Exhibit 4.20 EXECUTION COPY FOURTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND CONSENT OF GUARANTORS This FOURTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND CONSENT OF GUARANTORS (this "Amendment") is dated as of March 17, 2003 and entered into by and among KAISER ALUMINUM CORPORATION, a Delaware corporation, as debtor and debtor-in-possession (the "Parent Guarantor"), KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation, as debtor and debtor-in-possession (the "Company"), the banks and other financial institutions signatory hereto that are parties as Lenders to the Credit Agreement referred to below (the "Lenders"), BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacity, the "Agent") for the Lenders, GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital") as Documentation Agent, THE CIT GROUP/BUSINESS CREDIT, INC. ("CIT"), as Co-Syndication Agent, and FOOTHILL CAPITAL CORPORATION ("Foothill"), as Co-Syndication Agent (GE Capital, CIT and Foothill, collectively, the "Co-Agents"). RECITALS WHEREAS, the Parent Guarantor, the Company, the Lenders, and the Agent have entered into that certain Post-Petition Credit Agreement dated as of February 12, 2002, as amended by that certain First Amendment to Post-Petition Credit Agreement and Post-Petition Pledge and Security Agreement and Consent of Guarantors dated as of March 21, 2002, that certain Second Amendment to Post-Petition Credit Agreement and Consent of Guarantors dated as of March 21, 2002, that certain Third Amendment to Post-Petition Credit Agreement, Second Amendment to Post-Petition Pledge and Security Agreement and Consent of Guarantors dated as of December 19, 2002 and as further modified by that certain Waiver and Consent With Respect to Post-Petition Credit Agreement dated as of October 9, 2002 and that certain Second Waiver and Consent With Respect to Post-Petition Credit Agreement dated as of January 13, 2003 (the "Second Waiver") (as so amended and modified, the "Credit Agreement"; capitalized terms used in this Amendment without definition shall have the meanings given such terms in the Credit Agreement); WHEREAS, the members of the Controlled Group had an obligation to make a special liquidity contribution to the trust established under the Kaiser Aluminum Salaried Employees Retirement Plan in the amount of approximately $17,000,000 on January 15, 2003 (the "January Liquidity Contribution") and failed to make such payment; WHEREAS, as a result of the failure to make the January Liquidity Contribution when due, a Lien in favor of the PBGC would, unless stayed under the Bankruptcy Code or other applicable law, be imposed under ERISA and the Code on all of the assets of the members of the Controlled Group; WHEREAS, on April 15, 2003, and on certain quarterly contribution dates thereafter, the members of the Controlled Group may have further obligations to make certain Future Minimum Funding and Liquidity Contributions (as hereinafter defined) and failure to make such Future Minimum Funding and Liquidity Contributions would also result in the imposition under ERISA and the Code of a Lien on all of the assets of the members of the Controlled Group, unless such Lien were stayed under the Bankruptcy Code or other applicable law; WHEREAS, failure to make the January Liquidity Contribution and the Future Minimum Funding and Liquidity Contributions may result in the imposition of certain taxes, and failure to pay such taxes would also result in the creation of a Lien on the assets of the members of the Controlled Group, unless such Lien were stayed under the Bankruptcy Code or other applicable law; WHEREAS, since February 12, 2002, and prior to the date the January Liquidity Contribution was due, certain additional Subsidiaries have become debtors in cases filed under Chapter 11 of the Bankruptcy Code, which have been administratively consolidated with the Chapter 11 cases of the Debtors (the "New Debtors"); WHEREAS, as a result of the automatic stay under section 362 of the Bankruptcy Code, the imposition and perfection of the Liens resulting from the failure to make the January Liquidity Contribution and the Future Minimum Funding and Liquidity Contributions and/or to pay the taxes associated therewith are stayed as to the Debtors and New Debtors; WHEREAS, pursuant to that certain Stipulation and Order Extending Automatic Stay to Certain Nondebtor Subsidiaries entered in the Bankruptcy Cases on January 27, 2003 (the "Stipulation"), the imposition and perfection of such Liens are also stayed as to Trochus and VALCO through December 31, 2003; WHEREAS, the imposition and perfection of such Liens are not stayed as to members of the Controlled Group that are not Debtors or New Debtors (with the exception of VALCO and Trochus); and WHEREAS, as contemplated by the Second Waiver, the parties hereto wish to amend the Credit Agreement to incorporate certain modifications to the Credit Agreement contained in the Second Waiver and to make the other modifications contained herein; NOW THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the Parent Guarantor, the Company, the Lenders, and the Agent agree as follows: 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions and upon the terms set forth in this Amendment, the Credit Agreement is hereby amended as follows: 1.1 AMENDMENTS TO SECTION 1.1 (DEFINITIONS). (a) The definitions of "AJI", "Alwis", "KBC", "KEC", "KJC", and "Kaiser Canada" are amended to add the following at the end of each such definition: " as debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code." (b) The definition of "Bankruptcy Case(s)" is amended to add at the end thereof "and the Chapter 11 cases filed by the New Domestic Debtors and the New Canadian Debtors." (c) The definition of "Debtor" is deleted in its entirety and replaced with the following: "Debtor" means each of the Company, each Secured Guarantor, each New Domestic Debtor and each New Canadian Debtor, and "Debtors" means all of them collectively. (d) The definition of "Petition Date" is deleted in its entirety and replaced with the following: "Petition Date" means as to any Debtor or any Bankruptcy Case, the date on which the applicable Bankruptcy Case was commenced with the Bankruptcy Court. (e) The definition of "Subsidiary Guaranty" is deleted in its entirety and replaced with the following: "Subsidiary Guaranty" means the guaranty executed and delivered by any Subsidiary of the Company on the Effective Date, or by the New Domestic Debtors pursuant to the Fourth Amendment, or by any other Subsidiary pursuant to Section 9.1.10, as amended, supplemented, restated, or otherwise modified from time to time in accordance with the provisions hereof or thereof. (f) The definition of "Unsecured Guarantor" is deleted in its entirety and replaced with the following: "Unsecured Guarantor" means each of the New Domestic Debtors and "Unsecured Guarantors" means all them collectively. (g) The following definitions are added in the proper alphabetical order: "Fourth Amendment" means the Fourth Amendment to Post-Petition Credit Agreement and Consent of Guarantors dated as of March 17, 2003 among the Parent Guarantor, the Company, the Lenders and the Agent. "January Liquidity Contribution" means the special liquidity contribution required to be made by the members of the Controlled Group under the Salaried Pension Plan in the amount of approximately $17,000,000 on January 15, 2003. "Future Minimum Funding and Liquidity Contributions" means the minimum funding and additional liquidity contributions which may be required to be made after January 15, 2003 by the members of the Controlled Group under ERISA to the trust established under the Salaried Pension Plan and other defined benefit plans of the Controlled Group. "Kaiser Center Properties" means Kaiser Center Properties, a California partnership, as debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code. "KAE Trading" means KAE Trading, Inc., a Delaware corporation, as debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code. "Kaiser Canada Investment Limited" means Kaiser Aluminum & Chemical Canada Investment Limited, an Ontario corporation, as debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code. "KCI" means Kaiser Center, Inc., a California corporation, as debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code. "New Canadian Debtor" means each of Kaiser Canada, Kaiser Canada Investment Limited and Texada Mines, and "New Canadian Debtors" means all of them collectively. "New Domestic Debtor" means, each of AJI, Alwis, KAE Trading, Kaiser Center Properties, KBC, KCI, KEC, and KJC and "New Domestic Debtors" means all of them collectively. "Permitted PBGC Liens" means (a) unperfected Liens, if any, imposed under ERISA and the Code on assets of the Debtors, Trochus or VALCO as a result of (x) the failure to make the January Liquidity Contribution and the Future Minimum Funding and Liquidity Contributions on or before the dates when due or the failure to pay any taxes imposed in connection therewith or (y) the termination of any Pension Plan; and (b) perfected or unperfected Liens imposed under ERISA and the Code on assets of members of the Controlled Group other than any Debtor, Trochus or VALCO as a result of (x) the failure to make the January Liquidity Contribution and the Future Minimum Funding and Liquidity Contributions on or before the dates when due or the failure to pay any taxes imposed in connection therewith or (y) the termination of any Pension Plan. "Salaried Pension Plan" means the Kaiser Aluminum Salaried Employees Retirement Plan. "Second Waiver" means that certain Second Waiver and Consent with Respect to Post-Petition Credit Agreement dated as of January 13, 2003 among the Company, the Parent Guarantor, the Lenders and the Agent. "Texada Mines" means Texada Mines Ltd., a British Columbia corporation, as debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code. 1.2 AMENDMENT TO SECTION 8.12 (PENSION AND WELFARE PLANS). Section 8.12 of the Credit Agreement is deleted in its entirety and replaced by the following: "SECTION 8.12 PENSION AND WELFARE PLANS. During the twelve-consecutive-month period prior to the date of the execution and delivery of this Agreement and prior to the date of each Credit Extension hereunder, (a) no actions have been taken by the Parent Guarantor, the Company, any member of their Controlled Groups, or any other Person (with the requisite authority to act) to terminate any Pension Plan that has insufficient assets to satisfy all benefit liabilities thereunder (within the meaning of section 4001(a)(16) of ERISA), which termination is sufficient to give rise to a Lien on assets of any Controlled Group member under section 4068 of ERISA and (b) no contribution failure has occurred with respect to any Pension Plan sponsored or maintained by any Controlled Group member sufficient to give rise to a Lien on assets of any Controlled Group member under Section 302(f) of ERISA, other than, with respect to the foregoing clauses (a) and (b), Permitted PBGC Liens, which failure has not been cured within 30 days of the applicable due date. Item 7 ("Employee Benefit Plans") of the Disclosure Schedule lists all Welfare Plans of the Parent Guarantor, the Company, or any of their Domestic Subsidiaries." 1.3 AMENDMENT TO SECTION 9.2.3 (LIENS). Section 9.2.3 of the Credit Agreement is amended to (a) delete the reference in the first sentence thereof to "clauses (a), (b), (e) and (h)" and replace it with "clauses (a), (b), (e), (h) and (y)" and (b) add the following clause (y) at the end of such Section: "(y) the Permitted PBGC Liens." 1.4 AMENDMENT TO SECTION 9.2.22 (CHAPTER 11 CLAIMS). Section 9.2.22 is amended to delete the two references to "Secured Guarantors" and to replace them with "other Debtors". 1.5 AMENDMENT TO SECTION 10.1.8 (PENSION PLANS). Section 10.1.8 is deleted in its entirety and replaced with the following: SECTION 10.1.8. PENSION PLANS. A contribution failure occurs with respect to any Pension Plan sufficient to give rise to a Lien (other than the Permitted PBGC Liens) against any assets of any Controlled Group member under section 302(f) of ERISA in an amount in excess of $1,000,000, which failure has not been completely cured within 30 days of the applicable due date. 1.5 AMENDMENT TO SECTION 12.9(C). Section 12.9(c) is amended to change the name of the agent for service of process to "Jones Day, 222 East 41st Street, New York, New York 10017 (Attention: Michael R. Bassett)". 2. REPRESENTATIONS AND WARRANTIES OF PARENT GUARANTOR AND THE COMPANY. Each of the Parent Guarantor and the Company represents and warrants to each Lender and the Agent that the following statements are true, correct and complete: 2.1 POWER AND AUTHORITY. Each of the Parent Guarantor, the Company and each other Obligor has all corporate or other organizational power and authority to enter into this Amendment and, as applicable, the Consent of Guarantors attached hereto (the "Consent"), and to carry out the transactions contemplated by, and to perform its obligations under or in respect of, the Credit Agreement, as amended hereby. 2.2 DUE AUTHORIZATION, NON-CONTRAVENTION. The execution, delivery and performance by the applicable Obligor of this Amendment and the Consent and the performance of the obligations of each Obligor under or in respect of the Credit Agreement as amended hereby have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene such Obligor's Organic Documents, (b) contravene any contractual restriction entered into after the Petition Date where such a contravention has a reasonable possibility of having a Materially Adverse Effect, or contravene any law or governmental regulation or court order binding on or affecting such Obligor, or (c) result in, or require the creation or imposition of, any Lien on any of such Obligor's properties. 2.3 EXECUTION, DELIVERY AND ENFORCEABILITY. This Amendment and the Consent have been duly executed and delivered by each Obligor which is a party thereto and constitute the legal, valid and binding obligations of such Obligor, enforceable in accordance with their terms. 2.4 NO DEFAULT OR EVENT OF DEFAULT. After giving effect to this Amendment, no event has occurred and is continuing or will result from the execution and delivery of this Amendment or the Consent that would constitute a Default or an Event of Default. 2.5 REPRESENTATIONS AND WARRANTIES, ETC. All of the conditions set forth in Section 7.4, giving effect to this Amendment, have been met on and as of the date hereof and as of the effective date of this Amendment. 3. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall be effective only if and when (a) this Amendment has been signed by, and when counterparts hereof shall have been delivered to the Agent (by hand delivery, mail or telecopy) by, the Parent Guarantor, the Company and the Required Lenders, and counterparts of the Consent have been delivered to the Agent by the Guarantors (including each New Domestic Debtor); (b) each New Domestic Debtor shall have executed and delivered to the Agent, for its benefit and the benefit of the Lenders, a Subsidiary Guaranty, in form and substance satisfactory to the Agent (the "New Domestic Debtor Guaranties"); and (c) this Amendment and the New Domestic Debtor Guaranties, and the granting to the Agent and the Lenders, of Superpriority Claims against the New Domestic Debtors under section 364(c)(1) of the Bankruptcy Code, subject only to the Carve Out, shall have been approved by the Bankruptcy Court in the Chapter 11 Cases, pursuant to an order in form and substance satisfactory to the Agent and its counsel and on notice satisfactory to them, and the Agent shall have received a copy of that order entered by the Bankruptcy Court. 4. EFFECT OF AMENDMENT; RATIFICATION. This Amendment is a Loan Document. From and after the date on which this Amendment becomes effective, all references in the Loan Documents to the Credit Agreement shall mean the Credit Agreement, as amended hereby. Except as expressly amended hereby, the Credit Agreement and the other Loan Documents, including the Liens granted thereunder, shall remain in full force and effect, and all terms and provisions thereof are hereby ratified and confirmed. Each of the Parent Guarantor and the Company confirms that as amended hereby, each of the Loan Documents is in full force and effect. 5. APPLICABLE LAW. THE VALIDITY, INTERPRETATIONS AND ENFORCEMENT OF THIS AMENDMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. 6. COMPLETE AGREEMENT. This Amendment sets forth the complete agreement of the parties in respect of any amendment to any of the provisions of any Loan Document. The execution, delivery and effectiveness of this Amendment do not constitute a waiver of any Default or Event of Default, amend or modify any provision of any Loan Document except as expressly set forth herein or constitute a course of dealing or any other basis for altering the Obligations of any Obligor. 7. CAPTIONS; COUNTERPARTS. The catchlines and captions herein are intended solely for convenience of reference and shall not be used to interpret or construe the provisions hereof. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by telecopy), all of which taken together shall constitute but one and the same instrument. IN WITNESS WHEREOF, each of the undersigned has duly executed this Fourth Amendment to Post-Petition Credit Agreement and Consent of Guarantors as of the date set forth above. "PARENT GUARANTOR" KAISER ALUMINUM CORPORATION By: /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer "THE COMPANY" KAISER ALUMINUM & CHEMICAL CORPORATION By: /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer BANK OF AMERICA, N.A., as the Agent and a Lender By: /s/ Robert M. Dalton Name: Robert M. Dalton Title: Vice President GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender By: /s/ John L. Dale Name: John L. Dale Title: Duly Authorized Signatory FOOTHILL CAPITAL CORPORATION, as a Lender By: /s/ E Kim Name: Eunnie Kim Title: Asst. Vice President THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender By: /s/ Grant Weiss Name: Grant Weiss Title: Vice President MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., as a Lender By: /s/ Michele Kovatchis Name: Michele Kovatchis Title: Director PNC BANK, NATIONAL ASSOCIATION, as a Lender By: /s/ Sandra Sha Kenyon Name: Sandra Sha Kenyon Title: Vice President GMAC COMMERCIAL FINANCE LLC, AS SUCCESSOR BY MERGER TO GMAC BUSINESS CREDIT, LLC as a Lender By: /s/ Thomas Brent Name: Thomas Brent Title: Vice President THE PROVIDENT BANK, as a Lender By: /s/ Mary Sue Wolfer Name: Mary Sue Wolfer Title: Credit Officer CONSENT OF GUARANTORS Each of the undersigned is a Guarantor of the Obligations of the Company under the Credit Agreement and each other Loan Document and hereby (a) consents to the foregoing Amendment, (b) acknowledges that notwithstanding the execution and delivery of the foregoing Amendment, the obligations of each of the undersigned Guarantors are not impaired or affected and the Parent Guaranty and the Subsidiary Guaranty continue in full force and effect, and (c) ratifies the Parent Guaranty or the Subsidiary Guaranty, as applicable, and each of the Loan Documents to which it is a party and further ratifies the Security Interests granted by it to the Agent for its benefit and the benefit of the Secured Parties. IN WITNESS WHEREOF, each of the undersigned has executed and delivered this CONSENT OF GUARANTORS as of the date first set forth above. AKRON HOLDING CORPORATION By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer ALPART JAMAICA INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER ALUMINA AUSTRALIA CORPORATION By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER BELLWOOD CORPORATION By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER ALUMINUM & CHEMICAL INVESTMENT, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER ALUMINIUM INTERNATIONAL, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER ALUMINUM PROPERTIES, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER ALUMINUM TECHNICAL SERVICES, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER FINANCE CORPORATION By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER JAMAICA CORPORATION By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER MICROMILL HOLDINGS, LLC By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER SIERRA MICROMILLS, LLC By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER TEXAS SIERRA MICROMILLS, LLC By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER TEXAS MICROMILL HOLDINGS, LLC By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer OXNARD FORGE DIE COMPANY, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER ALUMINUM CORPORATION By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer ALWIS LEASING LLC By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER BAUXITE COMPANY By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER CENTER, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER CENTER PROPERTIES By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAE TRADING, INC. By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer KAISER EXPORT COMPANY By /s/ Kerry A. Shiba Name: Kerry A. Shiba Title: Vice President and Treasurer
Kaiser Aluminum (KALU) 10-K2002 FY Annual report
Filed: 31 Mar 03, 12:00am