E x e c u t i o n C o p y
ELEVENTH AMENDMENT TO CREDIT AGREEMENT
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AND LIMITED WAIVERS
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THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED
WAIVERS (this "Amendment"), dated as of October 20, 1997 is by
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and between KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), KAISER ALUMINUM CORPORATION, a
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Delaware corporation (the "Parent Guarantor"), the various
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financial 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 BANKAMERICA
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BUSINESS CREDIT, INC., a Delaware corporation, as agent (in such
capacity, together with its successors and assigns in such
capacity, the "Agent") for the Lenders. Capitalized terms used,
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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, and the Tenth Amendment to Credit Agreement,
dated as of June 25, 1997 (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.
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A. Section 1.1 of the Credit Agreement is hereby
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amended by adding the following definitions in the appropriate
alphabetical order:
"'New Subordinated Debt' means Indebtedness of the
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Company or any of its Subsidiaries under the New
Subordinated Notes, the New Subordinated Indentures, or
any guaranty of such Indebtedness."
"'New Subordinated Debt Instruments' means the New
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Subordinated Notes, the New Subordinated Indentures,
and all other Instruments and agreements executed and
delivered by the Company or any of its Subsidiaries in
connection therewith."
"'New Subordinated Indentures' means one or more
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indentures between the Company, and AJI, KJC, KFC,
KAAC, KMH, KSM, Texas Holdings, Texas Sierra and Kaiser
Bellwood, as Subsidiary Guarantors, and the trustee
named therein, pursuant to which the New Subordinated
Notes will be issued, as amended, supplemented,
restated, or otherwise modified from time to time in
accordance with the terms of any such indenture and
this Agreement."
"'New Subordinated Notes' means the promissory notes in
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a principal amount not exceeding $450,000,000 issued by
the Company in one or more tranches pursuant to the New
Subordinated Indentures, as amended, supplemented,
restated, or otherwise modified from time to time in
accordance with the terms of the New Subordinated
Indentures and this Agreement and all other promissory
notes accepted from time to time in substitution
therefor or renewal thereof in accordance with the
terms of the New Subordinated Indentures and this
Agreement."
1.2 Amendments to Article VIII: Representations and
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Warranties.
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A. Effective as of the first date on which any New
Subordinated Debt shall be issued, Section 8.16 of the Credit
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Agreement is hereby amended by (i) adding the phrase "and the New
Subordinated Indentures" after the phrase "Subordinated
Indenture" each time it appears in clause (a) thereof and (ii)
adding the phrase "or New Subordinated Debt, as the case may be,"
after the phrase "Subordinated Debt" in clause (a) thereof.
1.3 Amendments to Article IX: Covenants.
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A. Section 9.1.1 of the Credit Agreement is hereby
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amended by (i) adding the phrase "or any New Subordinated Debt
Instrument" after the phrase "Subordinated Debt Instrument"
contained in clause (d)(ii)(A) thereof, and (ii) adding the
phrase "any New Subordinated Debt Instrument," after the phrase
"Subordinated Debt Instrument," each time it appears in clause
(h) thereof.
B. Section 9.1.10 of the Credit Agreement is hereby
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amended by (i) adding the phrase "the New Subordinated
Indentures," after the phrase "Subordinated Indenture," the first
time it appears in clause (b)(ii) thereof, (ii) adding the phrase
"any similar provision of the New Subordinated Indentures," after
the phrase "Section 5.12(c) of the Subordinated Indenture," in
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clause (b)(ii) thereof, (iii) adding the phrase "the New
Subordinated Indentures," after the phrase "Subordinated
Indenture," the first time it appears in clause (c)(i) thereof,
and (iv) adding the phrase "any similar provision of the New
Subordinated Indentures," after the phrase "Section 5.12(c) of
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the Subordinated Indenture," in clause (c)(i) thereof.
C. Section 9.2.2 of the Credit Agreement is hereby
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amended by amending clause (a)(iii) to read in its entirety as
follows:
"(iii) Indebtedness existing as of the Effective Date
which is identified in Item 4 ("Ongoing Indebtedness") of the
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Disclosure Schedule; provided, however, that if the Company shall
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redeem or retire any Subordinated Debt, then the aggregate
principal amount of Ongoing Indebtedness permitted by this clause
shall be reduced by an amount equal to the amount of such
Subordinated Debt redeemed or retired."
D. Section 9.2.2 of the Credit Agreement is hereby
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further amended by amending clause (b)(i) to read in its entirety
as follows:
"(i) Indebtedness of the Company in respect of (A) the
Senior Debt, (B) the New Senior Debt, provided that (1) the
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aggregate principal amount thereof does not exceed $200,000,000,
(2) such Indebtedness is unsecured, (3) such Indebtedness is
issued on or prior to February 1, 1997, (4) such Indebtedness
does not mature prior to February 15, 2002 and (5) the New Senior
Indenture is substantially in the form of the Senior Indenture,
(C) the Additional New Senior Debt, provided that (1) the
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aggregate principal amount thereof does not exceed $50,000,000,
(2) such Indebtedness is unsecured, (3) such Indebtedness is
issued on or prior to March 1, 1997, (4) such Indebtedness does
not mature prior to February 15, 2002 and (5) the Additional New
Senior Indentures are substantially in the form of the New Senior
Indenture, and (D) the New Subordinated Debt, provided that (1)
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the aggregate principal amount thereof does not exceed $450,000,000,
(2) such Indebtedness is unsecured, (3) such Indebtedness does not
mature prior to 2004, (4) the proceeds received by the Company from
the offering of the New Subordinated Debt, net of the reasonable
costs and expenses (including, without limitation, reasonable legal
fees and expenses) associated with the incurrence of the New Subordinated
Debt, shall be applied to redeem, retire, repurchase or defease
the Subordinated Notes, in whole or in part, including (without
limitation) the payment of premium (whether required or
voluntary), if any, with respect thereto, the payment of accrued
interest thereon, and the payment of the reasonable costs and
expenses (including, without limitation, reasonable legal fees
and expenses) associated with such redemption, retirement,
repurchase or defeasance, and (5) the subordination provisions of
the New Subordinated Indentures are substantially in the form of
the subordination provisions of the Subordinated Indenture with
such changes therein as may be approved by the Agent in its sole
discretion; and Contingent Obligations of AJI, KJC, KFC, KAAC,
KMH, KSM, Texas Holdings, Texas Sierra and Kaiser Bellwood, as a
`Subsidiary Guarantor' (under and as defined in the Senior
Indenture, the New Senior Indenture, the Additional New Senior
Indentures, the Subordinated Indenture and the New Subordinated
Indentures) in respect of the Senior Debt, the New Senior Debt,
the Additional New Senior Debt, the Subordinated Debt and the New
Subordinated Debt, respectively;"
E. Section 9.2.6 of the Credit Agreement is hereby
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amended by (i) adding the phrase "any New Subordinated Debt,"
after the phrase "Subordinated Debt," in clause (b)(iv) thereof,
and (ii) amending clause (b)(i) to read in its entirety as
follows:
"(i) make any payment or prepayment of principal
of, or any prepayment of interest on, any Subordinated
Debt or any New Subordinated Debt or make any payment
of interest on, or any payment in respect of, any
Subordinated Debt or any New Subordinated Debt which
would violate the subordination provisions of such
Subordinated Debt or New Subordinated Debt,
respectively;"
F. Section 9.2.11 of the Credit Agreement is hereby
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amended by adding the phrase "any similar provisions of the New
Subordinated Indentures," after the phrase "Section 5.12 of the
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Subordinated Indenture," in the paragraph following clause (m)
thereof.
G. Section 9.2.13 of the Credit Agreement is hereby
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amended by (i) adding the phrase "any New Subordinated Debt,"
after the phrase "Subordinated Debt," contained in clause (a)
thereof, (ii) adding the phrase "or the New Subordinated
Indentures" after the phrase "Subordinated Indenture" each time
it appears in clause (b) thereof, (iii) adding the phrase "New
Subordinated Debt," after the phrase "Subordinated Debt," each
time it appears in clause (c) thereof, (iv) adding the phrase
"New Subordinated Debt," after the phrase "Subordinated Debt,"
contained in clause (d) thereof, and (v) adding the phrase "to
deliver any certificate and opinion permitted to be given to the
trustee under any similar provisions of the New Subordinated
Indentures with respect to any `Subsidiary Guarantor' (under and
as defined in the New Subordinated Indentures)," after the phrase
"(under and as defined in the Subordinated Indenture)," in clause
(e) thereof.
H. Section 9.2.15 of the Credit Agreement is hereby
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amended by adding the phrase ", the New Subordinated Indentures"
after the phrase "the Additional New Senior Indentures" contained
therein.
I. Section 9.2.19 of the Credit Agreement is hereby
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amended by adding the phrase ", the New Subordinated Debt
Instruments" after the phrase "the Additional New Senior Debt
Instruments" contained therein.
1.4 Amendments to Article X: Events of Default.
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A. Section 10.1.11 of the Credit Agreement is hereby
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amended by (i) adding the phrase "any New Subordinated Debt
Instrument," after the phrase "Subordinated Debt Instrument,"
contained therein and (ii) adding the phrase "any New
Subordinated Debt," after the phrase "Subordinated Debt,"
contained therein.
Section 2. Limited Waivers.
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1. In reliance on the representations and warranties of the
Company herein contained, Lenders hereby waive compliance with
the provisions of Section 9.2.14 of the Credit Agreement to the
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extent necessary to permit the payment by the Company to MAXXAM
of $11,438,000 plus interest from June 30, 1997, under the Tax
Allocation Agreement.
A. In reliance on the representations and warranties
of the Company herein contained, (i) Lenders hereby waive
compliance with the provisions of Section 9.2.6(b)(i), Section
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9.2.6(b)(iv), Section 9.2.13(d), and Section 10.1.11 of the
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Credit Agreement to the extent necessary to permit the
redemption, retirement, repurchase or defeasance by the Company
of the Subordinated Debt, in whole or in part, from time to time
and (ii) Lenders hereby waive compliance with the provisions of
Section 9.2.13(a) of the Credit Agreement to the extent necessary
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to permit any amendment, supplement or other modification to the
Subordinated Indenture approved by the Agent in its sole
discretion in connection with the redemption, retirement,
repurchase or defeasance by the Company of the Subordinated Debt,
in whole or in part, from time to time; provided, however, that
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the sum of (a) the aggregate principal amount of any Subordinated
Debt redeemed, retired, repurchased or defeased by the Company
pursuant to this waiver, plus (b) premium (whether required or
voluntary), if any, in respect of such redeemed,
retired, repurchased or defeased Subordinated Debt, shall not
exceed an amount equal to the sum of (1) the proceeds received by
the Company from the issuance of the New Subordinated Debt, net
of the reasonable costs and expenses (including, without
limitation, reasonable legal fees and expenses) associated with
the incurrence of the New Subordinated Debt, plus (2) the
proceeds of an offering or offerings by the Parent Guarantor of
securities of the Parent Guarantor consummated after the Eleventh
Amendment Effective Date and prior to December 31, 1998, net of
the reasonable costs and expenses (including, without limitation,
reasonable legal fees and expenses) associated therewith, loaned
to, contributed to, or used to purchase the stock of, the
Company.
Section 3. 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 "Eleventh 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, in
form and substance satisfactory to the Agent; and
(4) Such other information, approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 4. Company's Representations and 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 Eleventh 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 5. 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 6. Miscellaneous.
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A. Reference to and Effect on the Credit Agreement and the
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Other Loan Documents.
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(1) On and after the Eleventh 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
BANKAMERICA BUSINESS CREDIT, BANKAMERICA BUSINESS CREDIT,
INC., as Agent INC.
By: /s/ Michael Jasaitis By: /s/ Michael Jasaitis
Name: Michael J. Jasaitis Name: Michael J. Jasaitis
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL TRUST THE CIT GROUP/BUSINESS
AND SAVINGS ASSOCIATION CREDIT, INC.
By: /s/ James Johnson By: /s/ Timothy S. Culver
Name Printed: James P. Johnson Name Printed: Timothy S. Culver
Its: Managing Director Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION HELLER FINANCIAL, INC.
(WESTERN)
By: /s/ Kristine Metchikian By: /s/ Tara Hopkins
Name Printed: Kristine Metchikian Name Printed: Tara Hopkins
Its: Vice President Its: Assistant Vice President
LA SALLE NATIONAL BANK TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Douglas C. Colleth By: /s/ Thomas Fernandes
Name Printed: Douglas C. Colleth Name Printed: Thomas Fernandes
Its: First Vice President Its: Senior Account Executive
ABN AMRO BANK N.V.
San Francisco International Branch
by: ABN AMRO North America,
Inc., as agent
By: /s/ Bradford H. Leahy
Name Printed: Bradford H. Leahy
Its: Assistant Vice President
By: /s/ L. Osborne
Name Printed: L. T. Osborne
Its: Group Vice President
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
By:/s/ Karen A. Twitchell
Name Printed: Karen A. Twitchell
Its: Treasurer