Exhibit 4.2 CONSENT AND FIFTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND CONSENT OF GUARANTORS This CONSENT AND FIFTH AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND CONSENT OF GUARANTORS (this "Amendment") is dated as of June 6, 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 WELLS FARGO FOOTHILL, INC. (FKA 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 and modified to date, the "Credit Agreement"; capitalized terms used in this Amendment without definition shall have the meanings given such terms in the Credit Agreement); WHEREAS, on October 2, 2002, the Debtors filed their Motion for Order (A) According Superpriority Administrative Status to Certain Potential Claims in Respect of Their Australian Joint Venture, (B) Authorizing the Assumption of Certain Related Joint Venture Agreements and (C) Authorizing Entry into Related Agreement (the "QAL Motion"); WHEREAS, on October 28, 2002, the Agent, on behalf of itself and the Lenders, filed a Limited Objection to Motion for Order (A) According Superpriority Administrative Status to Certain Potential Claims in Respect of Their Australian Joint Venture, (B) Authorizing the Assumption of Certain Related Joint Venture Agreements and (C) Authorizing Entry into Related Agreement (the "QAL Objection"); WHEREAS, as a result of the QAL Objection, on or about November 20, 2002, the Agent, on behalf of itself and the Lenders, entered into a side-letter agreement with the Debtors which provided, among other things, that the Debtors would not request a hearing on the QAL Motion or otherwise proceed with the QAL Motion without the prior written consent of the Agent; WHEREAS, the Agent and the Lenders have been working with the Debtors and other parties-in-interest to the QAL Motion (most notably, the Debtors' joint-venturers in QAL) to reach an agreement on an agreed form of order to present to the Court; WHEREAS, the Agent and the Lenders have now agreed to a form of order (as attached hereto as Exhibit A, the "QAL Order") that resolves the issues addressed in the QAL Objection; WHEREAS, as a condition to the Agent providing written consent to the Debtors to present the QAL Order to the Court, the Agent and the Lenders are requiring that certain amendments be made to the Credit Agreement; 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. CONSENT TO ENTRY OF QAL ORDER. Notwithstanding any provision of the Credit Agreement or any other Loan Document to the contrary, the Agent and the Lenders hereby consent to the entry of the QAL Order; provided, however, that, this consent shall be limited precisely as written and shall not be deemed or otherwise construed to 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. 2. 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: 2.1 AMENDMENT TO SECTION 1.1 (DEFINITIONS). The definition of "QAL Agreements" is added in proper alphabetical order: "QAL Agreements" means all agreements (as the same have been, or may be, amended or modified from time-to-time) to which any of the Company, any Guarantor or any of the Subsidiaries of the Parent Guarantor is a party that relate to QAL, including, without limitation, the Participants Agreement dated as of July 31, 1964, the Initial Tolling Contract dated as of July 31, 1964, the First Expansion Tolling Contract dated as of May 23, 1967, the Second Expansion Tolling Contract dated as of July 1, 1969, the Third Expansion Tolling Contract dated as of February 26, 1970, the Fourth Expansion Tolling Contract dated as of November 5, 1981, the Trihydrate Bauxite Supply Agreement dated as of May 17, 1990, the Bauxite Supply Agreement dated as of November 17, 1993, the Financing Agreement dated as of March 30, 2001 and the Addendum to Financing Agreement to be entered into after entry by the Bankruptcy Court of that certain order captioned "Order (a) According Superpriority Administrative Status to Certain Potential Claims in Respect of the Debtors' Australian Joint Venture, (b) Authorizing the Assumption of Certain Related Joint Venture Agreements and (c) Authorizing Entry into Related Agreement". 2.2 AMENDMENT TO SECTION 9.1.1 (FINANCIAL INFORMATION, REPORTS, NOTICES, ETC.). A new subsection (n) shall be added to Section 9.1.1 of the Credit Agreement as follows: (n) within two (2) Business Days after the failure of the Company, any of the Guarantors or any of the Subsidiaries of the Parent Guarantor to make any payment required of them under any of the QAL Agreements as and when due (excluding any otherwise applicable grace period), notice of such non-payment and a detailed description of the reason for such non-payment. 2.3 AMENDMENT TO ARTICLE X (EVENTS OF DEFAULT). A NEW SECTION 10.1.12 SHALL BE ADDED IMMEDIATELY AFTER SECTION 10.1.11 (ACTIONS AGAINST UNSECURED GUARANTORS) AS FOLLOWS: SECTION 10.1.12. NON-PAYMENT OF QAL OBLIGATIONS. Any payment required to be made by the Company, any of the Guarantors or any of the Subsidiaries of the Parent Guarantor under any of the QAL Agreements is not made on or before the thirtieth (30th) day after the date any such payment is due (excluding any otherwise applicable grace period), whether by acceleration or otherwise. 3. 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: 3.1 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. 3.2 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. 3.3 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. 3.4 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. 3.5 REPRESENTATIONS AND WARRANTIES, ETC. All of the conditions set forth in Section 7.4 of the Credit Agreement, giving effect to this Amendment, have been met on and as of the date hereof and as of the effective date of this Amendment. 4. 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; (b) this Amendment 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; and (c) the Company has paid to the Agent, for the ratable benefit of the Lenders an amendment fee equal to $600,000.00. 5. 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. 6. 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. 7. 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. 8. 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 Consent and Fifth Amendment to Post-Petition Credit Agreement and Consent of Guarantors as of the date set forth above. "PARENT GUARANTOR" KAISER ALUMINUM CORPORATION By: /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer "THE COMPANY" KAISER ALUMINUM & CHEMICAL CORPORATION By: /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant 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 WELLS FARGO FOOTHILL, INC. (FKA FOOTHILL CAPITAL CORPORATION), as a Lender By: /s/ Eunnie 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: Name: Title: 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/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer ALPART JAMAICA INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER ALUMINA AUSTRALIA CORPORATION By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER BELLWOOD CORPORATION By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM & CHEMICAL INVESTMENT, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER ALUMINIUM INTERNATIONAL, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM PROPERTIES, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM TECHNICAL SERVICES, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER FINANCE CORPORATION By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER JAMAICA CORPORATION By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER MICROMILL HOLDINGS, LLC By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER SIERRA MICROMILLS, LLC By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER TEXAS SIERRA MICROMILLS, LLC By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER TEXAS MICROMILL HOLDINGS, LLC By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer OXNARD FORGE DIE COMPANY, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER ALUMINUM CORPORATION By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer ALWIS LEASING LLC By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER BAUXITE COMPANY By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER CENTER, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER CENTER PROPERTIES By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAE TRADING, INC. By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer KAISER EXPORT COMPANY By /s/ David A. Cheadle Name: David A. Cheadle Title: Assistant Treasurer
Kaiser Aluminum (KALU) 10-Q2003 Q2 Quarterly report
Filed: 14 Aug 03, 12:00am