- ---------------------------------------------------------------------------
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 JUNE 30, 1997
Commission file number 1-9447
KAISER ALUMINUM CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-3030279
(State of incorporation) (I.R.S. Employer Identification
No.)
5847 SAN FELIPE, SUITE 2600, HOUSTON, TEXAS 77057-3010
(Address of principal executive offices) (Zip Code)
(713) 267-3777
(Registrant's telephone number, including area code)
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
------ ------
At July 28, 1997, the registrant had 71,710,143 shares of Common Stock
outstanding.
- ---------------------------------------------------------------------------
KAISER ALUMINUM CORPORATION AND SUBSIDIARY COMPANIES
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
--------------------
CONSOLIDATED BALANCE SHEETS
(In millions of dollars)
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
------------------------------
<S> <C> <C>
ASSETS
(Unaudited)
Current assets:
Cash and cash equivalents $ 17.4 $ 81.3
Receivables 289.8 252.4
Inventories 564.5 562.2
Prepaid expenses and other current assets 133.0 127.8
------------------------------
Total current assets 1,004.7 1,023.7
Investments in and advances to unconsolidated affiliates 166.5 168.4
Property, plant, and equipment - net 1,161.1 1,168.7
Deferred income taxes 279.9 264.5
Other assets 356.8 308.7
------------------------------
Total $ 2,969.0 $ 2,934.0
==============================
LIABILITIES & STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 148.1 $ 189.7
Accrued interest 37.6 35.6
Accrued salaries, wages, and related expenses 82.2 95.4
Accrued postretirement medical benefit obligation -
current portion 50.1 50.1
Other accrued liabilities 119.5 132.7
Payable to affiliates 104.1 97.0
Long-term debt - current portion 5.8 8.9
------------------------------
Total current liabilities 547.4 609.4
Long-term liabilities 500.5 458.1
Accrued postretirement medical benefit obligation 717.8 722.5
Long-term debt 999.6 953.0
Minority interests 121.5 121.7
Commitments and contingencies
Stockholders' equity:
Preferred stock .4 .4
Common stock .7 .7
Additional capital 532.0 531.1
Accumulated deficit (448.1) (460.1)
Additional minimum pension liability (2.8) (2.8)
------------------------------
Total stockholders' equity 82.2 69.3
------------------------------
Total $ 2,969.0 $ 2,934.0
==============================
</TABLE>
The accompanying notes to interim consolidated financial statements are an
integral part of these statements.
KAISER ALUMINUM CORPORATION AND SUBSIDIARY COMPANIES
STATEMENTS OF CONSOLIDATED INCOME
(Unaudited)
(In millions of dollars, except share amounts)
<TABLE>
<CAPTION>
Quarter Ended Six Months Ended
June 30, June 30,
------------------------------ ------------------------------
1997 1996 1997 1996
------------------------------ ------------------------------
<S> <C> <C> <C> <C>
Net sales $ 597.1 $ 567.6 $ 1,144.5 $ 1,098.7
------------------------------ ------------------------------
Costs and expenses:
Cost of products sold 489.3 476.1 950.0 909.8
Depreciation 22.8 24.2 45.9 48.2
Selling, administrative, research and development, and
general 30.0 30.7 62.3 63.8
Restructuring of operations 19.7 19.7
------------------------------ ------------------------------
Total costs and expenses 561.8 531.0 1,077.9 1,021.8
------------------------------ ------------------------------
Operating income 35.3 36.6 66.6 76.9
Other income (expense):
Interest expense (28.1) (23.0) (55.8) (45.7)
Other - net (3.2) 1.2 (.4) .9
------------------------------ ------------------------------
Income before income taxes and minority interests 4.0 14.8 10.4 32.1
(Provision) benefit for income taxes 11.0 (5.6) 8.6 (12.2)
Minority interests (1.3) (1.0) (2.7) (1.8)
------------------------------ ------------------------------
Net income 13.7 8.2 16.3 18.1
Dividends on preferred stock (2.1) (2.1) (4.2) (4.2)
------------------------------ ------------------------------
Net income available to common shareholders $ 11.6 $ 6.1 $ 12.1 $ 13.9
============================== ==============================
Earnings per common and common equivalent share $ .16 $ .09 $ .17 $ .19
============================== ==============================
Weighted average common and common equivalent shares
outstanding (000) 71,837 71,855 71,829 71,876
============================== ==============================
</TABLE>
The accompanying notes to interim consolidated financial statements are an
integral part of these statements.
KAISER ALUMINUM CORPORATION AND SUBSIDIARY COMPANIES
STATEMENTS OF CONSOLIDATED CASH FLOWS
(Unaudited)
(In millions of dollars)<TABLE>
<CAPTION>
Six Months Ended
June 30,
------------------------------
1997 1996
------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 16.3 $ 18.1
Adjustments to reconcile net income to net cash used
for operating activities:
Depreciation 45.9 48.2
Restructuring of operations 19.7
Non-cash benefit for income taxes (12.5)
Amortization of excess investment over equity in
unconsolidated affiliates 5.8 5.8
Amortization of deferred financing costs and net
discount on long-term debt 3.0 2.7
Undistributed equity in (income) loss of
unconsolidated affiliates, net of
distributions 12.0 (7.9)
Minority interests 2.7 1.8
(Increase) decrease in receivables (47.7) 30.4
Increase in inventories (5.5) (33.0)
Increase in prepaid expenses and other assets (15.7) (31.2)
Decrease in accounts payable (41.6) (21.5)
Increase in accrued interest 2.0 .1
Decrease in payable to affiliates and accrued
liabilities (18.7) (20.1)
Decrease in accrued and deferred income taxes (6.6) (8.6)
Other (.9) 3.7
------------------------------
Net cash used for operating activities (41.8) (11.5)
------------------------------
Cash flows from investing activities:
Net proceeds from disposition of property and
investments 22.1 1.2
Additions to property, plant, and equipment (68.8) (51.9)
Redemption fund for minority interests' preference
stock (2.5) (1.3)
------------------------------
Net cash used for investing activities (49.2) (52.0)
------------------------------
Cash flows from financing activities:
Borrowings under revolving credit facility, net 30.0 67.3
Borrowings of long-term debt 19.0
Repayments of long-term debt (5.1) (5.6)
Increase in restricted cash, net (10.1)
Incurrence of financing costs (.5)
Dividends paid (4.2) (4.2)
Redemption of minority interests' preference stock (2.0) (5.1)
------------------------------
Net cash provided by financing activities 27.1 52.4
------------------------------
Net decrease in cash and cash equivalents during the period (63.9) (11.1)
Cash and cash equivalents at beginning of period 81.3 21.9
------------------------------
Cash and cash equivalents at end of period $ 17.4 $ 10.8
==============================
Supplemental disclosure of cash flow information:
Interest paid, net of capitalized interest $ 50.9 $ 42.9
Income taxes paid 9.1 17.4
Tax allocation payments to MAXXAM Inc. 1.1
</TABLE>
The accompanying notes to interim consolidated financial statements are an
integral part of these statements.
NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(In millions of dollars, except prices and per share amounts)
1. GENERAL
Kaiser Aluminum Corporation (the "Company") is a subsidiary of MAXXAM
Inc. ("MAXXAM"). MAXXAM and one of its wholly owned subsidiaries together
own approximately 62% of the Company's Common Stock, assuming the
conversion of each outstanding share of 8.255% PRIDES, Convertible
Preferred Stock (the "PRIDES"), into one share of the Company's Common
Stock, with the remaining approximately 38% publicly held. The Company
operates through its subsidiary, Kaiser Aluminum & Chemical Corporation
("KACC").
The foregoing unaudited interim consolidated financial statements have
been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q
and Article 10 of Regulation S-X as promulgated by the Securities and
Exchange Commission. Accordingly, these financial statements do not
include all of the disclosures required by generally accepted accounting
principles for complete financial statements. These unaudited interim
consolidated financial statements should be read in conjunction with the
audited consolidated financial statements for the year ended December 31,
1996. In the opinion of management, the unaudited interim consolidated
financial statements furnished herein include all adjustments, all of which
are of a normal recurring nature, necessary for a fair statement of the
results for the interim periods presented.
The preparation of financial statements in accordance with generally
accepted accounting principles requires the use of estimates and
assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities known to exist as of the
date the financial statements are published, and the reported amounts of
revenues and expenses during the reporting period. Uncertainties with
respect to such estimates and assumptions are inherent in the preparation
of the Company's consolidated financial statements; accordingly, it is
possible that the actual results could differ from these estimates and
assumptions, which could have a material effect on the reported amounts of
the Company's consolidated financial position and results of operations.
Operating results for the quarter ended June 30, 1997, are not
necessarily indicative of the results that may be expected for the year
ending December 31, 1997.
2. INVENTORIES
The classification of inventories is as follows:
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
------------------------------
<S> <C> <C>
Finished fabricated aluminum products $ 119.4 $ 113.5
Primary aluminum and work in process 189.8 200.3
Bauxite and alumina 125.7 110.2
Operating supplies and repair and maintenance parts 129.6 138.2
------------------------------
Total $ 564.5 $ 562.2
==============================
</TABLE>
Substantially all product inventories are stated at last-in, first-out
(LIFO) cost, not in excess of market. Replacement cost is not in excess of
LIFO cost.
3. SOLID WASTE DISPOSAL REVENUE BONDS
In March 1997, KACC entered into an agreement (the "Loan Agreement")
with the Industrial Development Corporation of Spokane County, Washington
(the "IDC") in connection with which the IDC issued $19.0 of 7.6% Solid
Waste Disposal Revenue Bonds due 2027 (the "Bonds") and loaned the proceeds
to KACC to finance the construction of certain qualifying expenditures at
its Mead smelter, which are part of the previously announced modernization
and expansion of Mead's carbon baking furnace. The net proceeds from the
sale of the Bonds of approximately $18.6 were deposited into a restricted
construction account (the balance of which is included in Other Assets) and
may be withdrawn from time to time by KACC, pursuant to the Loan Agreement
and Bond indenture. The Loan Agreement requires KACC to make payments on
the dates and in the amounts required to permit the IDC to satisfy all of
its payment obligations under the Bonds and related indenture.
4. EARNINGS PER COMMON AND COMMON EQUIVALENT SHARE
PRIMARY
Earnings per common and common equivalent share are computed by
deducting dividends on the PRIDES from net income in order to determine net
income available to common shareholders. This amount is then divided by
the weighted average number of common and common equivalent shares
outstanding during the period. The impact of the number of outstanding
stock options on the weighted average number of common and common
equivalent shares for the quarters and six month periods ended June 30,
1997, and 1996, was immaterial.
FULLY DILUTED
The PRIDES were excluded from the calculation of the weighted average
number of common and common equivalent shares outstanding for all periods
presented because they were antidilutive.
NEW ACCOUNTING PRONOUNCEMENT
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share"
("SFAS No. 128"). Under SFAS No. 128, primary earnings per share ("Primary
EPS") will be replaced by basic earnings per share ("Basic EPS"), and fully
diluted earnings per share ("Fully Diluted EPS") will be replaced with
diluted earnings per share ("Diluted EPS"). Basic EPS differs from Primary
EPS in that it only includes the weighted average impact of outstanding
shares of the Company's Common Stock (i.e., it excludes common stock
equivalents and the dilutive effect of options, etc.) Diluted EPS is
substantially similar to Fully Diluted EPS as previously reported. The
provisions of SFAS No. 128 will result in the retroactive restatement of
previously reported Primary EPS and Fully Diluted EPS figures, but SFAS No.
128 prohibits such restatement prior to December 31, 1997. Based on the
Company's computations, the adoption of SFAS No. 128 is not expected to
impact earnings per share amounts reported during the current quarter or
any recent prior period.
5. CONTINGENCIES
ENVIRONMENTAL CONTINGENCIES
The Company and KACC are subject to a number of environmental laws, to
fines or penalties assessed for alleged breaches of such environmental
laws, and to claims and litigation based upon such laws. KACC currently is
subject to a number of lawsuits under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the
Superfund Amendments Reauthorization Act of 1986 ("CERCLA"), and, along
with certain other entities, has been named as a potentially responsible
party for remedial costs at certain third-party sites listed on the
National Priorities List under CERCLA.
Based on the Company's evaluation of these and other environmental
matters, the Company has established environmental accruals primarily
related to potential solid waste disposal and soil and groundwater
remediation matters. At June 30, 1997, the balance of such accruals, which
are primarily included in Long-term liabilities, was $31.9. These
environmental accruals represent the Company's estimate of costs reasonably
expected to be incurred based on presently enacted laws and regulations,
currently available facts, existing technology, and the Company's
assessment of the likely remediation actions to be taken. The Company
expects that these remediation actions will be taken over the next several
years and estimates that annual expenditures to be charged to these
environmental accruals will be approximately $3.0 to $9.0 for the years
1997 through 2001 and an aggregate of approximately $6.0 thereafter.
As additional facts are developed and definitive remediation plans and
necessary regulatory approvals for implementation of remediation are
established or alternative technologies are developed, changes in these and
other factors may result in actual costs exceeding the current
environmental accruals. The Company believes that it is reasonably
possible that costs associated with these environmental matters may exceed
current accruals by amounts that could range, in the aggregate, up to an
estimated $23.0 and that, subject to further regulatory review and
approval, the factors upon which a substantial portion of this estimate is
based are expected to be resolved during 1997. While uncertainties are
inherent in the final outcome of these environmental matters, and it is
presently impossible to determine the actual costs that ultimately may be
incurred, management currently believes that the resolution of such
uncertainties should not have a material adverse effect on the Company's
consolidated financial position, results of operations, or liquidity.
ASBESTOS CONTINGENCIES
KACC is a defendant in a number of lawsuits, some of which involve
claims of multiple persons, in which the plaintiffs allege that certain of
their injuries were caused by, among other things, exposure to asbestos
during, and as a result of, their employment or association with KACC or
exposure to products containing asbestos produced or sold by KACC. The
lawsuits generally relate to products KACC has not manufactured for at
least 20 years. At June 30, 1997, the number of such claims pending was
approximately 74,300, as compared with 71,100 at December 31, 1996. In
1996, approximately 21,100 of such claims were received and 9,700 were
settled or dismissed. During the quarter and six months ended June 30,
1997, approximately 3,000 and 5,600 of such claims were received and 1,200
and 2,400 of such claims were settled or dismissed, respectively.
Based on past experience and reasonably anticipated future activity,
the Company has established an accrual for estimated asbestos-related costs
for claims filed and estimated to be filed through 2008. There are
inherent uncertainties involved in estimating asbestos-related costs, and
the Company's actual costs could exceed or be less than these estimates.
The Company's accrual was calculated based on the current and anticipated
number of asbestos-related claims, the prior timing and amounts of
asbestos-related payments, and the advice of Wharton Levin Ehrmantraut
Klein & Nash, P.A. with respect to the current state of the law related to
asbestos claims. Accordingly, an estimated asbestos-related cost accrual
of $157.3, before consideration of insurance recoveries, is included
primarily in Long-term liabilities at June 30, 1997. While the Company
does not presently believe there is a reasonable basis for estimating such
costs beyond 2008 and, accordingly, no accrual has been recorded for such
costs which may be incurred beyond 2008, there is a reasonable possibility
that such costs may continue beyond 2008, and such costs may be
substantial. The Company estimates that annual future cash payments in
connection with such litigation will be approximately $13.0 to $20.0 for
each of the years 1997 through 2001, and an aggregate of approximately
$81.0 thereafter.
The Company believes that KACC has insurance coverage available to
recover a substantial portion of its asbestos-related costs. Claims for
recovery from some of KACC's insurance carriers are currently subject to
pending litigation and other carriers have raised certain defenses, which
have resulted in delays in recovering costs from the insurance carriers.
The timing and amount of ultimate recoveries from these insurance carriers
are dependent upon the resolution of these disputes. The Company believes,
based on prior insurance-related recoveries in respect of asbestos-related
claims, existing insurance policies, and the advice of Thelen, Marrin,
Johnson & Bridges LLP with respect to applicable insurance coverage law
relating to the terms and conditions of those policies, that substantial
recoveries from the insurance carriers are probable. Accordingly, an
estimated aggregate insurance recovery of $131.8, determined on the same
basis as the asbestos-related cost accrual, is recorded primarily in Other
assets at June 30, 1997.
Management continues to monitor claims activity, the status of
lawsuits (including settlement initiatives), legislative progress, and
costs incurred in order to ascertain whether an adjustment to the existing
accruals should be made to the extent that historical experience may differ
significantly from the Company's underlying assumptions. While
uncertainties are inherent in the final outcome of these asbestos matters
and it is presently impossible to determine the actual costs that
ultimately may be incurred and insurance recoveries that will be received,
management currently believes that, based on the factors discussed in the
preceding paragraphs, the resolution of asbestos-related uncertainties and
the incurrence of asbestos-related costs net of related insurance
recoveries should not have a material adverse effect on the Company's
consolidated financial position, results of operations, or liquidity.
OTHER CONTINGENCIES
The Company and KACC are involved in various other claims, lawsuits,
and other proceedings relating to a wide variety of matters. While
uncertainties are inherent in the final outcome of such matters, and it is
presently impossible to determine the actual costs that ultimately may be
incurred, management currently believes that the resolution of such
uncertainties and the incurrence of such costs should not have a material
adverse effect on the Company's consolidated financial position, results of
operations, or liquidity.
See Note 8 of the Notes to Consolidated Financial Statements for the
year ended December 31, 1996.
6. DERIVATIVE FINANCIAL INSTRUMENTS AND RELATED HEDGING PROGRAMS
At June 30, 1997, the net unrealized loss, including unamortized net
option premiums, on KACC's position in aluminum forward sales and option
contracts, (based on an average price of $1,621 per ton* ($.74 per pound)
of primary aluminum), natural gas and fuel oil forward purchase and option
contracts, and forward foreign exchange contracts, was approximately $13.6.
ALUMINA AND ALUMINUM
The Company's earnings are sensitive to changes in the prices of
alumina, primary aluminum and fabricated aluminum products, and also depend
to a significant degree upon the volume and mix of all products sold.
Primary aluminum prices have historically been subject to significant
cyclical fluctuations. During the period January 1, 1993 through June 30,
1997, the Average Midwest United States transaction price for primary
aluminum has ranged from approximately $.50 to $1.00 per pound. Alumina
prices as well as fabricated aluminum product prices (which vary
considerably among products) are significantly influenced by changes in the
price of primary aluminum but generally lag behind primary aluminum price
changes by up to three months.
* All references to tons in this report refer to metric tons of 2,204.6 pounds.
From time to time in the ordinary course of business, KACC enters into
hedging transactions to provide price risk management in respect of the net
exposure of earnings resulting from (i) anticipated sales of alumina,
primary aluminum and fabricated aluminum products, less (ii) expected
purchases of certain items, such as aluminum scrap, rolling ingot, and
bauxite, whose prices fluctuate with the price of primary aluminum.
Forward sales contracts are used by KACC to effectively lock-in or fix the
price that KACC will receive for its shipments. KACC also uses option
contracts (i) to establish a minimum price for its product shipments, (ii)
to establish a "collar" or range of prices for KACC's anticipated sales,
and/or (iii) to permit KACC to realize possible upside price movements. As
of June 30, 1997, KACC had sold forward, at fixed prices, approximately
34,500, 93,600 and 24,000 tons of primary aluminum with respect to 1997,
1998 and 1999, respectively. As of June 30, 1997, KACC had also purchased
put options to establish a minimum price for approximately 91,100 and
52,000 tons of primary aluminum with respect to 1997 and 1998,
respectively, and had entered into option contracts that established a
price range for an additional 78,000, 231,600 and 124,500 tons for 1997,
1998 and 1999, respectively.
As of June 30, 1997, KACC had sold forward virtually all of the
alumina available to it in excess of its projected internal smelting
requirements for 1997, 1998 and 1999 at prices indexed to future prices of
primary aluminum.
ENERGY
KACC is exposed to energy price risk from fluctuating prices for fuel
oil and natural gas consumed in the production process. Accordingly, KACC
from time to time in the ordinary course of business enters into hedging
transactions with major suppliers of energy and energy related financial
instruments. As of June 30, 1997, KACC had a combination of fixed price
purchase and option contracts for the purchase of approximately 40,000
MMBtu of natural gas per day during the remainder of 1997, and for 25,000
MMBtu of natural gas per day for 1998. As of June 30, 1997, KACC also held
a combination of fixed price purchase and option contracts for an average
of 216,000, 222,000 and 25,000 barrels of fuel oil per month for 1997,
1998, and 1999, respectively.
FOREIGN CURRENCY
KACC enters into forward exchange contracts to hedge material cash
commitments to foreign subsidiaries or affiliates. At June 30, 1997, KACC
had net forward foreign exchange contracts totaling approximately $147.8
for the purchase of 192.0 Australian dollars from July 1997 through
December 1998, in respect of its commitments for 1997 and 1998 expenditures
denominated in Australian dollars. At June 30, 1997, KACC also held
options to purchase approximately 20.0 Australian dollars over the last
six months of 1997.
See Note 9 of the Notes to Consolidated Financial Statements for the
year ended December 31, 1996.
7. RESTRUCTURING OF OPERATIONS
The Company has previously disclosed that it set a goal of achieving
significant cost reductions and other profit improvements, with the full
effect planned to be realized in 1998. The initiative is based on the
Company's conclusion that the current level of performance of its existing
facilities and businesses will not achieve the level of profits the Company
considers satisfactory based upon historic long-term average prices for
primary aluminum and alumina. During the second quarter of 1997, the
Company recorded a $19.7 restructuring charge to reflect actions taken and
plans put in place to achieve the reduced production costs, decreased
corporate selling, general and administrative expenses, and enhanced
product mix intended to achieve this goal. The significant components of
the restructuring charge are enumerated below.
ERIE PLANT DISPOSITION
During the second quarter of 1997, the Company formed a joint venture
with a third party related to the assets and liabilities associated with
the wheel manufacturing operations at its Erie, Pennsylvania, fabrication
plant. The Credit Agreement was amended to provide for the formation of
the new entity. Management subsequently decided to close the remainder of
the Erie plant in order to consolidate its aluminum forgings operations at
two other facilities for increased efficiency. As a result of the joint
venture formation and plant closure, the Company recognized a net pre-tax
loss of approximately $1.4.
OTHER ASSET DISPOSITIONS
As a part of the Company's profit enhancement and cost reduction
initiative, management made decisions regarding product rationalization and
geographical optimization, which led management to decide to dispose of
certain assets which had nominal operating contribution. These strategic
decisions resulted in the Company recognizing a pre-tax charge for
approximately $15.6 associated with such asset dispositions.
EMPLOYEE AND OTHER COSTS
As a part of the Company's profit enhancement and cost reduction
initiative, management concluded that certain corporate and other staff
functions could be consolidated or eliminated resulting in a pre-tax charge
of approximately $2.7 for benefit and other costs.
8. COMPLETED ACQUISITION
During June 1997, Kaiser Bellwood Corporation, a newly formed, wholly
owned subsidiary of KACC, completed the acquisition of Reynolds Metals
Company's Bellwood, Virginia, extrusion plant and its existing inventories
for a total purchase price of $44.1, consisting of cash payments of $40.1
and the assumption of approximately $4.0 of employee related and other
liabilities. The purchase price is subject to certain post-closing
adjustments.
KACC's Credit Agreement was amended in June 1997, to provide
for the acquisition of the Bellwood facility. Additionally, upon
completion of the transaction, Kaiser Bellwood Corporation became a
subsidiary guarantor under the indentures in respect of KACC's 9-7/8%
Senior Notes due 2002, 10-7/8% Series B and Series D Senior Notes due 2006,
and 12-3/4% Senior Subordinated Notes due 2003.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS
---------------------
This section should be read in conjunction with the response to Item
1, Part I, of this Report.
This section contains statements which constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform
Act of 1995. These statements appear in a number of places in this section
(see, for example, "Profit Enhancement and Cost Reduction Initiative,"
"Results of Operations," and "Liquidity and Capital Resources"). Such
statements can be identified by the use of forward-looking terminology such
as "believes," "expects," "may," "estimates," "will," "should," "plans" or
"anticipates" or the negative thereof or other variations thereon or
comparable terminology, or by discussions of strategy. Readers are
cautioned that any such forward-looking statements are not guarantees of
future performance and involve significant risks and uncertainties, and
that actual results may vary materially from those in the forward-looking
statements as a result of various factors. These factors include the
effectiveness of management's strategies and decisions, general economic
and business conditions, developments in technology, new or modified
statutory or regulatory requirements, and changing prices and market
conditions. This section and the Company's Annual Report on Form 10-K for
the year ended December 31, 1996, each identify other factors that could
cause such differences. No assurance can be given that these are all of
the factors that could cause actual results to vary materially from the
forward-looking statements.
PROFIT ENHANCEMENT AND COST REDUCTION INITIATIVE
The Company has previously disclosed that it has set a goal of
achieving significant cost reductions and other profit improvements, with
the full effect planned to be realized in 1998. The initiative is based on
the Company's conclusion that the current level of performance of its
existing facilities and businesses will not achieve the level of profits
the Company considers satisfactory based upon historic long-term average
prices for primary aluminum and alumina. During the second quarter of
1997, the Company recorded a $19.7 million restructuring charge to reflect
actions taken and plans put in place to achieve the reduced production
costs, decreased corporate selling, general and administrative expenses,
and enhanced product mix intended to achieve this goal. The significant
components of the restructuring charge are discussed in Note 7 of the Notes
to Interim Consolidated Financial Statements.
RECENT EVENTS
During June 1997, Kaiser Bellwood Corporation, a newly formed, wholly
owned subsidiary of KACC, completed the acquisition of Reynolds Metals
Company's Bellwood, Virginia, extrusion plant and its existing inventories
for a total purchase price of $44.1 million, subject to certain post-closing
adjustments. See Note 8 of Notes to Interim Consolidated Financial
Statements.
RESULTS OF OPERATIONS
The table on the following page provides selected operational and
financial information on a consolidated basis with respect to the Company
for the quarters and six month periods ended June 30, 1997, and 1996. As
an integrated aluminum producer, the Company uses a portion of its bauxite,
alumina, and primary aluminum production for additional processing at
certain of its other facilities. Intracompany shipments and sales are
excluded from the information set forth on the following page.
Interim results are not necessarily indicative of those for a full
year.
SELECTED OPERATIONAL AND FINANCIAL INFORMATION
(Unaudited)
(In millions of dollars, except shipments and prices)
<TABLE>
<CAPTION>
Quarter Ended Six Months Ended
June 30, June 30,
------------------------------ ------------------------------
1997 1996 1997 1996
------------------------------ ------------------------------
<S> <C> <C> <C> <C>
Shipments: (1)
Alumina 492.3 431.9 877.8 908.1
Aluminum products:
Primary aluminum 82.0 100.0 160.5 174.8
Fabricated aluminum products 100.4 85.1 194.3 162.3
------------------------------ ------------------------------
Total aluminum products 182.4 185.1 354.8 337.1
============================== ==============================
Average realized sales price:
Alumina (per ton) $ 196 $ 207 $ 193 $ 208
Primary aluminum (per pound) .75 .69 .75 .71
Net sales:
Bauxite and alumina:
Alumina $ 96.5 $ 89.5 $ 169.7 $ 188.5
Other (2) (3) 26.5 27.0 53.1 51.4
------------------------------ ------------------------------
Total bauxite and alumina 123.0 116.5 222.8 239.9
------------------------------ ------------------------------
Aluminum processing:
Primary aluminum 135.3 153.1 264.5 272.2
Fabricated aluminum products 334.5 294.1 648.9 579.0
Other (3) 4.3 3.9 8.3 7.6
------------------------------ ------------------------------
Total aluminum processing 474.1 451.1 921.7 858.8
------------------------------ ------------------------------
Total net sales $ 597.1 $ 567.6 $ 1,144.5 $ 1,098.7
============================== ==============================
Operating income (loss):
Bauxite and alumina $ 7.5 $ 1.1 $ 6.0 $ 10.9
Aluminum processing (4) 46.2 50.2 97.5 98.7
Corporate (5) (18.4) (14.7) (36.9) (32.7)
------------------------------ ------------------------------
Total operating income $ 35.3 $ 36.6 $ 66.6 $ 76.9
============================== ==============================
Net income $ 13.7 $ 8.2 $ 16.3 $ 18.1
============================== ==============================
Capital expenditures:
Property, plant, and equipment $ 47.0 $ 31.9 $ 68.8 $ 51.9
============================== ==============================
<FN>
- ---------------------------------
(1) In thousands of metric tons.
(2) Includes net sales of bauxite.
(3) Includes the portion of net sales attributable to minority interests
in consolidated subsidiaries.
(4) Includes a pre-tax charge of $15.1 related to restructuring of
operations for both the quarter and six month period ended June 30,
1997.
(5) Includes a pre-tax charge of $4.6 related to restructuring of
operations for both the quarter and six month period ended June 30,
1997.
</TABLE>
OVERVIEW
The Company's operating results are sensitive to changes in prices of
alumina, primary aluminum, and fabricated aluminum products, and also
depend to a significant degree on the volume and mix of all products sold
and on KACC's hedging strategies. Primary aluminum prices have
historically been subject to significant cyclical fluctuations. Alumina
prices as well as fabricated aluminum product prices (which vary
considerably among products) are significantly influenced by changes in the
price of primary aluminum but generally lag behind primary aluminum price
changes by up to three months.
During the first half of 1996, the Average Midwest United States
transaction price ("AMT Price") for primary aluminum remained relatively
stable in the $.70 - $.75 per pound range. During the second half of the
year the AMT Price for primary aluminum fell, reaching a low of $.65 per
pound for October 1996, before recovering late in the year. During the
period 1993- June 30, 1997, the AMT Price for primary aluminum ranged from
approximately $.50 to $1.00 per pound. The AMT Price for primary aluminum
for the week ended July 25, 1997, was approximately $.78 per pound.
See Note 6 of the Notes to Interim Consolidated Financial Statements
for a discussion of KACC's hedging activities.
QUARTER AND SIX MONTHS ENDED JUNE 30, 1997, COMPARED TO QUARTER AND SIX
MONTHS ENDED JUNE 30, 1996
SUMMARY
The Company reported net income of $13.7 million, or $.16 per common
and common equivalent share, for the second quarter of 1997, compared to
net income of $8.2 million, or $.09 per common and common equivalent share,
for the same period of 1996. Net sales in the second quarter of 1997
totaled $597.1 million compared to $567.6 million in the second quarter of
1996.
For the six-month period ended June 30, 1997, net income was $16.3
million, or $.17 per common and common equivalent share compared to net
income of $18.1 million, or $.19 per common and common equivalent per share
for the six-month period ended June 30, 1996. Net sales for the six months
ended June 30, 1997, were $1,144.5 million compared to $1,098.7 million for
the first six months of 1996.
Results for the quarter and six month period ended June 30, 1997,
include the effect of certain non-recurring items including a $19.7 million
restructuring charge (discussed above), an approximate $12.5 million non-
cash tax benefit related to settlement of certain matters and a $5.8
million charge related to additional litigation reserves. Excluding these
items, net income for the quarter and six month period ended June 30, 1997,
would have been approximately $17.0 million and $19.6 million,
respectively, and earnings per common and common equivalent share for these
periods would have been approximately $.21 and $.22, respectively.
BAUXITE AND ALUMINA
Net sales of alumina increased by 8% for the quarter ended June 30,
1997, from the comparable period in the prior year, as a result of a 14%
increase in alumina shipments offset by a 5% decline in average prices
realized from the sale of alumina. Shipment volumes were up as compared to
the quarter ended June 30, 1996, primarily as a result of the timing of
shipments. For the six month period ended June 30, 1997, net segment sales
declined by 7%, from the comparable period in the prior year. This change
was due primarily to a 7% decrease in average realized prices between
periods and to a lesser extent due to a 3% reduction in shipments.
Segment operating income improved substantially on a quarter to
quarter basis but declined by 45% for the comparative six month periods.
On a quarterly basis, the improvement resulted primarily from improved
operating efficiencies and reduced raw material and energy prices. On a
year-to-date basis, however, these amounts were not sufficient to offset
the impact of both a reduction in average realized alumina prices as well
as alumina shipments.
ALUMINUM PROCESSING
Net sales of primary aluminum for the quarter ended June 30, 1997,
decreased by 12% from the comparable prior year period as a result of a 18%
decrease in shipments offset by an 8% increase in average realized prices.
The decrease in primary aluminum shipments between periods is the result of
the higher than usual shipments in the second quarter of 1996. Net sales
of fabricated aluminum products for the quarter ended June 30, 1997, were
up 14% as compared to the prior year period as a result of a 18% increase
in shipments offset by a 4% decrease in average realized prices. The
increase in fabricated aluminum product shipments over the second quarter
of 1996 was due to increased international sales of can sheet and increased
shipments of heat-treated products.
For the six month period ended June 30, 1997, net sales for the
aluminum processing segment increased by approximately 7% as a 12% increase
in fabricated aluminum product net sales more than offset a 3% decline in
net sales of primary aluminum. The increase in fabricated product net
sales, and offsetting decrease in primary aluminum net sales, resulted from
the same shipment and price factors discussed in the preceding paragraph.
In addition to being affected by the price and volume factors
discussed above, the Aluminum Processing segment's operating income also
benefited from reduced power, raw material and supply costs as well as
improved operating efficiencies. In addition, the segment's operating
income for the quarter and six month period ended June 30, 1997, includes
approximately $2.3 million and $5.2 million of operating income realized
during the periods, related to the settlement of certain energy service
contracts and a $15.1 million charge resulting from the previously
discussed restructuring of operations.
CORPORATE
Corporate operating expenses represent corporate general and
administrative expenses, which are not allocated to the Company's business
segments. Operating results for the quarter and six month period ended
June 30, 1997, both include a pre-tax charge of approximately $4.6 million
associated with the Company's restructuring of operations.
LIQUIDITY AND CAPITAL RESOURCES
CAPITAL STRUCTURE
MAXXAM Inc. ("MAXXAM") and MAXXAM Group Holdings Inc. ("MGHI"), a
wholly owned subsidiary of MAXXAM, collectively own approximately 62% of
the Company's Common Stock, par value $.01 per share, assuming the
conversion of each outstanding share of the Company's 8.255% PRIDES,
Convertible Preferred Stock (the "PRIDES") into one share of the Company's
Common Stock. The remaining approximately 38% of the Company's Common
Stock is publicly held.
MGHI has pledged 27,938,250 shares of the Company's Common Stock
beneficially owned by it (the "Pledged Shares") as security for $225.7
million of debt securities of one of its wholly owned subsidiaries.
Additionally, MGHI has agreed to pledge up to 16,055,000 of such Pledged
Shares as security for $130.0 million of its debt securities should the
security pledge related to the $225.7 million of debt securities be
released due to an early retirement of the related debt (other than by a
refinancing).
The Company has an effective "shelf" registration statement covering
the offering of up to 10,000,000 shares of the Company's Common Stock that
are owned by MAXXAM. Any such offering would only be made by means of a
prospectus. The Company will not receive any of the net proceeds from any
transaction initiated by MAXXAM pursuant to this registration statement.
The Company also has an effective shelf registration statement
covering the offering from time to time of up to $150.0 million of equity
securities. Any such offering will only be made by means of a prospectus.
On December 31, 1997, unless either previously redeemed by the Company
or converted at the option of the holder, each of the outstanding shares of
PRIDES will mandatorily convert into one share of the Company's Common
Stock, subject to adjustment in certain events.
The Credit Agreement does not permit the Company or KACC to pay any
dividends on their Common stock. The declaration and payment of dividends
by the Company with respect to the outstanding PRIDES is expressly
permitted by the terms of the Credit Agreement to the extent the Company
receives payments on certain intercompany notes or certain other permitted
distributions from KACC.
OPERATING ACTIVITIES
At June 30, 1997, the Company had working capital of $457.3 million,
compared with working capital of $414.3 million at December 31, 1996. The
increase in working capital was due primarily to an increase in Receivables
and a decrease in Accounts payable partially offset by a decrease in Cash
and cash equivalents.
INVESTING ACTIVITIES
Capital expenditures during the quarter and six months ended June 30,
1997, were $47.0 million and $68.8 million, respectively, and were used
primarily to acquire the Bellwood extrusion facility from Reynolds, improve
production efficiency, reduce operating costs, expand capacity at existing
facilities, and construct new facilities. The Company's first
Micromill(TM) facility, which was constructed in Nevada during 1996 as a
demonstration and production facility, achieved operational start-up by
year-end 1996. The facility remained in a start-up mode during the first
half of 1997 and is currently expected to commence limited product
shipments to customers in the latter part of the year.
Total consolidated capital expenditures (of which approximately 7% is
expected to be funded by the Company's minority partners in certain foreign
joint ventures) are expected to be between $70.0 and $140.0 million per
annum in each of 1997 through 1999. Management continues to evaluate
numerous projects all of which require substantial capital, including the
Company's Micromill(TM) project, and other potential opportunities both in
the United States and overseas.
Kaiser Yellow River Investment Limited ("KYRIL"), a subsidiary of the
Company, is a participant in Yellow River Aluminum Industry Company
Limited, a Sino-foreign joint equity enterprise (the "Joint Venture")
organized under the laws of the People's Republic of China ("PRC") along
with the Lanzhou Aluminum Smelters ("LAS") of the China National Nonferrous
Metals Industry Corporation ( the "CNNC"). The parties to the Joint
Venture are currently engaged in discussions concerning the future of the
Joint Venture. In a June 1997 meeting, representatives of the Company and
the CNNC agreed to extend the Joint Venture termination date from June 30,
1997 to March 31, 1998. Negotiations between KYRIL, LAS and the CNNC
continue to focus on a sale of KYRIL's interests to a third party or LAS
and/or the CNNC making a payment to KYRIL in return for its existing
interests in the Joint Venture. However, no agreement has been reached
concerning the amount of or terms for any such payments. Governmental
approval in the PRC will be necessary in order to implement any
arrangements agreed to by the parties, and there can be no assurance such
approval will be obtained.
FINANCING ACTIVITIES AND LIQUIDITY
At June 30, 1997, the Company had long-term debt of $1,005.4 million,
compared with $961.9 million at December 31, 1996. The change in long-term
debt between periods is primarily the result of $30.0 million of borrowings
under the Credit Agreement and $19.0 million of proceeds from the Spokane
County, Washington, Solid Waste Disposal Revenue Bonds which were loaned to
KACC to finance certain qualifying capital expenditures at its Mead
smelter.
At June 30, 1997, $243.8 million (of which $73.8 million could have
been used for letters of credit) was available to KACC under the Credit
Agreement. Loans under the Credit Agreement bear interest at a spread
(which varies based on the results of a financial test) over either a base
rate or LIBOR at the Company's option. During the quarter and six month
period ended June 30, 1997, the average per annum interest rates on loans
outstanding under the Credit Agreement were approximately 9.5% and 9.6%,
respectively.
During the quarter ended June 30, 1997, the Credit Agreement was
amended to provide for the formation of the wheel manufacturing joint
venture and the acquisition of the Bellwood facility. Additionally, upon
completion of the acquisition of the Bellwood facility, Kaiser Bellwood
Corporation became a subsidiary guarantor under the indentures in respect
of KACC's 9-7/8% Senior Notes due 2002, 10-7/8% Series B and Series D
Senior Notes due 2006, and 12-3/4% Senior Subordinated Notes due 2003.
Management believes that the Company's existing cash resources,
together with cash flows from operations and borrowings under the Credit
Agreement, will be sufficient to meet its working capital and capital
expenditure requirements for the next year. Additionally, with respect to
long-term liquidity, management believes that operating cash flow, together
with the ability to obtain both short and long-term financing, should
provide sufficient funds to meet the Company's working capital and capital
expenditure requirements.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
-----------------
CATELLUS DEVELOPMENT CORPORATION V. KAISER ALUMINUM & CHEMICAL CORPORATION
AND JAMES L FERRY & SON INC.
On July 28, 1997, KACC and Catellus Development Corporation
("Catellus") entered into a settlement agreement and release settling all
matters pending between the parties in the United States Court of Appeals
for the Ninth Circuit. All matters relating to the litigation have now
been resolved. KACC will remain liable to the City of Richmond for fifty
percent (50%) of future costs of cleaning up certain parts of the property
formerly owned by Catellus in accordance with the final judgement issued by
the United States District Court. KACC's share of these costs is expected
to be less than $500,000. See Part I, Item 3. "LEGAL PROCEEDINGS -
Catellus Development Corporation v. Kaiser Aluminum & Chemical Corporation
and James L Ferry & Son Inc." in the Company's Form 10-K for the year ended
December 31, 1996.
ASBESTOS-RELATED LITIGATION
KACC is a defendant in a number of lawsuits, some of which involve
claims of multiple persons, in which the plaintiffs allege that certain of
their injuries were caused by, among other things, exposure to asbestos
during, and as a result of, their employment or association with KACC or
exposure to products containing asbestos produced or sold by KACC. The
portion of Note 5 of the Notes to Interim Consolidated Financial Statements
contained in this report under the heading "Asbestos Contingencies" is
incorporated herein by reference. See Part I, Item 3. "LEGAL PROCEEDINGS -
Asbestos-related Litigation" in the Company's Form 10-K for the year ended
December 31, 1996.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
---------------------------------------------------
The annual meeting of stockholders of the Company was held on May 22,
1997, at which meeting the stockholders voted to elect management's slate
of nominees as directors of the Company and approved the Kaiser 1997
Omnibus Stock Incentive Plan.
The results of the matters voted on at the meeting are shown below.
NOMINEES FOR DIRECTOR
The nominees for election as directors of the Company are listed
below, together with the number of votes cast for, against, and withheld
with respect to each such nominee, as well as the number of abstentions and
broker nonvotes with respect to each such nominee:
Robert J. Cruikshank
Votes For: 72,115,783.6
Votes Against:
Votes Withheld: 288,496.6
Abstentions:
Broker Nonvotes:
George T. Haymaker, Jr.
Votes For: 72,120,441.0
Votes Against:
Votes Withheld: 283,838.2
Abstentions:
Broker Nonvotes:
Charles E. Hurwitz
Votes For: 72,117,337.0
Votes Against:
Votes Withheld: 286,942.2
Abstentions:
Broker Nonvotes:
Ezra G. Levin
Votes For: 72,107,306.6
Votes Against:
Votes Withheld: 296,972.6
Abstentions:
Broker Nonvotes:
Robert Marcus
Votes For: 72,117,821.6
Votes Against:
Votes Withheld: 286,457.6
Abstentions:
Broker Nonvotes:
Robert J. Petris
Votes For: 72,108,863.6
Votes Against:
Votes Withheld: 295,415.6
Abstentions:
Broker Nonvotes:
KAISER 1997 OMNIBUS STOCK INCENTIVE PLAN
The vote with respect to the proposal to approve the Kaiser 1997
Omnibus Stock Incentive Plan was as follows:
Votes For: 62,106,584.8
Votes Against: 5,262,937.8
Votes Withheld:
Abstentions: 91,860.2
Broker Nonvotes
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
--------------------------------
(a) Exhibits.
Exhibit No. Exhibit
----------- -------
3.1 Restated Certificate of Incorporation of Kaiser Aluminum
Corporation (the "Company" or "KAC"), dated February 21, 1991
(incorporated by reference to Exhibit 3.1 to Amendment No. 2 to
the Registration Statement on Form S-1, dated June 11, 1991,
filed by KAC, Registration No. 33-37895).
3.2 Certificate of Retirement of KAC, dated October 24, 1995
(incorporated by reference to Exhibit 3.2 to the Report on Form
10-K for the period ended December 31, 1995, filed by KAC, File
No. 1-9447).
*3.3 Amended and Restated Bylaws of KAC, dated July 22, 1997.
*4.1 Third Supplemental Indenture, dated as of July 15, 1997, among
Kaiser Aluminum & Chemical Corporation ("KACC"), as Issuer,
Kaiser Alumina Australia Corporation, Alpart Jamaica Inc., Kaiser
Jamaica Corporation, Kaiser Finance Corporation, Kaiser Micromill
Holdings, LLC, Kaiser Sierra Micromills, LLC, Kaiser Texas Sierra
Micromills, LLC, Kaiser Texas Micromill Holdings, LLC, and Kaiser
Bellwood Corporation, as Subsidiary Guarantors, and State Street
Bank and Trust Company, as Trustee, to the Indenture, dated as of
February 1, 1993, regarding KACC's 12-3/4% Senior Subordinated
Notes due 2003.
*4.2 Second Supplemental Indenture, dated as of July 15, 1997, among
KACC, as Issuer, Kaiser Alumina Australia Corporation, Alpart
Jamaica Inc., Kaiser Jamaica Corporation, Kaiser Finance
Corporation, Kaiser Micromill Holdings, LLC, Kaiser Sierra
Micromills, LLC, Kaiser Texas Sierra Micromills, LLC, Kaiser
Texas Micromill Holdings, LLC, and Kaiser Bellwood Corporation,
as Subsidiary Guarantors, and First Trust National Association,
as Trustee, to the Indenture, dated as of February 17, 1994,
regarding KACC's 9-7/8% Senior Notes due 2002.
*4.3 First Supplemental Indenture, dated as of July 15, 1997, among
KACC, as Issuer, Kaiser Alumina Australia Corporation, Alpart
Jamaica Inc., Kaiser Jamaica Corporation, Kaiser Finance
Corporation, Kaiser Micromill Holdings, LLC, Kaiser Sierra
Micromills, LLC, Kaiser Texas Micromill Holdings, LLC, Kaiser
Texas Sierra Micromills, LLC, and Kaiser Bellwood Corporation, as
Subsidiary Guarantors, and First Trust National Association, as
Trustee, to the Indenture, dated as of October 23, 1996,
regarding KACC's 10-7/8% Series B Senior Notes due 2006.
*4.4 First Supplemental Indenture, dated as of July 15, 1997, among
KACC, as Issuer, Kaiser Alumina Australia Corporation, Alpart
Jamaica Inc., Kaiser Jamaica Corporation, Kaiser Finance
Corporation, Kaiser Micromill Holdings, LLC, Kaiser Sierra
Micromills, LLC, Kaiser Texas Micromill Holdings, LLC, Kaiser
Texas Sierra Micromills, LLC, and Kaiser Bellwood Corporation, as
Subsidiary Guarantors, and First Trust National Association, as
Trustee, to the Indenture, dated as of December 23, 1996,
regarding KACC's 10-7/8% Series D Senior Notes due 2006.
*4.5 Ninth Amendment to the Credit Agreement, dated as of April 21,
1997, amending the Credit Agreement, dated as of February 15,
1994, as amended, among KACC, KAC, the financial institutions a
party thereto, and BankAmerica Business Credit, Inc., as Agent.
*4.6 Tenth Amendment to the Credit Agreement, dated as of June 25,
1997, amending the Credit Agreement, dated as of February 15,
1994, as amended, among KACC, KAC, the financial institutions a
party thereto, and BankAmerica Business Credit, Inc., as Agent.
*27 Financial Data Schedule.
(b) Reports on Form 8-K.
No report on Form 8-K was filed by the Company during the quarter
ended June 30, 1997.
- ---------------
* Filed herewith
SIGNATURE
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, who have signed this report on
behalf of the registrant as the principal financial officer and principal
accounting officer of the registrant, respectively.
KAISER ALUMINUM CORPORATION
/s/ John T. La Duc
By: --------------------------
John T. La Duc
Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/Arthur S. Donaldson
By: --------------------------
Arthur S. Donaldson
Controller
(Principal Accounting Officer)
Dated: August 1, 1997<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated financial statements of the Company for the six months ended
June 30, 1997, and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000811596
<NAME> KAISER ALUMINUM CORPORATION
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 17
<SECURITIES> 0
<RECEIVABLES> 290
<ALLOWANCES> 5
<INVENTORY> 565
<CURRENT-ASSETS> 1,004
<PP&E> 1,161
<DEPRECIATION> 46
<TOTAL-ASSETS> 2,969
<CURRENT-LIABILITIES> 547
<BONDS> 1,000
0
0
<COMMON> 1
<OTHER-SE> 81
<TOTAL-LIABILITY-AND-EQUITY> 2,969
<SALES> 1,145
<TOTAL-REVENUES> 1,145
<CGS> 950
<TOTAL-COSTS> 950
<OTHER-EXPENSES> 108
<LOSS-PROVISION> 20
<INTEREST-EXPENSE> 56
<INCOME-PRETAX> 10
<INCOME-TAX> (9)
<INCOME-CONTINUING> 16
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 16
<EPS-PRIMARY> .17
<EPS-DILUTED> .17
</TABLE>
<PAGE>
- ---------------------------------------------------------------
KAISER ALUMINUM & CHEMICAL CORPORATION, as Issuer,
KAISER ALUMINA AUSTRALIA CORPORATION,
ALPART JAMAICA INC.,
KAISER JAMAICA CORPORATION,
KAISER FINANCE CORPORATION,
KAISER MICROMILL HOLDINGS, LLC,
KAISER SIERRA MICROMILLS, LLC,
KAISER TEXAS SIERRA MICROMILLS, LLC,
KAISER TEXAS MICROMILL HOLDINGS, LLC, and
KAISER BELLWOOD CORPORATION, as
Subsidiary Guarantors
and
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 15, 1997
to
INDENTURE
Dated As of October 23, 1996
10-7/8% Series B Senior Notes due 2006
- ---------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE, dated as of July 15,
1997, among KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), as Issuer, KAISER ALUMINA AUSTRALIA
CORPORATION, a Delaware corporation ("KAAC"), ALPART JAMAICA
INC., a Delaware corporation ("AJI"), KAISER JAMAICA CORPORATION,
a Delaware corporation ("KJC"), KAISER FINANCE CORPORATION, a
Delaware corporation ("Kaiser Finance"), KAISER MICROMILL
HOLDINGS, LLC, a Delaware limited liability company ("KMH"),
KAISER SIERRA MICROMILLS, LLC, a Delaware limited liability
company ("KSM"), KAISER TEXAS SIERRA MICROMILLS, LLC, a Texas
limited liability company ("Texas Sierra"), KAISER TEXAS
MICROMILL HOLDINGS, LLC, a Texas limited liability company
("Texas Holdings"), and KAISER BELLWOOD CORPORATION, a Delaware
corporation ("Kaiser Bellwood"), as Subsidiary Guarantors, and
First Trust National Association, a national banking association,
as Trustee (the "Trustee").
WHEREAS, the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and the Trustee executed
an Indenture, dated as of October 23, 1996 (the "Indenture"), in
respect of $175,000,000 aggregate principal amount of the
Company's 10-7/8% Series B Senior Notes due 2006 (the
"Securities"); and
WHEREAS, Section 4.12 of the Indenture requires, under
circumstances specified in Section 4.12, that the Company shall
cause certain Subsidiaries of the Company to execute and deliver
to the Trustee a supplemental indenture in form and substance
satisfactory to the Trustee pursuant to which such Subsidiaries
of the Company shall be named as additional Subsidiary
Guarantors; and
WHEREAS, all conditions and requirements necessary to
make this First Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and
fulfilled and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, in consideration of the above premises,
each party agrees, for the benefit of the other and for the equal
and ratable benefit of the Holders of the Securities, as follows:
ARTICLE I
AMENDMENTS
Section 1. The Company, KAAC, AJI, KJC, Kaiser
Finance, KMH, KSM, Texas Sierra, Texas Holdings, Kaiser Bellwood,
and the Trustee hereby amend the Indenture and agree that Kaiser
Bellwood shall be a Subsidiary Guarantor for all purposes under
the Indenture and the term "Subsidiary Guarantor" shall for all
purposes under the Indenture specifically include Kaiser
Bellwood.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1. Terms Defined. For all purposes of this
First Supplemental Indenture, except as otherwise defined or
unless the context otherwise requires, terms used in capitalized
form in this First Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture.
Section 2.2. Indenture. Except as amended hereby, the
Indenture and the Securities are in all respects ratified and
confirmed and all their terms shall remain in full force and
effect.
Section 2.3. Governing Law. This First Supplemental
Indenture shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of said state without
regard to the principles of the conflict of laws provisions
thereof.
Section 2.4. Successors and Assigns. All agreements
of the Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas
Sierra, Texas Holdings, and Kaiser Bellwood in this First
Supplemental Indenture and the Securities shall bind its
successors and assigns.
Section 2.5. Multiple Counterparts. This First
Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 2.6. Effectiveness. The provisions of this
First Supplemental Indenture shall become effective immediately
upon its execution and delivery by the Trustee in accordance with
the provisions of Article Ten of the Indenture.
Section 2.7. Trustee Disclaimer. The Trustee accepts
the amendment of the Indenture effected by this First
Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall
in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the
Indenture as hereby amended, and, without limiting the generality
of the foregoing, the Trustee shall not be responsible in any
manner whatsoever for or with respect to any of the recitals or
statements contained herein, all of which recitals or statements
are made solely by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
for or with respect to (i) the validity, efficacy or sufficiency
of this First Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by the
Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas Sierra,
Texas Holdings, and Kaiser Bellwood by corporate action or
limited liability company action or otherwise, (iii) the due
execution hereof by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
(iv) the consequences (direct or indirect and whether deliberate
or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, all as of the
date first written above.
KAISER ALUMINUM & CHEMICAL
CORPORATION, as Issuer
By: /s/ Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/ John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER ALUMINA AUSTRALIA
CORPORATION, as a Subsidiary
Guarantor
By: /s/ Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
ALPART JAMAICA INC.,
as a Subsidiary Guarantor
By:/s/ Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER JAMAICA CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER FINANCE CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/ John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER MICROMILL HOLDINGS,
LLC,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER SIERRA MICROMILLS, LLC,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS SIERRA
MICROMILLS, LLC, as a
Subsidiary Guarantor
By:/s/Karen A. Twitchell
--------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS MICROMILL
HOLDINGS, LLC, as a Subsidiary
Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER BELLWOOD CORPORATION,
as a Subsidiary Guarantor
By:/s/ Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By:/s/Kathe Barrett
------------------------
Name:Kathe Barrett
Title: Trust Officer
Dated: July 15, 1997
Attest: By:/s/Richard H. Prokosch
------------------
Name: Richard H.
Prokosch
Title: Assistant
Secretrary
- ---------------------------------------------------------------
KAISER ALUMINUM & CHEMICAL CORPORATION, as Issuer,
KAISER ALUMINA AUSTRALIA CORPORATION,
ALPART JAMAICA INC.,
KAISER JAMAICA CORPORATION,
KAISER FINANCE CORPORATION,
KAISER MICROMILL HOLDINGS, LLC,
KAISER SIERRA MICROMILLS, LLC,
KAISER TEXAS SIERRA MICROMILLS, LLC,
KAISER TEXAS MICROMILL HOLDINGS, LLC, and
KAISER BELLWOOD CORPORATION, as
Subsidiary Guarantors
and
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 15, 1997
to
INDENTURE
Dated As of December 23, 1996
10-7/8% Series D Senior Notes due 2006
- ---------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE, dated as of July 15,
1997, among KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), as Issuer, KAISER ALUMINA AUSTRALIA
CORPORATION, a Delaware corporation ("KAAC"), ALPART JAMAICA
INC., a Delaware corporation ("AJI"), KAISER JAMAICA CORPORATION,
a Delaware corporation ("KJC"), KAISER FINANCE CORPORATION, a
Delaware corporation ("Kaiser Finance"), KAISER MICROMILL
HOLDINGS, LLC, a Delaware limited liability company ("KMH"),
KAISER SIERRA MICROMILLS, LLC, a Delaware limited liability
company ("KSM"), KAISER TEXAS SIERRA MICROMILLS, LLC, a Texas
limited liability company ("Texas Sierra"), KAISER TEXAS
MICROMILL HOLDINGS, LLC, a Texas limited liability company
("Texas Holdings"), and KAISER BELLWOOD CORPORATION, a Delaware
corporation ("Kaiser Bellwood"), as Subsidiary Guarantors, and
First Trust National Association, a national banking association,
as Trustee (the "Trustee").
WHEREAS, the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and the Trustee executed
an Indenture, dated as of December 23, 1996 (the "Indenture"), in
respect of $50,000,000 aggregate principal amount of the
Company's 10-7/8% Series D Senior Notes due 2006 (the
"Securities"); and
WHEREAS, Section 4.12 of the Indenture requires, under
circumstances specified in Section 4.12, that the Company shall
cause certain Subsidiaries of the Company to execute and deliver
to the Trustee a supplemental indenture in form and substance
satisfactory to the Trustee pursuant to which such Subsidiaries
of the Company shall be named as additional Subsidiary
Guarantors; and
WHEREAS, all conditions and requirements necessary to
make this First Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and
fulfilled and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, in consideration of the above premises,
each party agrees, for the benefit of the other and for the equal
and ratable benefit of the Holders of the Securities, as follows:
ARTICLE I
AMENDMENTS
Section 1. The Company, KAAC, AJI, KJC, Kaiser
Finance, KMH, KSM, Texas Sierra, Texas Holdings, Kaiser Bellwood,
and the Trustee hereby amend the Indenture and agree that Kaiser
Bellwood shall be a Subsidiary Guarantor for all purposes under
the Indenture and the term "Subsidiary Guarantor" shall for all
purposes under the Indenture specifically include Kaiser
Bellwood.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1. Terms Defined. For all purposes of this
First Supplemental Indenture, except as otherwise defined or
unless the context otherwise requires, terms used in capitalized
form in this First Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture.
Section 2.2. Indenture. Except as amended hereby, the
Indenture and the Securities are in all respects ratified and
confirmed and all their terms shall remain in full force and
effect.
Section 2.3. Governing Law. This First Supplemental
Indenture shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of said state without
regard to the principles of the conflict of laws provisions
thereof.
Section 2.4. Successors and Assigns. All agreements
of the Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas
Sierra, Texas Holdings, and Kaiser Bellwood in this First
Supplemental Indenture and the Securities shall bind its
successors and assigns.
Section 2.5. Multiple Counterparts. This First
Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 2.6. Effectiveness. The provisions of this
First Supplemental Indenture shall become effective immediately
upon its execution and delivery by the Trustee in accordance with
the provisions of Article Ten of the Indenture.
Section 2.7. Trustee Disclaimer. The Trustee accepts
the amendment of the Indenture effected by this First
Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall
in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the
Indenture as hereby amended, and, without limiting the generality
of the foregoing, the Trustee shall not be responsible in any
manner whatsoever for or with respect to any of the recitals or
statements contained herein, all of which recitals or statements
are made solely by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
for or with respect to (i) the validity, efficacy or sufficiency
of this First Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by the
Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas Sierra,
Texas Holdings, and Kaiser Bellwood by corporate action or
limited liability company action or otherwise, (iii) the due
execution hereof by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
(iv) the consequences (direct or indirect and whether deliberate
or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, all as of the
date first written above.
KAISER ALUMINUM & CHEMICAL
CORPORATION, as Issuer
By:/s/Karen A. Twitchell
--------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER ALUMINA AUSTRALIA
CORPORATION, as a Subsidiary
Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
-----------------
Name: John Wm. Niemand II
Title: Secretary
ALPART JAMAICA INC.,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
---------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER JAMAICA CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
-----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER FINANCE CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
KAISER MICROMILL HOLDINGS,
LLC, as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
KAISER SIERRA MICROMILLS, LLC,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS SIERRA
MICROMILLS, LLC, as a
Subsidiary Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS MICROMILL
HOLDINGS, LLC, as a Subsidiary
Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER BELLWOOD CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By:/s/Kathe Barrett
--------------------------
Name: Kathe Barrett
Title:Trust Officer
Dated: July 15, 1997
Attest: By:/s/Richard H. Prokosch
------------------
Name:Richard H. Prokosch
Title: Assistant
Secretary
- ---------------------------------------------------------------
KAISER ALUMINUM & CHEMICAL CORPORATION, as Issuer,
KAISER ALUMINA AUSTRALIA CORPORATION,
ALPART JAMAICA INC.,
KAISER JAMAICA CORPORATION,
KAISER FINANCE CORPORATION,
KAISER MICROMILL HOLDINGS, LLC,
KAISER SIERRA MICROMILLS, LLC,
KAISER TEXAS SIERRA MICROMILLS, LLC,
KAISER TEXAS MICROMILL HOLDINGS, LLC, and
KAISER BELLWOOD CORPORATION, as
Subsidiary Guarantors
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of July 15, 1997
to
INDENTURE
Dated As of February 1, 1993
12-3/4% Senior Subordinated Notes due 2003
- ---------------------------------------------------------------
THIRD SUPPLEMENTAL INDENTURE, dated as of July 15,
1997, among KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), as Issuer, KAISER ALUMINA AUSTRALIA
CORPORATION, a Delaware corporation ("KAAC"), ALPART JAMAICA
INC., a Delaware corporation ("AJI"), KAISER JAMAICA CORPORATION,
a Delaware corporation ("KJC"), KAISER FINANCE CORPORATION, a
Delaware corporation ("Kaiser Finance"), KAISER MICROMILL
HOLDINGS, LLC, a Delaware limited liability company ("KMH"),
KAISER SIERRA MICROMILLS, LLC, a Delaware limited liability
company ("KSM"), KAISER TEXAS SIERRA MICROMILLS, LLC, a Texas
limited liability company ("Texas Sierra"), KAISER TEXAS
MICROMILL HOLDINGS, LLC, a Texas limited liability company
("Texas Holdings"), and KAISER BELLWOOD CORPORATION, a Delaware
corporation ("Kaiser Bellwood"), as Subsidiary Guarantors, and
State Street Bank and Trust Company (as successor to The First
National Bank of Boston), a Massachusetts trust company, as
Trustee (the "Trustee").
WHEREAS, the Company, KAAC, AJI, KJC and The First
National Bank of Boston executed an Indenture, dated as of
February 1, 1993 (the "Original Indenture"), in respect of
$400,000,000 aggregate principal amount of the Company's 12-3/4%
Senior Subordinated Notes due 2003 (the "Securities"), and the
Original Indenture was amended by a First Supplemental Indenture,
dated as of May 1, 1993, and by a Second Supplemental Indenture,
dated as of February 1, 1996 (the Original Indenture, as amended
by such First Supplemental Indenture and Second Supplemental
Indenture being hereinafter referred to as the "Indenture"); and
WHEREAS, State Street Bank and Trust Company is the
successor to The First National Bank of Boston, as Trustee under
the Indenture; and
WHEREAS, Section 5.12 of the Indenture requires, under
circumstances specified in Section 5.12, that the Company shall
cause certain Subsidiaries of the Company to execute and deliver
to the Trustee a supplemental indenture in form and substance
satisfactory to the Trustee pursuant to which such Subsidiaries
of the Company shall be named as additional Subsidiary
Guarantors; and
WHEREAS, all conditions and requirements necessary to
make this Third Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and
fulfilled and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, in consideration of the above premises,
each party agrees, for the benefit of the other and for the equal
and ratable benefit of the Holders of the Securities, as follows:
ARTICLE I
AMENDMENTS
Section 1. The Company, KAAC, AJI, KJC, Kaiser
Finance, KMH, KSM, Texas Sierra, Texas Holdings, Kaiser Bellwood,
and the Trustee hereby amend the Indenture and agree that Kaiser
Bellwood shall be a Subsidiary Guarantor for all purposes under
the Indenture and the term "Subsidiary Guarantor" shall for all
purposes under the Indenture specifically include Kaiser
Bellwood.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1. Terms Defined. For all purposes of this
Third Supplemental Indenture, except as otherwise defined or
unless the context otherwise requires, terms used in capitalized
form in this Third Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture.
Section 2.2. Indenture. Except as amended hereby, the
Indenture and the Securities are in all respects ratified and
confirmed and all their terms shall remain in full force and
effect.
Section 2.3. Governing Law. This Third Supplemental
Indenture shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of said state without
regard to the principles of the conflict of laws provisions
thereof.
Section 2.4. Successors and Assigns. All agreements
of the Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas
Sierra, Texas Holdings, and Kaiser Bellwood in this Third
Supplemental Indenture and the Securities shall bind its
successors and assigns.
Section 2.5. Multiple Counterparts. This Third
Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 2.6. Effectiveness. The provisions of this
Third Supplemental Indenture shall become effective immediately
upon its execution and delivery by the Trustee in accordance with
the provisions of Article Eleven of the Indenture.
Section 2.7. Trustee Disclaimer. The Trustee accepts
the amendment of the Indenture effected by this Third
Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall
in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the
Indenture as hereby amended, and, without limiting the
generality of the foregoing, the Trustee shall not be responsible
in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or
statements are made solely by the Company, KAAC, AJI, KJC, Kaiser
Finance, KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser
Bellwood, or for or with respect to (i) the validity, efficacy or
sufficiency of this Third Supplemental Indenture or any of the
terms or provisions hereof, (ii) the proper authorization hereof
by the Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas
Sierra, Texas Holdings, and Kaiser Bellwood by corporate action
or limited liability company action or otherwise, (iii) the due
execution hereof by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
(iv) the consequences (direct or indirect and whether deliberate
or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
[Remainder of Page Intentionally Blank]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Third Supplemental Indenture to be duly executed, all as of the
date first written above.
KAISER ALUMINUM & CHEMICAL
CORPORATION, as Issuer
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
-----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER ALUMINA AUSTRALIA
CORPORATION, as a Subsidiary
Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm.Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
ALPART JAMAICA INC.,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER JAMAICA CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
KAISER FINANCE CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER MICROMILL HOLDINGS,
LLC, as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER SIERRA MICROMILLS, LLC,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS SIERRA
MICROMILLS, LLC, as a
Subsidiary Guarantor
By:/s/Karen A. Twitchell
----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS MICROMILL
HOLDINGS, LLC, as a Subsidiary
Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
----------------
Name: John Wm. Niemand II
Title: Secretary
KAISER BELLWOOD CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Title: Treasurer
Dated: July 15, 1997
Attest: By:/s/John Wm. Niemand II
---------------
Name: John Wm. Niemand II
Title: Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:/s/James E. Mogavero
------------------------
Name: James E. Mogavero
Title:Assistant Vice
President
Dated: July 15, 1997
Attest: By:/s/ Christina Van Ryzin
-----------------------
Name:Christina Van Ryzin
Title: Assistant
Secretary
- ---------------------------------------------------------------
KAISER ALUMINUM & CHEMICAL CORPORATION, as Issuer,
KAISER ALUMINA AUSTRALIA CORPORATION,
ALPART JAMAICA INC.,
KAISER JAMAICA CORPORATION,
KAISER FINANCE CORPORATION,
KAISER MICROMILL HOLDINGS, LLC,
KAISER SIERRA MICROMILLS, LLC,
KAISER TEXAS SIERRA MICROMILLS, LLC,
KAISER TEXAS MICROMILL HOLDINGS, LLC, and
KAISER BELLWOOD CORPORATION, as
Subsidiary Guarantors
and
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 15, 1997
to
INDENTURE
Dated As of February 17, 1994
9-7/8% Senior Notes due 2002
- ---------------------------------------------------------------
SECOND SUPPLEMENTAL INDENTURE, dated as of July 15,
1997, among KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), as Issuer, KAISER ALUMINA AUSTRALIA
CORPORATION, a Delaware corporation ("KAAC"), ALPART JAMAICA
INC., a Delaware corporation ("AJI"), KAISER JAMAICA CORPORATION,
a Delaware corporation ("KJC"), KAISER FINANCE CORPORATION, a
Delaware corporation ("Kaiser Finance"), KAISER MICROMILL
HOLDINGS, LLC, a Delaware limited liability company ("KMH"),
KAISER SIERRA MICROMILLS, LLC, a Delaware limited liability
company ("KSM"), KAISER TEXAS SIERRA MICROMILLS, LLC, a Texas
limited liability company ("Texas Sierra"), KAISER TEXAS
MICROMILL HOLDINGS, LLC, a Texas limited liability company
("Texas Holdings"), and KAISER BELLWOOD CORPORATION, a Delaware
corporation ("Kaiser Bellwood"), as Subsidiary Guarantors, and
First Trust National Association, a national banking association,
as Trustee (the "Trustee").
WHEREAS, the Company, KAAC, AJI, KJC, Kaiser Finance,
and the Trustee executed an Indenture, dated as of February 17,
1994 (the "Original Indenture"), in respect of $225,000,000
aggregate principal amount of the Company's 9-7/8% Senior Notes
due 2002 (the "Securities"), and the Original Indenture was
amended by a First Supplemental Indenture, dated as of February
1, 1996 (the Original Indenture, as amended by such First
Supplemental Indenture being hereinafter referred to as the
"Indenture"); and
WHEREAS, Section 4.12 of the Indenture requires, under
circumstances specified in Section 4.12, that the Company shall
cause certain Subsidiaries of the Company to execute and deliver
to the Trustee a supplemental indenture in form and substance
satisfactory to the Trustee pursuant to which such Subsidiaries
of the Company shall be named as additional Subsidiary
Guarantors; and
WHEREAS, all conditions and requirements necessary to
make this Second Supplemental Indenture a valid, binding and
legal instrument in accordance with its terms have been performed
and fulfilled and the execution and delivery hereof have been in
all respects duly authorized;
NOW, THEREFORE, in consideration of the above premises,
each party agrees, for the benefit of the other and for the equal
and ratable benefit of the Holders of the Securities, as follows:
ARTICLE I
AMENDMENTS
Section 1. The Company, KAAC, AJI, KJC, Kaiser
Finance, KMH, KSM, Texas Sierra, Texas Holdings, Kaiser Bellwood,
and the Trustee hereby amend the Indenture and agree that Kaiser
Bellwood shall be a Subsidiary Guarantor for all purposes under
the Indenture and the term "Subsidiary Guarantor" shall for all
purposes under the Indenture specifically include Kaiser
Bellwood.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1. Terms Defined. For all purposes of this
Second Supplemental Indenture, except as otherwise defined or
unless the context otherwise requires, terms used in capitalized
form in this Second Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture.
Section 2.2. Indenture. Except as amended hereby, the
Indenture and the Securities are in all respects ratified and
confirmed and all their terms shall remain in full force and
effect.
Section 2.3. Governing Law. This Second Supplemental
Indenture shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of said state without
regard to the principles of the conflict of laws provisions
thereof.
Section 2.4. Successors and Assigns. All agreements
of the Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas
Sierra, Texas Holdings, and Kaiser Bellwood in this Second
Supplemental Indenture and the Securities shall bind its
successors and assigns.
Section 2.5. Multiple Counterparts. This Second
Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 2.6. Effectiveness. The provisions of this
Second Supplemental Indenture shall become effective immediately
upon its execution and delivery by the Trustee in accordance with
the provisions of Article Ten of the Indenture.
Section 2.7. Trustee Disclaimer. The Trustee accepts
the amendment of the Indenture effected by this Second
Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall
in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the
Indenture as hereby amended, and, without limiting the generality
of the foregoing, the Trustee shall not be responsible in any
manner whatsoever for or with respect to any of the recitals or
statements contained herein, all of which recitals or statements
are made solely by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
for or with respect to (i) the validity, efficacy or sufficiency
of this Second Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by the
Company, KAAC, AJI, KJC, Kaiser Finance, KMH, KSM, Texas Sierra,
Texas Holdings, and Kaiser Bellwood by corporate action or
limited liability company action or otherwise, (iii) the due
execution hereof by the Company, KAAC, AJI, KJC, Kaiser Finance,
KMH, KSM, Texas Sierra, Texas Holdings, and Kaiser Bellwood, or
(iv) the consequences (direct or indirect and whether deliberate
or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed, all as of the
date first written above.
KAISER ALUMINUM & CHEMICAL
CORPORATION, as Issuer
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
--------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER ALUMINA AUSTRALIA
CORPORATION, as a
Subsidiary Guarantor
By:/s/Karen A. Twitchell
---------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
--------------------
Name: John Wm. Niemand II
Title: Secretary
ALPART JAMAICA INC.,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
-------------------
Name: John Wm. Niemand II
Title: Secretary
SIGNATURES
KAISER JAMAICA CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
---------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER FINANCE CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
--------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER MICROMILL HOLDINGS,
LLC, as a Subsidiary
Guarantor
By:/s/Karen A. Twitchell
-----------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
----------------------
Name: John Wm. Niemand II
Title: Secretary
SIGNATURES
KAISER SIERRA MICROMILLS, LLC,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
-------------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
----------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS SIERRA
MICROMILLS, LLC, as a
Subsidiary Guarantor
By:/s/Karen A. Twitchell
----------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
--------------------
Name: John Wm. Niemand II
Title: Secretary
KAISER TEXAS MICROMILL
HOLDINGS, LLC, as a
Subsidiary Guarantor
By:/s/Karen A. Twitchell
----------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
---------------------
Name: John Wm. Niemand II
Title: Secretary
SIGNATURES
KAISER BELLWOOD CORPORATION,
as a Subsidiary Guarantor
By:/s/Karen A. Twitchell
------------------------
Name: Karen A. Twitchell
Dated: July 15, 1997 Title: Treasurer
Attest: By:/s/John Wm. Niemand II
---------------------
Name: John Wm. Niemand II
Title: Secretary
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
By:/s/Richard H. Prokosch
-----------------------
Name:Richard H. Prokosch
Dated: July 15, 1997
Title: Trust Officer
Attest: By:/s/Kathe Barrett
----------------------
Name: Kathe Barrett
Title: Assistant Secretary
EXECUTION COPY
TENTH AMENDMENT TO CREDIT AGREEMENT AND ASSIGNMENT
--------------------------------------------------
THIS TENTH AMENDMENT TO CREDIT AGREEMENT AND ASSIGNMENT
(this "Amendment"), dated as of June 25, 1997, is by and among
---------
KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation
(the "Company"), KAISER ALUMINUM CORPORATION, a Delaware
-------
corporation (the "Parent Guarantor"), the various 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
------- -------
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,
-----
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, and the Ninth
Amendment to Credit Agreement, dated as of April 21, 1997 (the
"Credit Agreement");
----------------
WHEREAS, National Westminster Bank, PLC, a Lender (the
"Assigning Lender"), wishes to assign to the Lenders its
----------------
outstanding Credit Extensions and Commitments under the Credit
Agreement as of the date hereof; and
WHEREAS, the Company has requested that Lenders amend
certain provisions of the Credit Agreement in order to permit,
among other things, the acquisition by a Subsidiary of the
Company of the Bellwood extrusion plant and related assets;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
------------------------------
A. Amendments to Article I: Definitions.
-------------------------------------
1. Section 1.1 of the Credit Agreement is hereby
------------
amended by adding the following definition in the appropriate
alphabetical order:
"Kaiser Bellwood" means Kaiser Bellwood Corporation, a
----------------
corporation organized under the laws of Delaware."
2. The definition of "Borrowing Base" contained in
---------------
Section 1.1 of the Credit Agreement is hereby amended by (i)
- -----------
adding the phrase ", Kaiser Bellwood" after the word "Company"
the first time it appears in clause (c) thereof; and (ii) adding
----------
the phrase "and Kaiser Bellwood" after the word "Company" each
time it appears in clause (ii) of the first proviso contained
------------
therein and in the second proviso contained therein.
3. The definition of "Eligible Account" contained in
-----------------
Section 1.1 of the Credit Agreement is hereby amended by (i)
- -----------
adding the phrase ", Kaiser Bellwood" after the word "Company"
the first time it appears therein, in clause (a) thereof and in
----------
clauses (g), (i), (n) and (t) thereof; (ii) adding the phrase ",
- ------- ---- ---- --- ----
Kaiser Bellwood's" after the phrase "Company's" in clause (a)
----------
thereof; and (iii) adding the phrase "or Kaiser Bellwood" after
the word "Company" each time it appears in clause (c) thereof.
-----------
4. The definition of "Eligible Inventory" contained
-------------------
in Section 1.1 of the Credit Agreement is hereby amended by (i)
------------
adding the phrase "or Kaiser Bellwood" after the word "Company"
the first time it appears therein, in clause (b) thereof and in
----------
clause (d) thereof; and (ii) adding the phrase "or Kaiser
- ----------
Bellwood's" after the word "Company's" the first time it appears
therein and in clause (b) thereof.
----------
5. The definition of "Inventory" contained in Section
--------- --------
1.1 of the Credit Agreement is hereby amended by adding the
- ----
phrase "or Kaiser Bellwood's" after the word "Company's" therein.
6. The definition of "Product Swap" contained in
------------
Section 1.1 of the Credit Agreement is hereby amended by adding
- -----------
the phrase ", Kaiser Bellwood" after the word "Company" each time
it appears therein.
7. The definition of "Progress Billing" contained in
----------------
Section 1.1 of the Credit Agreement is hereby amended by adding
- -----------
the phrase ", Kaiser Bellwood" after the word "Company" therein.
8. The definition of "Tolling Inventory" contained in
------------------
Section 1.1 of the Credit Agreement is hereby amended by adding
- -----------
the phrase "or Kaiser Bellwood" after the word "Company" each
time it appears therein.
B. Amendments to Article II: Commitments and Borrowing
-----------------------------------------------------
Procedures.
- ----------
1. Section 2.1.4 of the Credit Agreement is hereby
--------------
amended by (i) adding the phrase ", Kaiser Bellwood" after the
word "Company" the second and fourth time it appears in the final
paragraph thereof; and (ii) adding the phrase "and Kaiser
Bellwood" after the word "Company" the third time it appears in
the final paragraph thereof.
C. Amendments to Article IX: Covenants.
------------------------------------
1. Section 9.1.5 of the Credit Agreement is hereby
-------------
amended by (i) adding the phrase "and Kaiser Bellwood" after the
word "KAII" in the second sentence of clause (a) thereof and the
second time it appears in clause (b) thereof; (ii) adding the
----------
phrase ", Kaiser Bellwood's" after the word "Company's" the
first, second, third, fourth, sixth and seventh times it appears
in clause (b) thereof; (iii) adding the phrase "Kaiser Bellwood,"
----------
after the phrase "Company," the second time it appears in clause
-------
(b) thereof; and (iv) adding the phrase ", Kaiser Bellwood" after
- ---
the word "Company" the fourth and fifth times it appears in
clause (b) thereof.
- ----------
2. Section 9.1.9 of the Credit Agreement is hereby
--------------
amended by (i) adding the phrase "and Kaiser Bellwood" after the
word "KAII" each time it appears therein and after the word
"Company" in the first clauses (d) and (e) thereof and the second
------------ ----
clause (c) thereof; and (ii) adding the phrase ", Kaiser
- ----------
Bellwood's" after the word "Company's" contained therein.
3. Clause (b)(i) of Section 9.2.2 of the Credit
------------- -------------
Agreement is hereby amended 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 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 and (C) the Additional New
Senior Debt, provided that (1) the 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 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 and
the Subordinated Indenture) in respect of the Senior Debt,
the New Senior Debt, the Additional New Senior Debt and the
Subordinated Debt, respectively;"
4. Section 9.2.2 of the Credit Agreement is hereby
-------------
amended by adding the phrase ", Kaiser Bellwood" after the term
"KJC" in clause (b)(xi) therein.
5. Section 9.2.2 of the Credit Agreement is hereby
-------------
further amended by adding the following to the end of clause
-------
(b)(xvii) thereof:
- ---------
"; and provided, further, that Indebtedness of Kaiser
--------- --------
Bellwood incurred pursuant to this Section 9.2.2(b)(xvii) shall
----------------------
not exceed $10,000,000 at any time outstanding and shall be
incurred solely for the purpose of making Capital Expenditures"
6. Clause (c) of Section 9.2.13 of the Credit
---------- --------------
Agreement is hereby amended by adding the phrase "Kaiser
Bellwood," after the phrase "Texas Sierra," in the parenthetical
contained therein.
D. Amendments to Signature Pages.
-----------------------------
The Credit Agreement is hereby amended to delete the
Assigning Lender as a Lender thereunder. Subject to the last
paragraph of this Section D, the Percentages set forth opposite
the Lenders' names on the signature pages of the Credit Agreement
are hereby amended to read as follows:
BankAmerica Business Credit, Inc. 29.011%
Congress Financial Corporation 27.768%
La Salle National Bank 05.231%
CIT Group/Business Credit, Inc. 06.769%
Transamerica Business Credit Corporation 07.362%
Bank of America National Trust and
Savings Association 09.090%
Heller Financial, Inc. 09.538%
ABN Amro N.V. 05.231%
Subject to the last paragraph of this Section D, the
Agent is hereby directed to pay all interest and fees accrued to
and excluding the Tenth Amendment Effective Date (as defined
below) on the Assigned Portion (as defined below) to the
Assigning Lender and to pay all interest and fees accrued from
and including the Tenth Amendment Effective Date on the Assigned
Portion to the Lenders in accordance with their respective shares
of the Assigned Portion.
Effective on the Tenth Amendment Effective Date and
notwithstanding anything to the contrary contained in Section 5.4
------------
of the Credit Agreement, each Lender shall be deemed to hold an
undivided interest and participation, to the extent of such
Lender's Percentage as reflected above, in all Letters of Credit
and the Company's Reimbursement Obligations with respect thereto
outstanding as of such date.
Subject to the last paragraph of this Section D, on the
Tenth Amendment Effective Date each Lender whose Percentage is
increased pursuant to this Amendment shall make a payment to the
Agent in a amount equal to the amount of such increase multiplied
by the amount of all then outstanding Loans, and the Agent shall
distribute such payments to the Assigning Lender.
Anything contained in this Agreement or the other Loan
Documents to the contrary notwithstanding, each Lender's
Percentage interest in any LIBO Rate Loan outstanding on the
Tenth Amendment Effective Date shall remain unchanged for all
purposes under the Loan Documents until the date of expiration of
the Interest Period in effect as of the Tenth Amendment Effective
Date with respect to such LIBO Rate Loan, at which time (i) all
payments of interest and principal, if any, made on such date in
respect of such LIBO Rate Loan shall be distributed to Lenders in
accordance with such unchanged Percentages and (ii) in the event
such LIBO Rate Loan is to remain outstanding for an additional
Interest Period commencing on such date or is to be converted to
a Reference Rate Loan on such date, Lenders shall make such
payments, and the Agent shall distribute such payments to the
Assigning Lender, on such date.
Section 2. Assignment.
-----------
Subject to the last paragraph of Section D above, the
Assigning Lender hereby assigns, delegates, transfers, conveys
and delivers, and the Lenders agree to accept the assignment,
delegation, transfer, conveyance and delivery of, all of the
Assigning Lender's right, title and interest in and to the
Assigning Lender's outstanding Credit Extensions and Commitments
under the Credit Agreement as of the Tenth Amendment Effective
Date (the "Assigned Portion"). Subject to the last paragraph of
-----------------
Section D above, the Assigning Lender hereby acknowledges that,
from and after the Tenth Amendment Effective Date, the Assigning
Lender is no longer a Lender for purposes of the Credit Agreement
and, other than as set forth in Section 12.5 of the Credit
-------------
Agreement, the rights and obligations of the Assigning Lender
under the Credit Agreement are terminated. The Assigning Lender
shall pay to the Agent a processing fee in the amount of $3,500
pursuant to subsection 12.11.1 of the Credit Agreement.
Section 3. Supplements to Collateral Documents.
------------------------------------
The parties agree that, as of the Tenth Amendment
Effective Date, (i) the Subsidiary Security Agreement shall be
supplemented as set forth in Exhibit A hereto, (ii) the
Subsidiary Guaranty shall be supplemented as set forth in
Exhibit B hereto, and (iii) the Subsidiary Pledge Agreement shall
be supplemented as set forth in Exhibit C hereto. The Required
Lenders hereby approve the forms of such supplements, and hereby
authorize the Agent on their behalf to accept from Kaiser
Bellwood and authorize the Agent to execute and deliver as Agent
such supplements in substantially the forms of such Exhibits A, B
and C with such changes, additions or deletions as the Agent, in
its sole and absolute discretion, may approve.
Section 4. Consent of Lenders.
-------------------
The Lenders hereby consent to the execution and
delivery of a supplement to the Senior Indenture, a supplement to
the New Senior Indenture, a supplement to the Additional New
Senior Indentures and a supplement to the Subordinated Indenture,
in form and substance satisfactory to the Agent in its sole and
absolute discretion, for the purpose of adding Kaiser Bellwood
as a "Subsidiary Guarantor" (under and as defined in the Senior
Indenture, New Senior Indenture, Additional New Senior Indentures
and Subordinated Indenture).
Section 5. Conditions to Effectiveness.
----------------------------
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 "Tenth Amendment Effective
--------------------------
Date"):
- -----
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),
together with a Pledge Amendment to the Company Pledge Agreement,
dated as of June 25, 1997, with respect to the stock of Kaiser
Bellwood (the "Pledge Amendment") duly executed on behalf of the
-----------------
Company.
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, and, as to the
Company, the Pledge Amendment, certified by their respective
corporate secretaries or an assistant secretary 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, and, as to the Company, the Pledge Amendment.
3. Copies of the Intercompany Demand Note issued
in favor of KFC by Kaiser Bellwood (the "New Intercompany Demand
------------------------
Note"), in substantially the form of Exhibit O-4 to the Credit
- ----- ------------
Agreement, with such changes, additions and deletions as the
Agent shall approve in its sole and absolute discretion.
4. Copies of the Supplement to Subsidiary
Security Agreement, dated as of June 25, 1997, between Kaiser
Bellwood and the Agent (the "Subsidiary Security Supplement")
-------------------------------
duly executed on behalf of Kaiser Bellwood and the Agent.
5. Copies of the Supplement to Subsidiary
Guaranty, dated as of June 25, 1997, by and between Kaiser
Bellwood and the Agent (the "Subsidiary Guaranty Supplement")
-------------------------------
duly executed on behalf of Kaiser Bellwood and the Agent.
6. Copies of the Supplement to Subsidiary Pledge
Agreement, dated as of June 25, 1997, by and between Kaiser
Bellwood and the Agent (the "Subsidiary Pledge Supplement") duly
-----------------------------
executed on behalf of Kaiser Bellwood and the Agent.
7. Certified copies of the Certificate of
Incorporation of Kaiser Bellwood.
8. Copies of the Bylaws of Kaiser Bellwood,
certified as of the date of delivery to the Agent by its
corporate secretary or an assistant secretary or other authorized
representative.
9. Resolutions of the Board of Directors of
Kaiser Bellwood approving and authorizing the execution, delivery
and performance of the Subsidiary Guaranty Supplement, the
Subsidiary Pledge Supplement, the Subsidiary Security Supplement
and the New Intercompany Demand Note, certified by its corporate
secretary or an assistant secretary as being in full force and
effect without modification or amendment as of the date of
execution thereof by Kaiser Bellwood.
10. A signature and incumbency certificate of the
officers of Kaiser Bellwood executing the Subsidiary Guaranty
Supplement, the Subsidiary Pledge Supplement, the Subsidiary
Security Supplement and the New Intercompany Demand Note.
11. Duly executed financing statements (Form
UCC-1) naming Kaiser Bellwood as the debtor and the Agent as the
secured party, or other similar instruments or documents,
suitable for filing under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in the reasonable opinion
of the Agent, desirable to perfect the security interest of the
Agent in the Collateral granted pursuant to the Subsidiary
Security Agreement to the extent that perfection may be
accomplished by filing under the Uniform Commercial Code in any
state in the United States or the District of Columbia.
12. Stock certificates evidencing 100% of the
issued and outstanding shares of capital stock of Kaiser
Bellwood, accompanied by undated stock powers duly executed in
blank.
13. Copies of a Pledge Amendment to the
Subsidiary Pledge Agreement, dated as of June 25, 1997, with
respect to the New Intercompany Demand Note (the "Subsidiary
-----------
Pledge Amendment") duly executed on behalf of KFC.
- ----------------
14. Resolutions of the Board of Directors of KFC
approving and authorizing the execution, delivery and performance
of the Subsidiary Pledge Amendment, certified by its corporate
secretary or an assistant secretary as being in full force and
effect without modification or amendment as of the date of
execution thereof by KFC.
15. A signature and incumbency certificate of the
officers or other authorized representative of KFC executing the
Subsidiary Pledge Amendment.
C. The Agent shall have received 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.
Section 6. Assigning Lender's Representation and
--------------------------------------
Warranty.
- ---------
In order to induce the Company, Lenders and the Agent
to enter into this Amendment and to amend the Credit Agreement
and the other Loan Documents in the manner provided herein, the
Assigning Lender represents and warrants to the Company, each
Lender and the Agent that, prior to the Tenth Amendment Effective
Date, the Assigning Lender has not assigned, delegated,
transferred, conveyed or delivered any part of the Assigned
Portion.
Section 7. Company's Representations and Warranties.
-----------------------------------------
In order to induce the Lenders and the Agent to enter
into this Amendment and to amend the Credit Agreement and the
other Loan Documents in the manner provided herein, the Parent
Guarantor and the Company represent and warrant to each Lender
and the Agent that, as of the Tenth 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
----------------------------
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
------------------
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
------------
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
-------------------
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
---------------------------------------
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
------------------------------------------------
from Credit Agreement. Each of the statements set forth in
- ----------------------
Section 7.2.1 of the Credit Agreement is true and correct.
- -------------
Section 8. Acknowledgement and Consent.
---------------------------
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
-------
Support Parties", and the Company Collateral Documents, the
- ----------------
Parent Collateral Documents, the Subsidiary Guaranty and the
Subsidiary Collateral Documents are collectively referred to
herein as the "Credit Support Documents".
-------------------------
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 and the amendment of the other Loan Documents effected
as of the date hereof.
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 9. Miscellaneous.
--------------
A. Reference to and Effect on the Credit Agreement
------------------------------------------------
and the Other Loan Documents.
-----------------------------
1. On and after the Tenth 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 and the amendments to the other Loan Documents executed
as of the date hereof, 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
---------------
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
---------
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
-------------
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
-------------
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, INC. BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:/s/Michael J. Jasaitis By:/s/Michael J. Jasaitis
---------------------- ------------------------
Name Printed: Michael J. Jasaitis Name Printed: Michael J. Jasaitis
Its: Vice President Its: Vice President
BANK OF AMERICA NATIONAL THE CIT GROUP/BUSINESS
TRUST AND SAVINGS ASSOCIATION CREDIT, INC.
By:/s/James P. 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 NATIONAL WESTMINSTER BANK
PLC
By:/s/Douglas C. Collath By:/s/Ian M. Plester
---------------------- ----------------------
Name Printed: Douglas C. Collath Name Printed:Ian M. Plester
Its: First Vice President Its: Vice President
TRANSAMERICA BUSINESS CREDIT ABN AMRO BANK N.V.
CORPORATION
By:/s/Matthew N. McAlpine By: /s/L.T. Osborne
---------------------- ----------------------
Name Printed:Matthew N. McAlpine Name Printed:L.T. Osborne
Its: Vice President 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, INC. KAISER ALUMINUM TECHNICAL
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
EXHIBIT A
SUPPLEMENT TO SUBSIDIARY SECURITY AGREEMENT
--------------------------------------------
THIS SUPPLEMENT TO SUBSIDIARY SECURITY AGREEMENT (this
"Supplement"), dated as of June 25, 1997, is by and between
----------
Kaiser Bellwood Corporation, a Delaware corporation, (the "New
----
Kaiser Subsidiary"), and BankAmerica Business Credit, Inc., a
- -----------------
Delaware corporation, as agent for the Secured Lenders (as
defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
-----
herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Tenth Amendment.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), Kaiser Aluminum
--------
Corporation, a Delaware corporation (the "Parent Guarantor"), the
----------------
various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), 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
Acknowledgment, 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, and the Ninth Amendment to Credit Agreement,
dated as of April 21, 1997 (the "Credit Agreement"); and
-----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Tenth
Amendment to Credit Agreement (the "Tenth Amendment"); and
---------------
WHEREAS, the New Kaiser Subsidiary is required as a
condition to the effectiveness of the Tenth Amendment to execute
this Supplement; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Supplement by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Addition of New Kaiser Subsidiary.
----------------------------------
On and after the Tenth Amendment Effective Date (as
defined in the Tenth Amendment), the New Kaiser Subsidiary shall
be a party to the Subsidiary Security Agreement and the terms
"Kaiser Subsidiary" and "Kaiser Subsidiaries" (as used in the
Subsidiary Security Agreement) shall include and also be a
reference to the New Kaiser Subsidiary. Schedules I through VI
of the Subsidiary Security Agreement are hereby supplemented to
include the information set forth on Schedules I through VI
hereto with respect to the New Kaiser Subsidiary.
Section 2. Kaiser Subsidiary's Representations and
----------------------------------------
Warranties.
- -----------
In order to induce the Agent to enter into this
Supplement and to supplement the Subsidiary Security Agreement in
the manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the New Kaiser Subsidiary
represents and warrants as a Kaiser Subsidiary to each Lender and
the Agent that, as of the Tenth Amendment Effective Date after
giving effect to the effectiveness of this Supplement, the
following statements are true and correct in all material
respects:
A. Authorization of Agreements. The execution and
----------------------------
delivery of this Supplement by such Kaiser Subsidiary and the
performance of the Subsidiary Security Agreement as supplemented
by this Supplement (the "Supplemented Agreement") by such Kaiser
-----------------------
Subsidiary are within such Kaiser Subsidiary's corporate powers
and have been duly authorized by all necessary corporate action
on the part of such Kaiser Subsidiary.
B. No Conflict. The execution and delivery by such
------------
Kaiser Subsidiary of this Supplement and the performance by such
Kaiser Subsidiary of the Supplemented Agreement do not:
(1) contravene such Kaiser Subsidiary'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 Kaiser Subsidiary or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Kaiser Subsidiary's
properties, other than pursuant to the Loan Documents.
C. Binding Obligation. This Supplement has been duly
------------------
executed and delivered by such Kaiser Subsidiary and this
Supplement and the Supplemented Agreement constitute the legal,
valid and binding obligations of such Kaiser Subsidiary,
enforceable against such Kaiser Subsidiary 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
----------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Supplement by such Kaiser Subsidiary, other
than the filing of appropriate financing statements.
Section 4. Miscellaneous.
--------------
A. Applicable Law. THIS SUPPLEMENT SHALL BE DEEMED
---------------
TO 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.
B. Headings. The various headings of this Supplement
---------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Supplement or any provision
hereof.
C. Counterparts. This Supplement may be executed by
-------------
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.
D. Severability. Any provision of this Supplement
-------------
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 Supplement or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Supplement has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT, KAISER BELLWOOD CORPORATION
INC., as Agent
By: By:
---------------------- ----------------------
Name:Michael J. Jasaitis Name: Karen A. Twitchell
Its: Vice President Its: Treasurer
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, INC. KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By: By:
----------------------- -----------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM
INTERNATIONAL, INC.
By: By:
---------------------- -----------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER MICROMILL HOLDINGS, LLC KAISER SIERRA MICROMILLS, LLC
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER TEXAS SIERRA MICROMILLS, LLC KAISER TEXAS MICROMILL
HOLDINGS, LLC
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
Supplement to the Subsidiary Security Agreement
-----------------------------------------------
Schedule I
U.S. Trademarks, Trade Names and Service Marks
As of the Tenth Amendment Effective Date, there
are no Trademarks registered in the name of the New
Kaiser Subsidiary in the United States Patent and
Trademark Office.
Supplement to the Subsidiary Security Agreement
------------------------------------------------
Schedule II
U.S. Patents
As of the Tenth Amendment Effective Date, there
are no Patents registered in the name of the New Kaiser
Subsidiary in the United States Patent and Trademark
Office.
Supplement to the Subsidiary Security Agreement
-----------------------------------------------
Schedule III
Location of Collateral
The chief place of business and the chief executive
office of the New Kaiser Subsidiary as of the Tenth Amendment
Effective Date is, and for the four-month period immediately
preceding such date (or such shorter time as such New Kaiser
Subsidiary has been organized) has been, located at 6177 Sunol
Boulevard, Pleasanton, California 94566-7769 or 5847 San Felipe,
Suite 2600, Houston, Texas 77057-3010.
As of the Tenth Amendment Effective Date, all of the
current books and records located in the United States of the New
Kaiser Subsidiary, including its records regarding any Accounts
and contracts relating to any Accounts and all originals, if any,
of Chattel Paper and Documents (including all Documents covering
any Goods of such New Kaiser Subsidiary), and all of the New
Kaiser Subsidiary's other books and records, contracts, Chattel
Paper, Equipment, Documents, Inventory, and other Goods located
in the United States (excluding such books and records,
Documents, Equipment, contracts, Chattel Paper, Inventory, or
other Goods which are in transit or which are otherwise
temporarily off such premises in the ordinary course of such New
Kaiser Subsidiary's business) are located at:
6177 SUNOL BOULEVARD
PLEASANTON, CALIFORNIA 94566-7769
(ALAMEDA COUNTY)
5847 SAN FELIPE
SUITE 2600
HOUSTON, TEXAS 77057-3010
(HARRIS COUNTY)
1901 REYMET ROAD
RICHMOND, VIRGINIA 23237
6601 WEST BROAD STREET
RICHMOND, VIRGINIA 23230
401 MADRID AVENUE
TORRANCE, CALIFORNIA 90509
(LOS ANGELES COUNTY)
Supplement to the Subsidiary Security Agreement
------------------------------------------------
Schedule IV
Third Party Locations of Collateral
As of the Tenth Amendment Effective Date, Collateral of the
New Kaiser Subsidiary may be located at the following third party
locations:
CNC MACHINING
515 HULL STREET
RICHMOND, VIRGINIA 23224
B & B ELECTROPLATING
400 MCGEE WAY
BELTON, SOUTH CAROLINA 29627
(ANDERSON COUNTY)
ROBIN INDUSTRIES
1265 WEST 65TH STREET
CLEVELAND, OHIO 44102
(CUYAHOGA COUNTY)
WASHINGTON ALUMINUM
1330 KNECHT AVE.
BALTIMORE, MARYLAND 21226
(BALTIMORE COUNTY)
AEROTEC INC.
9505 JEFFERSON DAVIE HWY.
RICHMOND, VIRGINIA 23237
IMCO RECYCLING INC.
388 WILLIAMSON DRIVE
LOUDON, TN 37774
(LOUDON COUNTY)
MUELLER IMPACTS CO.
2409 WILLS STREET
MARYSVILLE, MI 48040
(ST. CLAIR COUNTY)
Supplement to the Subsidiary Security Agreement
-----------------------------------------------
Schedule V
Deposit and Cash Equivalent Investment Accounts
As of the Tenth Amendment Effective Date, the New Kaiser
Subsidiary has no deposit accounts or accounts for holding Cash
Equivalent Investments in the United States. It is anticipated
that the New Kaiser Subsidiary will open account no. 79-51868 at
Bank of America, 231 South La Salle Street, Chicago, Illinois.
Supplement to the Subsidiary Security Agreement
------------------------------------------------
Schedule VI
List of Trade Names and Fictitious Business Names
No additional information.
List of Filing Offices
Reference is made to Schedule B to the opinion of Kramer,
Levin, Naftalis & Frankel, dated June 27, 1997, which Schedule B
is incorporated herein by this reference.
EXHIBIT B
SUPPLEMENT TO SUBSIDIARY GUARANTY
---------------------------------
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY (this
"Supplement"), dated as of June 25, 1997, is by and between
----------
Kaiser Bellwood Corporation, a Delaware corporation, (the "New
----
Kaiser Subsidiary"), and BankAmerica Business Credit, Inc., a
- ------------------
Delaware corporation, as agent for the Secured Lenders (as
defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
-----
herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Tenth Amendment.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), Kaiser Aluminum
--------
Corporation, a Delaware corporation (the "Parent Guarantor"), the
-----------------
various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), 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
Acknowledgment, 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, and the Ninth Amendment to Credit Agreement,
dated as of April 21, 1997; and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Tenth
Amendment to Credit Agreement (the "Tenth Amendment"); and
----------------
WHEREAS, the New Kaiser Subsidiary is required as a
condition to the effectiveness of the Tenth Amendment to execute
this Supplement; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Supplement by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Addition of New Kaiser Subsidiary.
-------------------- -------------
On and after the Tenth Amendment Effective Date (as
defined in the Tenth Amendment), the New Kaiser Subsidiary shall
be party to the Subsidiary Guaranty and the terms "Guarantor" and
"Guarantors" (as used in the Subsidiary Guaranty) shall include
and also be a reference to the New Kaiser Subsidiary.
Section 2. Guarantors' Representations and Warranties.
------------------------------------------
In order to induce the Agent to enter into this
Supplement and to supplement the Subsidiary Guaranty in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the New Kaiser Subsidiary
represents and warrants as a Guarantor to each Lender and the
Agent that, as of the Tenth Amendment Effective Date after giving
effect to the effectiveness of this Supplement, the following
statements are true and correct in all material respects:
A. Authorization of Agreements. The execution and
---------------------------
delivery of this Supplement by such Guarantor and the performance
of the Subsidiary Guaranty as supplemented by this Supplement
(the "Supplemented Agreement") by such Guarantor are within such
----------------------
Guarantor's corporate powers and have been duly authorized by all
necessary corporate action on the part of such Guarantor.
B. No Conflict. The execution and delivery by such
-----------
Guarantor of this Supplement and the performance by such
Guarantor of the Supplemented Agreement do not:
(1) contravene such Guarantor'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 Guarantor or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Guarantor's properties,
other than pursuant to the Loan Documents.
C. Binding Obligation. This Supplement has been duly
------------------
executed and delivered by such Guarantor and this Supplement and
the Supplemented Agreement constitute the legal, valid and
binding obligations of such Guarantor, enforceable against such
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
----------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Supplement by such Guarantor.
Section 3. Miscellaneous.
--------------
A. Applicable Law. THIS SUPPLEMENT SHALL BE DEEMED
---------------
TO 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.
B. Headings. The various headings of this Supplement
---------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Supplement or any provision
hereof.
C. Counterparts. This Supplement may be executed by
-------------
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.
D. Severability. Any provision of this Supplement
------------
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 Supplement or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Supplement has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT, KAISER BELLWOOD CORPORATION
INC., as Agent
By: By:
--------------------------- ---------------------------
Name:Michael J. Jasaitis Name: Karen A. Twitchell
Its: Vice President Its: Treasurer
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, INC. KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM
INTERNATIONAL, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
ALPART JAMAICA INC. KAISER JAMAICA CORPORATION
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER MICROMILL HOLDINGS, LLC KAISER SIERRA MICROMILLS, LLC
By: By:
---------------------- ------------------------
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: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
EXHIBIT C
SUPPLEMENT TO SUBSIDIARY PLEDGE AGREEMENT
-----------------------------------------
THIS SUPPLEMENT TO SUBSIDIARY PLEDGE AGREEMENT (this
"Supplement"), dated as of June 25, 1997, is by and between
----------
Kaiser Bellwood Corporation, a Delaware corporation,(the "New
----
Kaiser Subsidiary"), and BankAmerica Business Credit, Inc., a
- ------------------
Delaware corporation, as agent for the Secured Lenders (as
defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
-----
herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Tenth Amendment.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), Kaiser Aluminum
--------
Corporation, a Delaware corporation (the "Parent Guarantor"), the
-----------------
various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), 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
Acknowledgment, 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, and the Ninth Amendment to Credit Agreement,
dated as of April 21, 1997; and
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Tenth
Amendment to Credit Agreement (the "Tenth Amendment"); and
----------------
WHEREAS, the New Kaiser Subsidiary is required as a
condition to the effectiveness of the Tenth Amendment to execute
this Supplement; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Supplement by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Addition of New Kaiser Subsidiary.
----------------------------------
On and after the Tenth Amendment Effective Date (as
defined in the Tenth Amendment), the New Kaiser Subsidiary shall
be a party to the Subsidiary Pledge Agreement and the terms
"Pledgor" and "Pledgors" (as used in the Subsidiary Pledge
Agreement) shall include and also be a reference to the New
Kaiser Subsidiary.
Section 2. Pledgor's Representations and Warranties.
-----------------------------------------
In order to induce the Agent to enter into this
Supplement and to supplement the Subsidiary Pledge Agreement in
the manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the New Kaiser Subsidiary
represents and warrants as a Pledgor to each Lender and the Agent
that, as of the Tenth Amendment Effective Date after giving
effect to the effectiveness of this Supplement, the following
statements are true and correct in all material respects:
A. Authorization of Agreements. The execution and
----------------------------
delivery of this Supplement by such Pledgor and the performance
of the Subsidiary Pledge Agreement as supplemented by this
Supplement (the "Supplemented Agreement") by such Pledgor are
-----------------------
within such Pledgor's corporate powers and have been duly
authorized by all necessary corporate action on the part of such
Pledgor.
B. No Conflict. The execution and delivery by such
------------
Pledgor of this Supplement and the performance by such Pledgor of
the Supplemented Agreement do not:
(1) contravene such Pledgor's Organic Documents;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture, or the
Additional New Senior Indentures 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 Pledgor or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Pledgor's properties,
other than pursuant to the Loan Documents.
C. Binding Obligation. This Supplement has been duly
-------------------
executed and delivered by such Pledgor and this Supplement and
the Supplemented Agreement constitute the legal, valid and
binding obligations of such Pledgor, enforceable against such
Pledgor 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
----------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Supplement by such Pledgor.
Section 3. Miscellaneous.
--------------
A. Applicable Law. THIS SUPPLEMENT SHALL BE DEEMED
---------------
TO 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.
B. Headings. The various headings of this Supplement
---------
are inserted for convenience only and shall not affect the
meaning or interpretation of this Supplement or any provision
hereof.
C. Counterparts. This Supplement may be executed by
-------------
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.
D. Severability. Any provision of this Supplement
-------------
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 Supplement or
affecting the validity or enforceability of such provisions in
any other jurisdiction.
IN WITNESS WHEREOF, this Supplement has been duly
executed and delivered as of the day and year first above
written.
BANKAMERICA BUSINESS CREDIT, KAISER BELLWOOD CORPORATION
INC., as Agent
By: By:
--------------------------- -------------------------
Name:Michael J. Jasaitis Name: Karen A. Twitchell
Its: Vice President Its: Treasurer
ACKNOWLEDGED AND AGREED TO:
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
---------------------- -------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, INC. KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM
INTERNATIONAL, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER MICROMILL HOLDINGS, LLC KAISER SIERRA MICROMILLS, LLC
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER TEXAS SIERRA MICROMILLS, LLC KAISER TEXAS MICROMILL
HOLDINGS, LLC
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
E x e c u t i o n C o p y
NINTH AMENDMENT TO CREDIT AGREEMENT AND ACKNOWLEDGMENT
-------------------------------------------------------
THIS NINTH AMENDMENT TO CREDIT AGREEMENT AND
ACKNOWLEDGMENT (this "Amendment"), dated as of April 21, 1997, is
---------
by and between KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "Company"), KAISER ALUMINUM CORPORATION, a
-------
Delaware corporation (the "Parent Guarantor"), the various
-----------------
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
------- -------
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,
-----
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 Acknowledgment, 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, and the Eighth
Amendment to Credit Agreement, dated as of February 24, 1997 (the
"Credit Agreement"); and
-----------------
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.
------------------------------
1.1 Amendment to Article I: Definitions.
------------------------ ------------
A. The definition of "Joint Venture Affiliate"
contained in Section 1.1 of the Credit Agreement is hereby
-----------
amended by inserting the phrase "AKW, AKW LLC," after the term
"Furukawa," in the second line thereof.
B. The following definitions are hereby added to
Section 1.1 of the Credit Agreement in the appropriate
- -----------
alphabetical order:
"AKW" means AKW L.P., a limited partnership organized
---
under the laws of Delaware.
"AKW LLC" means AKW General Partner L.L.C., a limited
-------
liability company organized under the laws of the State of
Delaware.
1.2 Amendments to Article IX: Covenants.
------------------------------------
A. Section 9.2.2 of the Credit Agreement is hereby
-------------
amended by (i) deleting the word "and" at the end of clause
------
(b)(xix) thereof; and (ii) adding the following as new clause
- -------- -------
(b)(xxi) thereof:
- --------
"(xxi) Indebtedness of the Company in an aggregate
principal amount not to exceed $5,000,000 outstanding at any one
time in respect of AKW and/or AKW LLC; and"
B. Section 9.2.5 of the Credit Agreement is hereby
-------------
amended by (i) deleting the word "and" at the end of clause (r)
----------
thereof; (ii) deleting the period at the end of clause (s)
----------
thereof and substituting "; and" therefor; and (iii) adding the
following as new clause (t) thereof:
----------
"(t) Investments by the Company or any of its
Subsidiaries in AKW and/or AKW LLC of cash, equipment, Inventory,
intellectual property and/or other Property (such Property (other
than cash) to be valued at the fair market value thereof as
determined in good faith by the Board of Directors or the
Executive Committee of the Board of Directors of the Company) in
an aggregate amount outstanding at any one time (net of the
proceeds contemporaneously received by the Company from the sale
of a portion of the equity in AKW) not exceeding $30,000,000."
C. Section 9.2.11 of the Credit Agreement is hereby
--------------
amended by (i) deleting the word "and" at the end of clause (j)
----------
thereof; (ii) deleting the period at the end of clause (k)
----------
thereof and substituting a semicolon therefor; and (iii) adding
the following as new clauses (l) and (m) thereof:
-------------------
"(l) a sale by the Company of a portion of the equity
in AKW as contemplated by subsection 9.2.5(t); and
"(m) a sale by the Company to AKW or AKW LLC of
Inventory in connection with the formation of AKW and relating to
the business of AKW in an amount not to exceed $10,000,000."
D. Section 9.2.18 of the Credit Agreement is hereby
--------------
amended by (i) deleting the period at the end of clause (vii)
------------
thereof and substituting "; and" therefor; (ii) amending clause
------
(vi) thereof to read in its entirety as follows:
- ----
"(vi) Investments permitted by Sections 9.2.5(f),
-----------------
9.2.5(n), 9.2.5(o), 9.2.5(q), 9.2.5(r), 9.2.5(s) and 9.2.5(t);"
- -------- -------- -------- -------- -------- --------
and (iii) adding the following as new clause (viii) thereof:
"(viii) The Company and AKW may enter into a lease with
respect to a portion of the property owned by the Company located
in Erie, Pennsylvania, in form and substance satisfactory to the
Agent in its sole and absolute discretion; provided that the
Company's interest in such lease is assigned as Collateral to the
Agent on behalf of the Lenders on terms and pursuant to
documentation in form and substance satisfactory to the Agent in
its sole and absolute discretion."
Section 2. Acknowledgment and Consent.
--------------------------
Subject to the terms and conditions set forth herein
and in reliance on the representations and warranties of Company
herein contained, the Lenders hereby (i) acknowledge that the
Property to be contributed by the Company or any of its
Subsidiaries to AKW or AKW LLC pursuant to Section 9.2.5(t)
constitutes Collateral, and hereby consent to the release by the
Agent of the security interest of the Agent, on behalf of the
Lenders, in such Collateral and in the Proceeds of such
Collateral; (ii) consent to the release by the Agent of the
security interest of the Agent, on behalf of the Lenders, in the
capital stock of Akron Holding Corporation, a Subsidiary of the
Company ("Akron"), and in the Intercompany Demand Note issued by
-----
the Company to Akron; (iii) in accordance with Section 1.15 of
------------
the Open-End Mortgage with Power of Sale, Assignment of Leases
and Rents, Security Agreement, Fixture Filing and Financing
Statement (recorded February 18, 1994, with the Recorder of
Deeds, Erie County), as amended (the "Erie Mortgage"), consent to
--------------
the entering into of a lease by the Company and AKW with respect
to a portion of the property owned by the Company located in
Erie, Pennsylvania, in a form satisfactory to the Agent in its
sole discretion (the "Lease"); and (iv) authorize the Agent to
-----
execute and deliver such documents, in form and substance
satisfactory to the Agent, in its sole and absolute discretion,
as may be necessary or appropriate to subordinate the Erie
Mortgage to the interest of AKW in the Lease.
Section 3. Amendments to Collateral Documents.
----------------------------------
The parties agree that, as of the Ninth Amendment
Effective Date, (i) the Parent Security Agreement shall be
amended as set forth in Exhibit A hereto, (ii) the Company
Security Agreement shall be amended as set forth in Exhibit B
hereto, and (iii) the Subsidiary Security Agreement shall be
amended as set forth in Exhibit C hereto. The Required Lenders
hereby approve the forms of such amendments, and hereby authorize
the Agent on their behalf to accept from the Parent Guarantor,
the Company and the Subsidiaries of the Company executing such
amendments, and authorize the Agent to execute and deliver as
Agent, the amendment to the Parent Security Agreement in substantially the
form of such Exhibit A, the amendment to the Company Security Agreement in
substantially the form of such Exhibit B, and the amendment to the Subsidiary
Security Agreement in substantially the form of such Exhibit C
with such changes, additions or deletions as the Agent, in its
sole and absolute discretion, may approve.
Section 4. Conditions to Effectiveness.
---------------------------
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, the Agent and each Lender
(the date of satisfaction of such conditions and the giving of
such notice being referred to herein as the "Ninth Amendment
---------------
Effective Date"):
- --------------
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),
together with counterparts of the Third Amendment to Company
Security Agreement, dated as of April 21, 1997, between the
Company and the Agent (the "Company Security Amendment") and the
--------------------------
Second Amendment to Parent Security Agreement, dated as of
April 21, 1997, between the Parent Guarantor and the Agent (the
"Parent Security Amendment").
-------------------------
B. The Agent shall have received:
(1) Resolutions of the Board of Directors or of
the Executive Committee of the Company and the Parent Guarantor
approving and authorizing the execution, delivery and performance
of this Amendment, and the Company Security Amendment or the
Parent Security Amendment, as the case may be, certified by its
corporate secretary or an assistant secretary 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 and the Company Security Amendment or Parent Security
Amendment, as the case may be;
(3) Copies of the Third Amendment to Subsidiary
Security Agreement, dated as of April 21, 1997, between the
Subsidiaries of the Company parties thereto and the Agent (the
"Subsidiary Security Amendment") duly executed on behalf of such
-----------------------------
Subsidiaries;
(4) Resolutions of the Board of Directors or of
the Executive Committee or other authorized governing body or
entity of each of the Subsidiaries of the Company executing the
Subsidiary Security Amendment approving and authorizing the
execution, delivery and performance of the Subsidiary Security
Amendment, certified by their respective corporate secretaries or
an assistant secretary or other authorized representative as
being in full force and effect without modification or amendment
as of the date of execution hereof by such Subsidiary;
(5) A signature and incumbency certificate of the
officers or other authorized representative of each of the
Subsidiaries of the Company executing the Subsidiary Security
Amendment;
(6) 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
(7) Such other information approvals, opinions,
documents, or instruments as the Agent may reasonably request.
Section 5. Company's Representations and Warranties.
----------------------------------------
In order to induce the Lenders and the Agent to enter
into this Amendment and to amend the Credit Agreement and the
other Loan Documents in the manner provided herein, the Parent
Guarantor and the Company represent and warrant to each Lender
and the Agent that, as of the Ninth 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
---------------------------
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
-----------------
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
-----------
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 Subordinated Indenture, the
Senior Indenture, the New Senior Indenture or the Additional New
Senior 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
------------------
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
----------------------------------------
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
------------------------------------------------
from Credit Agreement. Each of the statements set forth in
- ---------------------
Section 7.2.1 of the Credit Agreement is true and correct.
- -------------
Section 6. Acknowledgment and Consent.
---------------------------
The Company is a party to the Company Collateral
Documents, in each case as amended through the Ninth Amendment
Effective Date, 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 Ninth
Amendment Effective Date, 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 Ninth Amendment Effective Date, 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 Support Parties",
-----------------------
and the Company Collateral Documents, the Parent Collateral
Documents, the Subsidiary Guaranty and the Subsidiary Collateral
Documents are collectively referred to herein as the "Credit
------
Support Documents".
- -----------------
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 and the amendment of the other Loan Documents effected
as of the date hereof.
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 7. Miscellaneous.
-------------
A. Reference to and Effect on the Credit Agreement
------------------------------------------------
and the Other Loan Documents.
- -------------------------------
(1) On and after the Ninth 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 and the other Loan Documents executed as of the date
hereof, 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
---------------
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
---------
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
-------------
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
-------------
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, INC. BANKAMERICA BUSINESS CREDIT,
INC., as Agent
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 NATIONAL THE CIT GROUP/BUSINESS
TRUST AND SAVINGS ASSOCIATION CREDIT, INC.
By:/s/ Richard E. Bryson By:/s/Timothy S. Culver
---------------------- ----------------------
Name Printed:Richard E. Bryson Name Printed: Timothy S.
Culver
Its: Managing Director Its: Assistant Vice President
CONGRESS FINANCIAL CORPORATION HELLER FINANCIAL, INC.
(WESTERN)
By:/s/Kristine M. Metchikian By:/s/Tara Hopkins
---------------------- ----------------------
Name Printed: Kristine M. Metchikian Name Printed:Tara Hopkins
Its: Vice President Its: Assistant Vice President
LA SALLE NATIONAL BANK NATIONAL WESTMINSTER BANK
PLC
By: /s/Douglas C. Colletti By:/s/Ian M. Plester
---------------------- ----------------------
Name Printed: Douglas C. Colletti Name Printed: Ian M. Plester
Its: First Vice President Its: Vice President
TRANSAMERICA BUSINESS CREDIT ABN AMRO BANK N.V.
CORPORATION
By:/s/Matthew N. McAlpine By:/s/Bradford H. Leahy
---------------------- ----------------------
Name Printed: Matthew N. McAlpine Name Printed: Bradford H.
Leahy
Its: Vice President Its: Assistant 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, INC. KAISER ALUMINUM TECHNICAL
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
Treasurer of Kaiser Aluminum Its: Treasurer
& Chemical Corporation
KAISER TEXAS SIERRA MICROMILLS, LLC KAISER TEXAS MICROMILL
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
EXHIBIT A
SECOND AMENDMENT TO PARENT SECURITY AGREEMENT
----------------------------------------------
THIS SECOND AMENDMENT TO PARENT SECURITY AGREEMENT
(this "Amendment"), dated as of April 21, 1997, is by and between
---------
Kaiser Aluminum Corporation, a Delaware corporation (the "Parent
------
Guarantor"), and BankAmerica Business Credit, Inc., a Delaware
- ---------
corporation, as agent for the Secured Lenders (as defined in the
Credit Agreement referred to below) (in such capacity, together
with its successors and assigns in such capacity, the "Agent").
-----
Capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Credit Agreement, as amended
by the Ninth Amendment.
W I T N E S S E T H:
WHEREAS, the Parent Guarantor, Kaiser Aluminum &
Chemical Corporation, a Delaware corporation (the "Company"), the
--------
various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), 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
Acknowledgment, 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, and the Eighth Amendment to Credit Agreement, dated as
of February 24, 1997 (the "Credit Agreement"); and
-----------------
WHEREAS, as of the date hereof the Parent Guarantor,
the Company, the Lenders and the Agent are entering into a Ninth
Amendment to Credit Agreement (the "Ninth Amendment"); and
---------------
WHEREAS, the Parent Guarantor and the Agent are parties
to the Parent Security Agreement, Financing Statement and
Conditional Assignment of Patents and Trademarks, dated as of
February 15, 1994, as amended by the First Amendment to Parent
Security Agreement, dated as of July 21, 1994 (the "Parent
-------
Security Agreement"), and have agreed to amend the Parent
- ------------------
Security Agreement as herein provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Parent Security Agreement.
--------------------------------------
The proviso contained in the first paragraph of
Section 2 of the Parent Security Agreement is hereby amended by
adding the phrase "AKW, AKW LLC," immediately following the
phrase "Furukawa," each time it appears in clause (A) thereof.
Section 2. Parent Guarantor's Representations and
---------------------------------------
Warranties.
- ----------
In order to induce the Agent to enter into this
Amendment and to amend the Parent Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the Parent Guarantor
represents and warrants to each Lender and the Agent that, as of
the Ninth Amendment Effective Date (as defined in the Ninth
Amendment) 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
---------------------------
delivery of this Amendment by the Parent Guarantor and the
performance of the Parent Security Agreement as amended by this
Amendment (the "Amended Agreement") by the Parent Guarantor are
-----------------
within the Parent Guarantor's corporate powers and have been duly
authorized by all necessary corporate action on the part of the
Parent Guarantor.
B. No Conflict. The execution and delivery by the
-----------
Parent Guarantor of this Amendment and the performance by the
Parent Guarantor of the Amended Agreement do not:
(1) contravene the Parent Guarantor's Organic
Documents;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture or the
Additional New Senior 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 the Parent Guarantor or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of the Parent Guarantor's
properties, other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by the Parent Guarantor and this Amendment
and the Amended Agreement constitute the legal, valid and binding
obligations of the Parent Guarantor, enforceable against the Parent
Guarantor in accordancewith 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
---------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by the Parent Guarantor.
Section 3. Miscellaneous.
-------------
A. Reference to and Effect on the Parent Security
----------------------------------------------
Agreement and the Other Loan Documents.
- --------------------------------------
(1) On and after the Ninth Amendment Effective
Date, each reference in the Parent Security Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Parent Security Agreement, and each
reference in the other Loan Documents to the "Parent Security
Agreement", "thereunder", "thereof" or words of like import
referring to the Parent Security Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Parent Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Parent Security Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
--------------
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
--------
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
------------
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
------------
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 BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By: By:
--------------------------- ---------------------------
Name: Karen A. Twitchell Name: Michael J. Jasaitis
Its: Treasurer Its: Vice President
EXHIBIT B
THIRD AMENDMENT TO COMPANY SECURITY AGREEMENT
---------------------------------------------
THIS THIRD AMENDMENT TO COMPANY SECURITY AGREEMENT
(this "Amendment"), dated as of April 21, 1997, is by and between
---------
Kaiser Aluminum & Chemical Corporation, a Delaware corporation
(the "Company"), and BankAmerica Business Credit, Inc., a
-------
Delaware corporation, as agent for the Secured Lenders (as
defined in the Credit Agreement referred to below) (in such
capacity, together with its successors and assigns in such
capacity, the "Agent"). Capitalized terms used, but not defined,
-----
herein shall have the meanings given to such terms in the Credit
Agreement, as amended by the Ninth Amendment.
W I T N E S S E T H:
WHEREAS, the Company, Kaiser Aluminum Corporation, a
Delaware corporation (the "Parent Guarantor"), the various
----------------
financial institutions that are or may from time to time become
parties to the Credit Agreement (collectively, the "Lenders" and,
--------
individually, a "Lender"), 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
Acknowledgment, 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, and the Eighth Amendment to Credit Agreement, dated as
of February 24, 1997 (the "Credit Agreement"); and
----------------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Ninth
Amendment to Credit Agreement (the "Ninth Amendment"); and
---------------
WHEREAS, the Company and the Agent are parties to the
Company Security Agreement, Financing Statement and Conditional
Assignment of Patents and Trademarks, dated as of February 15,
1994, as amended by the First Amendment to Company Security
Agreement, dated as of July 21, 1994 and Second Amendment to
Company Security Agreement, dated as of December 11, 1995 (the
"Company Security Agreement"), and have agreed to amend the
--------------------------
Company Security Agreement as herein provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Company Security Agreement.
----------------------------------------
The proviso contained in the first paragraph of
Section 2 of the Company Security Agreement is hereby amended by
adding the phrase "AKW, AKW LLC," immediately following the
phrase "Furukawa," each time it appears in clause (A) thereof.
Section 2. Company's Representations and Warranties.
-----------------------------------------
In order to induce the Agent to enter into this
Amendment and to amend the Company Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, the Company represents and
warrants to each Lender and the Agent that, as of the Ninth
Amendment Effective Date (as defined in the Ninth Amendment)
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
---------------------------
delivery of this Amendment by the Company and the performance of
the Company Security Agreement as amended by this Amendment (the
"Amended Agreement") by the Company are within the Company's
------------------
corporate powers and have been duly authorized by all necessary
corporate action on the part of the Company.
B. No Conflict. The execution and delivery by the
-----------
Company of this Amendment and the performance by the Company of
the Amended Agreement do not:
(1) contravene the Company's Organic Documents;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture or the
Additional New Senior 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 the Company or any of its
Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of the Company's properties, other
than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by the Company and this Amendment and the
Amended Agreement constitute the legal, valid and binding obligations of
the Company, enforceable against the Company 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
---------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by the Company.
Section 3. Miscellaneous.
--------------
A. Reference to and Effect on the Company Security
------------------------------------------------
Agreement and the Other Loan Documents.
- --------------------------------------
(1) On and after the Ninth Amendment Effective
Date, each reference in the Company Security Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Company Security Agreement, and each
reference in the other Loan Documents to the "Company Security
Agreement", "thereunder", "thereof" or words of like import
referring to the Company Security Agreement shall mean and be a
reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Company Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Company Security Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
--------------
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
--------
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
------------
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
------------
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 & CHEMICAL BANKAMERICA BUSINESS CREDIT,
CORPORATION INC., as Agent
By: By:
--------------------------- ---------------------------
Name: Karen A. Twitchell Name: Michael J. Jasaitis
Its: Treasurer Its: Vice President
EXHIBIT C
THIRD AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
------------------------------------------------
THIS THIRD AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
(this "Amendment"), dated as of April 21, 1997, is by and among
---------
Akron Holding Corporation, an Ohio corporation, Kaiser Alumina
Australia Corporation, a Delaware corporation, Kaiser Aluminium
International, Inc., a Delaware corporation, Kaiser Aluminum &
Chemical Investment, Inc., a Delaware corporation, Kaiser
Aluminum Properties, Inc., a Delaware corporation, Kaiser
Aluminum Technical Services, Inc., a California corporation,
Kaiser Finance Corporation, a Delaware corporation, Oxnard Forge
Die Company, Inc., a California corporation, Kaiser Micromill
Holdings, LLC, a limited liability company organized under the
laws of Delaware, Kaiser Sierra Micromills, LLC, a limited
liability company organized under the laws of Delaware, Kaiser
Texas Sierra Micromills, LLC, a limited liability company
organized under the laws of Texas, and Kaiser Texas Micromill
Holdings, LLC, a limited liability company organized under the
laws of Texas (collectively, the "Kaiser Subsidiaries" and
-------------------
individually, a "Kaiser Subsidiary"), and BankAmerica Business
-----------------
Credit, Inc., a Delaware corporation, as agent for the Secured
Lenders (as defined in the Credit Agreement referred to below)
(in such capacity, together with its successors and assigns in
such capacity, the "Agent"). Capitalized terms used, but not
-----
defined, herein shall have the meanings given to such terms in
the Credit Agreement, as amended by the Ninth Amendment.
W I T N E S S E T H:
WHEREAS, Kaiser Aluminum & Chemical Corporation, a
Delaware corporation (the "Company"), Kaiser Aluminum
-------
Corporation, a Delaware corporation (the "Parent Guarantor"), the
-----------------
various financial institutions that are or may from time to time
become parties to the Credit Agreement (collectively, the
"Lenders" and, individually, a "Lender"), 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 Acknowledgment, 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, and the Eighth Amendment to Credit
Agreement, dated as of February 24, 1997 (the "Credit
------
Agreement"); and
- ---------
WHEREAS, as of the date hereof the Company, the Parent
Guarantor, the Lenders and the Agent are entering into a Ninth
Amendment to Credit Agreement (the "Ninth Amendment"); and
---------------
WHEREAS, the Kaiser Subsidiaries and the Agent are
parties to the Subsidiary Security Agreement, Financing Statement
and Conditional Assignment of Patents and Trademarks, dated as of
February 15, 1994, as amended by the First Amendment to
Subsidiary Security Agreement, dated as of July 21, 1994 and
Second Amendment to Subsidiary Security Agreement dated as of
December 11, 1995 (the "Subsidiary Security Agreement"), and have
-------------------------------
agreed to amend the Subsidiary Security Agreement as herein
provided; and
WHEREAS, the Required Lenders have consented to the
execution and delivery of this Amendment by the Agent;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Subsidiary Security Agreement.
------------------------------------------
The proviso contained in the first paragraph of
Section 2 of the Subsidiary Security Agreement is hereby amended
by adding the phrase "AKW, AKW LLC," immediately following the
phrase "Furukawa," each time it appears in clause (A) thereof.
Section 2. Kaiser Subsidiaries' Representations and
----------------------------------------
Warranties.
- ----------
In order to induce the Agent to enter into this
Amendment and to amend the Subsidiary Security Agreement in the
manner provided herein, and to induce the Required Lenders to
consent to such action by the Agent, each Kaiser Subsidiary
represents and warrants to each Lender and the Agent that, as of
the Ninth Amendment Effective Date (as defined in the Ninth
Amendment) 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
----------------------------
delivery of this Amendment by such Kaiser Subsidiary and the
performance of the Subsidiary Security Agreement as amended by
this Amendment (the "Amended Agreement") by such Kaiser
-----------------
Subsidiary are within such Kaiser Subsidiary's corporate powers
or company powers, as the case may be, and have been duly
authorized by all necessary corporate action or company action,
as the case may be, on the part of such Kaiser Subsidiary.
B. No Conflict. The execution and delivery by such
-----------
Kaiser Subsidiary of this Amendment and the performance by such
Kaiser Subsidiary of the Amended Agreement do not:
(1) contravene such Kaiser Subsidiary's Organic
Documents or the Organizational Agreements;
(2) contravene the Senior Indenture, the
Subordinated Indenture, the New Senior Indenture or the
Additional New Senior 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 Kaiser Subsidiary or any of
its Subsidiaries; or
(3) result in, or require the creation or
imposition of, any Lien on any of such Kaiser Subsidiary's
properties, other than pursuant to the Loan Documents.
C. Binding Obligation. This Amendment has been duly
------------------
executed and delivered by such Kaiser Subsidiary and this
Amendment and the Amended Agreement constitute the legal, valid
and binding obligations of such Kaiser Subsidiary, enforceable
against such Kaiser Subsidiary 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
---------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance of this Amendment by such Kaiser Subsidiary.
Section 3. Miscellaneous.
--------------
A. Reference to and Effect on the Subsidiary Security
--------------------------------------------------
Agreement and the Other Loan Documents.
- --------------------------------------
(1) On and after the Ninth Amendment Effective
Date, each reference in the Subsidiary Security Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of
like import referring to the Subsidiary Security Agreement, and
each reference in the other Loan Documents to the "Subsidiary
Security Agreement", "thereunder", "thereof" or words of like
import referring to the Subsidiary Security Agreement shall mean
and be a reference to the Amended Agreement.
(2) Except as specifically amended by this
Amendment, the Subsidiary Security Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
(3) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender under,
the Subsidiary Security Agreement.
B. Applicable Law. THIS AMENDMENT SHALL BE DEEMED TO
--------------
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
--------
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
------------
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
-------------
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.
BANKAMERICA BUSINESS CREDIT,
INC., as Agent
By:
---------------------------
Name: Michael J. Jasaitis
Its: Vice President
AKRON HOLDING CORPORATION KAISER ALUMINUM & CHEMICAL
INVESTMENT, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINUM PROPERTIES, INC. KAISER ALUMINUM TECHNICAL
SERVICES, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
OXNARD FORGE DIE COMPANY, INC. KAISER ALUMINIUM
INTERNATIONAL, INC.
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER ALUMINA AUSTRALIA KAISER FINANCE CORPORATION
CORPORATION
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
KAISER MICROMILL HOLDINGS, LLC KAISER SIERRA MICROMILLS, LLC
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Treasurer of Kaiser Aluminum Its: Treasurer
& Chemical Corporation
KAISER TEXAS SIERRA MICROMILLS, LLC KAISER TEXAS MICROMILL
HOLDINGS, LLC
By: By:
---------------------- ------------------------
Name Printed: Karen A. Twitchell Name Printed: Karen A. Twitchell
Its: Treasurer Its: Treasurer
AMENDED AND RESTATED BY-LAWS
OF
KAISER ALUMINUM CORPORATION
July 22, 1997
INDEX
Page
Article I - OFFICES
SECTION 1. Registered Office. . . . . . . . . . . . . . . .1
SECTION 2. Offices. . . . . . . . . . . . . . . . . . . . .1
Article II - MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. . . . . . . . . . . . . . .1
SECTION 2. Annual Meetings. . . . . . . . . . . . . . . . .1
SECTION 3. Special Meetings . . . . . . . . . . . . . . . .3
SECTION 4. Adjourned Meetings, Notice . . . . . . . . . . .3
SECTION 5. Voting . . . . . . . . . . . . . . . . . . . . .4
SECTION 6. Quorum . . . . . . . . . . . . . . . . . . . . .4
SECTION 7. Proxies. . . . . . . . . . . . . . . . . . . . .4
SECTION 8. Inspectors . . . . . . . . . . . . . . . . . . .4
SECTION 9. Procedural Rules . . . . . . . . . . . . . . . .5
Article III - DIRECTORS
SECTION 1. Powers . . . . . . . . . . . . . . . . . . . . .5
SECTION 2. Number and Qualification of Directors. . . . . .5
SECTION 3. Election and Term of Office. . . . . . . . . . .5
SECTION 4. Vacancies. . . . . . . . . . . . . . . . . . . .5
SECTION 5. Place of Meeting . . . . . . . . . . . . . . .6
SECTION 6. Annual Meeting . . . . . . . . . . . . . . . . .6
SECTION 7. Other Regular Meetings . . . . . . . . . . . . .6
SECTION 8. Special Meetings . . . . . . . . . . . . . . . .6
SECTION 9. Quorum . . . . . . . . . . . . . . . . . . . . .6
SECTION 10. Adjournment. . . . . . . . . . . . . . . . . . .6
SECTION 11. Fees and Compensation. . . . . . . . . . . . . .7
SECTION 12. Directors' Action Without Meetings . . . . . . .7
SECTION 13. Meetings by Telecommunication. . . . . . . . .7
Article IV - COMMITTEES
SECTION 1. Committees . . . . . . . . . . . . . . . . . . .7
SECTION 2. Committee Rules . . . . . . . . . . . . . . . .7
Article V - OFFICERS
SECTION 1. Officers . . . . . . . . . . . . . . . . . . . .8
SECTION 2. Election . . . . . . . . . . . . . . . . . . . .8
SECTION 3. Removal and Resignation. . . . . . . . . . . . .8
SECTION 4. Vacancies. . . . . . . . . . . . . . . . . . . .8
SECTION 5. Chairman of the Board. . . . . . . . . . . . . .8
SECTION 6. Vice Chairman of the Board . . . . . . . . . . .8
SECTION 7. Chief Executive Officer. . . . . . . . . . . . .9
SECTION 8. President . . . . . . . . . . . . . . . . . .9
SECTION 9. Chief Operating Officer . . . . . . . . . . .9
SECTION 10. Executive Vice Presidents and Senior Vice
Presidents. . . . . . . . . . . . . . . . . . .9
SECTION 11. Vice Presidents. . . . . . . . . . . . . . . . .9
SECTION 12. Secretary. . . . . . . . . . . . . . . . . . . .9
SECTION 13. Treasurer. . . . . . . . . . . . . . . . . . . 10
SECTION 14. Controller . . . . . . . . . . . . . . . . . . 10
Article VI - MISCELLANEOUS
SECTION 1. Record Dates . . . . . . . . . . . . . . . . . 10
SECTION 2. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. . . . . . . . . . . 10
SECTION 3. Certificates of Stock. . . . . . . . . . . . . 11
SECTION 4. Inspection of Stock Ledger . . . . . . . . . . 11
SECTION 5. Indemnification. . . . . . . . . . . . . . . . 11
Article VII - AMENDMENTS
SECTION 1. Adoption, Amendment or Repeal of By-laws . . . 12
AMENDED AND RESTATED
BY-LAWS
OF
KAISER ALUMINUM CORPORATION
(A Delaware corporation)
Article I - OFFICES
SECTION 1. Registered Office. The registered office of
-----------------
the Corporation shall be located at Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware. The name of
the registered agent in charge thereof is The Corporation
Trust Company.
SECTION 2. Offices. Offices may at any time be
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established by the Board of Directors at any place or places,
within or without the State of Delaware.
Article II - MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of
-------------------
Stockholders for the election of Directors shall be held at the
principal office of the Corporation or at such other place either
within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the
notice of the meeting. Meetings of the Stockholders for any
other purpose may be held at such place as shall be stated in the
notice of the meeting.
SECTION 2. Annual Meetings. The Board of Directors
---------------
acting by resolution may postpone and reschedule any previously
scheduled annual meeting of Stockholders.
Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be
considered by the Stockholders may be made at an annual meeting
of Stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors, or
(c) by any Stockholder of the Corporation who was a Stockholder
of record at the time of giving of notice provided for in this
By-law, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in this By-law.
For nominations for Directors or other business to be
properly brought before an annual meeting by a Stockholder
pursuant to clause (c) of the foregoing paragraph of this By-law,
the Stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a
Stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than 60
days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is advanced by more
than 30 days or delayed by more than 60 days from such
anniversary date, notice by the Stockholder to be timely must be
so delivered not earlier than the 90th day prior to such annual
meeting and not later than the close of business on the later of
the 60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of
such meeting is first made. 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
solicitation 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 (the "Exchange
Act") (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a Director if
elected); (b) as to any other business that the Stockholder
proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons
for conducting such business at the meeting and any material
interest in such business of such Stockholder and the beneficial
owner, if any, on whose behalf the nomination or proposal is made
as well as (i) the name and address of such Stockholder, as they
appear on the Corporation's books, and of such beneficial owner,
if applicable, and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such
Stockholder and such beneficial owner, if applicable.
Notwithstanding anything herein to the contrary, in the
event that the number of Directors to be elected to the Board of
Directors of the Corporation is increased and there is no public
announcement naming all of the nominees for Director or
specifying the size of the increased Board of Directors made by
the Corporation at least 70 days prior to the first anniversary
of the preceding year's annual meeting, a Stockholder's notice
required by this By-law shall also be considered timely, but only
with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the
close of business on the 10th day following the day on which such
public announcement is first made by the Corporation.
Only such persons who are nominated in accordance with the
procedures set forth in these By-laws shall be eligible to serve
as Directors and only such business shall be conducted at an
annual meeting of Stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this
By-law. The chairman of the meeting shall have the power and
duty to determine whether any nomination or business proposed to
be brought before the meeting was made in accordance with the
procedures set forth in these By-laws and, if any proposed
nomination or business is not in compliance with these By-laws,
to declare that such defective proposal shall be disregarded.
For purposes of this By-law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Services, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or
15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this By-law, a
Stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this By-law. Nothing in this
By-law shall be deemed to affect any rights of Stockholders to
request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 3. Special Meetings. Business transacted at all
----------------
special meetings shall be confined to the specific purpose or
purposes of the persons authorized to request such special
meeting as set forth in this Section 3 and only such purpose or
purposes shall be set forth in the notice of such meeting.
The Board of Directors acting by resolution may postpone and
reschedule any previously scheduled special meeting
of Stockholders.
Nominations of persons for election to the Board of
Directors may be made at a special meeting of Stockholders at
which Directors are to be elected (a) pursuant to the
Corporation's notice of meeting (b) by or at the direction of the
Board of Directors or (c) by any Stockholder of the Corporation
who is a Stockholder of record at the time of giving of notice
provided for in this By-law, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in
this By-law. Nominations by Stockholders of persons for election
to the Board of Directors may be made at such a special meeting
of Stockholders if the Stockholder's notice required by the third
paragraph of Section 2 of Article II of these By-laws shall be
delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the 90th day prior to such
special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made
of the date of the special meeting and of the nominees proposed
by the Board of Directors to be elected at such meeting.
Only such persons who are nominated in accordance with the
procedures set forth in these By-laws shall be eligible to serve
as Directors and only such business shall be conducted at a
special meeting of the Stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in
this By-law. The chairman of the meeting shall have the power
and duty to determine whether any nomination or business
proposed to be brought before the meeting was made in accordance
with the procedures set forth in this By-law, and if any proposed
nomination or business is not in compliance with this By-law, to
declare that such defective proposal shall be disregarded.
Notwithstanding the foregoing provisions of this By-law, a
Stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this By-law. Nothing in this
By-law shall be deemed to affect any rights of Stockholders to
request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 4. Adjourned Meetings, Notice. Any
--------------------------
Stockholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time, to be reconvened
at the same or some other place, by the vote of a majority of'
the shares entitled to vote thereon, the holders of which are
either present in person or represented by proxy thereat. At
the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting, but in
the absence of a quorum no other business may be transacted at
any such meeting.
When any Stockholders' meeting, either annual or
special, is adjourned for thirty (30) days or more or if after
the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given as in the
case of an original meeting. Save as aforesaid, it shall not be
necessary to give any notice of an adjournment or of the business
to be transacted at an adjourned meeting, if the time and place
of the adjourned meeting are announced at the meeting at which
such adjournment is taken.
SECTION 5. Voting. At all meetings of Stockholders,
------
every registered Stockholder entitled to vote shall have the
right to vote in person or by proxy the number of shares standing
in his own name on the stock records of the Corporation;
provided, however, that at all elections of Directors each holder
of record of stock entitled to vote for the election of Directors
shall be entitled to one vote for each share of such stock held
by such Stockholder for each Director's position to be filled.
Cumulative voting for Directors shall not be permitted. Voting
shall be conducted by ballot.
SECTION 6. Quorum. Subject to any provisions of the
------
Certificate of Incorporation relating to a quorum at meetings at
which the holders of shares of stock of any class are entitled to
vote separately as a class, the presence in person or by proxy of
the holders of a majority of the shares entitled to vote at any
meeting shall constitute a quorum for the transaction of
business. The Stockholders present at a duly called or held
meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough
Stockholders to leave less than a quorum.
SECTION 7. Proxies. Every person entitled to vote at
-------
a meeting of Stockholders shall have the right to do so either in
person or by an agent or agents authorized by a proxy furnished
in accordance with applicable law. A Stockholder may revoke any
proxy which is not irrevocable by attending the meeting and
voting in person or by filing an instrument in writing revoking
the proxy or another duly executed proxy bearing a later date
with the Secretary of the Corporation.
SECTION 8. Inspectors. Prior to any meeting of
----------
Stockholders, the Board of Directors or the President shall
appoint one or more inspectors to act at such meeting and make a
written report thereof and may designate one or more persons as
alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at the meeting of
Stockholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his or her duties, shall
take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall ascertain the number of
shares outstanding and the voting power of each, determine the
shares represented at the meeting and the validity of proxies and
ballots, count all votes and ballots, determine and retain for a
reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their
determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may
appoint or retain other persons to assist them in the performance
of their duties. The date and time of the opening and closing of
the polls for each matter upon which the Stockholders will vote
at a meeting shall be announced at the meeting. No ballot, proxy
or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. The
inspectors shall determine the validity of proxies and ballots in
accordance with applicable law.
SECTION 9. Procedural Rules. The Board of Directors of
----------------
the Corporation shall be entitled to make such rules or
regulations for the conduct of meetings of Stockholders as it
shall deem necessary, appropriate or convenient. Subject to such
rules and regulations of the Board of Directors, if any, the
chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all
such acts as, in the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business
of the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation
in such meeting to Stockholders of record of the Corporation and their
duly authorized and constituted proxies, and such other persons as the
chairman of the meeting shall permit, restrictions on entry to
the meeting after the time fixed for the commencement thereof,
limitations on the time allotted to questions or comment by
participants and regulation of the opening and closing of the
polls for balloting determined by the Board of Directors or the
chairman of the meeting. Meetings of Stockholders shall not be
required to be held in accordance with rules of parliamentary
procedure.
Article III - DIRECTORS
SECTION 1. Powers. Subject to the limitations of the
------
Certificate of Incorporation, the By-laws and the General
Corporation Law of the State of Delaware as to action to be
authorized or approved by the Stockholders, and subject to the
duties of Directors as prescribed by the By-laws, all corporate
powers shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed by or
under the direction of, the Board of Directors.
SECTION 2. Number and Qualification of Directors. The
--------------------------------------
Board of Directors shall consist of not less than three (3) nor
more than ten (10) members. The Board of Directors may, by
resolution, designate the number of members of the Board of
Directors. Directors need not be Stockholders.
SECTION 3. Election and Term of Office. The Directors
---------------------------
shall be elected at each annual meeting of Stockholders, but if
any such annual meeting is not held, or the Directors are not
elected thereat, the Directors may be elected at any special
meeting of Stockholders held for that purpose. All Directors
shall hold office until their respective successors are elected
and qualified or until their earlier resignation or removal.
SECTION 4. Vacancies. Vacancies and newly created
---------
directorships in the Board of Directors may be filled by a
majority of the remaining Directors, though less than a quorum,
or by a sole remaining Director, and each Director so elected
shall hold office until his successor is elected at an annual or
a special meeting of the Stockholders. Whenever the holders of
any class or classes of stock or series thereof are entitled to
elect one or more Directors by the provisions of the Certificate
of Incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of
the Directors elected by such class or classes or series thereof
then in office, or by the sole remaining Director so elected.
A vacancy or vacancies shall be deemed to exist in case of
the death, resignation or removal of any Director.
The Stockholders may at any time elect Directors to fill any
vacancy not filled by the Directors.
Any Director may resign at any time by giving written notice
to the Board of Directors, the Chief Executive Officer or the
Secretary of the Corporation. Any such resignation shall take
effect at the time of receipt of such notice or at such later
time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary
to make it effective. If any Director resigns, the Board of
Directors shall have power to elect a successor to take office
at such time as the resignation shall become effective.
SECTION 5. Place of Meeting. Subject to the
------------------
provisions of Section 13 of this Article III, all meetings of the
Board of Directors shall be held at the principal office of the
Corporation or at such other place in the United States
designated at any time by the Board of Directors.
SECTION 6. Annual Meeting. Immediately following each
--------------
annual meeting of Stockholders, the Board of Directors shall hold
a regular meeting for the purpose of organization, election of
officers, and the transaction of other business. Notice of all
such regular meetings shall not be required.
SECTION 7. Other Regular Meetings. Other regular
----------------------
meetings of the Board of Directors shall be held without call at
such times as shall from time to time be determined by the Board
of Directors. Notice of all such regular meetings shall not be
required.
SECTION 8. Special Meetings. Special meetings of the
----------------
Board of Directors, for any purpose or purposes whatsoever, shall
be called at any time only by the Chairman of the Board or by any
two (2) of the Directors. Reasonable notice thereof shall be
given by the person or persons calling the meeting.
SECTION 9. Quorum. At all meetings of the Board of
------
Directors a majority of the entire Board of Directors shall be
necessary and sufficient to constitute a quorum for the
transaction of business, except to fill vacancies in the Board of
Directors as herein before provided, and except to adjourn as
hereinafter provided. Every act or decision done or made by a
majority of the Directors present at a meeting duly held at which
a quorum is present shall be regarded as the act of the Board of
Directors.
SECTION 10. Adjournment. A quorum of the Directors may
-----------
adjourn any Board of Directors' meeting to meet again at a stated
day and hour; provided, however, that in the absence of a Quorum
a majority of the Directors present at any Board of
Directors' meeting, either regular or special, may adjourn from
time to time until the time fixed for the next regular meeting of
the Board of Directors. Notice of the time and place of holding
an adjourned meeting of a Board of Directors' meeting, either
regular or special, need not be given to absent Directors if the
time and place are fixed at the meeting adjourned.
SECTION 11. Fees and Compensation. Directors shall
----------------------
receive such compensation for their services and reimbursement
for expenses as Directors as shall be determined from time to
time by resolution of the Board of Directors. Any Director may
serve the Corporation in any other capacity as an Officer, agent,
employee or otherwise and receive compensation therefor.
SECTION 12. Directors' Action Without Meetings. Any
-----------------------------------
action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken
without a meeting, if a written consent thereto is signed by all
members of the Board of Directors or such committee as the case
may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors or committee.
SECTION 13. Meetings by Telecommunication. Any
--------------------------------
meeting, regular or special, of the Board of Directors or of any
committee thereof may be held by conference telephone or similar
communication equipment. Participation in such a meeting shall
constitute presence in person at the meeting.
Article IV - COMMITTEES
SECTION 1. Committees. The Board of Directors may, by
----------
resolution passed by a majority of the entire Board, designate
one or more committees, each committee to consist of one or more
Directors. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member. Any such committee,
to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have power or authority
in reference to amending the Certificate of Incorporation,
adopting an agreement or merger or consolidation, recommending to
the Stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets,
recommending to the Stockholders dissolution of the Corporation
or a revocation of dissolution, or amending these By-laws.
SECTION 2. Committee Rules. Unless the Board of
-----------------
Directors otherwise provides, each committee designated by the
Board of Directors may adopt, amend and repeal rules for the
conduct of its business. Reasonable notice of each committee
meeting (other than regularly scheduled meetings) shall be
furnished to all members of the committee. A majority of the
entire authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of
a majority of the members present at a meeting at the time of
such vote if a quorum is then present shall be the act of such
committee, and in other respects each committee shall conduct its
business in the same manner as the Board of Directors conducts
its business pursuant to Article III of these By-laws.
Article V - OFFICERS
SECTION 1. Officers. The Officers of the Corporation
--------
shall be a Chief Executive Officer, a President, a Secretary, a
Treasurer and a Controller. The Board of Directors may also, at
its discretion, choose from among its members a Chairman of the
Board and a Vice Chairman of the Board. The Corporation may also
have, at the discretion of the Board of Directors, a Chief
Operating Officer, one or more Executive Vice Presidents, one or
more Senior Vice Presidents, one or more Vice Presidents, one or
more Assistant Secretaries, one or more Assistant Treasurers, and
one or more Assistant Controllers. One person may hold two
or more offices.
SECTION 2. Election. The Officers of the Corporation
--------
shall be elected by the Board of Directors and each shall hold
his office until he shall resign or shall be removed or otherwise
disqualified to serve, or his successor shall be elected and
qualified.
SECTION 3. Removal and Resignation. Any Officer may be
-----------------------
removed, either with or without cause, by a majority of the
Directors at the time in office, at any regular or special
meeting of the Board of Directors, or, except in the case of an
Officer chosen by the Board, by the Chief Executive Officer.
Any Officer may resign at any time by giving written notice
to the Board of Directors, the Chief Executive Officer or the
Secretary of the Corporation. Any such resignation shall take
effect at the time of receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
SECTION 4. Vacancies. A vacancy in any office because of
---------
death, resignation, removal, disqualification or any other
cause, shall be filled in the manner prescribed in the By-laws
for regular appointments to such office.
SECTION 5. Chairman of the Board. The Chairman of the
---------------------
Board, if any, shall preside at all meetings of the Board of
Directors and of the Stockholders at which he shall be present
and exercise and perform such powers and duties as generally
pertain to his office as well as such powers and duties as may be
from time to time assigned to him by the Board of Directors or
prescribed by the By-laws. If so designated by the Board of
Directors, the Chairman of the Board shall be the Chief Executive
Officer.
SECTION 6. Vice Chairman of the Board. In the absence of
--------------------------
the Chairman of the Board, the Vice Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors and
of the Stockholders at which he shall be present. The Vice
Chairman of the Board shall exercise such powers and duties as
generally pertain to his office as well as such powers and duties
as may be from time to time assigned to him by the Board of
Directors or prescribed by the By-laws.
SECTION 7. Chief Executive Officer. Subject to such
-----------------------
supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board or the Vice Chairman of
the Board, if there be such Officers, the Chief Executive Officer
shall have such powers and duties as generally pertain to his
office as well as general supervision, direction and control of
the business and affairs of the Corporation.
SECTION 8. President. If the Chairman of the Board has
---------
not been designated as the Chief Executive Officer, the
President shall be the Chief Executive Officer with the powers
and duties set forth in Section 7 of this Article V. If the
Chairman of the Board has been so designated, the President shall
have such powers and duties as generally pertain to his office as
well as such powers and duties as from time to time may be prescribed by the
Board of Directors, the Chief Executive Officer or the By-laws.
In the absence of the Chairman of the Board and of the Vice
Chairman of the Board, the President shall preside at all
meetings of the Board of Directors and of the Stockholders at
which he shall be present.
SECTION 9. Chief Operating Officer. Subject to such
-----------------------
supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board or the Vice Chairman of
the Board or the Chief Executive Officer, if there be such
Officers, the Chief Operating Officer shall have such powers and
perform such duties as from time to time may be prescribed by the
Board of Directors, the Chief Executive Officer, or the By-Laws.
SECTION 10. Executive Vice Presidents and Senior Vice
-----------------------------------------
Presidents. The Executive Vice Presidents and Senior Vice
- ----------
Presidents, if any, shall have such powers and perform such
duties as generally pertain to their respective offices as well
as such powers and duties as from time to time may be prescribed
by the Board of Directors, the Chief Executive Officer or the
By-laws.
SECTION 11. Vice Presidents. The Vice Presidents, if
---------------
any, shall have such powers and duties as generally pertain to
their respective offices as well as such powers and duties as
from time to time may be prescribed by the Board of Directors,
the Chief Executive Officer or the By-laws.
SECTION 12. Secretary. The Secretary shall keep, or
---------
cause to be kept, a book of minutes at the principal office of
the Corporation or such other place as the Board of Directors may
order, of all meetings of the Board of Directors and any
committee thereof and of the Stockholders, with the time and
place of holding, whether regular or special, and, if special,
how authorized, the notice thereof given, the names of those
present at Board of Directors' and committee meetings, the number
of shares present or represented at Stockholders' meetings and
the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the
principal office of the Corporation and at the office of the
Corporation is transfer agent, if a transfer agent shall
be appointed, a stock ledger, or a duplicate stock ledger,
showing the names of the Stockholders and their addresses; the
number and classes of shares held by each; the number and
date of certificates issued for the same, and the number and
date of cancellation of every certificate surrendered for
cancellation.
The Secretary shall give, or cause to be given, notice of
all the meetings of the Stockholders and of the Board of
Directors required by the By-laws or by law to be given, and he
shall keep the seal of the Corporation in safe custody, and shall
have such powers and duties as generally pertain to his office as
well as such powers and duties as may be prescribed by the Board
of Directors, the Chief Executive Officer or the By-laws.
SECTION 13. Treasurer. The Treasurer shall keep or
---------
cause to be kept full and accurate records of all receipts and
disbursements in the books of the Corporation and shall have the
care and custody of all funds and securities of the Corporation.
The Treasurer shall deposit all moneys and other valuables
in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. He
shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, shall render to the Chief Executive
Officer, the President and Directors, whenever they request it,
an account of all of his transactions as Treasurer and shall have
such powers and duties as generally pertain to his office as well
as such powers and duties as may be prescribed by the Board of
Directors, the Chief Executive Officer or the By-laws.
SECTION 14. Controller. The Controller shall be the
----------
chief accounting officer of the Corporation. He shall keep or
cause to be kept all books of accounts and accounting records of
the Corporation and shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties
and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares. The books of account shall
at all times be open to inspection by any Director. He shall
prepare or cause to be prepared appropriate financial statements
for the Corporation and shall have such powers and duties as
generally pertain to his office as well as such powers and duties
as may be prescribed by the Board of Directors, the Chief
Executive Officer or the By-laws.
Article VI - MISCELLANEOUS
SECTION 1. Record Dates. The Board of Directors may
------------
fix in advance a date as a record date for the determination of
the Stockholders entitled to notice of and to vote at any meeting
of Stockholders, or entitled to receive payment of any dividend,
or the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, or
the date for any other lawful action, and in such case such
Stockholders, and only such Stockholders as shall be Stockholders
of record on the date so fixed, shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or
to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, or to take such other
action, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any such record date
fixed as aforesaid.
SECTION 2. Waiver of Notice of Meetings of Stockholders,
--------------------------------------------
Directors and Committees. Whenever notice is required to be
- ------------------------
given by law or under any provision of the Certificate of
Incorporation or these By-laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice.
SECTION 3. Certificates of Stock. A certificate for
---------------------
shares of the capital stock of the Corporation shall be issued to
each Stockholder when any such shares are fully paid up. All
such certificates shall be signed by or in the name of the
Corporation by the Chief Executive Officer or the President or a
Vice President and the Secretary or an Assistant Secretary. Any
or all of the signatures on the certificates may be a facsimile.
In case any Officer who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
Officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if such person were such
Officer at the date of issue.
SECTION 4. Inspection of Stock Ledger. The Secretary
--------------------------
shall prepare and make, at least ten (10) days before every
meeting of Stockholders, a complete list of the Stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each Stockholder and the number of
shares registered in the name of each Stockholder. Such list
shall be upon to the examination of any Stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any Stockholder who is present.
SECTION 5. Indemnification. The Corporation shall
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indemnify to the full extent authorized by law, whether by
statute, court decision or otherwise, and to the extent permitted
by the Certificate of Incorporation, any person made or
threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative,
by reason of the fact that such person or such person's testator
or intestate is or was a Director, Officer or employee of the
Corporation or serves or served at the request of the Corporation
any other enterprise as a director, officer or employee.
Subject to the Certificate of Incorporation, expenses
incurred by a Director or Officer of the Corporation in defending
a civil or criminal action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or
on behalf of such Director or Officer to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Corporation. Such expenses incurred by other
employees may be so paid upon such terms and conditions, if any,
as the Board of Directors deems appropriate.
For purposes of this Section 5, the term "Corporation" shall
include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed by the Corporation in a consolidation or
merger; the term "other enterprise" shall include any
corporation, partnership, joint venture, trust or employee
benefit plan; service "at the request of the Corporation" shall
include service as a Director, Officer or employee of the
Corporation which imposes duties on, or involves service by, such
Director, Officer or employee with respect to an employee benefit
plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan
shall be deemed to be indemnifiable expenses; and action by a
person with respect to any employee benefit plan which such
person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be
action not opposed to the best interests of the Corporation.
Article VII - AMENDMENTS
SECTION 1. Adoption, Amendment or Repeal of By-laws.
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By-laws may be made, adopted, altered or repealed by the vote of
Stockholders entitled to exercise a majority of the voting power
of the Corporation. Subject to the right of Stockholders to
make, adopt, amend or repeal By-laws, By-laws may be made,
adopted, altered or repealed, at any time, by the Board of
Directors.
