E x e c u t I o n C o p y
SEVENTEENTH AMENDMENT TO CREDIT AGREEMENT
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THIS SEVENTEENTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of September 24, 1999, is by and between
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KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation
(the "Company"), KAISER ALUMINUM CORPORATION, a Delaware
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corporation (the "Parent Guarantor"), the various financial
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institutions that are or may from time to time become parties to
the Credit Agreement referred to below (collectively, the
"Lenders" and, individually, a "Lender"), and Bank of America,
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N.A. (successor to BankAmerica Business Credit, Inc., a Delaware
corporation), as agent (in such capacity, together with its
successors and assigns in such capacity, the "Agent") for the
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Lenders. Capitalized terms used, but not defined, herein shall
have the meanings given to such terms in the Credit Agreement, as
amended hereby.
W I T N E S S E T H:
WHEREAS, the Company, the Parent Guarantor, the Lenders
and the Agent are parties to the Credit Agreement, dated as of
February 15, 1994, as amended by the First Amendment to Credit
Agreement, dated as of July 21, 1994, the Second Amendment to
Credit Agreement, dated as of March 10, 1995, the Third Amendment
to Credit Agreement and Acknowledgement, dated as of July 20,
1995, the Fourth Amendment to Credit Agreement, dated as of
October 17, 1995, the Fifth Amendment to Credit Agreement, dated
as of December 11, 1995, the Sixth Amendment to Credit Agreement,
dated as of October 1, 1996, the Seventh Amendment to Credit
Agreement, dated as of December 17, 1996, the Eighth Amendment to
Credit Agreement, dated as of February 24, 1997, the Ninth
Amendment to Credit Agreement and Acknowledgment, dated as of
April 21, 1997, the Tenth Amendment to Credit Agreement and
Assignment, dated as of June 25, 1997, the Eleventh Amendment to
Credit Agreement and Limited Waivers, dated as of October 20,
1997, the Twelfth Amendment to Credit Agreement, dated as of
January 13, 1998, the Thirteenth Amendment to Credit Agreement,
dated as of July 20, 1998, the Fourteenth Amendment to Credit
Agreement, dated as of December 11, 1998, the Fifteenth Amendment
to Credit Agreement, dated as of February 23, 1999 and the
Sixteenth Amendment to Credit Agreement, dated as of March 26,
1999 (the "Credit Agreement"); and
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WHEREAS, the parties hereto have agreed to amend the
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
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1.1 Amendments to Article I: Definitions and Accounting
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Terms.
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Subsection 1.1 of the Credit Agreement is hereby
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amended by amending the definition of "Minimum Net Worth"
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contained therein to read in its entirety as follows:
" Minimum Net Worth' means (a) for each Fiscal Quarter
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of the Company ending on or prior to December 31, 1998
(commencing with the Fiscal Quarter ending September 30, 1996),
$500,000,000 plus 50% of Net Income (but not loss) for each such
Fiscal Quarter, (b) for the two Fiscal Quarters of the Company
ending on March 31, 1999 and June 30, 1999, $600,000,000 plus 50%
of Net Income (but not loss) for each such Fiscal Quarter, and (c)
for each Fiscal Quarter of the Company ending thereafter,
$550,000,000 plus 50% of Net Income (but not loss) for each such
Fiscal Quarter."
1.2 Amendments to Article IX: Covenants.
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A. Section 9.2.4(a) of the Credit Agreement is hereby
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amended by deleting the proviso contained therein and
substituting the following therefor:
"provided that for purposes of this Section 9.2.4(a),
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the calculation of Net Worth shall exclude (i) the effect of
any non-cash charges, up to an aggregate amount of
$70,000,000, in respect of the Micromill project, including
(without limitation) any write-down of Micromill project
assets located at the Center for Technology in Pleasanton,
California, and at the Micromill facility near Reno, Nevada,
(ii) the net cumulative effect of any mark-to-market gains
or losses incurred after December 31, 1998, up to an
aggregate net amount of $50,000,000 of losses, on aluminum
hedging agreements of the Company and its Subsidiaries that
do not qualify for hedging treatment under GAAP, (iii) the
effect of any non-cash charges, up to an aggregate amount of
$30,000,000, in respect of the settlement of the Company's
labor dispute with the United Steelworkers of America, and
(iv) the net cumulative effect of any gains or losses, up to
an aggregate net amount of $50,000,000 of losses, in respect
of adjustments to the net cost basis of the assets of the
Gramercy, Louisiana facility as a result of the explosion at
such facility, all of the above adjustments to be reflected
on the relevant Compliance Certificate."
B. Section 9.2.4(b) of the Credit Agreement is hereby
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amended to read in its entirety as follows:
"(b) Interest Coverage Ratio. The Company shall not
permit the Interest Coverage Ratio (i) for the one Fiscal
Quarter period ending March 31, 1996 to be less than 1.1 to
1.0, (ii) for the two Fiscal Quarter period ending June 30,
1996 to be less than 1.2 to 1.0, (iii) for the three Fiscal
Quarter period ending September 30, 1996 to be less than 0.5
to 1.0, (iv) for the four Fiscal Quarter period ending
December 31, 1996 to be less than 0.3 to 1.0, (v) for the
one Fiscal Quarter period ending June 30, 1997 to be less
than 0.2 to 1.0, (vi) for the two Fiscal Quarter period
ending September 30, 1997 to be less than 0.4 to 1.0,
(vii) for the three Fiscal Quarter period ending
December 31, 1997 to be less than 0.6 to 1.0 and (viii) for
the four Fiscal Quarter period ending on the last day of
each of the Fiscal Quarters set forth below to be less than
the correlative ratio indicated:
Date Ratio
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First Fiscal Quarter of 1998 0.80 to 1.00
Second Fiscal Quarter of 1998 1.20 to 1.00
Third Fiscal Quarter of 1998 1.60 to 1.00
Fourth Fiscal Quarter of 1998 1.10 to 1.00
First Fiscal Quarter of 1999 No Test
Second Fiscal Quarter of 1999 No Test
Third Fiscal Quarter of 1999 No Test
Fourth Fiscal Quarter of 1999 No Test
First Fiscal Quarter of 2000 0.50 to 1.00
Second Fiscal Quarter of 2000 1.00 to 1.00
Third Fiscal Quarter of 2000 1.25 to 1.00
Fourth Fiscal Quarter of 2000 1.50 to 1.00
First Fiscal Quarter of 2001 2.00 to 1.00
Second Fiscal Quarter of 2001 2.00 to 1.00
; provided that for purposes of calculating the Interest
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Coverage Ratio under this Section 9.2.4(b), (i) EBITDA shall
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exclude (A) the effect of any non-cash charges, up to an
aggregate amount of $70,000,000, in respect of the Micromill
project, including (without limitation) any write-down of
Micromill project assets located at the Center for
Technology in Pleasanton, California, and at the Micromill
facility near Reno, Nevada, (B) the net cumulative effect of
any mark-to-market gains or losses, for the relevant four
Fiscal Quarter period, up to an aggregate net amount of
$50,000,000 of losses, on aluminum hedging agreements of the
Company and its Subsidiaries that do not qualify for hedging
treatment under GAAP, (C) the effect of any non-cash charges,
up to an aggregate amount of $30,000,000, in respect of the
settlement of the Company's labor dispute with the United
Steelworkers of America, and (D) the net cumulative effect
of any gains or losses, up to an aggregate net amount of
$50,000,000 of losses, in respect of adjustments to the net
cost basis of the assets of the Gramercy, Louisiana facility
as a result of the explosion at such facility, all of the
above adjustments to be reflected on the relevant Compliance
Certificate; and (ii) Adjusted Capital Expenditures shall
not be subtracted from EBITDA."
C. Section 9.2.7 of the Credit Agreement is hereby
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amended by adding the following at the end of clause (b) thereof:
"; provided, however, that for purposes of calculating
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Adjusted Capital Expenditures for each Fiscal Year after the
1998 Fiscal Year, there shall be excluded all amounts spent
by the Company or its Subsidiaries to reconstruct the
Gramercy, Louisiana facility to the extent such amounts are
covered by valid and collectible insurance from solvent
insurers."
D. Section 9.2.18 of the Credit Agreement is hereby
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amended by (i) deleting the word "and" at the end of clause (vii)
thereof; (ii) deleting the period at the end of clause (viii)
thereof and substituting the phrase "; and" therefor, and (iii)
adding the following as new clause (ix) thereof:
"(ix) the Company and its wholly-owned Subsidiaries
may transfer the capital stock or other ownership interest
of any of their respective wholly-owned Subsidiaries to the
Company or any of its wholly-owned Subsidiaries; provided,
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however, that (a) the capital stock or other ownership
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interest of an Obligor shall be transferred only to another
Obligor, (b) the capital stock or other ownership interest
of a Domestic Subsidiary of the Company shall be transferred
only to the Company or another Domestic Subsidiary of the
Company and (c) the capital stock or other ownership interest
of a Subsidiary that is pledged to the Agent on behalf of
the Lenders shall be transferred only to another Obligor."
Section 2. Conditions to Effectiveness.
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This Amendment shall become effective as of the date
hereof only when the following conditions shall have been
satisfied and notice thereof shall have been given by the Agent
to the Parent Guarantor, the Company and each Lender (the date of
satisfaction of such conditions and the giving of such notice
being referred to herein as the "Seventeenth Amendment Effective
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Date"):
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A. The Agent shall have received for each Lender
counterparts hereof duly executed on behalf of the Parent
Guarantor, the Company, the Agent and the Required Lenders (or
notice of the approval of this Amendment by the Required Lenders
satisfactory to the Agent shall have been received by the Agent).
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Board of Directors of the Company
and the Parent Guarantor approving and authorizing the execution,
delivery and performance of this Amendment, certified by their
respective corporate secretaries or assistant secretaries as
being in full force and effect without modification or amendment
as of the date of execution hereof by the Company or the Parent
Guarantor, as the case may be;
(2) A signature and incumbency certificate of the
officers of the Company and the Parent Guarantor executing this
Amendment;
(3) For each Lender, an opinion, addressed to the
Agent and each Lender, from Kramer Levin Naftalis & Frankel LLP,
in form and substance satisfactory to the Agent;
(4) Such other information, approvals, opinions,
documents or instruments as the Agent may reasonably request; and
(5) For the pro rata benefit of the Lenders, a
fee in the amount of $100,000.
Section 3. Company's Representations and
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Warranties.
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In order to induce the Lenders and the Agent to enter
into this Amendment and to amend the Credit Agreement in the
manner provided herein, the Parent Guarantor and the Company
represent and warrant to each Lender and the Agent that, as of
the Seventeenth Amendment Effective Date, after giving effect to
the effectiveness of this Amendment, the following statements are
true and correct in all material respects:
A. Authorization of Agreements. The execution and
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delivery of this Amendment by the Company and the Parent
Guarantor and the performance of the Credit Agreement as amended
by this Amendment (the "Amended Agreement") by the Company and
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the Parent Guarantor are within such Obligor's corporate powers
and have been duly authorized by all necessary corporate action
on the part of the Company and the Parent Guarantor, as the case
may be.
B. No Conflict. The execution and delivery by the
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Company and the Parent Guarantor of this Amendment and the
performance by the Company and the Parent Guarantor of the
Amended Agreement do not:
(1) contravene such Obligor's Organic Documents;
(2) contravene the Senior Indenture, the New
Senior Indenture, the Additional New Senior Indentures, or the
Subordinated Indenture or contravene any other contractual
restriction where such a contravention has a reasonable
possibility of having a Materially Adverse Effect or contravene
any law or governmental regulation or court decree or order
binding on or affecting such Obligor or any of its Subsidiaries;
or
(3) result in, or require the creation or
imposition of, any Lien on any of such Obligor's properties or
any of the properties of any Subsidiary of such Obligor, other
than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
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executed and delivered by the Company and the Parent Guarantor
and this Amendment and the Amended Agreement constitute the
legal, valid and binding obligations of the Company and the
Parent Guarantor, enforceable against the Company and the Parent
Guarantor in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors'
rights generally and by general principles of equity.
D. Governmental Approval, Regulation, etc. No
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authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any
other Person is required for the due execution, delivery or
performance of this Amendment by the Company or the Parent
Guarantor.
E. Incorporation of Representations and Warranties
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from Credit Agreement. Each of the statements set forth in
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Section 7.2.1 of the Credit Agreement is true and correct.
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Section 4. Acknowledgement and Consent.
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The Company is a party to the Company Collateral
Documents, in each case as amended through the date hereof,
pursuant to which the Company has created Liens in favor of the
Agent on certain Collateral to secure the Obligations. The
Parent Guarantor is a party to the Parent Collateral Documents,
in each case as amended through the date hereof, pursuant to
which the Parent Guarantor has created Liens in favor of the
Agent on certain Collateral and pledged certain Collateral to the
Agent to secure the Obligations of the Parent Guarantor. Certain
Subsidiaries of the Company are parties to the Subsidiary
Guaranty and/or one or more of the Subsidiary Collateral
Documents, in each case as amended through the date hereof,
pursuant to which such Subsidiaries have (i) guarantied the
Obligations and/or (ii) created Liens in favor of the Agent on
certain Collateral. The Company, the Parent Guarantor and such
Subsidiaries are collectively referred to herein as the "Credit
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Support Parties", and the Company Collateral Documents, the
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Parent Collateral Documents, the Subsidiary Guaranty and the
Subsidiary Collateral Documents are collectively referred to
herein as the "Credit Support Documents".
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Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement as
amended by this Amendment and consents to the amendment of the
Credit Agreement effected as of the date hereof pursuant to this
Amendment.
Each Credit Support Party acknowledges and agrees that
any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect. Each
Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all
Collateral encumbered thereby will continue to guaranty or
secure, as the case may be, the payment and performance of all
obligations guaranteed or secured thereby, as the case may be.
Each Credit Support Party (other than the Company and
the Parent Guarantor) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this
Amendment, such Credit Support Party is not required by the terms
of the Credit Agreement or any other Loan Document to consent to
the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments
to the Credit Agreement.
Section 5. Miscellaneous.
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A. Reference to and Effect on the Credit Agreement
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and the Other Loan Documents.
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(1) On and after the Seventeenth Amendment
Effective Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and
confirmed.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
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BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO SUCH LAWS RELATING TO
CONFLICTS OF LAWS.
C. Headings. The various headings of this Amendment
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are inserted for convenience only and shall not affect the
meaning or interpretation of this Amendment or any provision
hereof.
D. Counterparts. This Amendment may be executed by
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the parties hereto in several counterparts and by the different
parties on separate counterparts, each of which shall be deemed
to be an original and all of which shall constitute together but
one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached
to the same document.
E. Severability. Any provision of this Amendment
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which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered as of the day and year first above
written.
KAISER ALUMINUM CORPORATION KAISER ALUMINUM & CHEMICAL
CORPORATION
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
BANK OF AMERICA, N.A. (successor to BANK OF AMERICA, N.A.
BankAmerica Business Credit, Inc.), (successor to BankAmerica
as Agent Business Credit, Inc.)
By: /s/Michael J. Jasaitis By: /s/Michael J. Jasaitis
Name: Michael J. Jasaitis Name: Michael J. Jasaitis
Its: Vice President Its: Vice President
BANK OF AMERICA, N.A. (formerly known THE CIT GROUP/BUSINESS
as Bank of America National Trust and CREDIT, INC.
Savings Association)
By: /s/Michael Balok By: /s/Grant Weiss
Name Printed: Michael Balok Name Printed: Grant Weiss
Its: Managing Director Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION HELLER FINANCIAL, INC.
(WESTERN)
By: /s/Kristine Metchikig By: /s/Richard J. Halston
Name Printed: Kristine Metchikig Name Printed: Richard J.
Halston
Its: Vice President Its: Assistant Vice President
LA SALLE BANK NATIONAL TRANSAMERICA BUSINESS CREDIT
ASSOCIATION (formerly known as CORPORATION
La Salle National Bank)
By: /s/Douglas C. Colleth By: /s/Robert L. Heinz
Name Printed: Douglas C. Colleth Name Printed: Robert L. Heinz
Its: First Vice President Its: Senior Vice President
ABN AMRO BANK N.V.
By: /s/Jeffrey A. French
Name Printed: Jeffrey A. French
Its: Senior Vice President
By: /s/Corinna Fong
Name Printed: Corinna Fong
Its: Credit Officer
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, KAISER ALUMINUM TECHNICAL
INC. SERVICES, INC.
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM
INTERNATIONAL, INC.
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
KAISER BAUXITE COMPANY KAISER EXPORT COMPANY
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
KAISER MICROMILL HOLDINGS, LLC KAISER SIERRA MICROMILLS,
LLC
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
KAISER TEXAS SIERRA MICROMILLS, KAISER TEXAS MICROMILL
LLC HOLDINGS, LLC
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer
KAISER BELLWOOD CORPORATION KAISER TRANSACTION CORP.
By: /s/Karen A. Twitchell By: /s/Karen A. Twitchell
Name Printed: Karen A. Twitchell Name Printed: Karen A.
Twitchell
Its: Treasurer Its: Treasurer