Kaiser Aluminum Corporation and Kaiser Aluminum & Chemical Corporation Exit Credit Facility Amendment No. 3 to Commitment Letter

 

Exhibit 4.3
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
131 South Dearborn
Chicago, Illinois 60670

J.P. MORGAN SECURITIES INC.
131 South Dearborn
Chicago, Illinois 60670

THE CIT GROUP/BUSINESS CREDIT, INC.
1211 Avenue of the Americas
New York, New York 10036

April 26, 2006
Kaiser Aluminum Corporation and
Kaiser Aluminum & Chemical Corporation
Exit Credit Facility
Amendment No. 3 to Commitment Letter


Kaiser Aluminum Corporation
Kaiser Aluminum & Chemical Corporation
27422 Portola Parkway, Ste. 350
Foothill Ranch, CA 92610-2831
Attention: Chief Financial Officer



RE:   Commitment Letter, dated January 14, 2005 (the “Original Commitment Letter”),as amended by that certain Amendment No. 1 to Commitment Letter, dated January 10, 2005(the “Amendment No. 1 to Commitment Letter”), and by that certain Amendment No. 2 toCommitment Letter, dated the date hereof (the “Amendment No. 2 to Commitment Letter”)(the Original Commitment Letter as amended by the Amendment No. 1 to Commitment Letterand the Amendment No. 2 to Commitment Letter, the “Commitment Letter”), among KaiserAluminum Corporation, a Delaware corporation (“Parent”), Kaiser Aluminum & ChemicalCorporation, a Delaware corporation (“Company”), JPMorgan Chase Bank, NationalAssociation (“JPMorgan”), J.P. Morgan Securities Inc. (“JPMSI”) and CIT Group/BusinessCredit, Inc. (“CIT”)
Ladies and Gentlemen:
          Reference is made to the Commitment Letter, pursuant to which JPMSI and CIT agreed tostructure and arrange and JPSMI agreed to syndicate (i) a super-priority secureddebtor-in-possession revolving credit and letter of credit facility in an aggregate amount of up to$200,000,000 (the “DIP Revolving Commitment”) to the Borrowers as debtors and debtors-in-possessionin the currently pending Chapter 11 case of the Borrowers (the “DIP Credit Facility”) and (ii) asenior secured revolving credit and letter of credit facility in an aggregate amount of up to$200,000,000 (the “Revolving Credit Facility”) and a $50,000,000 term loan facility (the “Term LoanFacility” and together with the Revolving Credit Facility, the “Exit Credit Facilities” and theExit Credit Facilities, with the DIP Credit Facility, each a “Facility” and together, the“Facilities”) to be provided to the Borrowers upon the consummation of a plan of reorganization.Pursuant to the Commitment Letter, JPMorgan and CIT

 


 

(together, the “Primary Lenders”) also agreed to provide an equal share of the entire principal amount of each Facility andJPMorgan agreed to serve as Administrative Agent for each Facility. Capitalized terms used hereinbut not otherwise defined shall have the respective meanings assigned to such terms in theCommitment Letter.
          The DIP Facility closed on February 11, 2005. Pursuant to the Amendment No. 1 to CommitmentLetter and the Amended and Restated Fee Letter, dated January 10, 2005 (the “Amended and RestatedFee Letter”), we agreed, among other things, to extend the commitments with respect to the ExitFacilities through May 11, 2006. Pursuant to the Amendment No. 2 to Commitment Letter and theAmendment No. 1 to Amended and Restated Fee Letter, dated the date hereof (the “Amendment No. 1 toFee Letter”), we agreed to extend the commitments with respect to the Exit Facilities through May17, 2006. You have requested that we amend the Commitment Letter to further extend the commitmentswith respect to the Exit Facilities through August 31, 2006. We are willing to consent to theamendment of the Commitment Letter and to the extension of the commitments with respect to the ExitFacilities and grant such amendment to the Commitment Letter on the terms and subject to theconditions set forth herein and in the Amended and Restated Letter, as amended by the Amendment No.1 to Fee Letter, and by that certain Amendment No. 2 to Amended and Restated Fee Letter, dated thedate hereof (the “Amendment No. 2 to Fee Letter”) (the Amended and Restated Fee Letter as amendedby the Amendment No. 1 to Fee Letter and by the Amendment No. 2 to Fee Letter, the “Fee Letter”).Therefore, in consideration of the premises and the agreements herein contained, we each herebyagree as follows:
          Immediately upon the occurrence of the Effective Date (as defined below), the fifth sentenceof the fifteenth paragraph of the Commitment Letter shall be amended and restated in its entiretyas follow:
Once effective, the Primary Lenders’ commitments and the Lead Arranger’s andCo-Arranger’s agreements with respect to the Term Loan Facility in accordance withthe terms of this Commitment Letter shall cease if the Term Loan Facility is notfunded for any reason on or before the earliest of (a) the date that is thirty (30)days after the date of the substantial consummation (as defined in Section 1101 ofthe Bankruptcy Code) of a plan of reorganization of the Borrowers, (b) the date thatthe Borrowers close an Alternative Financing (as defined in the Fee Letter) and (c)August 31, 2006, and the Primary Lenders’ commitments and the Lead Arranger’s andCo-Arranger’s agreements with respect to the Revolving Credit Facility in accordancewith the terms of this Commitment Letter shall cease if the Closing Date of theRevolving Credit Facility does not occur on or before August 31, 2006; provided,however, any termination of the commitments with respect to the Term LoanFacility shall not affect the Primary Lenders’ commitments and the Lead Arranger’sand Co-Arranger’s agreements with respect to the Revolving Credit Facility.
          Except as expressly set forth herein, this Amendment No. 3 to Commitment Letter shall not byimplication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights andremedies of any party under the Commitment Letter, and shall not alter, modify, amend or in any wayaffect any of the terms, conditions, obligations, covenants or agreements contained in theCommitment Letter, all of which are ratified and affirmed in all respects and shall continue infull force and effect.
          This Amendment No. 3 to Commitment Letter is intended to be solely for the benefit of theparties hereto and is not intended to confer any benefits upon, or create any rights in favor of,any

2


 

person other than the parties hereto. This Amendment No. 3 to Commitment Letter may not beamended or waived except by an instrument in writing signed by you, JPMorgan, JPMSI and CIT. ThisAmendment No. 3 to Commitment Letter may be executed in any number of counterparts, each of which shallbe an original, and all of which, when taken together, shall constitute one agreement. Delivery ofan executed signature page of this Amendment No. 3 to Commitment Letter by facsimile transmissionshall be effective as delivery of a manually executed counterpart hereof.
          This Amendment No. 3 to Commitment Letter shall be governed by, and construed in accordancewith, the law of the State of New York. The Borrowers consent to the nonexclusive jurisdiction andvenue of the state or federal courts located in the City of New York. Each party heretoirrevocably waives, to the fullest extent permitted by applicable law, (a) any right it may have toa trial by jury in any legal proceeding arising out of or relating to this Amendment No. 3 toCommitment Letter, the Commitment Letter as amended by this Amendment No. 3 to Commitment Letter orthe transactions contemplated hereby or thereby (whether based on contract, tort or any othertheory) and (b) any objection that it may now or hereafter have to the laying of venue of any suchlegal proceeding in the state or federal courts located in the City of New York.
          This Amendment No. 3 to Commitment Letter is delivered to you on the understanding thatneither this Amendment No. 3 to Commitment Letter nor the Commitment Letter nor any of their termsor substance shall be disclosed, directly or indirectly, to any other person except (a) you maydisclose the Commitment Letter this Amendment No. 3 to Commitment Letter and their terms andsubstance to your officers, directors, agents and advisors who are directly involved in theconsideration of this matter, (b) you may disclose the Commitment Letter and this Amendment No. 3to Commitment Letter and their terms and substance to any statutory creditors committee and therepresentative of the future asbestos claimants in connection with the Borrowers’ Chapter 11 caseand any professional advisors of such committee or representative; provided that, themembers of such committee and such representative and their respective professional advisors agreeto keep the Commitment Letter this Amendment No. 3 to Commitment Letter and any of the terms orsubstance thereof strictly confidential in accordance with the terms of this paragraph, or (c) asmay be compelled in a judicial or administrative proceeding or as otherwise required by law (inwhich case you agree to inform us promptly thereof). Notwithstanding the foregoing, after thisAmendment No. 3 to Commitment Letter has been accepted by you, you may disclose this Amendment No.3 to Commitment Letter (but not the Fee Letter) with the Bankruptcy Court, as may be required toobtain court approval in connection with any acts or obligations to be taken pursuant to thisAmendment No. 3 to Commitment Letter or the transactions contemplated hereby (in which case youagree to inform us promptly thereof), it being understood that any pleadings or filings withrespect to the Commitment Letter and this Amendment No. 3 to Commitment Letter shall be acceptableto JPMorgan, JPMSI and CIT.
          Immediately upon the satisfaction of each of the conditions contained in Section 2.2 of thatcertain Second Amendment to Secured Super-Priority Debtor-In-Possession Revolving Credit andGuaranty Agreement dated as of the date hereof among Parent, Company, the other Borrowers partythereto, the Guarantors party thereto, the Lenders party thereto and JPMorgan as Agent for theLenders, this Amendment No. 3 to Commitment Letter shall become effective (the date on which suchconditions are satisfied being the “Effective Date”).
[ remainder of page intentionally left blank ]

3


 

          If the foregoing correctly sets forth our agreement, please indicate your acceptance of theterms hereof by signing in the appropriate space below and returning to us the executed duplicateof this letter agreement.
             
    Very truly yours,
 
           
    JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
 
           
 
  By:        
         
 
      Name:    
 
           
 
      Title:    
 
           
 
           
    J.P. MORGAN SECURITIES INC.
 
           
 
  By:        
         
 
      Name:    
 
           
 
      Title:    
 
           
 
           
    THE CIT GROUP/BUSINESS CREDIT, INC.
 
           
 
  By:        
         
 
      Name:    
 
           
 
      Title:    
 
           
             
Accepted and agreed to as ofthe date first written above by:    
 
           
KAISER ALUMINUM CORPORATION    
 
           
By:
           
         
 
  Name:        
 
     
 
   
 
  Title:        
 
     
 
   
 
           
KAISER ALUMINUM & CHEMICAL CORPORATION    
 
           
By:
           
         
 
  Name:        
 
     
 
   
 
  Title:        
 
     
 
   

4