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EXHIBIT 10.23
AMENDMENT TO SETTLEMENT AND RELEASE AGREEMENT
THIS AMENDMENT (the "Amendment") DATED AS
OF JANUARY 27, 2005 TO SETTLEMENT AND
RELEASE AGREEMENT DATED AS OF OCTOBER 5,
2004 (the "Agreement"), by and among
the Debtors(1) and the Creditors'
Committee:
1. Section
4.2.f. of the Agreement shall be amended and restated as
follows:
f. Except as otherwise provided
in this Section, the pre-petition
intercompany Claim held by KFC against KACC (the "KFC Claim") shall
be
allowed as a valid enforceable pre-petition unsecured Claim in
the
amount of $1.106 billion and shall receive the same treatment
as
allowed general unsecured Claims (excluding retiree medical
Claims)
under any plan or plans of reorganization for KACC and/or KAC. 75%
of
the KFC Claim shall be assigned to the 524(g) trust or master
tort
trust on the effective date of a plan or plans of reorganization
for
KACC and/or KAC, provided that such plan or plans provide for
the
524(g) trust or master tort trust to receive (a) a cash
distribution
of no more than $13 million (excluding any proceeds of insurance),
(b)
no equity distribution from any of the Debtors other than (i) 100%
of
the stock of KAE Trading, Inc. (which as of the effective date of
such
plan will own only the property described in the term sheet
annexed
hereto as Exhibit A) and (ii) stock of KAC in respect of 75% of
the
KFC Claim and (c) no debt distribution from any of the Debtors
(the
"Permitted Cash and Equity Trust Distributions"). If a plan or
plans
of reorganization for KACC and/or KAC are confirmed and become
effective which provide for a 524(g) trust or master tort trust
to
receive cash and equity distributions in excess of the Permitted
Cash
and Equity Trust Distributions, or a distribution of debt from
any
Debtor, 75% of the KFC Claim shall not be assigned to the 524(g)
trust
or master tort trust and the KFC Claim shall be allowed unless
the
United States on behalf of EPA, DOI, NOAA, or BPA (the "US") files
an
abjection to the allowance of the KFC Claim within thirty (30)
days
after the effective date of such a plan or plans. If the US files
an
objection in accordance with the preceding sentence (which shall
be
the only
circumstance in which the US may file an objection to the KFC
Claim), the US may object to the KFC Claim on any basis,
including
based on any facts relating to the KFC-KACC note, provided,
however,
that the US may not object to the KFC Claim based on the treatment
of
intercompany Claims under the Agreement (as amended by the
Amendment).
The Debtors and the Creditors' Committee expressly reserve
their
rights to oppose any such Claim objection which shall be
adjudicated
by the Court.
2. Section 7.7
of the Agreement shall be amended and restated as follows:
7.7 KACC shall pay, in cash, the
reasonable fees and expenses of each of
the members of the Creditors' Committee (including indenture
trustee
fees and the fees and expenses of counsel of such members) incurred
in
connection with the negotiation, execution and approval of the
settlement contained in this Agreement
----------
(1) All terms not otherwise defined
herein shall have the meaning set forth in
the
Agreement.
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and this Agreement, subject only to the Creditors' Committee filing
an
application with the Bankruptcy Court. The Debtors and the
United
States Trustee may object to the reasonableness of any particular
fees
or expenses sought in such application.
3. This
Amendment may be executed in two or more counterparts, in which
case this Amendment shall include each such
executed and delivered counterpart,
each of which shall be deemed to be part of
a single instrument. This Amendment
may be executed and delivered by
facsimile.
4. Except as
provided in this Amendment, none of the terms of the Agreement
shall be deemed to have been modified or
altered in any way. The Agreement, as
modified by the Amendment, shall remain in
full force and effect.
5. This
Amendment shall became effective when the Agreement becomes
effective but shall not be effective unless
the requisite DIP Lenders and the
Agent have consented to this Amendment or
such consent is no longer required
IN WITNESS
WHEREOF, the parties have caused this Amendment to be executed
as of the day and year first above
written.
KAISER ALUMINUM CORPORATION
By: /s/
Edward F. Houff
-----------------------------------------
Name: Edward F.
Houff
Title: Senior Vice President and
Chief Restructuring Officer
KAISER ALUMINUM & CHEMICAL CORPORATION
By: /s/ Edward F. Houff
-----------------------------------------
Name: Edward F.
Houff
Title: Senior Vice President and
Chief Restructuring Officer
KAISER FINANCE CORPORATION
By: /s/
Edward F. Houff
-----------------------------------------
Name: Edward F.
Houff
Title: Senior Vice President and
Chief Restructuring Officer
2
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KAISER ALUMINA AUSTRALIA CORPORATION
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER ALUMINUM TECHNICAL SERVICES, INC.
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER BELLWOOD CORPORATION
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER ALUMINIUM INTERNATIONAL, INC.
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER MICROMILL HOLDINGS LLC
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER SIERRA MICROMILLS, LLC.
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
3
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KAISER TEXAS SIERRA MICROMILLS, LLC
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER TEXAS MICROMILL HOLDINGS, LLC
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER ALUMINUM PROPERTIES, INC.
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
AKRON HOLDING CORP.
By:
/s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
OXNARD FORGE DIE COMPANY, INC.
By: /s/ John M. Donnan
-----------------------------------------
Name: John M. Donnan
Title: Vice President and General Counsel
KAISER ALUMINIUM & CHEMICAL INVESTMENT, INC.
By: /s/ John M. Donnan
----------------------------------------
