Closing Date up to but not including the Revolving Credit Loan
Maturity Date upon notice by the Borrowers to the Agent given in accordance with
ss.2.6, such sums as are requested by the Borrowers up to a maximum aggregate
amount outstanding (after giving effect to all amounts requested) at any one
time equal to such Lender's Revolving Credit Commitment minus such Lender's
Commitment Percentage of all Letter of Credit Exposure, provided that the sum of
the outstanding amount of the Revolving Credit Loans (after giving effect to all
amounts requested) plus the Letter of Credit Exposure shall not at any time
exceed the lesser of (i) the Total Revolving Credit Commitment and (ii) the
Borrowing Base. The Revolving Credit Loans shall be made pro rata in accordance
with each Lender's Commitment Percentage. Each request for a Revolving Credit
Loan hereunder shall constitute a representation and warranty by the Borrowers
that the conditions set forth in ss.12 and ss.14, in the case of the initial
Revolving Credit Loans to be made on the Initial Closing Date, and ss.14, in the
case of all other Revolving Credit Loans, have been satisfied on the date of
such request.
2.2. Unused Revolving Credit Commitment Fee. The Borrowers agree to pay to
the Agent for the accounts of the Lenders in accordance with their respective
Commitment Percentages a commitment fee (the "Revolving Credit Commitment Fee")
in an amount equal to the Applicable Margin for Revolving Credit Commitment Fees
then in effect per annum multiplied by the average daily amount during such
calendar quarter or portion thereof by which the Total Revolving Credit
Commitment minus the Letter of Credit Exposure exceeds the outstanding amount of
Revolving Credit Loans during such calendar quarter. The Revolving Credit
Commitment Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter (or portion
thereof), commencing on the first such date following the date hereof, with a
final payment on the Revolving Credit Maturity Date or any earlier date on which
the Revolving Credit Commitments shall terminate.
2.3. Reduction of Total Revolving Credit Commitment. The Borrowers shall
have the right at any time and from time to time upon five (5) Business Days
prior written notice to the Agent to reduce by $5,000,000 or an integral
multiple thereof or terminate entirely the Total Revolving Credit Commitment,
<PAGE> 32
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whereupon the Revolving Credit Commitments of the Lenders shall be reduced pro
rata in accordance with their respective Commitment Percentages of the amount
specified in such notice or, as the case may be, terminated. Promptly after
receiving any notice of the Borrowers delivered pursuant to this ss.2.3, the
Agent will notify the Lenders of the substance thereof. Upon the effective date
of any such reduction or termination, the Borrowers shall pay to the Agent for
the respective accounts of the Lenders the full amount of any Revolving Credit
Commitment Fee then accrued on the amount of the reduction. The Total Revolving
Credit Commitment shall never be reduced pursuant to this ss.2.3 to an amount
less than the sum of (a) the then outstanding amount of the Revolving Credit
Loans and (b) the Maximum Drawing Amount and all Reimbursement Obligations. No
reduction or termination of the Revolving Credit Commitments may be reinstated.
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrowers in substantially the
form of Exhibit B hereto (each a "Revolving Credit Note"), dated as of the
Initial Closing Date and completed with appropriate insertions. One Revolving
Credit Note shall be payable to the order of each Lender in a principal amount
equal to such Lender's Revolving Credit Commitment or, if less, the outstanding
amount of all Revolving Credit Loans made by such Lender, plus interest accrued
thereon, as set forth below. Each Borrower irrevocably authorizes each Lender to
make or cause to be made, at or about the time of the Drawdown Date of any
Revolving Credit Loan or at the time of receipt of any payment of principal on
such Lender's Revolving Credit Note, an appropriate notation on such Lender's
Revolving Credit Note Record reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Revolving Credit Loans set forth on such Lender's Revolving Credit Note
Record shall be prima facie evidence of the principal amount thereof owing and
unpaid to such Lender, but the failure to record, or any error in so recording,
any such amount on such Lender's Revolving Credit Note Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any
Revolving Credit Note to make payments of principal or interest on any Revolving
Credit Note when due.
2.5. Interest on Revolving Credit Loans. Except as otherwise provided in
ss.6.12,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum of the Base
Rate plus the Applicable Margin.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum of the
Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(c) The Borrowers promise to pay interest on the Revolving Credit
Loans, or any portion thereof outstanding during such Interest Period, in
arrears on each Interest Payment Date with respect thereto.
2.6. Requests for Revolving Credit Loans.
2.6.1. General. The Borrowers shall give to the Agent written notice in the form
of Exhibit C hereto (or telephonic notice confirmed in a writing in the
form of Exhibit C hereto) of each Revolving Credit Loan requested
hereunder (a "Loan Request") not later than 1:00 p.m. (Boston time) on
the proposed Drawdown Date of any Base Rate Loan and (ii) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any
Eurodollar Rate Loan. Each such notice shall specify (A) the principal
amount of the Revolving Credit Loan requested, (B) the proposed Drawdown
Date of such Revolving Credit Loan, (C) the Interest Period for such
Revolving Credit Loan and (D) the Type of such Revolving Credit Loan.
Promptly upon receipt of any such notice, the Agent shall notify each of
the Lenders thereof. Each Loan Request shall be irrevocable and binding
on each of the Borrowers and shall obligate the Borrowers to accept the
Revolving Credit Loan requested from the Lenders on the proposed Drawdown
Date. Each Loan
<PAGE> 33
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Request shall be in a minimum aggregate amount of $5,000,000 or an
integral multiple of $500,000 in excess thereof.
2.6.2. Swing Line. Notwithstanding the notice and minimum amount requirements
set forth in ss.2.6.1 but otherwise in accordance with the terms and
conditions of this Credit Agreement, the Agent may, in its sole
discretion and without conferring with the Lenders, make Revolving Credit
Loans to the Borrowers (i) by entry of credits to Century Aluminum's
operating account (No. 56372564) or any other account(s) of the Borrowers
(the "Operating Accounts") with the Agent to cover checks or other
charges which the applicable Borrower has drawn or made against such
account or (ii) in an amount as otherwise requested by the Borrowers. The
Borrowers hereby request and authorize the Agent to make from time to
time such Revolving Credit Loans by means of appropriate entries of such
credits sufficient to cover checks and other charges then presented for
payment from an Operating Account or as otherwise so requested. The Agent
and the Borrowers acknowledge and agree that the making of such Revolving
Credit Loans shall, in each case, be subject in all respects to the
provisions of this Credit Agreement as if they were Revolving Credit
Loans covered by a Loan Request (other than the requirement for an
immediate Settlement) including, without limitation, the limitations set
forth in ss.2.1 and the requirements that the applicable provisions of
ss.12 (in the case of Revolving Credit Loans made on the Initial Closing
Date) and ss.14 be satisfied. All actions taken by the Agent pursuant to
the provisions of this ss.2.6.2 shall be conclusive and binding on the
Borrowers and the Lenders absent the Agent's gross negligence or willful
misconduct. Revolving Credit Loans made pursuant to this ss.2.6.2 shall
be Base Rate Loans until converted in accordance with the provisions of
the Credit Agreement and, prior to a Settlement, such interest shall be
for the account of the Agent.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan. The Borrowers may
elect from time to time to convert any outstanding Revolving Credit Loan
to a Revolving Credit Loan of another Type, provided that (i) with
respect to any such conversion of a Eurodollar Rate Loan to a Base Rate
Loan, the Borrowers shall give the Agent at least one (1) Business Day
prior written notice of such election; (ii) with respect to any such
conversion of a Base Rate Loan to a Eurodollar Rate Loan, the Borrowers
shall give the Agent at least three (3) Eurodollar Business Days prior
written notice of such election; (iii) with respect to any such
conversion of a Eurodollar Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto and (iv) no Loan may be converted into a Eurodollar Rate
Loan when any Default or Event of Default has occurred and is continuing
or if such conversion is not permitted by ss.2.6.3. On the date on which
such conversion is being made each Lender shall take such action as is
necessary to transfer its Commitment Percentage of such Revolving Credit
Loans to its Domestic Lending Office or its Eurodollar Lending Office, as
the case may be. All or any part of outstanding Revolving Credit Loans of
any Type may be converted into a Revolving Credit Loan of another Type as
provided herein, provided that any partial conversion shall be in a
minimum aggregate principal amount of $5,000,000 or an integral multiple
of $500,000 in excess thereof. Each Conversion Request relating to the
conversion of a Revolving Credit Loan to a Eurodollar Rate Loan shall be
irrevocable by the Borrowers.
2.7.2. Continuation of Type of Revolving Credit Loan. Any Revolving Credit Loan
of any Type may be continued as a Revolving Credit Loan of the same Type
upon the expiration of an Interest Period with respect thereto by
compliance by the Borrowers with the notice provisions contained in
ss.2.7.1; provided that no Eurodollar Rate Loan may be continued as such
when any Default or Event of Default has occurred and is continuing, and
during any Default or Event of Default Eurodollar Rate Loans shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any
Default or Event of Default of which officers of the Agent active upon
the Borrowers' account have actual knowledge. In the event that the
Borrowers fail to provide any such notice with respect to the
continuation of any Eurodollar Rate Loan as such, then such Eurodollar
Rate Loan shall be
<PAGE> 34
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automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto. The Agent shall notify the Lenders and
the Borrowers promptly when any such automatic conversion contemplated by
this ss.2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from Eurodollar Rate Loans
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, (a) the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less
than $5,000,000 or an integral multiple of $500,000 in excess thereof and
(b) no more than five (5) Eurodollar Rate Loans shall be outstanding at
any time.
2.8. Funds for Revolving Credit Loan.
2.8.1. Funding Procedures. Not later than 3:00 p.m. (Boston time) on the
proposed Drawdown Date of any Revolving Credit Loans, each of the Lenders
will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Lender's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon
receipt from each Lender of such amount, and upon receipt of the
documents required by ss.ss.12 and 14 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will
make available to the Borrowers the aggregate amount of such Revolving
Credit Loans made available to the Agent by the Lenders. The failure or
refusal of any Lender to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment
Percentage of the requested Revolving Credit Loans shall not relieve any
other Lender from its several obligation hereunder to make available to
the Agent the amount of such other Lender's Commitment Percentage of any
requested Revolving Credit Loans.
2.8.2. Advances by Agent. The Agent may, unless notified to the contrary by any
Lender prior to a Drawdown Date, assume that such Lender has made
available to the Agent on such Drawdown Date the amount of such Lender's
Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrowers a
corresponding amount. If any Lender makes available to the Agent such
amount on a date after such Drawdown Date, such Lender shall pay to the
Agent on demand an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, times (ii)
the amount of such Lender's Commitment Percentage of such Revolving
Credit Loans, times (iii) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Lender's Commitment Percentage of such
Revolving Credit Loans shall become immediately available to the Agent,
and the denominator of which is 365. A statement of the Agent submitted
to such Lender with respect to any amounts owing under this paragraph
shall be prima facie evidence of the amount due and owing to the Agent by
such Lender. If the amount of such Lender's Commitment Percentage of such
Revolving Credit Loans is not made available to the Agent by such Lender
within three (3) Business Days following such Drawdown Date, the Agent
shall be entitled to recover such amount from the Borrowers on demand,
with interest thereon at the rate per annum applicable to the Revolving
Credit Loans made on such Drawdown Date.
2.9. Change in Borrowing Base.
(a) The Borrowing Base shall be determined by the Agent by reference to
the Borrowing Base Report required to be delivered pursuant to ss.9.4(f) and the
Agent may, in its reasonable discretion, adjust the Borrowing Base based upon
the Agent's review of the weekly report of sales and collections delivered
pursuant to ss.9.4(f).
(b) The Agent may, in its reasonable discretion, from time to time,
reduce the Borrowing Base by such amounts ("Reserves") as the Agent may from
time to time establish and revise (a) to reflect events, conditions,
contingencies or risks which do or may adversely affect either (A) any
Collateral, the
<PAGE> 35
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rights of the Agent or any of the Lenders in any Collateral or its value or (B)
the security interest and other rights of the Agent or any of the Lenders in the
Collateral (including the enforceability, perfection and priority thereof) or
(b) to reflect the belief of the Agent that any Borrowing Base Report or other
collateral report or financial information furnished by or on behalf of the
Borrowers to the Agent or any of the Lenders is or may have been incomplete,
inaccurate or misleading in any material respect. Reserves may include, but are
not limited to: reserves to reflect (a) an increase in the dilution of Accounts
Receivable, (b) material changes in the number of days turnover in inventory,
(c) the deterioration in any material respect of the liquidation value of
inventory or a change in the mix of inventory, (d) taxes and other governmental
charges, whether ad valorem, personal or real property or otherwise and whether
or not the tax claims therefor may have priority over the Agent's security
interest in any of the Collateral, and (e) any customs, duty, freight or other
out-of-pocket costs or expenses required or advisable to "land" any Eligible
Inventory the purchase of which is supported by a Letter of Credit.
(c) The Agent shall give to the Borrower written notice of any change in
the Borrowing Base determined by the Agent. Such notice shall be effective five
(5) days after its receipt by the Borrowers. Prior to the time that such notice
becomes effective the Borrowing Base shall be computed as it would have been
computed in the absence of such notice.
2.10. Settlements.
2.10.1. General. On each Settlement Date, the Agent shall, not later than 11:00
a.m. (Boston time), give telephonic or facsimile notice (i) to the
Lenders and the Borrowers of the respective outstanding amount of
Revolving Credit Loans made by the Agent on behalf of the Lenders from
the immediately preceding Settlement Date through the close of business
on the prior day and the amount of any Eurodollar Rate Loans to be made
(following the giving of notice pursuant to ss.2.6.1(ii)) on such date
pursuant to a Loan Request and (ii) to the Lenders of the amount (a
"Settlement Amount") that each Lender (a "Settling Lender") shall pay to
effect a Settlement of any Revolving Credit Loan. A statement of the
Agent submitted to the Lenders and the Borrowers or to the Lenders with
respect to any amounts owing under this ss.2.10 shall be prima facie
evidence of the amount due and owing. Each Settling Lender shall, not
later than 3:00 p.m. (Boston time) on such Settlement Date, effect a
wire transfer of immediately available funds to the Agent in the amount
of the Settlement Amount for such Settling Lender. All funds advanced by
any Lender as a Settling Lender pursuant to this ss.2.10 shall for all
purposes be treated as a Revolving Credit Loan made by such Settling
Lender to the applicable Borrower and all funds received by any Lender
pursuant to this ss.2.10 shall for all purposes be treated as repayment
of amounts owed with respect to Revolving Credit Loans made by such
Lender. In the event that any bankruptcy, reorganization, liquidation,
receivership or similar cases or proceedings in which any of the
Borrowers are a debtor prevent a Settling Lender from making any
Revolving Credit Loan to effect a Settlement as contemplated hereby,
such Settling Lender will make such dispositions and arrangements with
the other Lenders with respect to such Revolving Credit Loans, either by
way of purchase of participations, distribution, pro tanto assignment of
claims, subrogation or otherwise as shall result in each Lender's share
of the outstanding Revolving Credit Loans being equal, as nearly as may
be, to such Lender's Commitment Percentage of the outstanding amount of
the Revolving Credit Loans.
2.10.2. Failure to Make Funds Available. The Agent may, unless notified to the
contrary by any Settling Lender prior to a Settlement Date, assume that
such Settling Lender has made or will make available to the Agent on
such Settlement Date the amount of such Settling Lender's Settlement
Amount, and the Agent may (but it shall not be required to), in reliance
upon such assumption, make available to the applicable Borrower a
corresponding amount. If any Settling Lender makes available to the
Agent such amount on a date after such Settlement Date, such Settling
Lender shall pay to the Agent on demand an amount equal to the product
of (i) the average computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such
<PAGE> 36
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period, times (ii) the amount of such Settlement Amount, times (iii) a
fraction, the numerator of which is the number of days that elapse from
and including such Settlement Date to the date on which the amount of
such Settlement Amount shall become immediately available to the Agent,
and the denominator of which is 360. A statement of the Agent submitted
to such Settling Lender with respect to any amounts owing under this
ss.2.10.2 shall be prima facie evidence of the amount due and owing to
the Agent by such Settling Lender. If such Settling Lender's Settlement
Amount is not made available to the Agent by such Settling Lender within
three (3) Business Days following such Settlement Date, the Agent shall
be entitled to recover such amount from the applicable Borrower on
demand, with interest thereon at the rate per annum applicable to the
Revolving Credit Loans as of such Settlement Date.
2.10.3. No Effect on Other Lenders. The failure or refusal of any Settling
Lender to make available to the Agent at the aforesaid time and place on
any Settlement Date the amount of such Settling Lender's Settlement
Amount shall not (i) relieve any other Settling Lender from its several
obligations hereunder to make available to the Agent the amount of such
other Settling Lender's Settlement Amount or (ii) impose upon any
Lender, other than the Settling Lender so failing or refusing, any
liability with respect to such failure or refusal or otherwise increase
the Revolving Credit Commitment of such other Lender.
2.11. Repayments of Revolving Credit Loans Prior to Event of Default.
2.11.1. Credit for Funds Received in Concentration Account. Prior to the
occurrence of an Event of Default as to which the account officers of
the Agent active upon the Borrowers' account have actual knowledge, (i)
all funds and cash proceeds in the form of money, checks and like items
received in the BKB Concentration Account as contemplated by ss.9.14
shall be credited, on the same Business Day on which the Agent
determines that good collected funds have been received, and, prior to
the receipt of good collected funds, on a provisional basis until final
receipt of good collected funds, and applied as contemplated by
ss.2.11.2, (ii) all funds and cash proceeds in the form of a wire
transfer received in the BKB Concentration Account as contemplated by
ss.9.14 shall be credited on the same Business Day as the Agent's
receipt of such amounts (or up to such later date as the Agent
determines that good collected funds have been received), and applied as
contemplated by ss.2.11.2, and (iii) all funds and cash proceeds in the
form of an automated clearing house transfer received in the BKB
Concentration Account as contemplated by ss.9.14 shall be credited, on
the next Business Day following the Agent's receipt of such amounts (or
up to such later date as the Agent determines that good collected funds
have been received), and applied as contemplated by ss.2.11.2. For
purposes of the foregoing provisions of this ss.2.11.1, the Agent shall
not be deemed to have received any such funds or cash proceeds on any
day unless received by the Agent before 2:30 p.m. (Boston time) on such
day. Each of the Borrowers further acknowledges and agrees that any such
provisional credits or credits in respect of wire or automatic clearing
house funds transfers shall be subject to reversal if final collection
in good funds of the related item is not received by, or final
settlement of the funds transfer is not made in favor of, the Agent in
accordance with the Agent's customary procedures and practices for
collecting provisional items or receiving settlement of funds transfers.
2.11.2. Application of Payments Prior to Event of Default.
(a) Prior to the occurrence of an Event of Default of which
the account officers of the Agent active on the Borrowers' account
have knowledge, all funds transferred to the BKB Concentration
Account and for which the Borrowers have received credits shall be
applied to the Obligations as follows:
(i) first, to pay amounts then due and payable under
this Credit Agreement, the Notes and the other Loan Documents;
<PAGE> 37
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(ii) second, to reduce Revolving Credit Loans made by
the Agent pursuant to ss.2.6.2 and for which Settlement has
not then been made;
(iii) third, to reduce other Revolving Credit Loans
which are Base Rate Loans;
(iv) fourth, to reduce Revolving Credit Loans which are
Eurodollar Rate Loans; and
(v) fifth, except as otherwise required by ss.5.2(b) and
(c), to the Operating Account of Century Aluminum.
(b) All prepayments of Eurodollar Rate Loans prior to the end
of an Interest Period shall obligate the Borrowers to pay any
Breakage Costs associated with such Eurodollar Rate Loans in
accordance with ss.6.11. Prior to the occurrence of an Event of
Default, the Borrowers may elect to avoid such Breakage Costs by
having such funds placed in the Borrowers' Operating Account.
(c) All prepayments of the Revolving Credit Loans pursuant to
this ss.2.11.2 shall be allocated among the Lenders making such
Revolving Credit Loans, in proportion, as nearly as practicable, to
the respective unpaid principal amount of such Revolving Credit
Loans outstanding, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in proportion.
Prior to any Settlement Date, however, all prepayments of the
Revolving Credit Loans shall be applied in accordance with this
ss.2.11.2, first to outstanding Revolving Credit Loans of the Agent.
2.12. Repayments of Revolving Credit Loans After Event of Default.
Following the occurrence and during the continuance of an Event of Default of
which the account officers of the Agent active on the Borrowers' account have
knowledge, all funds transferred to the BKB Concentration Account and for which
the Borrowers have received credits shall be applied to the Obligations in
accordance with ss.15.4.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. The Borrowers absolutely and unconditionally and jointly
and severally promise to pay on the Revolving Credit Loan Maturity Date, and
there shall become absolutely due and payable on the Revolving Credit Loan
Maturity Date, all of the Revolving Credit Loans outstanding on such date,
together with any and all accrued and unpaid interest thereon and all fees and
expenses incurred by the Lenders and the Agent in connection therewith and
payable by the Borrowers hereunder.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, and all Letter of
Credit Exposure exceeds the lesser of (i) the Total Revolving Credit Commitment
and (ii) the Borrowing Base, then the Borrowers shall immediately pay the amount
of such excess to the Agent for the respective accounts of the Lenders for
application: first, to any Unpaid Reimbursement Obligations; second, to the
Revolving Credit Loans; and third, to provide to the Agent cash collateral for
Reimbursement Obligations as contemplated by ss.5.2(b) and (c). Each payment of
any Unpaid Reimbursement Obligations or prepayment of Revolving Credit Loans
shall be allocated among the Lenders, in proportion, as nearly as practicable,
to each Reimbursement Obligation or (as the case may be) the respective unpaid
principal amount of each Lender's Revolving Credit Note, with adjustments to the
extent practicable to equalize any prior payments or repayments not exactly in
proportion.
3.3. Optional Repayments of Revolving Credit Loans. The Borrowers shall
have the right, at their election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium (but subject to ss.6.11). The Borrowers shall give the Agent, no later
than 10:00 a.m., Boston time, at least three (3) Business Days prior written
notice of any proposed prepayment
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pursuant to this ss.3.3 of Base Rate Loans, and four (4) Eurodollar Business
Days notice of any proposed prepayment pursuant to this ss.3.3 of Eurodollar
Rate Loans, in each case specifying the proposed date of prepayment of Revolving
Credit Loans and the principal amount to be prepaid. Each such partial
prepayment of the Revolving Credit Loans shall be in an integral multiple of
$1,000,000, shall be accompanied by the payment of accrued interest on the
principal prepaid to the date of prepayment and shall be applied, in the absence
of instruction by the Borrowers, first to the principal of Base Rate Loans and
then to the principal of Eurodollar Rate Loans, at the Agent's option. Each
partial prepayment shall be allocated among the Lenders, in proportion, as
nearly as practicable, to the respective unpaid principal amount of each
Lender's Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
4. THE TERM LOAN.
4.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each Lender agrees to lend to the Borrowers on the Term
Loan Closing Date, the amount of its Commitment Percentage of the principal
amount of $20,000,000; provided that if the Term Loan Closing Date has not
occurred on or before ninety (90) days following the Initial Closing Date, the
Term Loan Commitment of each Lender shall terminate in their entirety on such
ninetieth (90th) day following the Initial Closing Date.
4.2. The Term Notes. The Term Loan shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of Exhibit D hereto
(each a "Term Note"), dated the Term Loan Closing Date and completed with
appropriate insertions. One Term Note shall be payable to the order of each
Lender in a principal amount equal to such Lender's Commitment Percentage of the
Term Loan and representing the obligation of the Borrowers to pay to such Lender
such principal amount or, if less, the outstanding amount of such Lender's
Commitment Percentage of the Term Loan, plus interest accrued thereon, as set
forth below. Each Borrower irrevocably authorizes each Lender to make or cause
to be made a notation on such Lender's Term Note Record reflecting the original
principal amount of such Lender's Commitment Percentage of the Term Loan and, at
or about the time of such Lender's receipt of any principal payment on such
Lender's Term Note, an appropriate notation on such Lender's Term Note Record
reflecting such payment. The aggregate unpaid amount set forth on such Lender's
Term Note Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Lender, but the failure to record, or any error in so
recording, any such amount on such Lender's Term Note Record shall not affect
the obligations of the Borrowers hereunder or under any Term Note to make
payments of principal of and interest on any Term Note when due.
4.3. Unused Term Loan Commitment Fee. The Borrowers agree to pay to the
Agent for the accounts of the Lenders in accordance with their respective
Commitment Percentages a commitment fee (the "Term Loan Commitment Fee") in an
amount equal to three-eighth of one percent (0.375%) per annum multiplied by the
average daily amount during such calendar quarter or portion thereof by which
the Total Term Loan Commitment exceeds the outstanding amount of the Term Loan
during such calendar quarter. The Term Loan Commitment Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter (or portion thereof), commencing on the
first such date following the date hereof, with a final payment on the date on
which the Term Loan Commitments shall terminate.
4.4. Schedule of Installment Payments of Principal of Term Loan; Certain
Mandatory Prepayments.
(a) The Borrowers absolutely and unconditionally and jointly and severally
promise to pay to the Agent for the account of the Lenders the principal amount
of the Term Loan in nineteen (19) consecutive quarterly installments with each
installment payment due and payable on the last day of each calendar quarter
(each such date a "Term Loan Payment Date"), commencing on September 30, 1999,
with a final payment on the Term Loan Maturity Date in an amount equal to the
unpaid balance of the Term Loan, together with all accrued and unpaid interest
thereon. The aggregate principal amount of the Term Loan due on each Term Loan
Payment Date shall be the amount obtained by (i) multiplying (A) the
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outstanding aggregate principal amount of the Term Loan on the Term Loan Closing
Date by (B) the percentage set forth below opposite the period during which such
Term Loan Payment Date falls and (ii) dividing the product of clause (i) above
by the number of Term Loan Payment Dates in such period.
<TABLE>
<CAPTION>
Amortization
Date Percentage
- ---- ----------
<S> <C>
September 30, 1999 through March 31, 2000 5%
April 1, 2000 through March 31, 2001 15%
April 1, 2001 through March 31, 2002 25%
April 1, 2002 through March 31, 2003 27.5%
April 1, 2003 through March 31, 2004 27.5%
Total 100%
</TABLE>
(b) The Borrowers further promise to pay to the Agent for the pro rata
accounts of the Lenders in accordance with their respective Commitment
Percentages, on the ninetieth (90th) day following the end of each fiscal year
(commencing with the fiscal year ending December 31, 1999) of the Borrowers, an
amount equal to fifty percent (50%) of Consolidated Excess Cash Flow for the
immediately preceding fiscal year, with each such payment to be applied to the
remaining scheduled payments of the Term Loan pro rata.
4.5. Optional Prepayment of Term Loan. The Borrowers shall have the right
at any time to prepay the Term Notes on or before the Term Loan Maturity Date,
as a whole, or in part, upon not less than five (5) Business Days prior written
notice to the Agent, without premium or penalty (but subject to ss.6.11),
provided that (i) each partial prepayment shall be in the principal amount of
$1,000,000 or an integral multiple thereof and (ii) each partial prepayment
shall be allocated among the Lenders, in proportion, as nearly as practicable,
to the respective outstanding amount of each Lender's Term Note, with
adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
4.6. Interest on Term Loan.
4.6.1. Interest Rates. Except as otherwise provided in ss.6.12, the Term Loan
shall bear interest during each Interest Period relating to all or any
portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Base Rate, the
Term Loan or such portion shall bear interest during such Interest
Period at the rate per annum of the Base Rate plus the Applicable
Margin.
(b) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Eurodollar Rate,
the Term Loan or such portion shall bear interest during such
Interest Period at the rate per annum of the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(c) The Borrowers promise to pay interest on the Term Loan,
or any portion thereof outstanding during each Interest Period, in
arrears on each Interest Payment Date with respect thereto.
4.6.2. Notification by Borrowers. The Borrowers shall notify the Agent, such
notice to be irrevocable, at least three (3) Eurodollar Business Days
prior to the Drawdown Date of the Term Loan if all or any portion of the
Term Loan is to bear interest at the Eurodollar Rate. After the Term Loan
has
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been made, the provisions of ss.2.7 shall apply mutatis mutandis with
respect to all or any portion of the Term Loan so that the Borrowers may
have the same interest rate options with respect to all or any portion of
the Term Loan as they would be entitled to with respect to the Revolving
Credit Loans.
4.6.3. Amounts, etc. Any portion of the Term Loan bearing interest at the
Eurodollar Rate relating to any Interest Period shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of $500,000 in
excess thereof. No Interest Period relating to the Term Loan or any
portion thereof bearing interest at the Eurodollar Rate shall extend
beyond the date on which a regularly scheduled installment payment of the
principal of the Term Loan is to be made unless a portion of the Term
Loan at least equal to such installment payment has an Interest Period
ending on such date or is then bearing interest at the Base Rate.
5. LETTERS OF CREDIT.
5.1. Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof and the execution and delivery by the Borrowers of a
letter of credit application on the Issuing Bank's customary form (a
"Letter of Credit Application"), the Issuing Bank on behalf of the
Lenders and in reliance upon the agreement of the Lenders set forth in
ss.5.1.4 and upon the representations and warranties of the Borrowers
contained herein, agrees, in its individual capacity, to issue, extend
and renew for the account of a Borrower one or more standby or
documentary letters of credit (individually, a "Letter of Credit"), in
such form as may be requested from time to time by the applicable
Borrower and agreed to by the Issuing Bank; provided, however, that,
after giving effect to such request, (a) the Letter of Credit Exposure
shall not exceed $10,000,000 at any one time and (b) the sum of (i) the
Letter of Credit Exposure plus, (ii) the amount of all Revolving Credit
Loans outstanding shall not exceed the lesser of (A) the Total Revolving
Credit Commitment and (B) the Borrowing Base.
5.1.2. Letter of Credit Applications. Each Letter of Credit Application shall be
completed to the satisfaction of the Issuing Bank. In the event that any
provision of any Letter of Credit Application shall be inconsistent with
any provision of this Credit Agreement, then the provisions of this
Credit Agreement shall, to the extent of any such inconsistency, govern.
5.1.3. Terms of Letters of Credit. Each Letter of Credit issued, extended or
renewed hereunder shall, among other things, (i) provide for the payment
of sight drafts for honor thereunder when presented in accordance with
the terms thereof and when accompanied by the documents described
therein, and (ii) have an expiry date no later than 365 days from the
date of issuance and a final expiry date no later than fourteen (14) days
(or, if the Letter of Credit is confirmed by a confirmer or otherwise
provides for one or more nominated persons, forty-five (45) days) prior
to the Revolving Credit Loan Maturity Date. Each Letter of Credit so
issued, extended or renewed shall be subject to the Uniform Customs or,
in the case of a standby Letter of Credit, either the Uniform Customs or
the International Standby Practices.
5.1.4. Reimbursement Obligations of Lenders. Each Lender severally agrees that
it shall be absolutely liable, without regard to the occurrence of any
Default or Event of Default or any other condition precedent whatsoever,
to the extent of such Lender's Commitment Percentage, to reimburse the
Issuing Bank on demand for the amount of each draft paid by the Issuing
Bank under each Letter of Credit to the extent that such amount is not
reimbursed by the Borrowers pursuant to ss.5.2 (such agreement for a
Lender being called herein the "Letter of Credit Participation" of such
Lender).
5.1.5. Participations of Lenders. Each such payment made by a Lender shall be
treated as the purchase by such Lender of a participating interest in the
Borrowers' Reimbursement Obligation under ss.5.2 in an amount equal to
such payment. Each Lender shall share in accordance with its
participating interest in any interest which accrues pursuant to ss.5.2.
5.2. Reimbursement Obligation of the Borrowers. In order to induce the
Issuing Bank to issue, extend and renew each Letter of Credit and the Lenders to
participate therein, each Borrower hereby jointly and
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severally agrees to reimburse or pay to the Issuing Bank, for the account of the
Issuing Bank or (as the case may be) the Lenders, with respect to each Letter of
Credit issued, extended or renewed by the Issuing Bank hereunder,
(a) except as otherwise expressly provided in ss.5.2(b) and (c),
on each date that any draft presented under such Letter of Credit is
honored by the Issuing Bank, or the Issuing Bank otherwise makes a
payment with respect thereto, (i) the amount paid by the Issuing Bank
under or with respect to such Letter of Credit, and (ii) the amount of
any taxes, fees, charges or other costs and expenses whatsoever incurred
by the Issuing Bank or any Lender in connection with any payment made by
the Issuing Bank or any Lender under, or with respect to, such Letter of
Credit,
(b) upon the reduction (but not termination) of the Total
Revolving Credit Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held by
the Issuing Bank or by the Agent for the benefit of the Lenders, the
Issuing Bank and the Agent as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Total Revolving Credit Commitment,
or the acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with ss.15, an amount equal to the then
Maximum Drawing Amount on all Letters of Credit, which amount shall be
held by the Issuing Bank or by the Agent for the benefit of the Lenders,
the Issuing Bank and the Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Issuing Bank at the Issuing Bank's head
office at 100 Federal Street, Boston, Massachusetts 02110 (or at such other
place that the Issuing Bank may from time to time designate) in immediately
available funds. Interest on any and all amounts remaining unpaid by the
Borrower under this ss.5.2 at any time from the date such amounts become due and
payable (whether as stated in this ss.5.2, by acceleration or otherwise) until
payment in full (whether before or after judgment) shall be payable to the
Issuing Bank on demand at the rate specified in ss.6.12 for overdue principal on
the Revolving Credit Loans.
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5.3. Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Issuing Bank
shall notify the Borrowers of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrowers fails to reimburse the Issuing
Bank as provided in ss.5.2 on or before the date that such draft is paid or
other payment is made by the Issuing Bank, the Issuing Bank may at any time
thereafter notify the Lenders of the amount of any such Unpaid Reimbursement
Obligation. No later than 3:00 p.m. (Boston time) on the Business Day next
following the receipt of such notice, each Lender shall make available to the
Issuing Bank, at the Issuing Bank's head office at 100 Federal Street, Boston,
Massachusetts 02110 (or at such other place that the Issuing Bank may from time
to time designate), in immediately available funds, such Lender's Commitment
Percentage of such Unpaid Reimbursement Obligation, together with an amount
equal to the product of (i) the average, computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by the Issuing
Bank for federal funds acquired by the Issuing Bank during each day included in
such period, times (ii) the amount equal to such Lender's Commitment Percentage
of such Unpaid Reimbursement Obligation, times (iii) a fraction, the numerator
of which is the number of days that elapse from and including the date the
Issuing Bank paid the draft presented for honor or otherwise made payment to the
date on which such Lender's Commitment Percentage of such Unpaid Reimbursement
obligation shall become immediately available to the Issuing Bank, and the
denominator of which is 360. The responsibility of the Issuing Bank to the
Borrower and the Lenders shall be only to determine that the documents
(including each draft) delivered under each Letter of Credit in connection with
such presentment shall be in conformity in all material respects with such
Letter of Credit.
5.4. Obligations Absolute. Each Borrower's obligations under this ss.5
shall be joint and several and absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Default or Event of
Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which any Borrower may have or have had against the Issuing
Bank, the Agent any Lender or any beneficiary of a Letter of Credit. Each of the
Borrowers further agrees with the Issuing Bank and the Lenders that the Issuing
Bank and the Lenders shall not be responsible for, and the Borrowers'
Reimbursement Obligations under ss.5.2 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the Borrowers,
the beneficiary of any Letter of Credit or any financing institution or other
party to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrowers against the beneficiary of any Letter of Credit or
any such transferee. The Issuing Bank and the Lenders shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any Letter of
Credit. Each Borrower agrees that any action taken or omitted by the Issuing
Bank or any Lender under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon each
of the Borrowers and shall not result in any liability on the part of the
Issuing Bank or any Lender to any of the Borrowers. Notwithstanding the
foregoing, the Borrowers shall have no obligation hereunder to any Person
indemnified hereunder with respect to liabilities arising solely from such
indemnified Person's gross negligence or willful misconduct.
5.5. Reliance by Issuer. To the extent not inconsistent with ss.5.4, the
Issuing Bank shall be entitled to rely, and shall be fully protected in relying
upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Issuing Bank. The Issuing Bank shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first have received such advice or concurrence of the Majority
Lenders as it reasonably deems appropriate or it shall first be indemnified to
its reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Issuing Bank shall in all cases be
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fully protected in acting, or in refraining from acting, under this Credit
Agreement in accordance with a request of the Majority Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
the Lenders and all future holders of the Revolving Credit Notes or of a Letter
of Credit Participation.
5.6. Letter of Credit Fee. The Borrowers shall pay to the Issuing Bank a
fee (in each case, a "Letter of Credit Fee") in respect of Letters of Credit on
the average daily Maximum Drawing Amount at a rate per annum equal to (a) with
respect to each standby Letter of Credit, the Applicable Margin for Eurodollar
Rate Loans per annum from time to time applicable to Revolving Credit Loans and
(b) with respect to each documentary Letter of Credit, the Applicable Margin for
Eurodollar Rate Loans per annum from time to time applicable to Revolving Credit
Loans minus one-half of one percent (1/2%), such Letter of Credit Fees being
payable quarterly in arrears on the first day of each calendar quarter and on
the Revolving Credit Loan Maturity Date. A portion of such Letter of Credit Fees
equal to one-quarter of one percent (1/4%) per annum shall be payable to the
Issuing Bank for its own account and the remainder of such Letter of Credit Fees
shall be payable to the Issuing Bank for the ratable accounts of the Lenders in
accordance with their respective Commitment Percentages. The Borrowers shall
also pay to the Issuing Bank, at such time or times as such charges are
customarily made by the Issuing Bank, the Issuing Bank's customary issuance fees
or amendment fees, as the case may be, and the Issuing Bank's customary time
negotiation fees per document examination or other administrative fees.
6. CERTAIN GENERAL PROVISIONS.
6.1. Up front Fee. The Borrowers agree to pay to the Agent on the Closing
Date an up front fee (the "Up Front Fee") in the amounts and at the times set
forth in the Commitment Letter.
6.2. Agent's Fee. The Borrowers shall pay to the Agent, for the Agent's
own account, an Agent's fee (the "Agent's Fee") in the amounts and at the times
set forth in the Commitment Letter.
6.3. Funds for Payments.
6.3.1. Payments to Agent. All payments of principal, interest, Reimbursement
Obligations, Fees and any other amounts due hereunder or under any of the
other Loan Documents shall be made on the due date thereof to the Agent
in Dollars, for the respective accounts of the Lenders and the Agent, at
the Agent's Head Office or at such other place that the Agent may from
time to time designate, in each case at or about 12:00 p.m. (Boston,
Massachusetts, time or other local time at the place of payment) and in
immediately available funds.
6.3.2. No Offset, etc. All payments by the Borrowers hereunder and under any of
the other Loan Documents shall be made without recoupment, setoff or
counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Borrowers are compelled by law to make such deduction or withholding. If
any such obligation is imposed upon the Borrowers with respect to any
amount payable by it hereunder or under any of the other Loan Documents,
the Borrowers will pay to the Agent, for the account of the Lenders or
(as the case may be) the Agent, on the date on which such amount is due
and payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Lenders or the
Agent to receive the same net amount which the Lenders or the Agent would
have received on such due date had no such obligation been imposed upon
the Borrowers. The Borrowers will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the Borrowers
hereunder or under such other Loan Document.
6.4. Computations. All computations of interest on (a) Base Rate Loans
and of Commitment Fees or other fees shall, unless otherwise expressly provided
herein, be based on a 365-day year (or 366-day year, as the case may be) and
paid for the actual number of days elapsed, and (b) Eurodollar Rate Loans and
Letter of Credit Fees shall, unless otherwise expressly provided herein, be
based on a 360-day year. Except as otherwise provided in the definition of the
term "Interest Period" with respect to Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a
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day that is not a Business Day, the due date for such payment shall be extended
to the next succeeding Business Day, and interest shall accrue during such
extension. The outstanding amount of the Loans as reflected on the Revolving
Credit Note Records and the Term Note Records from time to time shall be
considered correct and binding on the Borrowers unless within ten (10) Business
Days after receipt of any notice by the Agent or any of the Lenders of such
outstanding amount, the Agent or such Lender shall notify the Borrower to the
contrary.
6.5. Inability to Determine Eurodollar Rate. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine or be notified by the Majority Lenders that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrowers and the
Lenders) to the Borrowers and the Lenders. In such event (i) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (ii) each
Eurodollar Rate Loan will automatically, on the last day of the then current
Interest Period relating thereto, become a Base Rate Loan, and (iii) the
obligations of the Lenders to make Eurodollar Rate Loans shall be suspended
until the Agent or the Majority Lenders determine that the circumstances giving
rise to such suspension no longer exist, whereupon the Agent or, as the case may
be, the Agent upon the instruction of the Majority Lenders, shall so notify the
Borrowers and the Lenders.
6.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Borrowers and the other Lenders and thereupon (i) the
commitment of such Lender to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Lender's Loans then outstanding as Eurodollar Rate Loans, if any, shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurodollar Rate Loans or within such earlier period as
may be required by law. The Borrowers hereby agree promptly to pay the Agent for
the account of such Lender, upon demand by such Lender, any additional amounts
necessary to compensate such Lender for any costs incurred by such Lender in
making any conversion in accordance with this ss.6.6, including any interest or
fees payable by such Lender to lenders of funds obtained by it in order to make
or maintain its Eurodollar Rate Loans hereunder.
6.7. Additional Costs, etc. If any present or future Applicable Law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to
this Credit Agreement, the other Loan Documents, any Letters of Credit,
such Lender's Commitments or the Loans (other than franchise taxes or
taxes based upon or measured by the income or profits of such Lender or
the Agent), or
(b) materially change the basis of taxation (except for changes in
franchise taxes or taxes on income or profits) of payments to any Lender
of the principal of or the interest on any Loans or any other amounts
payable to any Lender or the Agent under this Credit Agreement or any of
the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment,
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liquidity, capital adequacy or other similar requirements (whether or not
having the force of law) against assets held by, or deposits in or for
the account of, or loans by, or letters of credit issued by, or
commitments of an office of any Lender, or
(d) impose on any Lender or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Lender's Commitments,
or any class of loans, letters of credit or commitments of which any of
the Loans or such Lender's Commitments forms a part, and the result of
any of the foregoing is
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or
such Lender's Commitments or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender or
the Agent hereunder on account of such Lender's Commitments, any
Letter of Credit or any of the Loans, or
(iii) to require such Lender or the Agent to make any
payment or to forego any interest or Reimbursement Obligation or
other sum payable hereunder, the amount of which payment or
foregone interest or Reimbursement Obligation or other sum is
calculated by reference to the gross amount of any sum receivable
or deemed received by such Lender or the Agent from the Borrower
hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Lender
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Lender or the Agent such
additional amounts as will be sufficient to compensate such Lender or the Agent
for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum.
6.8. Capital Adequacy. If after the date hereof any Lender or the Agent
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or Governmental
Authority with appropriate jurisdiction, or (ii) compliance by such Lender or
the Agent or any corporation controlling such Lender or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Lender's or the Agent's commitment with
respect to any Loans to a level below that which such Lender or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or the Agent's then existing policies with respect
to capital adequacy and assuming full utilization of such entity's capital) by
any amount deemed by such Lender or (as the case may be) the Agent to be
material, then such Lender or the Agent may notify the Borrower of such fact. To
the extent that the amount of such reduction in the return on capital is not
reflected in the Base Rate, the Borrowers agree to pay such Lender or (as the
case may be) the Agent for the amount of such reduction in the return on capital
as and when such reduction is determined upon presentation by such Lender or (as
the case may be) the Agent of a certificate in accordance with ss.6.10 hereof.
Each Lender shall allocate such cost increases among its customers in good faith
and on an equitable basis.
6.9. Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of ss.ss.6.7 or 6.8 with
respect to such Lender, it will, if requested by the Borrowers, use reasonable
efforts (subject to overall policy consideration of such Lender) to designate
another lending office for any Loans affected by such event, provided that such
designation is made on such terms that such Lender and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
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Nothing in this ss.6.9 shall affect or postpone any of the obligations of the
Borrowers or the right of any Lender provided in ss.ss.6.7 or 6.8.
6.10. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.6.7 or 6.8 and an explanation of such amounts which
are due, submitted by any Lender or the Agent to the Borrowers, shall be
conclusive, absent manifest error, that such amounts are due and owing.
6.11. Indemnity. Each Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and against any loss, cost or expense (collectively,
"Breakage Costs") that such Lender may sustain or incur as a consequence of (i)
default by the Borrowers in payment of the principal amount of or any interest
on any Eurodollar Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by such Lender to lenders
of funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrowers in making a borrowing or conversion after the Borrowers
have given (or are deemed to have given) a Loan Request, notice (in the case of
all or any portion of the Term Loans pursuant to ss.4.5.2) or a Conversion
Request relating thereto in accordance with ss.2.6 or ss.2.7 or ss.4.5 or (iii)
the making of any payment of a Eurodollar Rate Loan or the making of any
conversion of any such Loan to a Base Rate Loan on a day that is not the last
day of the applicable Interest Period with respect thereto, including interest
or fees payable by such Lender to lenders of funds obtained by it in order to
maintain any such Loans.
6.12. Interest After Default.
6.12.1. Overdue Amounts. Overdue principal and (to the extent permitted by
Applicable Law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents shall bear
interest compounded monthly and payable on demand at a rate per annum
equal to two percent (2.00%) above the Base Rate until such amount shall
be paid in full (after as well as before judgment).
6.12.2. Amounts Not Overdue. During the continuance of an Event of Default the
principal of the Revolving Credit Loans and the Term Loan not overdue
shall, until such Event of Default has been cured or remedied or such
Event of Default has been waived by the Majority Lenders pursuant to
ss.28, bear interest at a rate per annum equal to the greater of (i) two
percent (2.00%) above the rate of interest otherwise applicable to such
Revolving Credit Loans pursuant to ss.2.5 and the Term Loan pursuant to
ss.4.5 and (ii) the rate of interest applicable to overdue principal
pursuant to ss.6.12.1.
6.13. No Legal Impediment. Neither the Issuing Bank nor any Lender shall
have any obligation to make any Loan or to participate in the issuance,
extension or renewal of any Letter of Credit if any change shall have occurred
in any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Lender would make it illegal for such Lender to make
such Loan or to participate in the issuance, extension or renewal of such Letter
of Credit or in the reasonable opinion of the Issuing Bank would make it illegal
for the Issuing Bank to issue, extend or renew such Letter of Credit.
6.14. Governmental Regulation. Neither the Issuing Bank nor any Lender
shall have any obligation to make any Loan or to participate in the issuance,
extension or renewal of any Letter of Credit unless such Lender or Issuing Bank
shall have received such statements in substance and form reasonably
satisfactory to such Lender or Issuing Bank as such Lender or Issuing Bank shall
require for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
6.15. Concerning Joint and Several Liability of the Borrowers
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodations to be provided by the
Co-Agents, the Issuing Bank and the Lenders under this Credit Agreement, for the
mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept joint and
several liability for the obligations of each of them.
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(b) Each of the Borrowers, jointly and severally, hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with each other Borrower, with respect to the payment and
performance of all of the Obligations, it being the intention of the parties
hereto that all the Obligations shall be the joint and several obligations of
all of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any
payment with respect to any of the Obligations as and when due or to perform any
of such Obligations in accordance with the terms thereof, then in each such
event each other Borrower will make such payment with respect to, or perform,
such Obligation.
(d) The obligations of each Borrower under the provisions of this ss.6.15
constitute the absolute and unconditional obligations of such Borrower
enforceable against it to the full extent permitted under the terms hereof,
irrespective of the validity, regularity or enforceability of this Credit
Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided for herein, each Borrower
hereby waives notice of acceptance of its joint and several liability, notice of
the Loans made under this Credit Agreement, notice of the occurrence of any
Default or Event of Default, or of any demand for any payment under this Credit
Agreement, notice of any action at any time taken or omitted by the Agent, the
Issuing Bank or the Lenders under or in respect of any of the Obligations, any
requirement of diligence or to mitigate damages and, generally, all demands,
notices and other formalities of every kind in connection with this Credit
Agreement. Each Borrower hereby assents to, and waives notice of, any extension
or postponement of the time for the payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Agent, the Issuing Bank or the Lenders at any time or
times in respect of any default by any Borrowers or Guarantors in the
performance or satisfaction of any term, covenant, condition or provision of
this Credit Agreement, any and all other indulgences whatsoever by the Agent,
the Issuing Bank or the Lenders in respect of any of the obligations hereunder,
and the taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any of such obligations or the addition,
substitution or release, in whole or in part, of any Borrower or any Guarantor.
Without limiting the generality of the foregoing, each Borrower assents to any
other action or delay in acting or failure to act on the part of the Agent, the
Issuing Bank or the Lenders including, without limitation, any failure strictly
or diligently to assert any right or to pursue any remedy or to comply fully
with Applicable Laws thereunder, which might, but for the provisions of this
ss.6.15, afford grounds for terminating, discharging or relieving such Borrower,
in whole or in part, from any of its Obligations under this ss.6.15, it being
the intention of each Borrower that, so long as any of the Obligations remain
unsatisfied, the Obligations of such Borrower under this ss.6.15 shall not be
discharged except by performance and then only to the extent of such
performance. Except as otherwise expressly provided for herein, the joint and
several liability of the Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of any
Borrower or the Agent, the Issuing Bank or the Lenders. If at any time, any
payment, or any part thereof, made in respect of any of the Obligations, is
rescinded or must otherwise be restored or returned by the Agent, the Issuing
Bank or the Lenders upon the insolvency, bankruptcy or reorganization of any of
the Borrowers or Guarantors, or otherwise, the provisions of this ss.6.15 will
forthwith be reinstated in effect, as though such payment had not been made.
6.16. Replacement of Lender.
(a) In the event that any Lender makes a demand for payment under ss.6.7
or ss.6.8 or notifies the Agent of any circumstances requiring payment pursuant
to ss.6.6 or if the Borrowers are required to make any payment pursuant to
ss.6.3.2, the Borrowers may within 120 days of such demand, if no Default or
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Event of Default then exists, (i) reduce the Total Commitment, the Total
Revolving Credit Commitment, and the Total Term Loan Commitment, or following
the Term Loan Closing Date, the Term Loan in the full amount of such Lender's
Commitment Percentage of the Revolving Credit Commitment, Term Loan Commitment
and/or Term Loan and repay such Lender in full or (ii) replace such Lender with
an Eligible Assignee in accordance with ss.21.1 (including execution of an
Assignment and Acceptance). If the Borrowers accomplish the replacement or
repayment of such Lender within 120 days following the demand, the Borrowers
shall only owe any such Lenders amounts under ss.6.6, ss.6.7 or ss.6.8, as
applicable, hereof through the date of replacement or repayment. If the
Borrowers do not accomplish either replacement or repayment of such Lender
within such 120 days, the Borrowers shall owe such Lender in accordance with the
terms of any written agreement reached between Lender and the Borrowers, and, if
no such agreement has been reached, the Borrowers shall owe such Lender in
accordance with the terms and provisions of ss.6.6, ss.6.7 or ss.6.8, as
applicable. If the Total Commitment is reduced by the Borrower pursuant to this
ss.6.16(a), the Borrowers and the Lenders agree that the Commitment Percentages
of each Lender will be automatically ratably adjusted to reflect such reduction
of the Total Revolving Credit Commitment, the Total Term Loan Commitment and/or
the Term Loan, as the case may be.
(b) If (i) there exists no Default or Event of Default on any such date
and no Default or Event of Default shall be caused by the action permitted below
and (ii) any Lender refuses to consent to any amendment, waiver or consent to
any provision hereof or in any Loan Document in accordance with the terms of
ss.28 (other than an amendment to increase the Revolving Credit Commitment, or
Term Loan Commitment of such Lender), but to which each other Lender has
previously agreed, then, the Borrowers may, with the prior written consent of
the Agent, within ninety (90) days after the date of such consent, amendment or
waiver, replace such Lender in whole with another Eligible Assignee, pursuant to
an Assignment and Acceptance and otherwise in accordance with the terms of
ss.21.
7. COLLATERAL SECURITY AND GUARANTIES.
7.1. Security of Borrower.
(a) Prior to the Term Loan Closing Date, the Obligations shall be secured
by a perfected first priority security interest (subject only to Permitted Liens
entitled to priority under Applicable Law) in all Revolving Credit Collateral
and Acquisition Collateral of the Borrowers, whether now owned or hereafter
acquired, pursuant to the terms of the Security Documents to which each Borrower
is a party.
(b) Following the Term Loan Closing Date, the Obligations shall be secured
by a perfected first priority security interest (subject only to Permitted Liens
entitled to priority under Applicable Law) in all of the assets of the
Borrowers, whether now owned or hereafter acquired, including all capital stock
of any direct Subsidiary of any of the Borrowers, pursuant to the terms of the
Replacement Security Documents to which each Borrower is a party.
7.2. Guaranties and Security of Subsidiaries. The Obligations shall also
be guaranteed pursuant to the terms of the Guarantees. The obligations of the
Guarantors under the Guarantees shall be in turn secured:
(a) prior to the Term Loan Closing Date by a perfected first
priority security interest (subject only to Permitted Liens entitled to
priority under Applicable Law) in all Revolving Credit Collateral and
Acquisition Collateral of each such Guarantor, whether now owned or
hereafter acquired, pursuant to the terms of the Security Documents to
which such Guarantor is a party; or
(b) following the Term Loan Closing Date, by a perfected first
priority security interest (subject only to Permitted Liens entitled to
priority under Applicable Law) in all of the assets of each such
Guarantor, including all capital stock of any direct Subsidiary of any
such Guarantor, whether now owned or hereafter acquired, pursuant to the
terms of the Replacement Security Documents, to which such Guarantor is a
party.
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7.3. Release of Collateral. Upon the final payment in full of all the
outstanding principal of the Term Loan, together with any and all accrued and
unpaid interest thereon and all fees and expenses incurred by the Lenders and
the Agent in connection therewith and payable by the Borrowers hereunder, the
Borrowers may request, that the Agent release its Lien on all Collateral other
than Revolving Credit Collateral and Acquisition Collateral. The Agent will
release its Liens on the Collateral, other than Revolving Credit Collateral and
Acquisition Collateral, at such time as each of the following conditions are
satisfied:
(a) the Borrowers shall have an average Borrowing Availability of at
least $35,000,000 for the ninety (90) days from and after such payment in
full of the Term Loan;
(b) no Default or Event of Default exists;
(c) the Borrowers shall have demonstrated to the reasonable
satisfaction of the Agent that, as of the last day of the fiscal quarter
of the Borrowers ending immediately prior to the date that the Borrowers
request that the Agent release the Collateral other than Revolving Credit
Collateral and Acquisition Collateral, the Consolidated EBITDA of the
Borrowers and their Subsidiaries for the four (4) consecutive fiscal
quarters of Century Aluminum most recently ended shall not be less than
$35,000,000; and
(d) the PBGC shall have released its security interests and Lien on
all assets of the Borrowers and the Guarantors other than Liens on
Collateral held by the PBGC on the Initial Closing Date.
8. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants to the Lenders, the Issuing Bank and
the Co-Agents as follows:
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8.1. Corporate Authority.
8.1.1. Incorporation; Good Standing. Each of the Borrowers and each of their
Subsidiaries (i) is a corporation duly organized and validly existing or
(with respect to Vialco) is a limited liability company duly organized or
established under the laws of its state of organization, (ii) is in good
standing under the laws of the relevant state of organization, (iii) has
all requisite power to own its property and conduct its business as now
conducted and as presently contemplated, and (iv) is in good standing as
a foreign corporation or entity and is duly authorized to do business in
each jurisdiction where such qualification is necessary except where a
failure to be so qualified would not have a Materially Adverse Effect.
8.1.2. Authorization. The execution, delivery and performance of this Credit
Agreement and the other Loan Documents to which the Borrowers or any of
their Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the authority of such
Person, (ii) have been duly authorized by all necessary proceedings,
(iii) do not conflict with or result in any breach or contravention of
any provision of Applicable Law, or any Contractual Obligation or
Governing Document of any of the Borrowers or any of their Subsidiaries.
8.1.3. Enforceability. The execution and delivery of this Credit Agreement and
the other Loan Documents to which any of the Borrowers or any of their
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any proceeding
therefor may be brought.
8.2. Governmental Approvals. The execution, delivery and performance by
any of the Borrowers and any of their Subsidiaries of this Credit Agreement and
the other Loan Documents to which any of the Borrowers or any of their
Subsidiaries is or is to become a party and the transactions contemplated hereby
and thereby do not require any Approval that has not already been obtained.
8.3. Title to Properties; Leases. Except as indicated on Schedule 8.3
hereto, the Borrowers and their Subsidiaries own all of the assets reflected in
the consolidated balance sheet of Century Aluminum and its Subsidiaries as at
the Balance Sheet Date or acquired since that date (except Property sold or
otherwise disposed of in the ordinary course of business since that date),
subject to no Liens or other rights of others except Permitted Liens.
8.4. Financial Statements and Projections.
8.4.1. Fiscal Year. The Borrowers and each of their Subsidiaries have a fiscal
year which is the twelve (12) months ending on December 31 of each
calendar year.
8.4.2. Financial Statements. There has been furnished to each of the Lenders the
consolidated balance sheet of Century Aluminum and its Subsidiaries as at
the Balance Sheet Date, and the consolidated statement of income and cash
flow of Century Aluminum and its Subsidiaries for the 1997 fiscal year,
certified by Deloitte & Touche. Such balance sheet and statement of
income and cash flow have been prepared in accordance with GAAP and
fairly present the financial condition of Century Aluminum as of the date
thereof and the results of operations for the fiscal year then ended.
There are no contingent liabilities of Century Aluminum or any of its
Subsidiaries as of such date involving material amounts, known to the
officers of Century Aluminum, which were not disclosed in such balance
sheet and the notes related thereto.
8.4.3. Projections. The projections of the annual operating budgets of Century
Aluminum and its Subsidiaries on a consolidated basis, balance sheets and
cash flow statements for the 1999 to 2003 fiscal years, copies of which
have been delivered to each Lender, disclose all assumptions made with
respect to general economic, financial and market conditions used in
formulating such projections. To the knowledge of Century Aluminum or any
of its Subsidiaries, no facts exist that (individually or in the
aggregate) would result in any material change in any of such
projections. The projections are based upon reasonable estimates and
assumptions, have been prepared on the
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basis of the assumptions stated therein and reflect the reasonable
estimates of Century Aluminum and its Subsidiaries of the results of
operations and other information projected therein.
8.5. No Material Changes, etc. Since the Balance Sheet Date there has
occurred no materially adverse change in the Properties, operations, financial
condition, business or prospects of the Borrowers and their Subsidiaries as
shown on or reflected in the consolidated balance sheet of Century Aluminum and
its Subsidiaries as at the Balance Sheet Date, or the consolidated statement of
income for the fiscal year then ended, other than changes in the ordinary course
of business that have not had any Materially Adverse Effect. Since the Balance
Sheet Date, the Borrowers have not made any Distribution other than Permitted
Distributions.
8.6. Franchises, Patents, Copyrights, etc. Each of the Borrowers and
their Subsidiaries possesses all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted without
known conflict with any rights of others.
8.7. Litigation. Except as set forth in Schedule 8.7 hereto or as
disclosed in the financial statements delivered to the Agent pursuant to
ss.8.4(a), there are no actions, suits, proceedings or investigations of any
kind pending or to the best of each Borrowers' knowledge, threatened against any
of the Borrowers or any of their Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined, could be
reasonably expected to, either in any case or in the aggregate, (a) have a
Materially Adverse Effect or (b) result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet of Century Aluminum and its
Subsidiaries, or (c) which question the validity of this Credit Agreement or any
of the other Loan Documents.
8.8. No Materially Adverse Contracts, etc. None of the Borrowers nor any
of their Subsidiaries is subject to any Governing Document, and Contractual
Obligation, or and Applicable Law that has or is expected in the future to have
a Materially Adverse Effect.
8.9. Compliance with Other Instruments, Laws, etc. None of the Borrowers
nor any of their Subsidiaries is in violation of any provision of Applicable Law
or of its Governing Documents or Contractual Obligations (including any PBGC
Documents or any Subordination Documents) in a manner that would be reasonably
likely to result in the imposition of substantial penalties or cause a
Materially Adverse Effect.
8.10. Tax Status. Each of the Borrowers and their Subsidiaries (i) have
made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which any of them is subject,
(ii) have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (iii) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply.
8.11. No Event of Default. No Default or Event of Default has occurred
and is continuing.
8.12. Holding Company and Investment Company Acts. None of the Borrowers
nor any of their Subsidiaries is a "holding company", or a "subsidiary company"
of a "holding company", or an affiliate" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
8.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any Lien on any Property of the Borrowers or any of their
Subsidiaries.
8.14. Perfection of Security Interest. Each of the Borrowers and the
Guarantors have delivered to, or deposited with, the Agent all documents and
instruments necessary for the filings, assignments, pledges and all other
actions to be taken that are necessary or advisable, under Applicable Law, to
establish and perfect the Agent's security interest in the Collateral. The
Collateral and the Agent's rights with respect to
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the Collateral are not subject to any setoff, claims, withholdings or other
defenses except for Permitted Liens. The Borrowers or Subsidiaries of the
Borrowers party to one of the Security Agreements are the owner of the
Collateral free from any Lien, except for Permitted Liens.
8.15. Certain Transactions. Except for arm's length transactions pursuant
to which the Borrowers or any of their Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than such Borrower or
such Subsidiary could obtain from third parties, none of the officers,
directors, or employees of the Borrowers or any of their Subsidiaries is
presently a party to any transaction with the Borrowers or any of their
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of any of the Borrowers, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
8.16. Employee Benefit Plans.
8.16.1. In General. Except as disclosed on Schedule 8.16 or in the PBGC
Agreement, each Employee Benefit Plan and each Guaranteed Pension Plan
has been maintained and operated in compliance in all material respects
with the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting
prohibited transactions and the bonding of fiduciaries and other persons
handling plan funds as required by ss.412 of ERISA. The Borrowers have
heretofore delivered to the Agent the most recently completed annual
report, Form 5500, with all required attachments, and actuarial
statement required to be submitted under ss.103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
8.16.2. Terminability of Welfare Plans. Except as disclosed on Schedule 8.16 or
in the PBGC Agreement, no Employee Benefit Plan, which is an employee
welfare benefit plan within the meaning of ss.3(1) or ss.3(2)(B) of
ERISA, provides retiree group health benefits, except as required by
Title I, Part 6 of ERISA or applicable state insurance laws.
8.16.3. Guaranteed Pension Plans. Except as disclosed on Schedule 8.16 or in the
PBGC Agreement, each contribution required to be made to a Guaranteed
Pension Plan, whether required to be made to avoid the incurrence of an
accumulated funding deficiency, the notice or lien provisions of
ss.302(f) of ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods has
been received with respect to any Guaranteed Pension Plan, and none of
the Borrowers nor any ERISA Affiliate are obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan
pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code. No liability
to the PBGC (other than required insurance premiums, all of which have
been paid) has been incurred by the Borrowers or any ERISA Affiliate
with respect to any Guaranteed Pension Plan and there has not been any
ERISA Reportable Event (other than an ERISA Reportable Event as to which
the requirement of 30 days notice has been waived), or any other event
or condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. As of the Initial Closing Date,
based on the latest valuation of each Guaranteed Pension Plan (which in
each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed
for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not
exceed the aggregate value of the assets of all such Guaranteed Pension
Plans by more than $60,000,000, disregarding for this purpose the
benefit liabilities and assets of any Guaranteed Pension Plan with
assets in excess of benefit liabilities. In the case of any Guaranteed
Pension Plan covered by the PBGC Agreement, in the computation required
by the preceding sentence the total unfunded liabilities (as defined in
the PBGC Agreement), if any, of such Plan as of the most recent December
31 shall be employed instead of a computation of the Plan's unfunded
benefit liabilities on the basis described in the preceding sentence.
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8.16.4. Multiemployer Plans. None of the Borrowers nor any ERISA Affiliate has
incurred any material liability (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan under ss.4201 of ERISA or as a result of a sale
of assets described in ss.4204 of ERISA. None of the Borrowers nor any
ERISA Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of ss.4241 or
ss.4245 of ERISA or is at risk of entering reorganization or becoming
insolvent, or that any Multiemployer Plan intends to terminate or has
been terminated under ss.4041A of ERISA.
8.17. Use of Proceeds.
8.17.1. General. The Borrowers will (a) use the proceeds of the Loans and (b)
obtain Letters of Credit solely (i) to fund the purchase price of
Permitted Acquisitions and related fees and expenses in connection
therewith, (ii) to refinance of existing Indebtedness of the Borrowers
to Bank of America, (iii) to fund future capital expenditures and/or
(iv) for working capital and general corporate purposes.
8.17.2. Regulations U and X. No portion of any Loan is to be used, and no
portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
8.17.3. Ineligible Securities. No portion of the proceeds of any Loans is to be
used, and no portion of any Letter of Credit is to be obtained, for the
purpose of knowingly purchasing, or providing credit support for the
purchase of, during the underwriting or placement period or within
thirty (30) days thereafter, any Ineligible Securities underwritten or
privately placed by a Section 20 Subsidiary.
8.18. Environmental Compliance. The Borrowers have taken all reasonable
steps to investigate the condition and usage of the Real Estate and the
operations conducted thereon and, based upon such investigation, has determined
that, except as disclosed on Schedule 8.18 hereto, and to the best of each
Borrowers' knowledge:
(a) none of the Borrowers, any of their Subsidiaries or any
operator of the Real Estate or any operations thereon is in violation,
or alleged violation, of any judgment, decree, order, law, license, rule
or regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments
and Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act,
the Federal Clean Air Act, the Toxic Substances Control Act, or any
Applicable Law relating to health, safety or the environment
(hereinafter "Environmental Laws"), which violation could reasonably be
likely to have Materially Adverse Effect;
(b) except as would not be reasonably likely to have a
Materially Adverse Effect, none of the Borrowers nor any of their
Subsidiaries has received notice from any third party including any
Governmental Authority, (i) that any one of them has been identified by
the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site listed
on the National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii)
that any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any
hazardous substances as defined by 42 U.S.C. ss.9601(14), any pollutant
or contaminant as defined by 42 U.S.C. ss.9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any
one of them has generated, transported or disposed of has been found at
any site at which a Governmental Authority or other third party has
conducted or has ordered that any of the Borrowers or any of their
Subsidiaries conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or
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legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances;
(c) except as set forth on Schedule 8.18 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on
any portion of the Real Estate; (ii) in the course of any activities
conducted by the Borrower, its Subsidiaries or operators of its
properties, no Hazardous Substances have been generated or are being
used on the Real Estate except in accordance with applicable
Environmental Laws; (iii) there have been no releases (i.e. any past or
present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from the
properties of any of the Borrowers or their Subsidiaries, which releases
would have a material adverse effect on the value of any of the Real
Estate or adjacent properties or the environment or on the business of
the Borrowers and their Subsidiaries; (iv) there have been no releases
on, upon, from or into any real property in the vicinity of any of the
Real Estate which, through soil or groundwater contamination, may have
come to be located on, and which would have a material adverse effect on
the value of, the Real Estate; and (v) in addition, any Hazardous
Substances that have been generated on any of the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been and are,
to the best of each Borrower's knowledge, operating in compliance with
such permits and applicable Environmental Laws; and
(d) None of the Borrowers and their Subsidiaries, any Mortgaged
Property or any of the other Real Estate is subject to any applicable
environmental law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or
the giving of notice to any Governmental Authority or the recording or
delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and
contemplated hereby, or as a condition to the recording of any Mortgage
or to the effectiveness of any other transactions contemplated hereby.
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8.19. Subsidiaries, etc. All of the Subsidiaries of each of the
Borrowers and their Subsidiaries are set forth on Schedule 8.19. Except as set
forth on Schedule 8.19 hereto, neither the Borrowers nor any of their Subsidiary
are engaged in any joint venture or partnership with any other Person.
8.20. Bank Accounts. Schedule 8.20 sets forth the account numbers and
location of all Local Accounts, Interim Concentration Accounts and other bank
accounts of each of the Borrowers or any of their Subsidiaries.
8.21. Year 2000 Problem. The Borrowers and their Subsidiaries have (i)
reviewed the areas within their businesses and operations which could be
adversely affected by failure to become "Year 2000 Compliant" (i.e. that
computer applications, imbedded microchips and other systems used by the
Borrowers or any of their Subsidiaries or any of its material vendors, will be
able properly to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999), (ii)
developed a plan and timetable to become Year 2000 Compliant on or before
December 31, 1999, and (iii) committed adequate resources to support the Year
2000 plan of the Borrowers and their Subsidiaries. Based upon such review, each
Borrower reasonably believes that such Borrower and its Subsidiaries will become
"Year 2000 Compliant" in a timely manner except to the extent that failure to do
so will not be reasonably likely to have a Materially Adverse Effect.
8.22. Chief Executive Office. Set forth on Schedule 8.22 hereto is a
complete and accurate list of the chief executive office or registered office,
as applicable, of each of the Borrowers and each of their Subsidiaries, at which
location such Person keeps its books and records.
8.23. Insurance. Each of the Borrowers and each of their Subsidiaries
maintains with financially sound and reputable insurers insurance with respect
to its Properties and businesses against such casualties and contingencies as
are in accordance with sound business practices for businesses engaged in
similar activities in similar geographic areas, with the details of such
coverage being more fully described on Schedule 8.23 hereto.
8.24. Representations and Warranties in PBGC Documents. All
representations and warranties set forth in the PBGC Documents are true and
correct in all material respects at the time as of which such representations
and warranties were made and on each of the Initial Closing Date and Term Loan
Closing Date, as the case may be.
8.25. Disclosure. None of this Credit Agreement or any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to the Borrowers or any of their Subsidiaries in the case
of any document or information not furnished by it or any of its Subsidiaries)
necessary in order to make the statements herein or therein not misleading.
There is no fact known to any of the Borrowers or any of their Subsidiaries
which could be reasonably expected to have a Materially Adverse Effect,
exclusive of effects resulting from changes in general economic conditions,
commodity prices, legal standards or regulatory conditions.
9. AFFIRMATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letters of Credit:
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9.1. Punctual Payment. Each Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Fees, and all other amounts provided for in this Credit
Agreement and the other Loan Documents to which any of the Borrowers or any of
their Subsidiaries is a party, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
9.2. Maintenance of Office. Each of the Borrowers will maintain its
chief executive office at the location set forth in Schedule 8.22 hereto, or at
such other place in the United States of America as such Borrower shall
designate upon written notice to the Agent, where notices, presentations and
demands to or upon such Borrower in respect of the Loan Documents to which such
Borrower is a party may be given or made.
9.3. Records and Accounts. The Borrowers will (i) keep, and cause each
of their Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with GAAP, (ii)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves, and (iii) at
all times engage Deloitte & Touche or other independent certified public
accountants satisfactory to the Agent as the independent certified public
accountants of the Borrowers and their Subsidiaries and will not permit more
than thirty (30) days to elapse between the cessation of such firm's (or any
successor firm's) engagement as the independent certified public accountants of
the Borrowers and their Subsidiaries and the appointment in such capacity of a
successor firm as shall be satisfactory to the Agent.
9.4. Financial Statements, Certificates and Information. The Borrowers
will deliver to the Agent:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of Century Aluminum,
commencing with the fiscal year ended December 31, 1998, the
consolidated and consolidating balance sheets of Century Aluminum and
its Subsidiaries, and the related consolidated and consolidating
statements of income and consolidated statements of retained earnings
and cash flow for such year, each setting forth in comparative form the
figures for the previous fiscal year and all such consolidated and
consolidating statements to be in reasonable detail, prepared in
accordance with GAAP, and certified without qualification by Deloitte &
Touche or by other independent certified public accountants satisfactory
to the Co-Agents, together with (i) a written statement from such
accountants to the effect that they have read a copy of this Credit
Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event
of Default arising as a result of the Borrowers' failure to comply with
any of the covenants contained in ss.11, or, if such accountants shall
have obtained knowledge of any then existing Default or Event of Default
they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the
Lenders for failure to obtain knowledge of any Default or Event of
Default and (ii) copies of any management letters delivered to any of
the Borrowers by such accountants in connection with such accountants'
preparation of such consolidated and consolidating financial statements;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters in each fiscal year of Century Aluminum, commencing with the
fiscal quarter ending March 31, 1999, copies of the unaudited
consolidated and consolidating balance sheets of Century Aluminum and
its Subsidiaries as at the end of such quarter, and the related
consolidated and consolidating statements of income and consolidated
statements of retained earnings and cash flow for such quarter and for
the portion of Century Aluminum's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with GAAP, together with a
certification by an Authorized Officer of Century Aluminum that the
information contained in such financial statements fairly presents the
financial position of Century Aluminum and its Subsidiaries on the date
thereof (subject to year-end adjustments);
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(c) as soon as practicable, but in any event within thirty (30)
days after the end of each month in each fiscal year of Century
Aluminum, unaudited monthly consolidated financial statements of Century
Aluminum and its Subsidiaries for such month and unaudited monthly
consolidating financial statements of Century Aluminum and its
Subsidiaries for such month, each prepared in accordance with GAAP,
together with a certification by an Authorized Officer of Century
Aluminum that the information contained in such financial statements
fairly presents the financial condition of Century Aluminum and its
Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b), a statement certified by an
Authorized Officer of Century Aluminum in substantially the form of
Exhibit E hereto (a "Compliance Certificate"), setting forth in
reasonable detail computations (i) of the Applicable Margins, (ii) the
Minimum Reserve Amount, and (iii) evidencing compliance with the
covenants contained in ss.11 and (if applicable) reconciliations to
reflect changes in GAAP since the Balance Sheet Date;
(e) promptly after the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of Century Aluminum;
(f) within (A) fifteen (15) days after the end of each calendar
month or at such earlier time as the Agent may reasonably request, a
Borrowing Base Report setting forth the Borrowing Base as at the end of
such calendar month or other date so requested by the Agent and (B)
three (3) Business Days after the end of each calendar week, a report of
the sales and collections of each of the Borrowers for the immediately
preceding calendar week;
(g) within fifteen (15) days after the end of each calendar
month, an Accounts Receivable aging report;
(h) not later than thirty (30) days following the beginning of
each fiscal year, beginning with the fiscal year commencing on January
1, 2000, operating budgets and forecasts by division of the Borrowers
and their Subsidiaries with respect to such fiscal year, prepared (x) on
a consolidated basis and (y) on a quarterly basis, in form satisfactory
to the Co-Agents; and
(i) from time to time such other financial data and information
(including accountants, management letters) as the Agent may reasonably
request.
9.5. Notices.
9.5.1. Defaults. The Borrowers will promptly notify the Agent in writing of the
occurrence of any (a) Default or Event of Default or (b) default or
event of default under any PBGC Document. If any Person shall give any
notice or take any other action in respect of a claimed default (whether
or not constituting an Event of Default) under this Credit Agreement,
any PBGC Document, or any other note, evidence of indebtedness,
indenture or other obligation to which or with respect to which the
Borrowers or any of their Subsidiaries are a party or obligor, whether
as principal, guarantor, surety or otherwise, the Borrowers shall
forthwith give written notice thereof to the Agent, describing the
notice or action and the nature of the claimed default.
9.5.2. Environmental Events. The Borrowers will promptly give notice to the
Agent (i) of any material violation of any Environmental Law that any of
the Borrowers or any of their Subsidiaries reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any Governmental Authority
and (ii) upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency of
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potential environmental liability, of any Governmental Authority, that
is reasonably likely to have a Materially Adverse Effect.
9.5.3. Notification of Claim against Collateral. The Borrowers will, promptly
upon becoming aware thereof, notify the Agent in writing of any setoff,
claims (including, with respect to the Real Estate, environmental
claims) to which any of the Collateral, or the Agent's rights with
respect to the Collateral, are subject and which are reasonably likely
to have a Materially Adverse Effect.
9.5.4. Notices of Litigation and Judgments. The Borrowers will, and will cause
each of their Subsidiaries to, give notice to the Agent in writing
within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and
proceedings affecting any of the Borrowers or any of their Subsidiaries
or to which any of the Borrowers or any of their Subsidiaries is or
becomes a party involving an uninsured claim against any of the
Borrowers or any of their Subsidiaries that could reasonably be expected
to have a Materially Adverse Effect and stating the nature and status of
such litigation or proceedings. Each of the Borrowers will, and will
cause each of their Subsidiaries to, give notice to the Agent, in
writing, in form and detail satisfactory to the Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise,
against any of the Borrowers or any of their Subsidiaries in an amount
in excess of $1,000,000.
9.6. Corporate Existence; Maintenance of Properties. The Borrowers will
do or cause to be done all things necessary to preserve and keep in full force
and effect their corporate existence, rights and franchises and those of their
Subsidiaries and will not, and will not cause or permit any of their
Subsidiaries to, convert to a limited liability company or a limited liability
partnership. They (i) will cause all of their properties and those of their
Subsidiaries used or useful in the conduct of their business or the business of
their Subsidiaries to be maintained and kept in good operating condition,
ordinary wear and tear excepted, and (ii) will, and will cause each of their
Subsidiaries to, continue to engage primarily in the businesses now conducted by
them and in related businesses; provided that nothing in this ss.9.6 shall
prevent the Borrowers from discontinuing the operation and maintenance of any of
their properties or any of those of their Subsidiaries if such discontinuance
is, in the judgment of the Borrowers, desirable in the conduct of its or their
business and that do not have a Materially Adverse Effect.
9.7. Insurance. Century Aluminum will maintain with financially sound
and reputable insurers insurance with respect to the Borrowers' and their
Subsidiaries' properties and business against such casualties and contingencies
as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be reasonable and prudent and
in accordance with the terms of the Security Agreements. Century Aluminum will
maintain insurance on the Mortgaged Properties in accordance with the terms of
the Mortgages.
9.8. Taxes. Each of the Borrowers will, and will cause each of their
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a Lien upon any of its Property; provided that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if such
Borrower or such Subsidiary shall have set aside on its books adequate reserves
with respect thereto.
9.9. Inspection of Properties and Books, etc.
9.9.1. General. Each Borrower shall permit the Lenders, through the Agent or
any of the Lenders' other designated representatives, to visit and
inspect any of the properties of the Borrowers or any of their
Subsidiaries, to examine the books of account of the Borrowers and their
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrowers and their
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or any
Lender may reasonably request.
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9.9.2. Collateral Reports. No more frequently than three (3) times during each
calendar year, or more frequently as determined by the Agent if an Event
of Default shall have occurred and be continuing, upon the request of
the Agent, the Borrowers will obtain and deliver to the Agent, or, if
the Agent so elects, will cooperate with the Agent in the Agent's
obtaining, a report of an independent collateral auditor satisfactory to
the Co-Agents (which may be affiliated with one of the Lenders) with
respect to the Accounts Receivable and inventory components included in
the Borrowing Base, which report shall indicate whether or not the
information set forth in the Borrowing Base Report most recently
delivered is accurate and complete in all material respects based upon a
review by such auditors of the Accounts Receivable (including
verification with respect to the amount, aging, identity and credit of
the respective account debtors and the billing practices of the
Borrowers or their applicable Subsidiaries) and inventory (including
verification as to the value, location and respective types). All such
collateral value reports shall be conducted and made at the expense of
the Borrowers.
9.9.3. Environmental Assessments. Following the occurrence of an Event of
Default, the Agent may, in its discretion for the purpose of assessing
and ensuring the value of any Mortgaged Property, obtain one or more
environmental assessments or audits of such Mortgaged Property prepared
by a hydrogeologist, an independent engineer or other qualified
consultant or expert approved by the Agent to evaluate or confirm (i)
whether any Hazardous Materials are present in the soil or water at such
Mortgaged Property and (ii) whether the use and operation of such
Mortgaged Property complies with all Environmental Laws. Environmental
assessments may include without limitation detailed visual inspections
of such Mortgaged Property including any and all storage areas, storage
tanks, drains, dry wells and leaching areas, and the taking of soil
samples, surface water samples and ground water samples, as well as such
other investigations or analyses as the Agent deems appropriate. All
such environmental assessments shall be conducted and made at the
expense of the Borrowers.
9.10. Compliance with Laws, Contracts, Licenses, and Permits. Except
where non-compliance would not be reasonably likely to have a Materially Adverse
Effect, each of the Borrowers will, and will cause each of their Subsidiaries
to, comply with (i) the Applicable Laws wherever their business is conducted,
including all Environmental Laws, (ii) the provisions of its Governing
Documents, (iii) all their Contractual Obligations and (iv) all applicable
decrees, orders, and judgments. The Borrowers will, or (as the case may be) will
cause their Subsidiaries to, immediately take or cause to be taken all
reasonable steps within the power of the Borrowers or any such Subsidiary to
obtain any Approval at any time required to be obtained and furnish the Agent
and the Lenders with evidence thereof.
9.11. Employee Benefit Plans. Each of the Borrowers will (i) promptly
upon filing the same with the Department of Labor or Internal Revenue Service
upon request of the Agent, furnish to the Agent a copy of the most recent
actuarial statement required to be submitted under ss.103(d) of ERISA and Annual
Report, Form 5500, with all required attachments, in respect of each Guaranteed
Pension Plan and (ii) promptly upon receipt or dispatch, furnish to the Agent
any notice, report or demand sent or received in respect of a Guaranteed Pension
Plan under ss.ss.302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or
in respect of a Multiemployer Plan, under ss.ss.4041A, 4202, 4219, 4242, or 4245
of ERISA.
9.12. Use of Proceeds. The Borrowers will use the proceeds of their
Loans and will obtain Letters of Credit solely for the purposes set forth in
ss.8.17.
9.13. Additional Mortgaged Property. If, after the Initial Closing Date,
the Borrowers or any of their Subsidiaries acquires any Material Real Estate
used as a manufacturing or warehouse facility, the Borrowers shall, or shall
cause such Subsidiary to, forthwith deliver to the Agent a fully executed
mortgage or deed of trust over such Material Real Estate, in form and substance
satisfactory to the Agent, together with title insurance policies, surveys,
evidences of insurances with the Agent named as loss payee and additional
insured, legal opinions and other documents and certificates with respect to
such Material Real Estate as was required for Real Estate of the Borrowers or
such Subsidiary as of the Term Loan Closing Date. The Borrowers further agree
that, following the taking of such actions with respect to such Material Real
Estate, the Agent shall have for the benefit of the Lenders and the Agent a
valid and
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enforceable first priority mortgage or deed of trust over such Material Real
Estate, free and clear of all defects and encumbrances except for Permitted
Liens.
9.14. Bank Accounts.
9.14.1. General. On or prior to the Initial Closing Date, Century Aluminum will,
and will cause each of its Subsidiaries to, (i) establish a depository
account (the "BKB Concentration Account") under the control of the Agent
for the benefit of the Lenders and the Agent, in the name of Century
Aluminum, (ii) instruct all account debtors and other obligors, pursuant
to notices of assignment and instruction letters in form and substance
satisfactory to the Agent, to remit all cash proceeds of Accounts
Receivable to (x) local depository accounts ("Local Accounts") or
concentration depository accounts ("Interim Concentration Accounts")
with financial institutions which have entered into agency account
agreements and, if applicable, lock box agreements (collectively,
"Agency Account Agreements") in form and substance satisfactory to the
Agent, or (y) the BKB Concentration Account, (iii) direct all depository
institutions with Local Accounts to cause all funds held in each such
Local Account to be transferred no less frequently than once each day
to, and only to, an Interim Concentration Account or the BKB
Concentration Account, (iv) direct all depository institutions with
Interim Concentration Accounts to cause all funds of the Borrowers and
their Subsidiaries held in such Interim Concentration Accounts to be
transferred daily to, and only to, the BKB Concentration Account, and
(v) at all times ensure that immediately upon any of the Borrowers' or
any of their Subsidiaries' receipt of any funds constituting cash
proceeds of any Collateral, all such amounts shall have been deposited
in a Local Account, an Interim Concentration Account or the BKB
Concentration Account.
9.14.2. Acknowledgment of Application. The Borrowers hereby agrees that all
amounts received by the Agent in the BKB Concentration Account will be
under the sole and exclusive dominion and control of the Agent, for the
accounts of the Lenders and the Agent, to be applied in accordance
ss.2.11 or ss.2.12 as applicable or as otherwise permitted by this
Credit Agreement.
9.15. Ownership of Subsidiaries. Except as otherwise permitted by
ss.10.5 hereof, Century Aluminum shall maintain legal and beneficial ownership
of one hundred percent (100%) of the equity interests of each of the other
Borrowers and the Borrowers shall maintain legal and beneficial ownership of one
hundred percent (100%) (other than qualifying shares required to be held by
directors pursuant to Applicable Law) of the equity interests of each of the
other Guarantors; provided, that the Borrowers shall be permitted to dissolve
RISC or Vialco with the consent of the Agent.
9.16. Collateral for Loans. Each of the Borrowers and their Subsidiaries
shall:
(a) From and after the Term Loan Closing Date, pledge and maintain the
pledge of all of the capital stock or membership interests of each of its direct
Subsidiaries in favor of the Agent, for the benefit of the Agent and the
Lenders, in accordance with the provisions of the Stock Pledge Agreement or any
other instrument evidencing a pledge of stock or membership interest entered
into by any of the Borrowers or any of its Subsidiaries.
(b) From time to time, at its own cost and expense, promptly secure or
cause to be secured the Obligations by creating or causing to be created in
favor of the Agent for the benefit of the Lenders perfected security interests
(subject only to Permitted Liens) with respect to (a) prior to the Term Loan
Closing Date, all Revolving Credit Collateral of the Borrowers or any of their
Subsidiaries now owned, or hereafter acquired and (b) following the Term Loan
Closing Date, all Revolving Credit Collateral plus all equipment, copyrights,
patents, trademarks, other general intangibles, Material Real Estate and other
assets of the Borrowers or any of their Subsidiaries, now owned, or hereafter
acquired. All such security interests in such Property will be created under
Security Instruments in form and substance satisfactory to the Agent, and the
Borrowers and their Subsidiaries shall deliver to the Agent all such Security
Instruments (including, without limitation, legal opinions, title insurance
policies and lien searches) as the Agent or the Majority Lenders shall
reasonably request to evidence the satisfaction of the obligations created by
this ss.9.16. The Borrowers agree to provide such evidence as the Agent or the
Majority
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Lenders shall request as to the perfection and priority of such security
interests in and charges over such Property (subject only to Permitted Liens).
9.17. Permitted Acquisitions. (a) In the case of any personal property
or fixtures acquired by any of the Borrowers or any of their Subsidiaries in
connection with a Permitted Acquisition (i) pledge such personal property or
fixtures (to the maximum extent permitted by Applicable Law) to the Agent as
security for the payment in full of all the Obligations, pursuant to
documentation satisfactory to the Agent, and (ii) perform any filings,
recordings or other actions necessary in the reasonable judgment of the Agent to
create in favor of the Agent a perfected first- priority security interest in
all such personal property or fixtures (subject only to Restricted Permitted
Liens).
(b) Deliver to the Agent within ten (10) days after the date of any
Permitted Acquisition, true, complete, and correct copies of each instrument of
transfer, officer's certificate, legal opinion and other material instrument or
agreement executed and delivered by the applicable seller and/or the applicable
Borrower or Subsidiary of a Borrower in connection with such Permitted
Acquisition.
9.18. Interest Rate Protection Arrangements. The Borrowers shall at all
times, from and after five (5) days following the Term Loan Closing Date,
maintain interest rate protection arrangement satisfactory to the Co-Agents and
the Borrowers, the Derivative Obligations of which shall cover at least the
principal amount of the Term Loan and which shall have a term reasonably
acceptable to the Co-Agents.
9.19. UCC Searches. The Borrowers will duly and punctually pay for the
cost of the Agent's obtaining, on or prior to the sixtieth (60th) day following
each of the Initial Closing Date and the Term Loan Closing Date, copies of
Request for Information or Copies (UCC-11), or equivalent reports for the
purpose of the Agent verifying that all financing statements necessary or, in
the opinion of the Agent desirable, to perfect the security interests purported
to be created by the Security Documents, or the Replacement Security Documents,
as the case may be, shall have been properly recorded and filed.
9.20. Environmental Reports, etc.. Within fifteen (15) days of the
Borrowers' receipt thereof, the Borrowers will deliver to the Co-Agents copies
of all environmental assessment reports, any material plans of the Borrowers for
remediation and all other material environmental communications with
environmental regulatory agencies.
9.21. Further Assurances. Each of the Borrowers will, and will cause
each of their Subsidiaries to, cooperate with the Lenders and the Agent and
execute such further instruments and documents as the Lenders or the Agent shall
reasonably request to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan Documents.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligations to issue, extend or renew any Letters of Credit:
10.1. Restrictions on Indebtedness. The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Lenders, the Issuing Bank and the Agent
arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(c) Subordinated Debt; provided that the aggregate principal
amount of such Indebtedness of the Borrowers and their Subsidiaries
shall not exceed the aggregate amount of $3,000,000 at any one time;
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(d) Indebtedness incurred in connection with the acquisition
after the date hereof of any real or personal property by a Borrower or
a Guarantor or under any Capitalized Lease, provided that the aggregate
principal amount of such Indebtedness of the Borrowers and the
Guarantors shall not exceed the aggregate amount of $5,000,000 at any
one time;
(e) Derivative Obligations to the extent permitted by ss.10.15;
(f) Indebtedness existing on the date hereof and listed and
described on Schedule 10.1 hereto;
(g) Indebtedness of a Borrower to another Borrower existing on
the date hereof;
(h) PBGC Debt;
(i) commissions and other transfers payable by Century WV to
RISC in accordance with applicable Code regulations to satisfy RISC's
federal income tax liabilities and to pay for reasonable accounting and
corporate maintenance expenses; and
(j) other Indebtedness; provided that the aggregate principal
amount of such Indebtedness of the Borrowers and the Guarantors shall
not exceed the aggregate amount of $1,000,000 at any one time.
10.2. Restrictions on Liens. The Borrowers will not, and will not permit
any of their Subsidiaries to, (i) create or incur or suffer to be created or
incurred or to exist any Lien upon any of its Property whether now owned or
hereafter acquired, or upon the income or profits therefrom; (ii) transfer any
of such Property or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (iii) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; (iv) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; (v)
sell, assign, pledge or otherwise transfer any "receivables" as defined in
clause (vii) of the definition of the term "Indebtedness," with or without
recourse; or (vi) enter into or permit to exist any arrangement or agreement,
enforceable under Applicable Law, which directly or indirectly prohibits the
Borrowers or any of their Subsidiaries from creating or incurring any Lien other
than in favor of the Agent for the benefit of the Lenders and the Agent under
the Loan Documents and other than customary anti-assignment provisions in leases
and licensing agreements entered into by a Borrower or a Guarantor in the
ordinary course of its business, provided that the Borrowers or any Guarantor
may create or incur or suffer to be created or incurred or to exist:
(a) Liens in favor of a Borrower on all or part of the assets of
Subsidiaries of such Borrower securing Indebtedness owing by
Subsidiaries of such Borrower to such Borrower;
(b) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or Liens on properties
other than Mortgaged Properties to secure claims for labor, material or
supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations or similar laws, or to
secure the performance of bids, tenders or contracts (other than for the
repayment of borrowed money) or to secure indemnity, performance or
other similar bonds for the performance of bids, tenders or contracts
(other than for the repayment of borrowed money)
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or to secure statutory obligations (other than Liens arising under ERISA
or Environmental Laws) or surety or appeal bonds, or to secure
indemnity, performance or other similar bonds in the ordinary course of
business;
(d) Liens on properties other than Mortgaged Properties in
respect of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as execution is not
levied thereunder or in respect of which such Borrower or such Guarantor
shall at the time in good faith be prosecuting an appeal or proceedings
for review and in respect of which a stay of execution shall have been
obtained pending such appeal or review;
(e) Liens of carriers, warehousemen, mechanics and materialmen,
and other like Liens on properties other than Mortgaged Properties, in
existence less than 120 days from the date of creation thereof in
respect of obligations not overdue or which are being contested by
appropriate proceedings diligently pursued;
(f) encumbrances on Real Estate other than the Mortgaged
Property consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and irregularities
in the title thereto, landlord's or lessor's liens under leases to which
a Borrower or Guarantor is a party, and other minor Liens or
encumbrances none of which in the opinion of the Borrowers interferes
materially with the use of the property affected in the ordinary conduct
of the business of the Borrowers and the Guarantors, which defects do
not individually or in the aggregate have a Materially Adverse Effect;
(g) Liens existing on the date hereof and listed on Schedule
10.2 hereto;
(h) purchase money security interests in or purchase money
mortgages on real or personal property other than Mortgaged Properties
acquired after the date hereof to secure purchase money Indebtedness of
the type and amount permitted by ss.10.1(d), incurred in connection with
the acquisition of such property, which security interests or mortgages
cover only the real or personal property so acquired;
(i) Liens and encumbrances on each Mortgaged Property as and to
the extent permitted by the Mortgage applicable thereto, which shall
include Liens of the type listed in clauses (b), (e) and (f) of this
ss.10.2;
(j) Liens in favor of the Agent for the benefit of the Lenders
and the Agent under the Loan Documents; and
(k) Liens and encumbrances in favor of the PBGC, or the Agent
for the benefit of the PBGC, under the PBGC Documents and, following the
Term Loan Closing Date, the Loan Documents.
10.3. Restrictions on Investments. None of the Borrowers will, and will
not permit any of their Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except that the Borrowers and the Guarantors may make
Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets
in excess of $1,000,000,000;
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(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States
of America or any state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 1" if rated by
Moody's Investors Service, Inc., and not less than "A 1" if rated by
Standard and Poor's Rating Group;
(d) Investments existing on the date hereof and listed on
Schedule 10.3 hereto;
(e) Investments with respect to Indebtedness permitted by
ss.10.1(g) so long as such entities remain Borrowers;
(f) Investments consisting of the Guarantees or Investments by a
Borrower in another Borrower existing on the Initial Closing Date;
(g) Investments constituting Permitted Acquisitions;
(h) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by ss.10.5.2;
(i) loans or advances made by any Borrower or any Guarantor to
any other Borrower or Guarantor;
(j) Investments consisting of loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $1,000,000 in the aggregate at
any time outstanding;
(k) Derivative Obligations;
(l) equipment or real property to be used in the business of
such Borrower so long as the acquisition costs of such equipment or real
property constitute Capital Expenditures permitted hereunder;
(m) goods held for sale or lease or to be used by such Borrower
in the ordinary course of business;
(n) current assets arising from the sale or lease of goods or
the rendition of services in the ordinary course of business of such
Borrower; and
(m) Investments by the Borrowers consisting of the
capitalization of, and intercompany loans in, not more than one (1)
future European Subsidiary not to exceed $100,000 in the aggregate at
any time outstanding;
provided, however, that, with the exception of demand deposits referred to in
ss.10.3(b) and loans and advances referred to in ss.10.3(j), such Investments
will be considered Investments permitted by this ss.10.3 only if all actions
have been taken to the satisfaction of the Agent to provide to the Agent, for
the benefit of the Lenders and the Agent, a first priority perfected security
interest in all of such Investments free of all encumbrances other than
Permitted Liens.
10.4. Distributions. The Borrowers will not make any Distributions;
provided, however, that so long as no Default or Event of Default has occurred
and is continuing, or would result therefrom, (a) Subsidiaries of the Borrowers
(including any Borrower) may make Distributions in the form of cash dividends to
a Borrower or any other Subsidiary of a Borrower and (b) in addition to the
Distributions permitted in the
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foregoing clause (a), Century Aluminum may make Distributions so long as the
amount of all such Distributions does not exceed $5,000,000 in the aggregate for
any fiscal year.
10.5. Merger, Consolidation and Disposition of Assets.
10.5.1. Mergers and Acquisitions. The Borrowers will not, and will not permit
any of their Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices) except for (a) the merger or
consolidation of one or more of the Subsidiaries of a Borrower with and
into a Borrower, (b) the merger or consolidation of two or more
Subsidiaries of any of the Borrowers so long as the surviving entity is
a Borrower or a Guarantor or (c) a Permitted Acquisition.
10.5.2. Disposition of Assets. The Borrowers will not, and will not permit any
of their Subsidiaries to, become a party to or agree to or effect any
disposition of material assets, other than the sale of inventory, the
licensing of intellectual property and the disposition of obsolete
assets, in each case in the ordinary course of business consistent with
past practices.
10.6. Sale and Leaseback. The Borrowers will not, and will not permit
any of their Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby any Borrower or any Subsidiary of any Borrower shall sell or
transfer any property owned by it in order then or thereafter to lease such
property or lease other property that such Borrower or such Subsidiary of a
Borrower intends to use for substantially the same purpose as the property being
sold or transferred.
10.7. Compliance with Environmental Laws. The Borrowers will not, and
will not permit any of their Subsidiaries to, (i) except to the extent required
in the day-to-day conduct of their business, use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (ii) except to the extent required in the day-to-day conduct of
their business, generate any Hazardous Substances on any of the Real Estate or
own or operate any underground tank or other underground storage receptacle for
any Hazardous Substances in any manner that would materially violate any
Environmental Law or bring such Real Estate into material violation of any
Environmental Law, or (iii) otherwise conduct any activity at any Real Estate or
use any Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law, except any such
use or violation as would not be reasonably likely to have a Materially Adverse
Effect.
10.8. Subordinated Debt; PBGC Debt. The Borrowers will not, and will not
permit any of their Subsidiaries to, amend, supplement or otherwise modify the
terms of any of the Subordinated Debt or the PBGC Debt or prepay, redeem or
repurchase any of the Subordinated Debt.
10.9. Employee Benefit Plans. None of the Borrowers nor any ERISA
Affiliate will,
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for any of the Borrowers or any of their Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether
or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a Lien on the assets of any of
the Borrowers or any of their Subsidiaries pursuant to ss.302(f) or
ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of
the Code; or
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(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of ss.4001 of ERISA) of
all Guaranteed Pension Plans exceeding the value of the aggregate assets
of such Plans by more than $100,000,000, disregarding for this purpose
the benefit liabilities and assets of any such Plan with assets in
excess of benefit liabilities. In the case of any Guaranteed Pension
Plan covered by the PBGC Agreement, in the computation required by the
preceding sentence the total unfunded liabilities (as defined in the
PBGC Agreement), if any, of such Plan as of the most recent December 31
shall be employed instead of a computation of the Plan's unfunded
benefit liabilities on the basis described in the preceding sentence.
10.10. Business Activities. The Borrowers will not, and will not permit
any of their Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Initial Closing Date and in related businesses.
10.11. Fiscal Year. The Borrowers will not, and will not permit any of
their Subsidiaries to, change the date of the end of their fiscal year from that
set forth in ss.8.4.1.
10.12. Transactions with Affiliates. The Borrowers will not, and will
not permit any of their Subsidiaries to, engage in any transaction with any
Affiliate (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
Affiliate or, to the knowledge of any of the Borrowers, any corporation,
partnership, trust or other entity in which any such Affiliate has a substantial
interest or is an officer, director, trustee or partner, on terms more favorable
to such Person than would have been obtainable on an arm's-length basis in the
ordinary course of business.
10.13. Bank Accounts. The Borrowers will not, and will not permit any of
their Subsidiaries to, (i) establish any bank accounts other than those Local
Accounts, Interim Concentration Accounts and other accounts, all listed on
Schedule 8.20, without the Agent's prior written consent, (ii) violate in any
material respect directly or indirectly any Agency Account Agreement or other
bank agency or lock box agreement in favor of the Agent for the benefit of the
Lenders and the Agent with respect to such account, or (iii) deposit into any of
the payroll accounts listed on Schedule 8.20 any amounts in excess of amounts
necessary to pay current payroll obligations from such accounts.
10.14. Limitations on Operation of Subsidiaries. The Borrowers will not
permit any Subsidiary which is not a Borrower or a Guarantor to (a) engage in
any business or operations of any kind, (b) have any Indebtedness owing to any
Borrower or any Guarantor, or (c) hold assets of more than $100,000 in the
aggregate, at any time unless such Subsidiary becomes a Borrower or a Guarantor
pursuant to the provisions of this Credit Agreement and the other Loan
Documents.
10.15. Derivative Obligations. The Borrowers will not, and will not
permit any of their Subsidiaries to, enter into any Derivative Obligation except
for (a) Derivative Obligations with any of the Lenders under interest rate
protection agreements or foreign exchange agreements or (b) Derivative
Obligations entered into for bona fide hedging purposes, and not for speculative
purposes.
11. FINANCIAL COVENANTS OF THE BORROWER.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letters of Credit:
11.1. Fixed Charge Coverage Ratio. The Borrowers will not permit, for
the fiscal quarter ended December 31, 2000, and as of the end of each fiscal
quarter thereafter, the Fixed Charge Coverage Ratio for the four (4) fiscal
quarters then ended to be less than 1.00 to 1.00.
11.2. Capital Expenditures. The Borrowers will not permit the aggregate
amount of Capital Expenditures of the Borrowers and their Subsidiaries to exceed
(a) during the 1999 fiscal year, the sum of (i) $30,000,000 plus (ii) sixty
percent (60%) of Consolidated EBIT for the most recent six (6) months then ended
in excess of $10,000,000, and (b) during each fiscal year thereafter, the lesser
of (i)
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$50,000,000 or (ii) the sum of (x) $25,000,000 plus (y) sixty percent (60%) of
Consolidated EBIT for the most recent six (6) months then ended in excess of
$10,000,000.
11.3. Consolidated Net Worth. The Borrowers will not permit Consolidated
Net Worth at any time to be less than the sum of (i) eighty-five percent (85%)
of Consolidated Net Worth on the Initial Closing Date plus (ii) on a cumulative
basis fifty percent (50%) of positive Consolidated Net Income for each fiscal
quarter beginning with the fiscal quarter ended June 30, 1999, plus (iii) 100%
of the proceeds of any sale by any of the Borrowers of (A) equity securities
issued by any of the Borrowers, or (B) warrants or subscription rights for
equity securities issued by any of the Borrowers.
12. REVOLVING CREDIT CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit
Loans and of the Issuing Bank to issue any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent on or prior to
the Initial Closing Date:
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12.1. Proceedings and Loan Documents.
12.1.1. Proceedings. All actions required of the Borrowers in connection with
the transactions contemplated by this Credit Agreement, the other Loan
Documents and all other documents incident thereto shall be satisfactory
in substance and in form to the Lenders and to the Co-Agents and the
Agent's Special Counsel, and the Lenders, the Co-Agents and such counsel
shall have received all information and such counterpart originals or
certified or other copies of such documents as the Co-Agents may
reasonably request.
12.1.2. Loan Documents. Each of the Loan Documents (other than the PBGC
Intercreditor Agreement, the Replacement Security Documents and any
interest rate protection agreement) shall have been duly executed and
delivered by the respective parties thereto, shall be in full force and
effect and shall be in form and substance satisfactory to each of the
Lenders. Each Lender shall have received a fully executed copy of each
such document.
12.1.3. PBGC Documents. Each of the Lenders shall have received from the
Borrowers a copy, certified by an Authorized Officer of Century Aluminum
to be true and complete on the Initial Closing Date, of each of the PBGC
Documents executed and in full force and effect as of the Initial
Closing Date, and which shall be in form and substance satisfactory to
each of the Lenders.
12.2. Certified Copies of Charter Documents. Each of the Lenders shall
have received from each of the Borrowers and each of their Subsidiaries a copy,
certified by an Authorized Officer of such Person to be true and complete on the
Initial Closing Date, of each of (i) its charter or other incorporation
documents as in effect on such date of certification, and (ii) its by-laws as in
effect on such date.
12.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each of the Borrowers and each of their
Subsidiaries of this Credit Agreement and the other Loan Documents to which it
is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Lenders shall have been provided to each of
the Lenders.
12.4. Incumbency Certificate. Each of the Lenders shall have received
from each of the Borrowers and each of their Subsidiaries an incumbency
certificate, dated as of the Initial Closing Date, signed by an Authorized
Officer of such Borrower or such Subsidiary, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (i) to sign, in
the name and on behalf of each of such Borrower or such Subsidiary, each of the
Loan Documents and PBGC Documents to which such Borrower or such Subsidiary is
or is to become a party; (ii) in the case of the Borrowers, to make Loan
Requests and Conversion Requests and to apply for Letters of Credit; and (iii)
to give notices and to take other action on its behalf under the Loan Documents.
12.5. Validity of Liens. The Security Documents shall be effective to
create in favor of the Agent a legal, valid and enforceable first priority
(except for Permitted Liens entitled to priority under Applicable Law) security
interest in and Lien upon the Collateral. The Agent shall have received all
documents and instruments necessary for the filings and recordings and other
actions necessary or desirable in the opinion of the Agent to protect and
preserve such security interests. The Agent shall have received evidence thereof
in form and substance satisfactory to the Agent.
12.6. Perfection Certificates and UCC Search Results. The Agent shall
have received from each of the Borrowers and their Subsidiaries a completed and
fully executed Perfection Certificate and the Agent shall have received the
results of UCC searches with respect to the Collateral, indicating no Liens
other than Permitted Liens and otherwise in form and substance satisfactory to
the Agent.
12.7. Certificates of Insurance. The Agent shall have received a
certificate of insurance from an independent insurance broker dated as of the
Initial Closing Date, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance obtained in
accordance with the provisions of the Security Agreements.
12.8. Agency Account Agreements. The Borrowers shall have established
the BKB Concentration Account, and the Agent shall have received an Agency
Account Agreement executed by each depository institution with a Local Account
or an Interim Concentration Account.
12.9. Borrowing Base Report and Borrowing Availability. The Agent shall
have received from the Borrowers the initial Borrowing Base Report dated as of
the Initial Closing Date, using financial
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information as of February 28, 1999 and such Borrowing Base Report shall
evidence that, after giving effect to all transactions to occur on the Initial
Closing Date, the Borrowers shall have Borrowing Availability, under ss.2.1 of
the Credit Agreement on the Initial Closing Date, of not less than $25,000,000.
12.10. Accounts Receivable Aging Report, Etc.. The Agent shall have
received from the Borrowers the most recent Accounts Receivable aging report of
the Borrowers and their Subsidiaries dated as of a date which shall be no more
than fifteen (15) days prior to the Initial Closing Date and the Borrowers shall
have notified the Agent in writing on the Initial Closing Date of any material
deviation from the Accounts Receivable values reflected in such Accounts
Receivable aging report and shall have provided the Agent with such
supplementary documentation as the Agent may reasonably request.
12.11. Solvency Certificate. Each of the Lenders shall have received an
officer's certificate of Century Aluminum dated as of the Initial Closing Date
as to the solvency of the Borrowers and their Subsidiaries following the
consummation of the transactions contemplated herein and in form and substance
satisfactory to the Lenders.
12.12. Litigation. As of the Initial Closing Date, there shall be no
actions, suits, proceedings or investigations of any kind pending or, to the
best of any of the Borrowers' knowledge, threatened against any of the Borrowers
or any of their Subsidiaries before any Governmental Authority, that (a) if
adversely determined, would, either in any case or in the aggregate, (i) be
reasonably likely to have a Materially Adverse Effect or (ii) result in any
substantial liability not adequately covered by insurance, or (b) question the
validity or enforceability of any of the Loan Documents, or any action taken or
to be taken pursuant hereto or thereto.
12.13. Material Adverse Effect. Since the Balance Sheet Date there shall
have occurred no Materially Adverse Effect.
12.14. Opinion of Counsel. Each of the Lenders and the Co-Agents shall
have received a favorable legal opinion addressed to the Lenders and the
Co-Agents, dated as of the Initial Closing Date, in form and substance
satisfactory to the Lenders and the Co-Agents, from Curtis, Mallet-Prevost, Colt
& Mosle, counsel to the Borrowers and their Subsidiaries.
12.15. Payment of Fees. The Borrowers shall have paid to the Lenders or
the Agent, as appropriate, any Fees due pursuant to ss.ss.5.6, 6.1 and 6.2.
12.16. Financial Statements and Projections. The Agent shall have
received copies of the financial statements and projections described in ss.8.4.
12.17. Payoff Letter. The Agent shall have received a payoff letter from
Bank of America, indicating the amount of the loan obligations of the Borrowers
to Bank of America to be discharged on the Initial Closing Date and an
acknowledgment by Bank of America that upon receipt of such funds it will
forthwith execute and deliver to the Agent for filing all termination statements
and take such other actions as may be necessary to discharge all mortgages,
deeds of trust and security interests granted by the Borrowers or any of their
Subsidiaries in favor of Bank of America.
12.18. Disbursement Instructions. The Agent shall have received
disbursement instructions from the Borrowers, indicating that a portion of the
proceeds of the Revolving Credit Loan, in an amount equal to the aggregate loan
obligations of the Borrowers to Bank of America, are paid to Bank of America.
13. TERM LOAN CLOSING CONDITIONS.
The obligations of the Lenders to make the Term Loan shall be subject to
the satisfaction of the following conditions precedent on or prior to the Term
Loan Closing Date:
13.1. Loan Documents etc.
13.1.1. Loan Documents. Each of the Loan Documents shall have been duly executed
and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of
the Lenders. Each Lender shall have received a fully executed copy of
each such document.
13.1.2. PBGC Documents. Each of the PBGC Documents shall have been duly executed
and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and
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substance satisfactory to each of the Lenders. Each Lender shall have
received a fully executed copy of each such document.
13.2. Certified Copies of Charter Documents. Each of the Lenders shall
have received from each of the Borrowers and each of their Subsidiaries (a) a
copy, certified by a Authorized Officer of such Person to be true and complete
on the Term Loan Closing Date, of each of (i) its charter or other incorporation
documents as in effect on such date of certification, and (ii) its by-laws as in
effect on such date or (b) a certificate of an Authorized Officer of such
Person, dated as of the Term Loan Closing Date, certifying that no amendments to
its charter or other incorporation documents and its by-laws has occurred since
such documents were last certified to the Lenders. Such certified copies shall
be in form and substance satisfactory to the Agent.
13.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each of the Borrowers and each of their
Subsidiaries of the Loan Documents to which it is or is to become a party shall
have been duly and effectively taken, and evidence thereof satisfactory to the
Lenders shall have been provided to each of the Lenders.
13.4. Incumbency Certificate. Each of the Lenders shall have received
from each of the Borrowers and each of their Subsidiaries an incumbency
certificate, dated as of the Term Loan Closing Date, signed by an Authorized
Officer of such Borrower or such Subsidiary, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (i) to sign, in
the name and on behalf of each of such Borrower or such Subsidiary, each of the
Loan Documents and PBGC Documents to which such Borrower or such Subsidiary is
or is to become a party; (ii) in the case of the Borrowers, to make Loan
Requests and Conversion Requests; and (iii) to give notices and to take other
action on its behalf under the Loan Documents.
13.5. Validity of Liens. The Replacement Security Documents shall be
effective to create in favor of the Agent a legal, valid and enforceable first
priority (except for Permitted Liens entitled to priority under Applicable Law)
security interest in and Lien upon the Collateral. All filings, recordings,
deliveries of instruments and other actions necessary or desirable in the
opinion of the Agent to protect and preserve such security interests shall have
been duly effected. The Agent shall have received evidence thereof in form and
substance satisfactory to the Agent.
13.6. Perfection Certificates and UCC Search Results. The Agent shall
have received from each of the Borrowers and their Subsidiaries a completed and
fully executed Perfection Certificate and the Agent shall have received the
results of UCC searches with respect to the Collateral, indicating no Liens
other than Permitted Liens and otherwise in form and substance satisfactory to
the Agent.
13.7. Survey and Taxes. The Agent shall have received (i) a Survey of
the Mortgaged Property located in Vernon, California, together with a Surveyor
Certificate relating thereto and (ii) evidence of payment of real estate taxes
and municipal charges on all Real Estate not delinquent on or before the Term
Loan Closing Date.
13.8. Title Insurance. The Agent shall have received a Title Policy
covering each Mortgaged Property (or commitments to issue such policies, with
all conditions to issuance of the Title Policy deleted by an authorized agent of
the Title Insurance Company) together with proof of payment of all fees and
premiums for such policies, from the Title Insurance Company and in amounts
satisfactory to the Agent, insuring the interest of the Agent and each of the
Lenders as mortgagee under the Mortgages.
13.9. Solvency Certificate. Each of the Lenders shall have received an
officer's certificate of Century Aluminum dated as of the Term Loan Closing Date
as to the solvency of the Borrowers and their Subsidiaries following the
consummation of the transactions contemplated herein and in form and substance
satisfactory to the Lenders.
13.10. Opinion of Counsel. Each of the Lenders and the Co-Agents shall
have received a favorable legal opinion addressed to the Lenders and the
Co-Agents, dated as of the Term Loan Closing Date, in form and substance
satisfactory to the Lenders and the Co-Agents, from:
(a) Curtis, Mallet-Prevost, Colt & Mosle, counsel to the
Borrowers and their Subsidiaries; and
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(b) local counsel to the Borrower and its Subsidiaries as
applicable.
13.11. Valuation. The Agent's shall have received a valuation of the
Real Estate, machinery and equipment located in Ravenswood, West Virginia,
conducted by Norman Levy and Associates, and in form and substance satisfactory
to the Co-Agents; provided, that with respect to such valuation, the Borrowers
shall not be required to pay more than $100,000 of the cost thereof.
14. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan, including the Revolving
Credit Loan and the Term Loan, and of the Issuing Bank to issue, extend or renew
any Letter of Credit, in each case whether on or after the Initial Closing Date,
shall also be subject to the satisfaction of the following conditions precedent:
14.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrowers and their Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
14.2. Borrowing Base Report. The Agent shall have received the most
recent Borrowing Base Report required to be delivered to the Agent in accordance
with ss.9.4(f) and, if requested by the Agent, a Borrowing Base Report dated
within five (5) days of the Drawdown Date of such Loan or of the date of
issuance, extension or renewal of such Letter of Credit.
14.3. Permitted Acquisitions. Prior to the making of each Loan, the
proceeds of which are to be used to fund an Acquisition, all conditions
precedent for such Acquisition to be a Permitted Acquisition set forth in the
definition thereof shall have been satisfied or waived and an Authorized Officer
of the applicable Borrower shall have delivered to the Agent an officer's
certificate certifying that such conditions have been met.
15. EVENTS OF DEFAULT; ACCELERATION; ETC.
15.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the
Loans or any Reimbursement Obligation when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) any of the Borrowers or any of their Subsidiaries shall fail
to pay any interest on the Loans, any Fees, or other sums due hereunder
or under any of the other Loan Documents, when the same shall become due
and payable, whether at the stated date of maturity or any accelerated
date of maturity or at any other date fixed for payment;
(c) any of the Borrowers shall fail to comply with any of its
covenants contained in ss.ss.9.1, 9.2, 9.4 (except for 9.4(f)(B) and
(g)), 9.5 through 9.10, 9.12, 9.14, 9.15, 9.16(a) and (b), 9.17, 10.1
through 10.6, 10.8, 10.10 through 10.15 or 11;
(d) any of (i) the Borrowers shall fail to comply with its
covenants contained in ss.ss.9.4(f)(B) and 9.4(g) for two (2) days after
written or telephonic notice of such failure has been given to the
Borrowers by the Agent or (ii) the Borrowers or any of their
Subsidiaries shall fail to
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perform any term, covenant or agreement contained herein or in any of
the other Loan Documents (other than those specified elsewhere in this
ss.15.1) for thirty (30) days after written notice of such failure has
been given to the Borrowers by the Agent;
(e) any representation or warranty of any of the Borrowers or
any of their Subsidiaries in this Credit Agreement or any of the other
Loan Documents or in any other document or instrument delivered pursuant
to or in connection with this Credit Agreement shall prove to have been
false in any material respect upon the date when made or deemed to have
been made or repeated;
(f) any of the Borrowers or any of their Subsidiaries shall fail
to pay at maturity, or within any applicable period of grace, any
obligation for borrowed money or credit received or in respect of any
Capitalized Leases, or fail to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money or credit received or in respect
of any Capitalized Leases for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof, or any such holder or holders shall rescind or
shall have a right to rescind the purchase of any such obligations;
(g) any of the Borrowers or any of their Subsidiaries shall make
an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee
or other custodian, liquidator or receiver of any of the Borrowers or
any of their Subsidiaries or of any substantial part of the assets of
any of the Borrowers or any of their Subsidiaries or shall commence any
case or other proceeding relating to any of the Borrowers or any of
their Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar
law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if any
such petition or application shall be filed or any such case or other
proceeding shall be commenced against any of the Borrowers or any of
their Subsidiaries and any of the Borrowers or any of their Subsidiaries
shall indicate its approval thereof, consent thereto or acquiescence
therein or such petition or application shall not have been dismissed
within sixty (60) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the Borrowers
or any of their Subsidiaries bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order for
relief is entered in respect of any of the Borrowers or any Subsidiary
of any Borrower in an involuntary case under federal bankruptcy laws as
now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than forty (40) days, whether or not consecutive, any
final judgment (not adequately covered by insurance with respect to
which the relevant insurance company has acknowledged coverage or for
which adequate reserves are not maintained on the consolidated balance
sheet of the Borrowers) against any of the Borrowers or any of their
Subsidiaries that, with other outstanding final judgments, undischarged,
against any of the Borrowers or any of their Subsidiaries exceeds in the
aggregate $3,000,000;
(j) the holders of all or any part of the Subordinated Debt or
PBGC Debt shall accelerate the maturity of all or any part of the
Subordinated Debt or the PBGC Debt,
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respectively, the Subordinated Debt shall be prepaid, redeemed or
repurchased in whole or in part or the Borrowers shall fail to make any
required payments in respect of the PBGC Debt;
(k) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Agent's security interests, mortgages or
Liens in a substantial portion of the Collateral shall cease to be
perfected, or shall cease to have the priority contemplated by the
Security Documents or the Replacement Security Documents, as the case
may be, in each case otherwise than in accordance with the terms thereof
or with the express prior written agreement, consent or approval of the
Lenders or other than due to an act or omission of the Agent or any
Lender, or any action at law, suit or in equity or other legal
proceeding to cancel, revoke or rescind any of the Loan Documents shall
be commenced by or on behalf of any of the Borrowers or any of their
Subsidiaries party thereto or any of their respective stockholders, or
any court or any other Governmental Authority of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or
ruling to the effect that, any one or more of the Loan Documents is
illegal, invalid or unenforceable in accordance with the terms thereof;
(l) any of the Borrowers or any ERISA Affiliate incurs any
liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV
of ERISA in an aggregate amount exceeding $1,000,000, or any of the
Borrowers or any ERISA Affiliate is assessed withdrawal liability
pursuant to Title IV of ERISA by a Multiemployer Plan requiring
aggregate annual payments exceeding $1,000,000, or any of the following
occurs with respect to a Guaranteed Pension Plan: (i) an ERISA
Reportable Event, or a failure to make a required installment or other
payment (within the meaning of ss.302(f)(1) of ERISA), provided that the
Agent determines in its reasonable discretion that such event (A) could
be expected to result in liability of any of the Borrowers or any of
their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $1,000,000 and (B) could constitute grounds
for the termination of such Guaranteed Pension Plan by the PBGC, for the
appointment by the appropriate United States District Court of a trustee
to administer such Guaranteed Pension Plan or for the imposition of a
Lien in favor of such Guaranteed Pension Plan; or (ii) the appointment
by a United States District Court of a trustee to administer such
Guaranteed Pension Plan; or (iii) the institution by the PBGC of
proceedings to terminate such Guaranteed Pension Plan;
(m) any of the Borrowers or any of their Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any court
or any administrative or regulatory agency from conducting any material
part of its business and such order shall continue in effect for more
than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public
enemy, or other casualty, which in any such case causes, for more than
fifteen (15) consecutive days, the cessation or substantial curtailment
of revenue producing activities at any facility of any of the Borrowers
or any of their Subsidiaries if such event or circumstance is not
covered by business interruption insurance and would have a Materially
Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired
by any of the Borrowers or any of their Subsidiaries if such loss,
suspension, revocation or failure to renew would have a Materially
Adverse Effect;
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(p) any person (other than Glencore) or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of fifty-one percent (51%) or more of the outstanding
shares of common stock of Century Aluminum; or
(q) Century Aluminum shall (subject to ss.9.5 hereof) at any
time, directly or indirectly through one or more Subsidiaries, legally
or beneficially own less than one hundred percent (100%) of the shares
of the capital stock and other outstanding equity interests of each of
the Borrowers (other than itself) and the other Guarantors;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Lenders shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes and the other Loan Documents and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided that in the event of any
Event of Default specified in ss.ss.15.1(g), 15.1(h) or 15.1(j), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Lender.
15.2. Termination of Commitments. If any one or more of the Events of
Default specified in ss.15.1(g), ss.15.1(h) or ss.15.1(j) shall occur, any
unused portion of the credit hereunder shall forthwith terminate and each of the
Lenders shall be relieved of all further obligations to make Loans to the
Borrowers and the Issuing bank shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other Event of Default shall
have occurred and be continuing, or if on any Drawdown Date or other date for
issuing, extending or renewing any Letter of Credit the conditions precedent to
the making of the Loans to be made on such Drawdown Date or (as the case may be)
to issuing, extending or renewing such Letter of Credit on such other date are
not satisfied, the Agent may and, upon the request of the Majority Lenders,
shall, by notice to the Borrowers, terminate the unused portion of the credit
hereunder, and upon such notice being given such unused portion of the credit
hereunder shall terminate immediately and each of the Lenders shall be relieved
of all further obligations to make Loans and the Agent shall be relieved of all
further obligations to issue, extend or renew Letters of Credit. No termination
of the credit hereunder shall relieve the Borrowers or any of their Subsidiaries
of any of the Obligations.
15.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to ss.15.1, each Lender, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Majority Lenders but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Agent or the holder of any Note or purchaser of any Letter of
Credit Participation is intended to be exclusive of any other remedy and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
15.4. Distribution of Collateral Proceeds. In the event that, following
the occurrence or during the continuance of any Default or Event of Default, the
Agent or any Lender, as the case may be, receives any monies in connection with
the enforcement of any the Security Documents or Replacement Security Documents,
as the case may be, or otherwise with respect to the realization upon any of the
Collateral, such monies shall be distributed for application (x) so long as the
PBGC Intercreditor Agreement is in
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effect, as provided in the PBGC Intercreditor Agreement, and (y) to the extent
required or permitted by the PBGC Intercreditor Agreement or after the PBGC
Intercreditor Agreement is no longer in effect, as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies
by the Agent, for the exercise, protection or enforcement by the Agent
of all or any of the rights, remedies, powers and privileges of the
Agent under this Credit Agreement or any of the other Loan Documents or
in respect of the Collateral or in support of any provision of adequate
indemnity to the Agent against any taxes or Liens which by law shall
have, or may have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations (other than Derivative
Obligations) in such order or preference as the Majority Lenders may
determine; provided, however, that (i) distributions shall be made (A)
pari passu among Obligations with respect to the Agent's Fee payable
pursuant to ss.6.2 and all other Obligations (other than Derivative
Obligations) and (B) with respect to each type of Obligation owing to
the Lenders, such as interest, principal, Fees and expenses, among the
Lenders pro rata, and (ii) the Agent may in its discretion make proper
allowance to take into account any Obligations not then due and payable;
(c) Third, to the Obligations which are Derivative Obligations
pro rata among such Banks who are participants in such Derivative
Obligations;
(d) Fourth, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Lenders and the Agent
of all of the Obligations, as required by the PBGC Intercreditor
Agreement, to the extent then in effect, and thereafter, to the payment
of any obligations required to be paid pursuant to ss.9-504(1)(c) of the
Uniform Commercial Code of the Commonwealth of Massachusetts; and
(e) Fifth, the excess, if any, shall be returned to the
Borrowers or to such other Persons as are entitled thereto.
16. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Lenders to the Borrowers and any securities or other property of the
Borrowers in the possession of such Lender may be applied to or set off by such
Lender against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrowers to such Lender. Each of the Lenders
agrees with each other Lender that (i) if an amount to be set off is to be
applied to Indebtedness of the Borrowers to such Lender, other than Indebtedness
evidenced by the Notes held by such Lender or constituting Reimbursement
Obligations owed to such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Lender or constituting Reimbursement Obligations owed to such Lender, and
(ii) if such Lender shall receive from any of the Borrowers, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Lender by proceedings against any of the
Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by, or Reimbursement
Obligations owed to, such Lender any amount in excess of its ratable portion of
the payments received by all of the Lenders with respect to the Notes held by,
and Reimbursement
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Obligations owed to, all of the Lenders, such Lender will make such disposition
and arrangements with the other Lenders with respect to such excess, either by
way of distribution, pro tanto assignment of claims, subrogation or otherwise as
shall result in each Lender receiving in respect of the Notes held by it or
Reimbursement obligations owed it, its proportionate payment as contemplated by
this Credit Agreement; provided that if all or any part of such excess payment
is thereafter recovered from such Lender, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such recovery, but
without interest.
17. THE AGENT.
17.1. Authorization.
(a) The Agent is authorized to take such action on behalf of
each of the Lenders and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been
assumed by the Agent.
(b) The relationship between the Agent and each of the Lenders
is that of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Lenders. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other
fiduciary relationship between the Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Agent is nevertheless
a "representative" of the Lenders, as that term is defined in Article 1
of the UCC, for purposes of actions for the benefit of the Lenders and
the Agent with respect to all collateral security and guaranties
contemplated by the Loan Documents. Such actions include the designation
of the Agent as "secured party", "mortgagee" or the like on all
financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any
of the Obligations, all for the benefit of the Lenders and the Agent.
17.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrowers.
17.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
17.4. No Representations.
17.4.1. General. The Agent shall not be responsible for the execution or
validity or enforceability of this Credit Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any instrument at
any time constituting, or intended to constitute, collateral security
for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing
with respect to the Notes, or for any recitals or statements, warranties
or
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representations made herein or in any of the other Loan Documents or in
any certificate or instrument hereafter furnished to it by or on behalf
of any of the Borrowers or any of their Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument
at any time constituting, or intended to constitute, collateral security
for the Notes or to inspect any of the properties, books or records of
any of the Borrowers or any of their Subsidiaries. The Agent shall not
be bound to ascertain whether any notice, consent, waiver or request
delivered to it by any of the Borrowers or any holder of any of the
Notes shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the
Lenders, with respect to the credit worthiness or financial conditions
of any of the Borrowers or any of their Subsidiaries. Each Lender
acknowledges that it has, independently and without reliance upon the
Agent or any other Lender, and based upon such information and documents
as it has deemed appropriate, made its own credit analysis and decision
to enter into this Credit Agreement.
17.4.2. Closing Documentation, etc. For purposes of determining compliance with
the conditions set forth in ss.12, 13 and 14, each Lender that has
executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Agent or the Arranger to such
Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be to be consent to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Agent or the
Arranger active upon the Borrowers' account shall have received notice
from such Lender not less than five (5)days prior to the Initial Closing
Date or Term Loan Closing Date, as the case may be, specifying such
Lender's objection thereto and such objection shall not have been
withdrawn by notice to the Agent or the Arranger to such effect on or
prior to the applicable Closing Date.
17.5. Payments.
17.5.1. Payments to Agent. A payment by any of the Borrowers to the Agent
hereunder or any of the other Loan Documents for the account of any
Lender shall constitute a payment to such Lender. The Agent agrees
promptly to distribute to each Lender such Lender's pro rata share of
payments received by the Agent for the account of the Lenders except as
otherwise expressly provided herein or in any of the other Loan
Documents.
17.5.2. Distribution by Agent. If in the opinion of the Agent the distribution
of any amount received by it in such capacity hereunder, under the Notes
or under any of the other Loan Documents might involve it in liability,
it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that
any amount received and distributed by the Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner and to such Persons
as shall be determined by such court.
17.5.3. Delinquent Lenders. Notwithstanding anything to the contrary contained
in this Credit Agreement or any of the other Loan Documents, any Lender
that fails (i) to make available to the Agent its pro rata share of any
Loan or to purchase any Letter of Credit Participation or (ii) to comply
with the provisions of ss.16 with respect to making dispositions and
arrangements with the other Lenders, where such Lender's share of any
payment received, whether by setoff or otherwise, is in excess of its
pro rata share of such payments due and payable to all of the Lenders,
in each case as, when and to the full extent required by the provisions
of this Credit Agreement, shall be deemed delinquent (a "Delinquent
Lender") and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied. A Delinquent Lender shall be deemed to have
assigned any and all payments due to it from the Borrowers, whether on
account of outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining nondelinquent Lenders for
application to, and reduction of, their respective pro rata shares of
all outstanding Loans and Unpaid Reimbursement Obligations. The
Delinquent Lender
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hereby authorizes the Agent to distribute such payments to the
nondelinquent Lenders in proportion to their respective pro rata shares
of all outstanding Loans and Unpaid Reimbursement Obligations. A
Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid Reimbursement Obligations
of the nondelinquent Lenders, the Lenders' respective pro rata shares of
all outstanding Loans and Unpaid Reimbursement Obligations have returned
to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
17.6. Holders of Notes. The Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
17.7. Indemnity. The Lenders ratably agree hereby to indemnify and hold
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or such affiliate has not
been reimbursed by the Borrowers as required by ss.18), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
17.8. Agent as Lender. In its individual capacity, BKB shall have the
same obligations and the same rights, powers and privileges in respect to its
Commitments and the Loans made by it, and as the holder of any of the Notes and
as the purchaser of any Letter of Credit Participations, as it would have were
it not also the Agent.
17.9. Resignation. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Lenders and the Borrowers. Upon any
such resignation, the Majority Lenders shall have the right to appoint a
successor Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to each of the
Borrowers. If no successor Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
financial institution having a rating of not less than "A" or its equivalent by
Standard & Poor's Corporation. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation, the provisions of
this Credit Agreement and the other Loan Documents shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as Agent.
17.10. Notification of Defaults and Events of Default; Delivery of
Information; Etc.
(a) Each Lender hereby agrees that, upon learning of the existence of a
Default or an Event of Default, it shall promptly notify the Agent thereof. The
Agent hereby agrees that upon receipt of any notice under this ss.17.10 it shall
promptly notify the other Lenders of the existence of such Default or Event of
Default.
(b) The Agent hereby agrees that upon receipt of any of the financial
statements, certificates or information delivered to the Agent under ss.9.4 it
shall promptly deliver copies thereof to the other Lenders.
(c) The Agent hereby agrees that upon receipt of any notice under ss.9.5
it shall promptly notify the other Lenders of the content of such notice.
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17.11. Duties in the Case of Enforcement. In case one of more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (i) so requested by
the Majority Lenders and (ii) the Lenders have provided to the Agent such
additional indemnities and assurances against expenses and liabilities as the
Agent may reasonably request, proceed to enforce the provisions of the Security
Documents or Replacement Security Documents, as the case may be, authorizing the
sale or other disposition of all or any part of the Collateral and exercise all
or any such other legal and equitable and other rights or remedies as it may
have in respect of such Collateral. The Majority Lenders may direct the Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders hereby agreeing to indemnify and hold the Agent, harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such directions, provided that the Agent need not comply with any such
direction to the extent that the Agent reasonably believes the Agent's
compliance with such direction to be unlawful or commercially unreasonable in
any applicable jurisdiction.
18. EXPENSES AND INDEMNIFICATION.
18.1. Expenses. The Borrowers agree to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by any of the Co-Agents,
the Issuing Bank or any of the Lenders (other than franchise taxes and taxes
based upon any of the Co-Agent's, the Issuing Bank's or any Lender's net income)
on or with respect to the transactions contemplated by this Credit Agreement
(the Borrowers hereby agreeing to indemnify each of the Co-Agents, the Issuing
Bank and each Lender with respect thereto), (iii) the reasonable fees, expenses
and disbursements of the Agent's Special Counsel or any local counsel to the
Agent incurred in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, any amendments, modifications, approvals, consents or
waivers hereto or hereunder, or the cancellation of any Loan Document upon
payment in full in cash of all of the Obligations or pursuant to any terms of
such Loan Document for providing for such cancellation, (iv) the fees, expenses
and disbursements of the Agent or any of its affiliates incurred by the Agent or
such affiliate in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering and appraisal
charges, (v) any fees, costs, expenses and bank charges, including bank charges
for returned checks, incurred by the Agent in establishing, maintaining or
handling agency accounts, lock box accounts and other accounts for the
collection of any of the Collateral; (vi) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Lender or any of the Co-Agents, and reasonable
consulting, accounting, appraisal, audit investment banking and similar
professional fees and charges) incurred by any Lender or any of the Co-Agents in
connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against any of the Borrowers or any of their Subsidiaries or
the administration thereof after the occurrence of a Default or Event of Default
and (B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Lender's or any of the Co-Agents'
relationship with any of the Borrowers or any of their Subsidiaries and (vii)
all reasonable fees, expenses and disbursements of any Lender or the Agent
incurred in connection with UCC searches, UCC filings or mortgage recordings.
18.2. Indemnification. The Borrowers agree to indemnify and hold
harmless the Arranger, the Issuing Bank, the Co-Agents, the Lenders and each of
their Affiliates from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (i) any actual or proposed use by the
Borrowers or any of their Subsidiaries of the proceeds of any of the Loans or
Letters of Credit, (ii) the reversal or withdrawal of any provisional credits
granted by the Agent upon the transfer of funds from lock box, bank agency or
concentration accounts or in connection with the provisional honoring of checks
or other items, (iii) any actual or alleged infringement of any patent,
copyright,
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trademark, service mark or similar right of any of the Borrowers or any of their
Subsidiaries comprised in the Collateral, (iv) the Borrowers or any of their
Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents or (v) with respect to any of the Borrowers and their
Subsidiaries and their respective Properties, the violation of any Environmental
Law, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
therefor, the Arranger, the Issuing Bank, the Lenders and the Co- Agents and
their Affiliates shall be entitled to select their own counsel and, in addition
to the foregoing indemnity, the Borrowers agree to pay promptly the reasonable
fees and expenses of such counsel. Notwithstanding the foregoing, the Borrowers
shall have no obligation hereunder to any Person indemnified hereunder with
respect to liabilities arising solely from such indemnified Person's gross
negligence or willful misconduct. If, and to the extent that the obligations of
any of the Borrowers under this ss.18.2 are unenforceable for any reason, each
of the Borrowers hereby agrees to make the maximum contribution to the payment
in satisfaction of such obligations which is permissible under Applicable Law.
18.3. Survival. The covenants contained in this ss.18 shall survive
payment or satisfaction in full of all other Obligations.
19. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
19.1. Sharing of Information with Section 20 Subsidiary. The Borrowers
acknowledge that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrowers or one or more of
their Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. Each Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with the Co-Agents and
each Lender any information delivered to such Section 20 Subsidiary by such
Borrower or any of its Subsidiaries, and (b) the Co- Agents and each Lender to
share with such Section 20 Subsidiary any information delivered to such Agent or
such Lender by such Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Lender to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of Obligations.
19.2. Confidentiality. Each of the Lenders and the Co-Agents agrees, on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrowers or any of their
Subsidiaries pursuant to this Credit Agreement that is identified by such Person
as being confidential at the time the same is delivered to the Lenders or any of
the Co-Agents, provided that nothing herein shall limit the disclosure of any
such information (a) after such information shall have become public other than
through a violation of this ss.19, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of the Lenders or the
Co-Agents, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Lender or any of the Co-Agents, or to auditors or
accountants, (e) to any of the Co-Agents, any of the Lenders or any Section 20
Subsidiary, (f) in connection with any litigation to which any one or more of
the Lenders, the Co-Agents or any Section 20 Subsidiary is a party, or in
connection with the enforcement of rights or remedies hereunder or under any
other Loan Document, (g) to a Subsidiary or affiliate of such Lender as provided
in ss.19.1 or (h) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant agrees to be bound by the
provisions of ss.21.6. Moreover, each of the Co-Agents, the Lenders and any
Section 20 Subsidiary is hereby expressly permitted by the Borrowers to refer to
any of the Borrowers and their Subsidiaries in connection with any advertising,
promotion or
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marketing undertaken by such Co-Agents, such Lender or such Section 20
Subsidiary and, for such purpose, such Co-Agents, such Lender or such Section 20
Subsidiary may utilize any trade name, trademark, logo or other distinctive
symbol associated with any of the Borrowers or any of their Subsidiaries or any
of their businesses.
19.3. Prior Notification. Unless specifically prohibited by Applicable
Law or court order, each of the Lenders and the Co-Agents shall, prior to
disclosure thereof, notify the Borrowers of any request for disclosure of any
such non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) or pursuant to legal
process.
19.4. Other. In no event shall any of the Lenders or Co-Agents be
obligated or required to return any materials furnished to it or any Section 20
Subsidiary by the Borrowers or any of their Subsidiaries. The obligations of
each Lender under this ss.19 shall supersede and replace the obligations of such
Lender under any confidentiality letter in respect of this financing signed and
delivered by such Lender to the Borrowers prior to the date hereof and shall be
binding upon any assignee of, or purchaser of any participation in, any interest
in any of the Loans or Reimbursement Obligations from any Lender.
20. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of any of the Borrowers or any of their
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Lenders, the Issuing Bank and the Co-Agents, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of any of the Loans and the issuance, extension or renewal of any
Letters of Credit, as herein contemplated, and shall continue in full force and
effect so long as any Letter of Credit or any amount due under this Credit
Agreement or the Notes or any of the other Loan Documents remains outstanding or
any Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letter of Credit, and for such further
time as may be otherwise expressly specified in this Credit Agreement. All
statements contained in any certificate or other paper delivered to any Lender,
the Issuing Bank or the Co-Agents at any time by or on behalf of any of the
Borrowers or any of their Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Borrowers or such Subsidiary hereunder.
21. ASSIGNMENT AND PARTICIPATION.
21.1. Conditions to Assignment by Lenders. Except as provided herein,
each Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentages and Commitments and the same portion of
the Loans at the time owing to it, the Notes held by it and its participating
interest in the risk relating to any Letters of Credit); provided that (i) each
of the Agent and, unless a Default or Event of Default shall have occurred and
be continuing, the Borrower shall have given its prior written consent to such
assignment, which consent, in the case of the Borrowers, will not be
unreasonably withheld (any increase in costs to the Borrowers shall be
considered reasonable grounds for the Borrowers' withholding consent to such
assignment), (ii) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Credit Agreement, (iii) each assignment shall be in the amount of
$10,000,000 or an integral multiple of $1,000,000 thereof, unless it is for all
of the assigning Lender's interests, rights and obligations under this Credit
Agreement, (iv) the parties to such assignment shall execute and deliver to the
Agent, for recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit F hereto (an "Assignment and
Acceptance"), together with any Notes subject to such assignment, and (v) unless
a Default or Event of Default shall have occurred, the Commitment Percentage of
the Total Commitment and of any outstanding Term Loan of each of BKB and CIT
shall be equal to a principal amount of not less than $15,000,000 minus each of
BKB's and CIT's pro rata share of payments made by the Borrowers on account of
the Term Loan. Upon such execution, delivery, acceptance and recording, from and
after
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the effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof, (i)
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (ii) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Agent of the registration fee referred to in
ss.21.3, be released from its obligations under this Credit Agreement.
21.2. Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage,
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers and their Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrowers and their Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.8.4 and ss.9.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon
the assigning Lender, the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Credit Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Lender;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
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(i) such assignee acknowledges that it has made arrangements
with the assigning Lender satisfactory to such assignee with respect to
its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
<PAGE> 84
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21.3. Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment
Percentage of, and principal amount of the Term Loans and Revolving Credit Loans
owing to and Letter of Credit Participations purchased by, the Lenders from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrowers and the Lenders at any reasonable time and from time
to time upon reasonable prior notice. Upon each such recordation, the assigning
Lender agrees to pay to the Agent a registration fee in the sum of $3,000.
21.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (i) record the information contained therein in
the Register, and (ii) give prompt notice thereof to the Borrowers and the
Lenders (other than the assigning Lender). Within five (5) Business Days after
receipt of such notice, the Borrowers, at its own expense, shall execute and
deliver to the Agent, in exchange for each surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained some portion of its obligations hereunder, a new
Note to the order of the assigning Lender in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes. The surrendered
Notes shall be cancelled and returned to the Borrower.
21.5. Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (i) each such participation shall be in an amount of not less than
$5,000,000, (ii) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrowers, (iii) each Borrower and
the Agent shall continue to deal solely and directly with the selling Lender in
connection with the selling Lender's rights and obligations under this Credit
Agreement and the other Loan Documents, and (iv) no Lender shall transfer or
grant any participating interest under which the participant has rights to
approve any amendment to, or any consent or waiver with respect to, this Credit
Agreement or any other Loan Document, and all amounts payable by the Borrowers
hereunder shall be determined as if such Lender had not sold such participation;
except that, if amounts outstanding under this Credit Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Credit Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this Credit
Agreement.
21.6. Disclosure. The Borrowers agree that in addition to disclosures
made in accordance with standard and customary banking practices any Lender may
disclose information obtained by such Lender pursuant to this Credit Agreement
to assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation. For purposes of this ss.21.6
an assignee or participant or potential assignee or participant may include a
counterparty with whom such Lender has entered into or potentially might enter
into a derivative contract referenced to credit or other risks or events arising
under this Credit Agreement or any other Loan Document.
21.7. Assignee or Participant Affiliated with the Borrowers. If any
assignee Lender is an Affiliate of any of the Borrowers, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of
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agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to ss.15.1 or ss.15.2, and
the determination of the Majority Lenders shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to such assignee
Lender's interest in any of the Loans or Reimbursement Obligations. If any
Lender sells a participating interest in any of the Loans or Reimbursement
Obligations to a participant, and such participant is a Borrower or an Affiliate
of any of the Borrowers, then such transferor Lender shall promptly notify the
Agent of the sale of such participation. A transferor Lender shall have no right
to vote as a Lender hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of agreeing to
amendments or modifications to any of the Loan Documents or for purposes of
making requests to the Agent pursuant to ss.15.1 or ss.15.2 to the extent that
such participation is beneficially owned by a Borrower or any Affiliate of any
of the Borrowers, and the determination of the Majority Lenders shall for all
purposes of this Credit Agreement and the other Loan Documents be made without
regard to the interest of such transferor Lender in the Loans or Reimbursement
Obligations to the extent of such participation.
21.8. Miscellaneous Assignment Provisions. Any assigning Lender shall
retain its rights to be indemnified pursuant to ss.18 with respect to any claims
or actions arising prior to the date of such assignment. On or before the date
it becomes a party to this Credit Agreement and from time to time thereafter
upon any change in status rendering any certificate or document previously
delivered pursuant to ss.6.7 invalid or inaccurate, each Lender that is
organized under the laws of a jurisdiction outside the United States shall (but,
with respect to any renewal or change in status, if legally able to do so)
deliver to the Borrowers and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes, and each
such Lender shall comply with all Applicable Laws with respect to such exemption
and any renewal or extension thereof. If any Reference Bank transfers all of its
interest, rights and obligations under this Credit Agreement, the Agent shall,
in consultation with the Borrowers and with the consent of the Borrowers and the
Majority Lenders, appoint another Lender to act as a Reference Bank hereunder.
Anything contained in this ss.21 to the contrary notwithstanding, any Lender may
at any time pledge all or any portion of its interest and rights under this
Credit Agreement (including all or any portion of its Notes) to any of the
twelve (12) Federal Reserve Banks organized under ss.4 of the Federal Reserve
Act, 12 U.S.C. ss.341. No such pledge or the enforcement thereof shall release
the pledgor Lender from its obligations hereunder or under any of the other Loan
Documents.
21.9. Assignment by Borrowers. None of the Borrowers shall assign or
transfer any of their rights or obligations under any of the Loan Documents
without the prior written consent of each of the Lenders.
22. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrower, at Century Aluminum Company, 2511 Garden
Road, Building A, Suite 200, Monterey, CA 93940, Attention: Mr. Daniel
Krofcheck, or at such other address for notice as the Borrowers shall
last have furnished in writing to the Person giving the notice;
(b) if to the Agent, at 100 Federal Street, Mail Stop, MA-BOS
01-09-07, Boston, Massachusetts 02110, Attention: Mr. Neal Hesler, or
such other address for notice as the Agent shall last have furnished in
writing to the Person giving the notice;
(c) if to the Co-Agent, at The CIT Group/Business Credit, Inc.,
10 South LaSalle Street, 22nd Floor, Chicago. IL 60603, Attention:
Regional Manager, or such other address for notice as the Co-Agent shall
last have furnished in writing to the Person giving the notice; and
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(d) if to any Lender, at such Lender's address set forth on
Schedule 1 hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
23. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE
BORROWERS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH
OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON ANY OF THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN ss.22.
EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.
24. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
25. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
26. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in ss.28.
27. WAIVER OF JURY TRIAL.
Each of the Borrowers hereby waives its right to a jury trial with
respect to any action or claim arising out of any dispute in connection with
this Credit Agreement, the Notes or any of the other Loan Documents, any rights
or obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, each of the Borrowers hereby waives
any right it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. Each of the
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Borrowers (i) certifies that no representative, agent or attorney of any Lender
or the Agent has represented, expressly or otherwise, that such Lender or the
Agent would not, in the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that the Agent and the Lenders have been induced
to enter into this Credit Agreement, the other Loan Documents to which it is a
party and the PBGC Documents and Subordination Documents to which it is a party
by, among other things, the waivers and certifications contained herein.
28. CONSENTS, AMENDMENTS, WAIVERS, ETC.
(a) Any consent or approval required or permitted by this Credit
Agreement to be given by the Lenders may be given, and any term of this Credit
Agreement, the other Loan Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrowers or any of their Subsidiaries of any terms of this Credit Agreement,
the other Loan Documents or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrowers and the written consent of the Majority
Lenders. Notwithstanding the foregoing:
(a) the rate of interest on the Notes (other than interest accruing
pursuant to ss.6.12.2 following the effective date of any waiver
by the Majority Lenders of the Default or Event of Default
relating thereto) or the amount of any Commitment Fees or Letter
of Credit Fees may not be decreased without the written consent
of each Lender affected thereby;
(b) the amount of the Commitments may not be increased without the
written consent of the Borrower and of each Lender affected
thereby;
(c) the Revolving Credit Loan Maturity Date and the Term Loan
Maturity Date may not be postponed without the written consent
of each Lender affected thereby;
(d) the advance rates set forth in the definition of Borrowing Base
may not be increased without the written consent of all of the
Lenders,
(e) this ss.28 and the definitions of Majority Lenders or Minimum
Reserve Amount may not be amended, without the written consent
of all of the Lenders;
(f) the amount of the Agent's Fee payable for the Agent's account
and ss.17 may not be amended without the written consent of the
Agent; and the amount of any fees in respect of Letters of
Credit payable for the Issuing Bank's account may not be amended
without the written consent of the Issuing Bank;
(g) no such amendment, modification, waiver or release which would
release any Collateral (except for any release under ss.7.3, any
permitted asset sale under ss.10.5 or as otherwise expressly
permitted in this Agreement and the other Loan Documents) with a
value in excess of $10,000,000 from the lien of the Security
Documents shall be effective without the written consent of each
Lender;
(h) no such amendment, modification, waiver or release which would
have the effect of (i) reducing the principal amount of any Loan
of any Lender shall be effective without the written consent of
each Lender affected thereby or (ii) delaying or extending the
terms of or any scheduled repayment of the Term Loan as set
forth in ss.4.4(a) shall be effective without the written
consent of each Lender affected thereby.
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No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or any Lender in exercising any right shall operate as
a waiver thereof or otherwise be prejudicial thereto. No notice to or demand
upon any of the Borrowers shall entitle any of the Borrowers to other or further
notice or demand in similar or other circumstances.
(b) Notwithstanding anything to the contrary contained in clause (a)
above, the Agent may (i) enter into amendments to the Security Documents or
Replacement Security Documents, as the case may be, for the purpose of adding
additional Subsidiaries of the Borrowers as parties thereto and (ii) enter into
security documents to satisfy the requirements of ss.ss.9.16, 9.17 and 9.20, in
each case without the consent of the Majority Lenders.
(c) Notwithstanding anything to the contrary contained above in this
ss.28, Schedules 8.19, 8.20 and 8.22 may be supplemented or amended and restated
by the Borrowers in connection with any Permitted Acquisition, to the extent
that such supplement or amendment and restatement reflects changes that are
permitted by this Credit Agreement and the other Loan Documents. Such supplement
or amendment and restatement shall become effective upon the Borrowers' delivery
of the same to the Agent, together with a certificate of an Authorized Officer
of Century Aluminum that such supplement or amendment and restatement reflects
changes that are permitted by this Credit Agreement and the other Loan
Documents. The Agent shall promptly distribute to each Lender a copy of such
supplement or amendment and restatement, together with the certificate of the
Authorized Officer of Century Aluminum referred to above.
29. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
CENTURY ALUMINUM COMPANY
By: _____________________________________
Name:
Title:
CENTURY CAST PLATE, INC.
By: _____________________________________
Name:
Title:
CENTURY ALUMINUM OF WEST
VIRGINIA, INC.
By: _____________________________________
Name:
Title:
BERKELEY ALUMINUM, INC.
By: _____________________________________
Name:
Title:
BANKBOSTON, N.A., individually and
as Agent
By: _____________________________________
Name:
Title:
<PAGE> 90
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CIT GROUP/BUSINESS CREDIT,
INC., individually and as Co-Agent
By: _____________________________________
Name:
Title:
<PAGE> 91
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CITIZENS BUSINESS CREDIT
COMPANY, a division of CITIZENS
LEASING, INC.
By: _____________________________________
Name: Ronald A. Donatelli
Title: Senior Vice President
<PAGE> 92
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COMERICA BANK
By: _____________________________________
Name: Calvin G. Moore
Title: Vice President
<PAGE> 93
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CONGRESS FINANCIAL
CORPORATION
By: _____________________________________
Name: Richard A. Dickard
Title: Senior Vice President
<PAGE> 94
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FLEET CAPITAL
CORPORATION
By: _____________________________________
Name: Audrey Pengelly
Title: Senior Vice President
<PAGE> 95
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GREEN TREE FINANCIAL
SERVICING CORP.
By: _____________________________________
Name:
Title:
<PAGE> 96
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HELLER FINANCIAL, INC.
By: _____________________________________
Name: Albert J. Forzano
Title: Vice President
<PAGE> 97
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LASALLE BUSINESS CREDIT
By: _____________________________________
Name:
Title:
<PAGE> 98
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NATIONAL BANK OF CANADA
By: _____________________________________
Name: Eric L. Moore
Title: Vice President
By: _____________________________________
Name: Donald P. Haddad
Title: Vice President & Manager
<PAGE> 1
EMPLOYMENT AGREEMENT
Agreement, made as of the 1st day of January, 1999 by and between Century
Aluminum Company, a Delaware corporation (the "Company"), and Craig A.
Davis (the "Executive").
RECITALS
A. The Company desires to employ Executive as Chairman of the Board and
Chief Executive Officer; and
B. Executive is willing to accept such employment on the terms and
conditions set forth in this Agreement.
THE PARTIES AGREE as follows:
1. Position and Term of Employment. Executive's employment hereunder
shall commence as of January 1, 1999 and shall end December 31, 2001, unless
terminated sooner pursuant to Section 7 of this Agreement or extended by the
mutual agreement of the parties. During the term hereof, Executive shall be
employed as Chief Executive Officer of the Company and shall devote his full
business time, skill, attention and best efforts in carrying out his duties and
promoting the best interests of the Company. Executive shall also serve as a
director and/or officer of one or more of the Company's subsidiaries as may be
requested from time to time by the Board of Directors. Subject always to the
instructions and control of the Board of Directors of the Company, Executive
shall report to the Board of Directors of the Company and shall be responsible
for the control, supervision and management of the Company and its business
affairs.
Executive shall not at any time while employed by the Company or any of
its affiliates (as defined in the Severance Protection Agreement between
the Company and Executive dated as of March 1, 1996, as amended by an
Amendment dated as of January 1, 1999, (the "SPA")), without the prior
consent of the Board of Directors, knowingly acquire any financial
interests, directly or indirectly, in or perform any services for or on
behalf of any business, person or enterprise which undertakes any business
in substantial competition with the business of the Company and its
affiliates or sells to or buys from or otherwise transacts
<PAGE> 2
business with the Company and its affiliates; provided that Executive may
acquire and own not more than five percent (5%) of the outstanding capital
stock of any public corporation which sells or buys from or otherwise
transacts business with the Company and its affiliates.
2.1 Base Salary. (a) (i) Executive shall be paid an initial
salary at the monthly rate of $50,833 which shall be paid in accordance with the
Company's normal payroll practice with respect to salaried employees, subject to
applicable payroll taxes and deductions (the "Base Salary"). Executive's Base
Salary shall be subject to review and possible change in accordance with the
usual practices and policies of the Company. However, Executive's base annual
salary shall not be reduced to less than $610,000.
(ii) If for any reason other than Executive's voluntary
resignation, his death, or termination for cause pursuant to Section 7(c),
Executive does not continue to be employed by the Company, Executive shall
continue to receive an amount equal to his then current Base Salary plus an
annual performance bonus equal to the highest annual bonus payment Executive has
received in the previous three years ("Highest Annual Bonus") for the then
remaining balance of the term of this Agreement. In no event shall such payment
be less than one year's Base Salary plus Highest Annual Bonus. The foregoing
amounts shall be paid to Executive over the remaining term of this Agreement or
one year (whichever is applicable) in accordance with the Company's payroll and
bonus payment policies. Notwithstanding the foregoing, no payments under this
subparagraph (ii) shall be made if the Company makes all payments to Executive
required to be made, if any, under the SPA in the event of a Change of Control
(as defined in the SPA).
(b) If Executive resigns voluntarily or ceases to be employed by
reason of his death or by the Company (or any affiliate) for cause as described
in Section 7(c) of this
<PAGE> 3
Agreement, all benefits described in Sections 2 and 4 hereof shall terminate
(except to the extent previously earned or vested).
(c) If Executive's employment shall have been terminated as a result
of Executive's disability pursuant to Section 7(b), the Company shall pay in
equal monthly installments for the then remaining balance of the term of this
Agreement or one year, whichever is greater, to Executive (or his beneficiaries
or personal representatives, as the case may be) disability benefits at a rate
per annum equal to one hundred percent (100%) of his then current Base Salary,
plus amounts equal to the Highest Annual Bonus, less payments and benefits, if
any, received under any disability plan or insurance provided by the Company and
less any "sick leave" payments received from the Company for the applicable
period.
2.2 Bonuses. Executive shall be eligible for an annual
performance bonus in amounts between 30 percent and 75 percent of his Base
Salary upon achievement by the Company of targets as determined by the
Compensation Committee of the Board of Directors of the Company.
2.3 Expenses. During the term hereof, the Company shall pay or
reimburse Executive in accordance with the Company's normal practices any
travel, hotel and other expenses or disbursements reasonably incurred or paid by
Executive hereunder in connection with the services performed by Executive, in
each case upon presentation by Executive of itemized accounts of such
expenditures or such other supporting information as the Company may require.
3.1 Incentive Plan. Executive shall be eligible for option
grants and performance share unit awards under the Company's 1996 Stock
Incentive Plan (the "Plan").
<PAGE> 4
3.2 Effect of Termination of Employment or Change in Control.
(a) Notwithstanding the provisions of Executive's options, if
Executive resigns voluntarily or ceases to be employed by the Company (or an
affiliate) other than as a result of death or disability, Executive shall be
entitled to exercise such options to the extent such options could otherwise
have been exercised immediately prior to the time of termination at any time up
to and including 90 days after the date of termination, but not beyond the
expiration date of an option. This provision is not intended to limit any other
rights that Executive may have with respect to the vesting or exercise of
options, including rights under the SPA.
(b) If Executive dies or becomes disabled, all options and
performance shares which have not vested (other than those performance shares
described in Section 3.2 (c)) will accelerate and vest immediately, and, in the
event of Executive's death, all option rights will transfer to Executive's
representative. All then unexercised options will be cancelled one year after
Executive dies or becomes disabled.
(c) If Executive dies, becomes disabled or retires, performance
shares units awarded to such Executive pursuant to the Guidelines shall vest, be
valued and awarded pursuant to the terms of such Guidelines.
(d) If there is a Change of Control (as defined in the SPA but which
(i) results in the acquisition by any person of a Beneficial
Ownership of 40% or more of the combined voting power of the Company's
then outstanding Voting Securities and has not been approved by the
Incumbent Board, or
(ii) results in the Voting Securities being withdrawn from
public trading), then all options and performance share units which have
not vested will accelerate and vest immediately. Performance share units
awarded to Executive pursuant to the Guidelines shall be valued at 100
percent as though the Company had achieved its target for each relevant
plan period.
4.1 Other Benefits. Executive shall be entitled to (i) participate
in life, medical, dental, hospitalization, disability and life insurance benefit
plans made available by the Company to its senior executives and shall also be
eligible to participate in existing retirement or pension plans offered by the
Company to its senior executives, but, except as otherwise provided in Section
4.2, subject in each case to the terms and requirements of each such plan or
program.
4.2 Supplemental Executive Retirement Benefit.
<PAGE> 5
(a) Benefit, Service Credit and Offsets. The Company agrees to
provide Executive with a Supplemental Executive Retirement Benefit ("SERB")
providing an annual retirement benefit beginning at age sixty-two (62) or
thereafter, equal to the benefits which would have accrued to Executive under
the Salaried Employees Retirement Plan (the "Pension Plan") and the
contributions which would have been made to the Salaried Employee Defined
Contribution Retirement Plan (the "Defined Contribution Plan") on behalf of
Executive (hereinafter collectively referred to as the "Qualified Plans"),
computed as follows:
(i) The limitation on benefits and contributions with respect
to such employees under Section 415 of the Internal Revenue Code of 1986, as at
any time amended, and the regulations thereunder (hereinafter the "Code") shall
not be given effect;
(ii) Such accrued benefits and deemed contributions shall be
determined without giving effect to the one hundred and fifty thousand dollar
($150,000) limitation of Code Section 401 (a)(17), or any successor thereto; and
(iii) Any and all amounts due Executive under the Qualified
Plans shall be credited toward and shall reduce the benefits payable under the
SERB.
(b) Vesting. Notwithstanding the provisions of the Qualified Plans,
the SERB shall be fully vested and there shall be no reduction in the benefits
hereunder because of the number of years of service of Executive.
(c) Time and Method of Payment of Benefits. Benefit payments
hereunder shall be made to Executive in the same manner as provided under the
Qualified Plans. Except as
<PAGE> 6
otherwise provided in the Qualified Plans, no benefits shall be payable
hereunder prior to death, disability or termination of employment.
(d) Prohibition on Assignment. Other than pursuant to the laws of
descent and distribution, Executive's right to benefit payments under this
Section 4.2 are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of Executive or Executive's beneficiary.
(e) Source of Payments. All benefits under this Section 4.2 shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established or other segregation of assets made to assure such
payments; provided, however, that the Company may establish a bookkeeping
reserve to meet its obligations hereunder. It is the intention of the parties
that the arrangements be unfunded for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974.
(f) Executive's Status. Executive shall have the status of a general
unsecured creditor of the Company and the SERB shall constitute a mere promise
to make benefit payments in the future.
(g) Survival of Benefit. The SERB shall survive any termination (or
non-renewal) of this Agreement, including, without limitation, a termination
pursuant to Section 7(c) hereof.
5. Confidential Information. Except as specifically permitted by
this Section 5, and except as required in the course of his employment with the
Company, while in the employ of the Company or thereafter, Executive will not
communicate or divulge to or use for the benefit of himself or any other person,
firm, association, or corporation without the prior
<PAGE> 7
written consent of the Company, any Confidential Information (as defined herein)
owned, or used by the Company or any of its affiliates that may be communicated
to, acquired by or learned of by Executive in the course of, or as a result of,
Executive's employment with the Company or any of its affiliates. All
Confidential Information relating to the business of the Company or any of its
affiliates which Executive shall use or prepare or come into contact with shall
become and remain the sole property of the Company or its affiliates.
"Confidential Information" means information not generally known
about the Company and its affiliates, services and products, whether written or
not, including information relating to research, development, purchasing,
marketing plans, computer software or programs, any copyrightable material,
trade secrets and proprietary information, including, but not limited to,
customer lists.
Executive may disclose Confidential Information to the extent it (i)
becomes part of the public domain otherwise than as a result of Executive's
breach hereof or (ii) is required to be disclosed by law. If Executive is
required by applicable law or regulation or by legal process to disclose any
Confidential Information, Executive will provide the Company with prompt notice
thereof so as to enable the Company to seek an appropriate protective order.
Upon request by the Company, Executive agrees to deliver to the
Company at the termination of Executive's employment, or at such other times as
the Company may request, all memoranda, notes, plans, records, reports and other
documents (and all copies thereof) containing Confidential Information that
Executive may then possess or have under his control.
6. Assignment of Patents and Copyrights. Executive shall assign to
the Company all inventions and improvements within the existing or contemplated
scope of the Company's business made by Executive while in the Company's employ,
together with any such
<PAGE> 8
patents or copyrights as may be obtained thereon, both domestic and foreign.
Upon request by the Company and at the Company's expense, Executive will at any
time during his employment with the Company and after termination regardless of
the reason therefor, execute all proper papers for use in applying for,
obtaining and maintaining such domestic and foreign patents and/or copyrights as
the Company may desire, and will execute and deliver all proper assignments
therefor.
7. Termination.
(a) This Agreement shall terminate upon Executive's death.
(b) The Company may terminate Executive's employment hereunder
upon fifteen (15) days' written notice if in the opinion of the Board of
Directors, Executive's physical or mental disability has continued or is
expected to continue for one hundred and eighty (180) consecutive days and
as a result thereof, Executive will be unable to continue the proper
performance of his duties hereunder. For the purpose of determining
disability, Executive agrees to submit to such reasonable physical and
mental examinations, if any, as the Board of Directors may request and
hereby authorizes the examining person to disclose his findings to the
Board of Directors of the Company.
(c) The Company may terminate Executive's employment hereunder
"for cause" (as hereinafter defined). If Executive's employment is
terminated for cause, Executive's salary and all other rights not then
vested under this Agreement shall terminate upon written notice of
termination being given to Executive. As used herein, the term "for cause"
means the occurrence of any of the following:
(i) Executive's disregard of a direct, material order of the
Executive Committee or the Board of Directors of the Company, the substance of
which order is (a) a proper duty of
<PAGE> 9
Executive pursuant to this Agreement, (b) permitted by law and (c) otherwise
permitted by this Agreement, which disregard continues after fifteen (15) days'
opportunity and failure to cure; or
(ii) Executive's conviction for a felony or any crime involving
moral turpitude.
8. Additional Remedies. Executive recognizes that irreparable injury
will result to the Company and to its business and properties in the event of
any breach by Executive of the non-compete provisions of Section 1, the
confidentiality provisions of Section 5 or the assignment provisions of Section
6 and that Executive's continued employment is predicated on the covenants made
by him pursuant to such Sections. In the event of any breach by Executive of his
obligations under said provisions, the Company shall be entitled, in addition to
any other remedies and damages available, to injunctive relief to restrain any
such breach by Executive or by any person or persons acting for or with
Executive in any capacity whatsoever and other equitable relief.
9. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company and
their respective legal representatives, successors and assigns. Neither this
Agreement nor any of the duties or obligations hereunder shall be assignable by
Executive.
10. Governing Law; Jurisdiction. This Agreement shall be interpreted
and construed in accordance with the laws of the State of California. Each of
the Company and Executive consents to the jurisdiction of any state or federal
court sitting in California, in any action or proceeding arising out of or
relating to this Agreement.
11. Headings. The paragraph headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or in any way affect the interpretation of this Agreement.
<PAGE> 10
12. Severability. If any provision, paragraph or subparagraph of
this Agreement is adjudged by any court to be void or unenforceable in whole or
in part, this adjudication shall not affect the validity of the remainder of
this Agreement.
13. Complete Agreement. This document embodies the complete
agreement and understanding among the parties, written or oral, which may have
related to the subject matter hereof in any way and shall not be amended orally,
but only by the mutual agreement of the parties hereto in writing, specifically
referencing this Agreement.
14. Counterparts. This Agreement may be executed in one or more
separate counterparts, all of which taken together shall constitute one and the
same Agreement.
CENTURY ALUMINUM COMPANY
By:
Title:_________________________
_______________________________
Craig A. Davis
<PAGE> 1
EMPLOYMENT AGREEMENT
Agreement, made as of the 1st day of January, 1999 by and between Century
Aluminum Company, a Delaware corporation (the "Company"), and Gerald A.
Meyers (the "Executive").
RECITALS
A. The Company desires to employ Executive as President and Chief
Operating Officer; and
B. Executive is willing to accept such employment on the terms and
conditions set forth in this Agreement.
THE PARTIES AGREE as follows:
1. Position and Term of Employment. Executive's employment hereunder
shall commence as of January 1, 1999 and shall end December 31, 2001, unless
terminated sooner pursuant to Section 7 of this Agreement or extended by the
mutual agreement of the parties. During the term hereof, Executive shall be
employed as President and Chief Operating Officer of the Company and shall
devote his full business time, skill, attention and best efforts in carrying out
his duties and promoting the best interests of the Company. Executive shall also
serve as a director and/or officer of one or more of the Company's subsidiaries
as may be requested from time to time by the Board of Directors. Subject always
to the instructions and control of the Board of Directors of the Company,
Executive shall report to the Chief Executive Officer of the Company and shall
be responsible for the day-to-day operations of the Company and for the
development and implementation of the Company's short- and long-range operating
and capital plans.
Executive shall not at any time while employed by the Company or any of
its affiliates (as defined in the Severance Protection Agreement between
the Company and Executive dated as of March 1, 1996, as amended by an
Amendment dated as of January 1, 1999, (the "SPA")), without the prior
consent of the Board of Directors, knowingly acquire any
<PAGE> 2
financial interests, directly or indirectly, in or perform any services
for or on behalf of any business, person or enterprise which undertakes
any business in substantial competition with the business of the Company
and its affiliates or sells to or buys from or otherwise transacts
business with the Company and its affiliates; provided that Executive may
acquire and own not more than five percent (5%) of the outstanding capital
stock of any public corporation which sells or buys from or otherwise
transacts business with the Company and its affiliates.
2.1 Base Salary. (a) (i) Executive shall be paid an initial
salary at the monthly rate of $23,208, which shall be paid in accordance with
the Company's normal payroll practice with respect to salaried employees,
subject to applicable payroll taxes and deductions (the "Base Salary").
Executive's Base Salary shall be subject to review and possible change in
accordance with the usual practices and policies of the Company. However,
Executive's base annual salary shall not be reduced to less than $278,500.
(ii) If for any reason other than Executive's voluntary
resignation, his death, or termination for cause pursuant to Section 7(c),
Executive does not continue to be employed by the Company, Executive shall
continue to receive an amount equal to his then current Base Salary plus an
annual performance bonus equal to the highest annual bonus payment Executive has
received in the previous three years ("Highest Annual Bonus") for the then
remaining balance of the term of this Agreement. In no event shall such payment
be less than one year's Base Salary plus Highest Annual Bonus. The foregoing
amounts shall be paid to Executive over the remaining term of this Agreement or
one year (whichever is applicable) in accordance with the Company's payroll and
bonus payment policies. Notwithstanding the foregoing, no payments under this
subparagraph (ii) shall be made if the Company makes all payments to Executive
required to be made, if any, under the SPA in the event of a Change of Control
(as defined in the SPA).
(b) If Executive resigns voluntarily or ceases to be employed by
reason of his death or by the Company (or any affiliate) for cause as described
in Section 7(c) of this
<PAGE> 3
Agreement, all benefits described in Sections 2 and 4 hereof shall terminate
(except to the extent previously earned or vested).
(c) If Executive's employment shall have been terminated as a result
of Executive's disability pursuant to Section 7(b), the Company shall pay in
equal monthly installments for the then remaining balance of the term of this
Agreement or one year, whichever is greater, to Executive (or his beneficiaries
or personal representatives, as the case may be) disability benefits at a rate
per annum equal to one hundred percent (100%) of his then current Base Salary,
plus amounts equal to the Highest Annual Bonus, less payments and benefits, if
any, received under any disability plan or insurance provided by the Company and
less any "sick leave" payments received from the Company for the applicable
period.
2.2 Bonuses. Executive shall be eligible for an annual performance
bonus in amounts between 30 percent and 75 percent of his Base Salary upon
achievement by the Company of targets as determined by the Compensation
Committee of the Board of Directors of the Company.
2.3 Expenses. During the term hereof, the Company shall pay or
reimburse Executive in accordance with the Company's normal practices any
travel, hotel and other expenses or disbursements reasonably incurred or paid by
Executive hereunder in connection with the services performed by Executive, in
each case upon presentation by Executive of itemized accounts of such
expenditures or such other supporting information as the Company may require.
3.1 Incentive Plan. Executive shall be eligible for option grants
and performance share unit awards under the Company's 1996 Stock Incentive Plan
(the "Plan").
<PAGE> 4
3.3 Effect of Termination of Employment or Change in Control.
(a) Notwithstanding the provisions of Executive's options, if
Executive resigns voluntarily or ceases to be employed by the Company (or an
affiliate) other than as a result of death or disability, Executive shall be
entitled to exercise such options to the extent such options could otherwise
have been exercised immediately prior to the time of termination at any time up
to and including 90 days after the date of termination, but not beyond the
expiration date of an option. This provision is not intended to limit any other
rights that Executive may have with respect to the vesting or exercise of
options, including rights under the SPA.
(b) If Executive dies or becomes disabled, all options and
performance shares which have not vested (other than those performance shares
described in Section 3.2 (c)) will accelerate and vest immediately, and, in the
event of Executive's death, all option rights will transfer to Executive's
representative. All then unexercised options will be cancelled one year after
Executive dies or becomes disabled.
(c) If Executive dies, becomes disabled or retires, performance
shares units awarded to such Executive pursuant to the Guidelines shall vest, be
valued and awarded pursuant to the terms of such Guidelines.
(e) If there is a Change of Control (as defined in the SPA but which
(i) results in the acquisition by any person of a Beneficial
Ownership of 40% or more of the combined voting power of the Company's
then outstanding Voting Securities and has not been approved by the
Incumbent Board, or
(ii) results in the Voting Securities being withdrawn from
public trading), then all options and performance share units which have
not vested will accelerate and vest immediately. Performance share units
awarded to Executive pursuant to the Guidelines shall be valued at 100
percent as though the Company had achieved its target for each relevant
plan period.
4.1 Other Benefits. Executive shall be entitled to (i) participate
in life, medical, dental, hospitalization, disability and life insurance benefit
plans made available by the Company to its senior executives and shall also be
eligible to participate in existing retirement or pension plans offered by the
Company to its senior executives, but, except as otherwise provided in Section
4.2, subject in each case to the terms and requirements of each such plan or
program.
4.2 Supplemental Executive Retirement Benefit.
<PAGE> 5
(a) Benefit, Service Credit and Offsets. The Company agrees to
provide Executive with a Supplemental Executive Retirement Benefit ("SERB")
providing an annual retirement benefit beginning at age sixty-two (62) or
thereafter, equal to the benefits which would have accrued to Executive under
the Salaried Employees Retirement Plan (the "Pension Plan") and the
contributions which would have been made to the Salaried Employee Defined
Contribution Retirement Plan (the "Defined Contribution Plan") on behalf of
Executive (hereinafter collectively referred to as the "Qualified Plans"),
computed as follows:
(i) The limitation on benefits and contributions with respect
to such employees under Section 415 of the Internal Revenue Code of 1986, as at
any time amended, and the regulations thereunder (hereinafter the "Code") shall
not be given effect;
(ii) Such accrued benefits and deemed contributions shall be
determined without giving effect to the one hundred and fifty thousand dollar
($150,000) limitation of Code Section 401 (a)(17), or any successor thereto; and
(iii) Any and all amounts due Executive under the Qualified
Plans shall be credited toward and shall reduce the benefits payable under the
SERB.
(b) Vesting. Notwithstanding the provisions of the Qualified Plans,
the SERB shall be fully vested and there shall be no reduction in the benefits
hereunder because of the number of years of service of Executive.
(c) Time and Method of Payment of Benefits. Benefit payments
hereunder shall be made to Executive in the same manner as provided under the
Qualified Plans. Except as
<PAGE> 6
otherwise provided in the Qualified Plans, no benefits shall be payable
hereunder prior to death, disability or termination of employment.
(d) Prohibition on Assignment. Other than pursuant to the laws of
descent and distribution, Executive's right to benefit payments under this
Section 4.2 are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of Executive or Executive's beneficiary.
(e) Source of Payments. All benefits under this Section 4.2 shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established or other segregation of assets made to assure such
payments; provided, however, that the Company may establish a bookkeeping
reserve to meet its obligations hereunder. It is the intention of the parties
that the arrangements be unfunded for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974.
(f) Executive's Status. Executive shall have the status of a general
unsecured creditor of the Company and the SERB shall constitute a mere promise
to make benefit payments in the future.
(g) Survival of Benefit. The SERB shall survive any termination (or
non-renewal) of this Agreement, including, without limitation, a termination
pursuant to Section 7(c) hereof.
5. Confidential Information. Except as specifically permitted by
this Section 5, and except as required in the course of his employment with the
Company, while in the employ of the Company or thereafter, Executive will not
communicate or divulge to or use for the benefit of himself or any other person,
firm, association, or corporation without the prior
<PAGE> 7
written consent of the Company, any Confidential Information (as defined herein)
owned, or used by the Company or any of its affiliates that may be communicated
to, acquired by or learned of by Executive in the course of, or as a result of,
Executive's employment with the Company or any of its affiliates. All
Confidential Information relating to the business of the Company or any of its
affiliates which Executive shall use or prepare or come into contact with shall
become and remain the sole property of the Company or its affiliates.
"Confidential Information" means information not generally known
about the Company and its affiliates, services and products, whether written or
not, including information relating to research, development, purchasing,
marketing plans, computer software or programs, any copyrightable material,
trade secrets and proprietary information, including, but not limited to,
customer lists.
Executive may disclose Confidential Information to the extent it (i)
becomes part of the public domain otherwise than as a result of Executive's
breach hereof or (ii) is required to be disclosed by law. If Executive is
required by applicable law or regulation or by legal process to disclose any
Confidential Information, Executive will provide the Company with prompt notice
thereof so as to enable the Company to seek an appropriate protective order.
Upon request by the Company, Executive agrees to deliver to the
Company at the termination of Executive's employment, or at such other times as
the Company may request, all memoranda, notes, plans, records, reports and other
documents (and all copies thereof) containing Confidential Information that
Executive may then possess or have under his control.
6. Assignment of Patents and Copyrights. Executive shall assign to
the Company all inventions and improvements within the existing or contemplated
scope of the Company's business made by Executive while in the Company's employ,
together with any such
<PAGE> 8
patents or copyrights as may be obtained thereon, both domestic and foreign.
Upon request by the Company and at the Company's expense, Executive will at any
time during his employment with the Company and after termination regardless of
the reason therefor, execute all proper papers for use in applying for,
obtaining and maintaining such domestic and foreign patents and/or copyrights as
the Company may desire, and will execute and deliver all proper assignments
therefor.
7. Termination.
(a) This Agreement shall terminate upon Executive's death.
(b) The Company may terminate Executive's employment hereunder
upon fifteen (15) days' written notice if in the opinion of the Board of
Directors, Executive's physical or mental disability has continued or is
expected to continue for one hundred and eighty (180) consecutive days and
as a result thereof, Executive will be unable to continue the proper
performance of his duties hereunder. For the purpose of determining
disability, Executive agrees to submit to such reasonable physical and
mental examinations, if any, as the Board of Directors may request and
hereby authorizes the examining person to disclose his findings to the
Board of Directors of the Company.
(c) The Company may terminate Executive's employment hereunder
"for cause" (as hereinafter defined). If Executive's employment is
terminated for cause, Executive's salary and all other rights not then
vested under this Agreement shall terminate upon written notice of
termination being given to Executive. As used herein, the term "for cause"
means the occurrence of any of the following:
(i) Executive's disregard of a direct, material order of the
Executive Committee or the Board of Directors of the Company, the substance of
which order is (a) a proper duty of
<PAGE> 9
Executive pursuant to this Agreement, (b) permitted by law and (c) otherwise
permitted by this Agreement, which disregard continues after fifteen (15) days'
opportunity and failure to cure; or
(ii) Executive's conviction for a felony or any crime involving
moral turpitude.
8. Additional Remedies. Executive recognizes that irreparable injury
will result to the Company and to its business and properties in the event of
any breach by Executive of the non-compete provisions of Section 1, the
confidentiality provisions of Section 5 or the assignment provisions of Section
6 and that Executive's continued employment is predicated on the covenants made
by him pursuant to such Sections. In the event of any breach by Executive of his
obligations under said provisions, the Company shall be entitled, in addition to
any other remedies and damages available, to injunctive relief to restrain any
such breach by Executive or by any person or persons acting for or with
Executive in any capacity whatsoever and other equitable relief.
9. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company and
their respective legal representatives, successors and assigns. Neither this
Agreement nor any of the duties or obligations hereunder shall be assignable by
Executive.
10. Governing Law; Jurisdiction. This Agreement shall be interpreted
and construed in accordance with the laws of the State of California. Each of
the Company and Executive consents to the jurisdiction of any state or federal
court sitting in California, in any action or proceeding arising out of or
relating to this Agreement.
11. Headings. The paragraph headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or in any way affect the interpretation of this Agreement.
<PAGE> 10
12. Severability. If any provision, paragraph or subparagraph of
this Agreement is adjudged by any court to be void or unenforceable in whole or
in part, this adjudication shall not affect the validity of the remainder of
this Agreement.
13. Complete Agreement. This document embodies the complete
agreement and understanding among the parties, written or oral, which may have
related to the subject matter hereof in any way and shall not be amended orally,
but only by the mutual agreement of the parties hereto in writing, specifically
referencing this Agreement.
<PAGE> 11
14. Counterparts. This Agreement may be executed in one or more
separate counterparts, all of which taken together shall constitute one and the
same Agreement.
CENTURY ALUMINUM COMPANY
By:
Title:______________________
____________________________
Gerald A. Meyers
<PAGE> 1
EMPLOYMENT AGREEMENT
Agreement, made as of the 1st day of January, 1999 by and between Century
Aluminum Company, a Delaware corporation (the "Company"), and Gerald J.
Kitchen (the "Executive").
RECITALS
A. The Company desires to employ Executive as Executive Vice President,
General Counsel and Chief Administrative Officer; and
B. Executive is willing to accept such employment on the terms and
conditions set forth in this Agreement.
THE PARTIES AGREE as follows:
1. Position and Term of Employment. Executive's employment hereunder
shall commence as of January 1, 1999 and shall end December 31, 2001, unless
terminated sooner pursuant to Section 7 of this Agreement or extended by the
mutual agreement of the parties. During the term hereof, Executive shall be
employed as Executive Vice President, General Counsel and Chief Administrative
Officer of the Company and shall devote his full business time, skill, attention
and best efforts in carrying out his duties and promoting the best interests of
the Company. Executive shall also serve as a director and/or officer of one or
more of the Company's subsidiaries as may be requested from time to time by the
Board of Directors. Subject always to the instructions and control of the Board
of Directors of the Company, Executive shall report to the Chief Executive
Officer of the Company and shall be responsible for the day-to-day
administrative affairs of the Company.
Executive shall not at any time while employed by the Company or any of
its affiliates (as defined in the Severance Protection Agreement between
the Company and Executive dated as of March 1, 1996, as amended by an
Amendment dated as of January 1, 1999, (the "SPA")), without the prior
consent of the Board of Directors, knowingly acquire any financial
interests, directly or indirectly, in or perform any services for or on
behalf of any business, person or enterprise which undertakes any business
in substantial competition with
<PAGE> 2
the business of the Company and its affiliates or sells to or buys from or
otherwise transacts business with the Company and its affiliates; provided
that Executive may acquire and own not more than five percent (5%) of the
outstanding capital stock of any public corporation which sells or buys
from or otherwise transacts business with the Company and its affiliates.
2.1 Base Salary. (a) (i) Executive shall be paid an initial
salary at the monthly rate of $18,542, which shall be paid in accordance with
the Company's normal payroll practice with respect to salaried employees,
subject to applicable payroll taxes and deductions (the "Base Salary").
Executive's Base Salary shall be subject to review and possible change in
accordance with the usual practices and policies of the Company. However,
Executive's base annual salary shall not be reduced to less than $222,500.
(ii) If for any reason other than Executive's voluntary
resignation, his death, or termination for cause pursuant to Section 7(c),
Executive does not continue to be employed by the Company, Executive shall
continue to receive an amount equal to his then current Base Salary plus an
annual performance bonus equal to the highest annual bonus payment Executive has
received in the previous three years ("Highest Annual Bonus") for the then
remaining balance of the term of this Agreement. In no event shall such payment
be less than one year's Base Salary plus Highest Annual Bonus. The foregoing
amounts shall be paid to Executive over the remaining term of this Agreement or
one year (whichever is applicable) in accordance with the Company's payroll and
bonus payment policies. Notwithstanding the foregoing, no payments under this
subparagraph (ii) shall be made if the Company makes all payments to Executive
required to be made, if any, under the SPA in the event of a Change of Control
(as defined in the SPA).
(b) If Executive resigns voluntarily or ceases to be employed by
reason of his death or by the Company (or any affiliate) for cause as described
in Section 7(c) of this
<PAGE> 3
Agreement, all benefits described in Sections 2 and 4 hereof shall terminate
(except to the extent previously earned or vested).
(c) If Executive's employment shall have been terminated as a result
of Executive's disability pursuant to Section 7(b), the Company shall pay in
equal monthly installments for the then remaining balance of the term of this
Agreement or one year, whichever is greater, to Executive (or his beneficiaries
or personal representatives, as the case may be) disability benefits at a rate
per annum equal to one hundred percent (100%) of his then current Base Salary,
plus amounts equal to the Highest Annual Bonus, less payments and benefits, if
any, received under any disability plan or insurance provided by the Company and
less any "sick leave" payments received from the Company for the applicable
period.
2.2 Bonuses. Executive shall be eligible for an annual performance
bonus in amounts between 30 percent and 75 percent of his Base Salary upon
achievement by the Company of targets as determined by the Compensation
Committee of the Board of Directors of the Company.
2.3 Expenses. During the term hereof, the Company shall pay or
reimburse Executive in accordance with the Company's normal practices any
travel, hotel and other expenses or disbursements reasonably incurred or paid by
Executive hereunder in connection with the services performed by Executive, in
each case upon presentation by Executive of itemized accounts of such
expenditures or such other supporting information as the Company may require.
3.1 Incentive Plan. Executive shall be eligible for option grants
and performance share unit awards under the Company's 1996 Stock Incentive Plan
(the "Plan").
<PAGE> 4
3.4 Effect of Termination of Employment or Change of Control.
(a) If Executive shall resign voluntarily or cease to be employed by
the Company (or an affiliate) for cause as described in Section 7(c) of this
Agreement, except as provided in the SPA, all benefits described in Section 3
hereof shall terminate (except to the extent previously earned or vested).
(b) If Executive dies or becomes disabled, all options and
performance shares which have not vested (other than those performance shares
described in Section 3.2 (c)) will accelerate and vest immediately, and, in the
event of Executive's death, all option rights will transfer to Executive's
representative. All then unexercised options will be cancelled one year after
Executive dies or becomes disabled.
(c) If Executive dies, becomes disabled or retires, performance
shares units awarded to such Executive pursuant to the Guidelines shall vest, be
valued and awarded pursuant to the terms of such Guidelines.
(f) If there is a Change of Control which (i) results from the
acquisition by any Person of a Beneficial Ownership of 40% or more of the
Company's then outstanding Voting Securities and which has not been approved by
a vote of at least 75% of the Incumbent Board, or (ii) results in the loss of a
public market for the Company's Voting Securities, then all options and
performance share units which have not vested will accelerate and vest
immediately. Performance share units awarded to Executive pursuant to the
Guidelines shall be valued at 100 percent as though the Company had achieved its
target for each relevant plan period. The Executive shall be entitled to receive
one share of the Company's common stock upon the vesting of each Performance
Share. The Executive shall have the right to require the Company to purchase,
for cash, and at fair market value, any shares of stock purchased upon exercise
of any option or received upon the vesting of any Performance Share. (Terms used
in this Section, unless defined in this Employment Agreement, are as defined in
the SPA.)
4.1 Other Benefits. Executive shall be entitled to (i) participate
in life, medical, dental, hospitalization, disability and life insurance benefit
plans made available by the Company to its senior executives and shall also be
eligible to participate in existing retirement or pension plans offered by the
Company to its senior executives, but, except as otherwise provided in Section
4.2, subject in each case to the terms and requirements of each such plan or
program.
<PAGE> 5
4.2 Supplemental Executive Retirement Benefit.
(a) Benefit, Service Credit and Offsets. The Company agrees to
provide Executive with a Supplemental Executive Retirement Benefit ("SERB")
providing an annual retirement benefit beginning at age sixty-two (62) or
thereafter, equal to the benefits which would have accrued to Executive under
the Salaried Employees Retirement Plan (the "Pension Plan") and the
contributions which would have been made to the Salaried Employee Defined
Contribution Retirement Plan (the "Defined Contribution Plan") on behalf of
Executive (hereinafter collectively referred to as the "Qualified Plans"),
computed as follows:
(i) The limitation on benefits and contributions with respect
to such employees under Section 415 of the Internal Revenue Code of 1986, as at
any time amended, and the regulations thereunder (hereinafter the "Code") shall
not be given effect;
(ii) Such accrued benefits and deemed contributions shall be
determined without giving effect to the one hundred and fifty thousand dollar
($150,000) limitation of Code Section 401 (a)(17), or any successor thereto; and
(iii) Any and all amounts due Executive under the Qualified
Plans shall be credited toward and shall reduce the benefits payable under the
SERB.
(b) Vesting. Notwithstanding the provisions of the Qualified Plans,
the SERB shall be fully vested and there shall be no reduction in the benefits
hereunder because of the number of years of service of Executive.
(c) Time and Method of Payment of Benefits. Benefit payments
hereunder shall be made to Executive in the same manner as provided under the
Qualified Plans. Except as
<PAGE> 6
otherwise provided in the Qualified Plans, no benefits shall be payable
hereunder prior to death, disability or termination of employment.
(d) Prohibition on Assignment. Other than pursuant to the laws of
descent and distribution, Executive's right to benefit payments under this
Section 4.2 are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of Executive or Executive's beneficiary.
(e) Source of Payments. All benefits under this Section 4.2 shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established or other segregation of assets made to assure such
payments; provided, however, that the Company may establish a bookkeeping
reserve to meet its obligations hereunder. It is the intention of the parties
that the arrangements be unfunded for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974.
(f) Executive's Status. Executive shall have the status of a general
unsecured creditor of the Company and the SERB shall constitute a mere promise
to make benefit payments in the future.
(g) Survival of Benefit. The SERB shall survive any termination (or
non-renewal) of this Agreement, including, without limitation, a termination
pursuant to Section 7(c) hereof.
5. Confidential Information. Except as specifically permitted by
this Section 5, and except as required in the course of his employment with the
Company, while in the employ of the Company or thereafter, Executive will not
communicate or divulge to or use for the benefit of himself or any other person,
firm, association, or corporation without the prior
<PAGE> 7
written consent of the Company, any Confidential Information (as defined herein)
owned, or used by the Company or any of its affiliates that may be communicated
to, acquired by or learned of by Executive in the course of, or as a result of,
Executive's employment with the Company or any of its affiliates. All
Confidential Information relating to the business of the Company or any of its
affiliates which Executive shall use or prepare or come into contact with shall
become and remain the sole property of the Company or its affiliates.
"Confidential Information" means information not generally known
about the Company and its affiliates, services and products, whether written or
not, including information relating to research, development, purchasing,
marketing plans, computer software or programs, any copyrightable material,
trade secrets and proprietary information, including, but not limited to,
customer lists.
Executive may disclose Confidential Information to the extent it (i)
becomes part of the public domain otherwise than as a result of Executive's
breach hereof or (ii) is required to be disclosed by law. If Executive is
required by applicable law or regulation or by legal process to disclose any
Confidential Information, Executive will provide the Company with prompt notice
thereof so as to enable the Company to seek an appropriate protective order.
Upon request by the Company, Executive agrees to deliver to the
Company at the termination of Executive's employment, or at such other times as
the Company may request, all memoranda, notes, plans, records, reports and other
documents (and all copies thereof) containing Confidential Information that
Executive may then possess or have under his control.
6. Assignment of Patents and Copyrights. Executive shall assign to
the Company all inventions and improvements within the existing or contemplated
scope of the Company's business made by Executive while in the Company's employ,
together with any such
<PAGE> 8
patents or copyrights as may be obtained thereon, both domestic and foreign.
Upon request by the Company and at the Company's expense, Executive will at any
time during his employment with the Company and after termination regardless of
the reason therefor, execute all proper papers for use in applying for,
obtaining and maintaining such domestic and foreign patents and/or copyrights as
the Company may desire, and will execute and deliver all proper assignments
therefor.
7. Termination.
(a) This Agreement shall terminate upon Executive's death.
(b) The Company may terminate Executive's employment hereunder
upon fifteen (15) days' written notice if in the opinion of the Board of
Directors, Executive's physical or mental disability has continued or is
expected to continue for one hundred and eighty (180) consecutive days and
as a result thereof, Executive will be unable to continue the proper
performance of his duties hereunder. For the purpose of determining
disability, Executive agrees to submit to such reasonable physical and
mental examinations, if any, as the Board of Directors may request and
hereby authorizes the examining person to disclose his findings to the
Board of Directors of the Company.
(c) The Company may terminate Executive's employment hereunder
"for cause" (as hereinafter defined). If Executive's employment is
terminated for cause, Executive's salary and all other rights not then
vested under this Agreement shall terminate upon written notice of
termination being given to Executive. As used herein, the term "for cause"
means the occurrence of any of the following:
(i) Executive's disregard of a direct, material order of the
Executive Committee or the Board of Directors of the Company, the substance of
which order is (a) a proper duty of
<PAGE> 9
Executive pursuant to this Agreement, (b) permitted by law and (c) otherwise
permitted by this Agreement, which disregard continues after fifteen (15) days'
opportunity and failure to cure; or
(ii) Executive's conviction for a felony or any crime involving
moral turpitude.
8. Additional Remedies. Executive recognizes that irreparable injury
will result to the Company and to its business and properties in the event of
any breach by Executive of the non-compete provisions of Section 1, the
confidentiality provisions of Section 5 or the assignment provisions of Section
6 and that Executive's continued employment is predicated on the covenants made
by him pursuant to such Sections. In the event of any breach by Executive of his
obligations under said provisions, the Company shall be entitled, in addition to
any other remedies and damages available, to injunctive relief to restrain any
such breach by Executive or by any person or persons acting for or with
Executive in any capacity whatsoever and other equitable relief.
9. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company and
their respective legal representatives, successors and assigns. Neither this
Agreement nor any of the duties or obligations hereunder shall be assignable by
Executive.
10. Governing Law; Jurisdiction. This Agreement shall be interpreted
and construed in accordance with the laws of the State of California. Each of
the Company and Executive consents to the jurisdiction of any state or federal
court sitting in California, in any action or proceeding arising out of or
relating to this Agreement.
11. Headings. The paragraph headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or in any way affect the interpretation of this Agreement.
<PAGE> 10
12. Severability. If any provision, paragraph or subparagraph of
this Agreement is adjudged by any court to be void or unenforceable in whole or
in part, this adjudication shall not affect the validity of the remainder of
this Agreement.
13. Complete Agreement. This document embodies the complete
agreement and understanding among the parties, written or oral, which may have
related to the subject matter hereof in any way and shall not be amended orally,
but only by the mutual agreement of the parties hereto in writing, specifically
referencing this Agreement. Counterparts. This Agreement may be executed in one
or more separate counterparts, all of which taken together shall constitute one
and the same Agreement.
14. Counterparts. This Agreement may be executed in one or more
separate counterparts, all of which taken together shall constitute one and the
same Agreement.
CENTURY ALUMINUM COMPANY
By:
Title:_______________________
_____________________________
Gerald J. Kitchen
<PAGE> 1
EMPLOYMENT AGREEMENT
Agreement, made as of the 1st day of January, 1999 by and between Century
Aluminum Company, a Delaware corporation (the "Company"), and David W.
Beckley (the "Executive").
RECITALS
A. The Company desires to employ Executive as Executive Vice President and
Chief Finanacial Officer; and
B. Executive is willing to accept such employment on the terms and
conditions set forth in this Agreement.
THE PARTIES AGREE as follows:
1. Position and Term of Employment. Executive's employment hereunder
shall commence as of January 1, 1999 and shall end December 31, 2001, unless
terminated sooner pursuant to Section 7 of this Agreement or extended by the
mutual agreement of the parties. During the term hereof, Executive shall be
employed as Executive Vice President and Chief Financial Officer of the Company
and shall devote his full business time, skill, attention and best efforts in
carrying out his duties and promoting the best interests of the Company.
Executive shall also serve as a director and/or officer of one or more of the
Company's subsidiaries as may be requested from time to time by the Board of
Directors. Subject always to the instructions and control of the Board of
Directors of the Company, Executive shall report to the Chief Executive Officer
of the Company and shall be responsible for the day-to-day financial affairs of
the Company and for the development and implementation of the Company's short-
and long-range financial plans.
Executive shall not at any time while employed by the Company or any of
its affiliates (as defined in the Severance Protection Agreement between
the Company and Executive dated as of March 1, 1996, as amended by an
Amendment dated as of January 1, 1999, (the "SPA")), without the prior
consent of the Board of Directors, knowingly acquire any
<PAGE> 2
financial interests, directly or indirectly, in or perform any services
for or on behalf of any business, person or enterprise which undertakes
any business in substantial competition with the business of the Company
and its affiliates or sells to or buys from or otherwise transacts
business with the Company and its affiliates; provided that Executive may
acquire and own not more than five percent (5%) of the outstanding capital
stock of any public corporation which sells or buys from or otherwise
transacts business with the Company and its affiliates.
2.1 Base Salary. (a) (i) Executive shall be paid an initial
salary at the monthly rate of $18,542 which shall be paid in accordance with the
Company's normal payroll practice with respect to salaried employees, subject to
applicable payroll taxes and deductions (the "Base Salary"). Executive's Base
Salary shall be subject to review and possible change in accordance with the
usual practices and policies of the Company. However, Executive's base annual
salary shall not be reduced to less than $222,500.
(ii) If for any reason other than Executive's voluntary
resignation, his death, or termination for cause pursuant to Section 7(c),
Executive does not continue to be employed by the Company, Executive shall
continue to receive an amount equal to his then current Base Salary plus an
annual performance bonus equal to the highest annual bonus payment Executive has
received in the previous three years ("Highest Annual Bonus") for the then
remaining balance of the term of this Agreement. In no event shall such payment
be less than one year's Base Salary plus Highest Annual Bonus. The foregoing
amounts shall be paid to Executive over the remaining term of this Agreement or
one year (whichever is applicable) in accordance with the Company's payroll and
bonus payment policies. Notwithstanding the foregoing, no payments under this
subparagraph (ii) shall be made if the Company makes all payments to Executive
required to be made, if any, under the SPA in the event of a Change of Control
(as defined in the SPA).
(b) If Executive resigns voluntarily or ceases to be employed by
reason of his death or by the Company (or any affiliate) for cause as described
in Section 7(c) of this
<PAGE> 3
Agreement, all benefits described in Sections 2 and 4 hereof shall terminate
(except to the extent previously earned or vested).
(c) If Executive's employment shall have been terminated as a result
of Executive's disability pursuant to Section 7(b), the Company shall pay in
equal monthly installments for the then remaining balance of the term of this
Agreement or one year, whichever is greater, to Executive (or his beneficiaries
or personal representatives, as the case may be) disability benefits at a rate
per annum equal to one hundred percent (100%) of his then current Base Salary,
plus amounts equal to the Highest Annual Bonus, less payments and benefits, if
any, received under any disability plan or insurance provided by the Company and
less any "sick leave" payments received from the Company for the applicable
period.
2.2 Bonuses. Executive shall be eligible for an annual performance
bonus in amounts between 30 percent and 75 percent of his Base Salary upon
achievement by the Company of targets as determined by the Compensation
Committee of the Board of Directors of the Company.
2.3 Expenses. During the term hereof, the Company shall pay or
reimburse Executive in accordance with the Company's normal practices any
travel, hotel and other expenses or disbursements reasonably incurred or paid by
Executive hereunder in connection with the services performed by Executive, in
each case upon presentation by Executive of itemized accounts of such
expenditures or such other supporting information as the Company may require.
3.1 Incentive Plan. Executive shall be eligible for option grants
and performance share unit awards under the Company's 1996 Stock Incentive Plan
(the "Plan").
<PAGE> 4
3.5 Effect of Termination of Employment or Change in Control.
(a) Notwithstanding the provisions of Executive's options, if
Executive resigns voluntarily or ceases to be employed by the Company (or an
affiliate) other than as a result of death or disability, Executive shall be
entitled to exercise such options to the extent such options could otherwise
have been exercised immediately prior to the time of termination at any time up
to and including 90 days after the date of termination, but not beyond the
expiration date of an option. This provision is not intended to limit any other
rights that Executive may have with respect to the vesting or exercise of
options, including rights under the SPA.
(b) If Executive dies or becomes disabled, all options and
performance shares which have not vested (other than those performance shares
described in Section 3.2 (c)) will accelerate and vest immediately, and, in the
event of Executive's death, all option rights will transfer to Executive's
representative. All then unexercised options will be cancelled one year after
Executive dies or becomes disabled.
(c) If Executive dies, becomes disabled or retires, performance
shares units awarded to such Executive pursuant to the Guidelines shall vest, be
valued and awarded pursuant to the terms of such Guidelines.
(g) If there is a Change of Control (as defined in the SPA but which
(iii) results in the acquisition by any person of a Beneficial
Ownership of 40% or more of the combined voting power of the Company's
then outstanding Voting Securities and has not been approved by the
Incumbent Board, or
(ii) results in the Voting Securities being withdrawn from
public trading), then all options and performance share units which have
not vested will accelerate and vest immediately. Performance share units
awarded to Executive pursuant to the Guidelines shall be valued at 100
percent as though the Company had achieved its target for each relevant
plan period.
4.1 Other Benefits. Executive shall be entitled to (i) participate
in life, medical, dental, hospitalization, disability and life insurance benefit
plans made available by the Company to its senior executives and shall also be
eligible to participate in existing retirement or pension plans offered by the
Company to its senior executives, but, except as otherwise provided in Section
4.2, subject in each case to the terms and requirements of each such plan or
program.
4.2 Supplemental Executive Retirement Benefit.
<PAGE> 5
(a) Benefit, Service Credit and Offsets. The Company agrees to
provide Executive with a Supplemental Executive Retirement Benefit ("SERB")
providing an annual retirement benefit beginning at age sixty-two (62) or
thereafter, equal to the benefits which would have accrued to Executive under
the Salaried Employees Retirement Plan (the "Pension Plan") and the
contributions which would have been made to the Salaried Employee Defined
Contribution Retirement Plan (the "Defined Contribution Plan") on behalf of
Executive (hereinafter collectively referred to as the "Qualified Plans"),
computed as follows:
(i) The limitation on benefits and contributions with respect
to such employees under Section 415 of the Internal Revenue Code of 1986, as at
any time amended, and the regulations thereunder (hereinafter the "Code") shall
not be given effect;
(ii) Such accrued benefits and deemed contributions shall be
determined without giving effect to the one hundred and fifty thousand dollar
($150,000) limitation of Code Section 401 (a)(17), or any successor thereto; and
(iii) Any and all amounts due Executive under the Qualified
Plans shall be credited toward and shall reduce the benefits payable under the
SERB.
(b) Vesting. Notwithstanding the provisions of the Qualified Plans,
the SERB shall be fully vested and there shall be no reduction in the benefits
hereunder because of the number of years of service of Executive.
(c) Time and Method of Payment of Benefits. Benefit payments
hereunder shall be made to Executive in the same manner as provided under the
Qualified Plans. Except as
<PAGE> 6
otherwise provided in the Qualified Plans, no benefits shall be payable
hereunder prior to death, disability or termination of employment.
(d) Prohibition on Assignment. Other than pursuant to the laws of
descent and distribution, Executive's right to benefit payments under this
Section 4.2 are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of Executive or Executive's beneficiary.
(e) Source of Payments. All benefits under this Section 4.2 shall be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established or other segregation of assets made to assure such
payments; provided, however, that the Company may establish a bookkeeping
reserve to meet its obligations hereunder. It is the intention of the parties
that the arrangements be unfunded for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974.
(f) Executive's Status. Executive shall have the status of a general
unsecured creditor of the Company and the SERB shall constitute a mere promise
to make benefit payments in the future.
(g) Survival of Benefit. The SERB shall survive any termination (or
non-renewal) of this Agreement, including, without limitation, a termination
pursuant to Section 7(c) hereof.
5. Confidential Information. Except as specifically permitted by
this Section 5, and except as required in the course of his employment with the
Company, while in the employ of the Company or thereafter, Executive will not
communicate or divulge to or use for the benefit of himself or any other person,
firm, association, or corporation without the prior
<PAGE> 7
written consent of the Company, any Confidential Information (as defined herein)
owned, or used by the Company or any of its affiliates that may be communicated
to, acquired by or learned of by Executive in the course of, or as a result of,
Executive's employment with the Company or any of its affiliates. All
Confidential Information relating to the business of the Company or any of its
affiliates which Executive shall use or prepare or come into contact with shall
become and remain the sole property of the Company or its affiliates.
"Confidential Information" means information not generally known
about the Company and its affiliates, services and products, whether written or
not, including information relating to research, development, purchasing,
marketing plans, computer software or programs, any copyrightable material,
trade secrets and proprietary information, including, but not limited to,
customer lists.
Executive may disclose Confidential Information to the extent it (i)
becomes part of the public domain otherwise than as a result of Executive's
breach hereof or (ii) is required to be disclosed by law. If Executive is
required by applicable law or regulation or by legal process to disclose any
Confidential Information, Executive will provide the Company with prompt notice
thereof so as to enable the Company to seek an appropriate protective order.
Upon request by the Company, Executive agrees to deliver to the
Company at the termination of Executive's employment, or at such other times as
the Company may request, all memoranda, notes, plans, records, reports and other
documents (and all copies thereof) containing Confidential Information that
Executive may then possess or have under his control.
6. Assignment of Patents and Copyrights. Executive shall assign to
the Company all inventions and improvements within the existing or contemplated
scope of the Company's business made by Executive while in the Company's employ,
together with any such
<PAGE> 8
patents or copyrights as may be obtained thereon, both domestic and foreign.
Upon request by the Company and at the Company's expense, Executive will at any
time during his employment with the Company and after termination regardless of
the reason therefor, execute all proper papers for use in applying for,
obtaining and maintaining such domestic and foreign patents and/or copyrights as
the Company may desire, and will execute and deliver all proper assignments
therefor.
7. Termination.
(a) This Agreement shall terminate upon Executive's death.
(b) The Company may terminate Executive's employment hereunder
upon fifteen (15) days' written notice if in the opinion of the Board of
Directors, Executive's physical or mental disability has continued or is
expected to continue for one hundred and eighty (180) consecutive days and
as a result thereof, Executive will be unable to continue the proper
performance of his duties hereunder. For the purpose of determining
disability, Executive agrees to submit to such reasonable physical and
mental examinations, if any, as the Board of Directors may request and
hereby authorizes the examining person to disclose his findings to the
Board of Directors of the Company.
(c) The Company may terminate Executive's employment hereunder
"for cause" (as hereinafter defined). If Executive's employment is
terminated for cause, Executive's salary and all other rights not then
vested under this Agreement shall terminate upon written notice of
termination being given to Executive. As used herein, the term "for cause"
means the occurrence of any of the following:
(i) Executive's disregard of a direct, material order of the
Executive Committee or the Board of Directors of the Company, the substance of
which order is (a) a proper duty of
<PAGE> 9
Executive pursuant to this Agreement, (b) permitted by law and (c) otherwise
permitted by this Agreement, which disregard continues after fifteen (15) days'
opportunity and failure to cure; or
(ii) Executive's conviction for a felony or any crime involving
moral turpitude.
8. Additional Remedies. Executive recognizes that irreparable injury
will result to the Company and to its business and properties in the event of
any breach by Executive of the non-compete provisions of Section 1, the
confidentiality provisions of Section 5 or the assignment provisions of Section
6 and that Executive's continued employment is predicated on the covenants made
by him pursuant to such Sections. In the event of any breach by Executive of his
obligations under said provisions, the Company shall be entitled, in addition to
any other remedies and damages available, to injunctive relief to restrain any
such breach by Executive or by any person or persons acting for or with
Executive in any capacity whatsoever and other equitable relief.
9. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company and
their respective legal representatives, successors and assigns. Neither this
Agreement nor any of the duties or obligations hereunder shall be assignable by
Executive.
10. Governing Law; Jurisdiction. This Agreement shall be interpreted
and construed in accordance with the laws of the State of California. Each of
the Company and Executive consents to the jurisdiction of any state or federal
court sitting in California, in any action or proceeding arising out of or
relating to this Agreement.
11. Headings. The paragraph headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose or in any way affect the interpretation of this Agreement.
<PAGE> 10
12. Severability. If any provision, paragraph or subparagraph of
this Agreement is adjudged by any court to be void or unenforceable in whole or
in part, this adjudication shall not affect the validity of the remainder of
this Agreement.
13. Complete Agreement. This document embodies the complete
agreement and understanding among the parties, written or oral, which may have
related to the subject matter hereof in any way and shall not be amended orally,
but only by the mutual agreement of the parties hereto in writing, specifically
referencing this Agreement.
<PAGE> 11
14. Counterparts. This Agreement may be executed in one or more
separate counterparts, all of which taken together shall constitute one and the
same Agreement.
CENTURY ALUMINUM COMPANY
By:
Title:______________________
____________________________
David W. Beckley
<PAGE> 1
AMENDMENT
TO
SEVERANCE PROTECTION AGREEMENT
AMENDMENT TO SEVERANCE PROTECTION AGREEMENT, made and entered into
as of the 1st day of January, 1999 by and between Century Aluminum Company, a
Delaware corporation (the "Corporation") and Craig A. Davis (the "Executive").
WITNESSETH
WHEREAS, the Corporation and Executive are parties to that certain
Severance Protection Agreement, dated as of March 1, 1996, (the "SPA") and wish
to amend the SPA as herein set forth; and
WHEREAS, the Compensation Committee of Board of Directors of the
Corporation has approved the following amendments to the SPA.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1 of the SPA is amended by deleting the word "eighteen"
and the number "(18)" in line 8 and substituting "thirty-six (36)" therefor.
2. Section 2.6 (a) (2) of the SPA is amended by deleting the word
"and" in line 8, substituting a comma in lieu thereof and adding the following
language after the word "bonus" in line 8: "and any other incentive
compensation, including performance share units or options".
3. Section 2.8 is amended by placing a period after the word
"Control" in line 4 and deleting all of the following language in the Section.
4. Section 3.1 is amended by deleting "eighteen (18)" in line 2 and
substituting "thirty-six (36)".
5. A new Section 3.1 (b) is added as follows:
"(b) If the Executive's employment with the Company shall be terminated by
reason of the Executive's disability, the Executive, or his beneficiaries
or personal representatives, as the case may be, shall be entitled to
receive the greater of those amounts described in Section 3.1 (a) above or
such other compensation and benefits as may be provided for in their
employment and other agreements for termination of employment under
similar circumstances."
6. Sections 3.1 (b), (c) and (d) are amended to become Sections 3.1
(c), (d) and (e), respectively.
<PAGE> 2
7. Relettered Section 3.1 (c) (ii) is amended by adding the words
"in each case calculated to include amounts deferred under the Corporation's
qualified and non-qualified plans" after the word "Bonus" in line 6.
8. Relettered Section 3.1 (c) (iii) is amended by deleting the words
"but excluding pension and profit sharing benefits" from lines 11 and 12
thereof.
9. Relettered Section 3.1 (c) (iv) is amended by adding the words
"shall credit the Executive for pension purposes with three years of service
beyond the Termination Date and" after the word "Company" in line 1 and change
the word "an" to "the" in line 5.
10. Relettered Section 3.1 (c) (v) is amended by adding the words
"all performance shares units awarded to the Executive pursuant to the 1996
Stock Incentive Plan Implementation Guidelines shall be valued at 100% as though
the Company had achieved its target for each respective plan period, and an
equal number of shares of common stock shall be awarded to the Executive, and"
between the word "and" and "(B)" in line 9.
11. Relettered Section 3.1 (c) (v) is further amended by adding the
words "or received pursuant to a performance share unit award "between the words
"options" and "at" in line 12.
12. Section 3.2 (a) is amended by adding the words "Except as
otherwise provided in this Section 3.1 (b)," at the beginning of the sentence.
13. Section 5(a) is amended by deleting the last sentence thereof.
14. Section 12 is amended by deleting the words "New York, New York"
in line 6 and substituting the words "San Francisco, California" therefor.
15. Except as otherwise provided herein, the SPA shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
CENTURY ALUMINUM COMPANY
By ___________________________
______________________________
Craig A. Davis
<PAGE> 1
AMENDMENT
TO
SEVERANCE PROTECTION AGREEMENT
AMENDMENT TO SEVERANCE PROTECTION AGREEMENT, made and entered into
as of the 1st day of January, 1999 by and between Century Aluminum Company, a
Delaware corporation (the "Corporation") and Gerald A. Meyers (the "Executive").
WITNESSETH
WHEREAS, the Corporation and Executive are parties to that certain
Severance Protection Agreement, dated as of March 1, 1996, (the "SPA") and wish
to amend the SPA as herein set forth; and
WHEREAS, the Compensation Committee of Board of Directors of the
Corporation has approved the following amendments to the SPA.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1 of the SPA is amended by deleting the word "eighteen"
and the number "(18)" in line 8 and substituting "thirty-six (36)" therefor.
2. Section 2.6 (a) (2) of the SPA is amended by deleting the word
"and" in line 8, substituting a comma in lieu thereof and adding the following
language after the word "bonus" in line 8: "and any other incentive
compensation, including performance share units or options".
3. Section 2.8 is amended by placing a period after the word
"Control" in line 4 and deleting all of the following language in the Section.
4. Section 3.1 is amended by deleting "eighteen (18)" in line 2 and
substituting "thirty-six (36)".
5. A new Section 3.1 (b) is added as follows:
"(b) If the Executive's employment with the Company shall be terminated by
reason of the Executive's disability, the Executive, or his beneficiaries
or personal representatives, as the case may be, shall be entitled to
receive the greater of those amounts described in Section 3.1 (a) above or
such other compensation and benefits as may be provided for in their
employment and other agreements for termination of employment under
similar circumstances."
6. Sections 3.1 (b), (c) and (d) are amended to become Sections 3.1
(c), (d) and (e), respectively.
<PAGE> 2
7. Relettered Section 3.1 (c) (ii) is amended by adding the words
"in each case calculated to include amounts deferred under the Corporation's
qualified and non-qualified plans" after the word "Bonus" in line 6.
8. Relettered Section 3.1 (c) (iii) is amended by deleting the words
"but excluding pension and profit sharing benefits" from lines 11 and 12
thereof.
9. Relettered Section 3.1 (c) (iv) is amended by adding the words
"shall credit the Executive for pension purposes with three years of service
beyond the Termination Date and" after the word "Company" in line 1 and change
the word "an" to "the" in line 5.
10. Relettered Section 3.1 (c) (v) is amended by adding the words
"all performance shares units awarded to the Executive pursuant to the 1996
Stock Incentive Plan Implementation Guidelines shall be valued at 100% as though
the Company had achieved its target for each respective plan period, and an
equal number of shares of common stock shall be awarded to the Executive, and"
between the word "and" and "(B)" in line 9.
11. Relettered Section 3.1 (c) (v) is further amended by adding the
words "or received pursuant to a performance share unit award "between the words
"options" and "at" in line 12.
12. Section 3.2 (a) is amended by adding the words "Except as
otherwise provided in this Section 3.1 (b)," at the beginning of the sentence.
13. Section 5(a) is amended by deleting the last sentence thereof.
14. Section 12 is amended by deleting the words "New York, New York"
in line 6 and substituting the words "San Francisco, California" therefor.
15. Except as otherwise provided herein, the SPA shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
CENTURY ALUMINUM COMPANY
By ___________________________
______________________________
Gerald A. Meyers
<PAGE> 1
AMENDMENT
TO
SEVERANCE PROTECTION AGREEMENT
AMENDMENT TO SEVERANCE PROTECTION AGREEMENT, made and entered into
as of the 1st day of January, 1999 by and between Century Aluminum Company, a
Delaware corporation (the "Corporation") and Gerald J. Kitchen (the
"Executive").
WITNESSETH
WHEREAS, the Corporation and Executive are parties to that certain
Severance Protection Agreement, dated as of March 1, 1996, (the "SPA") and wish
to amend the SPA as herein set forth; and
WHEREAS, the Compensation Committee of Board of Directors of the
Corporation has approved the following amendments to the SPA.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1 of the SPA is amended by deleting the word "eighteen"
and the number "(18)" in line 8 and substituting "thirty-six (36)" therefor.
2. Section 2.6 (a) (2) of the SPA is amended by deleting the word
"and" in line 8, substituting a comma in lieu thereof and adding the following
language after the word "bonus" in line 8: "and any other incentive
compensation, including performance share units or options".
3. Section 2.8 is amended by placing a period after the word
"Control" in line 4 and deleting all of the following language in the Section.
4. Section 3.1 is amended by deleting "eighteen (18)" in line 2 and
substituting "thirty-six (36)".
5. A new Section 3.1 (b) is added as follows:
"(b) If the Executive's employment with the Company shall be terminated by
reason of the Executive's disability, the Executive, or his beneficiaries
or personal representatives, as the case may be, shall be entitled to
receive the greater of those amounts described in Section 3.1 (a) above or
such other compensation and benefits as may be provided for in their
employment and other agreements for termination of employment under
similar circumstances."
6. Sections 3.1 (b), (c) and (d) are amended to become Sections 3.1
(c), (d) and (e), respectively.
<PAGE> 2
7. Relettered Section 3.1 (c) (ii) is amended by adding the words
"in each case calculated to include amounts deferred under the Corporation's
qualified and non-qualified plans" after the word "Bonus" in line 6.
8. Relettered Section 3.1 (c) (iii) is amended by deleting the words
"but excluding pension and profit sharing benefits" from lines 11 and 12
thereof.
9. Relettered Section 3.1 (c) (iv) is amended by adding the words
"shall credit the Executive for pension purposes with three years of service
beyond the Termination Date and" after the word "Company" in line 1 and change
the word "an" to "the" in line 5.
10. Relettered Section 3.1 (c) (v) is amended by adding the words
"all performance shares units awarded to the Executive pursuant to the 1996
Stock Incentive Plan Implementation Guidelines shall be valued at 100% as though
the Company had achieved its target for each respective plan period, and an
equal number of shares of common stock shall be awarded to the Executive, and"
between the word "and" and "(B)" in line 9.
11. Relettered Section 3.1 (c) (v) is further amended by adding the
words "or received pursuant to a performance share unit award "between the words
"options" and "at" in line 12.
12. Section 3.2 (a) is amended by adding the words "Except as
otherwise provided in this Section 3.1 (b)," at the beginning of the sentence.
13. Section 5(a) is amended by deleting the last sentence thereof.
14. Section 12 is amended by deleting the words "New York, New York"
in line 6 and substituting the words "San Francisco, California" therefor.
15. Except as otherwise provided herein, the SPA shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
CENTURY ALUMINUM COMPANY
By ___________________________
______________________________
Gerald J. Kitchen
<PAGE> 1
AMENDMENT
TO
SEVERANCE PROTECTION AGREEMENT
AMENDMENT TO SEVERANCE PROTECTION AGREEMENT, made and entered into
as of the 1st day of January, 1999 by and between Century Aluminum Company, a
Delaware corporation (the "Corporation") and David W. Beckley (the "Executive").
WITNESSETH
WHEREAS, the Corporation and Executive are parties to that certain
Severance Protection Agreement, dated as of March 1, 1996, (the "SPA") and wish
to amend the SPA as herein set forth; and
WHEREAS, the Compensation Committee of Board of Directors of the
Corporation has approved the following amendments to the SPA.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1 of the SPA is amended by deleting the word "eighteen"
and the number "(18)" in line 8 and substituting "thirty-six (36)" therefor.
2. Section 2.6 (a) (2) of the SPA is amended by deleting the word
"and" in line 8, substituting a comma in lieu thereof and adding the following
language after the word "bonus" in line 8: "and any other incentive
compensation, including performance share units or options".
3. Section 2.8 is amended by placing a period after the word
"Control" in line 4 and deleting all of the following language in the Section.
4. Section 3.1 is amended by deleting "eighteen (18)" in line 2 and
substituting "thirty-six (36)".
5. A new Section 3.1 (b) is added as follows:
"(b) If the Executive's employment with the Company shall be terminated by
reason of the Executive's disability, the Executive, or his beneficiaries
or personal representatives, as the case may be, shall be entitled to
receive the greater of those amounts described in Section 3.1 (a) above or
such other compensation and benefits as may be provided for in their
employment and other agreements for termination of employment under
similar circumstances."
<PAGE> 2
6. Sections 3.1 (b), (c) and (d) are amended to become Sections 3.1
(c), (d) and (e), respectively.
7. Relettered Section 3.1 (c) (ii) is amended by adding the words
"in each case calculated to include amounts deferred under the Corporation's
qualified and non-qualified plans" after the word "Bonus" in line 6.
8. Relettered Section 3.1 (c) (iii) is amended by deleting the words
"but excluding pension and profit sharing benefits" from lines 11 and 12
thereof.
9. Relettered Section 3.1 (c) (iv) is amended by adding the words
"shall credit the Executive for pension purposes with three years of service
beyond the Termination Date and" after the word "Company" in line 1 and change
the word "an" to "the" in line 5.
10. Relettered Section 3.1 (c) (v) is amended by adding the words
"all performance shares units awarded to the Executive pursuant to the 1996
Stock Incentive Plan Implementation Guidelines shall be valued at 100% as though
the Company had achieved its target for each respective plan period, and an
equal number of shares of common stock shall be awarded to the Executive, and"
between the word "and" and "(B)" in line 9.
11. Relettered Section 3.1 (c) (v) is further amended by adding the
words "or received pursuant to a performance share unit award "between the words
"options" and "at" in line 12.
12. Section 3.2 (a) is amended by adding the words "Except as
otherwise provided in this Section 3.1 (b)," at the beginning of the sentence.
13. Section 5(a) is amended by deleting the last sentence thereof.
14. Section 12 is amended by deleting the words "New York, New York"
in line 6 and substituting the words "San Francisco, California" therefor.
15, Except as otherwise provided herein, the SPA shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
CENTURY ALUMINUM COMPANY
By ___________________________
______________________________
David W. Beckley
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the Century
Aluminum Company Consolidated Financial Statements and is qualified in its
entirety by reference to such financial statements.
<MULTIPLIER> 1000
<S> <C>
<FISCAL-YEAR-END> Dec-31-1999
<PERIOD-START> Jan-01-1999
<PERIOD-END> Mar-31-1999
<PERIOD-TYPE> 3-MOS
<CASH> 8
<SECURITIES> 0
<RECEIVABLES> 85,464
<ALLOWANCES> 0
<INVENTORY> 198,879
<CURRENT-ASSETS> 307,383
<PP&E> 229,937
<DEPRECIATION> 0
<TOTAL-ASSETS> 554,325
<CURRENT-LIABILITIES> 98,548
<BONDS> 0
0
0
<COMMON> 202
<OTHER-SE> 164,406
<TOTAL-LIABILITY-AND-EQUITY> 554,325
<SALES> 163,359
<TOTAL-REVENUES> 163,359
<CGS> 161,800
<TOTAL-COSTS> 161,800
<OTHER-EXPENSES> 18
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,530
<INCOME-PRETAX> (4,311)
<INCOME-TAX> (1,552)
<INCOME-CONTINUING> (2,759)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,759)
<EPS-PRIMARY> (0.14)
<EPS-DILUTED> (0.14)
</TABLE>
