EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (together with the Schedules and Exhibits
hereto, the "Agreement") dated as of April 1, 2003 is entered into by and among
GLENCORE LTD., a Swiss corporation acting through its Stamford, Connecticut
branch ("Glencore"), GLENCORE ACQUISITION I LLC, a Delaware limited liability
company ("GAC" and, together with Glencore, collectively referred to at times as
"Seller"), XXXXXXX ALUMINUM LLC, a Delaware limited liability company ("Buyer")
and CENTURY ALUMINUM COMPANY, a Delaware corporation ("Century").
RECITALS:
1. Pursuant to an Asset Purchase Agreement dated as of April 2, 2001 (the
"2001 Asset Purchase Agreement"), by and among Century, Century Kentucky, Inc.,
a Delaware corporation ("CKI"), NSA, Ltd., a Kentucky limited partnership
("NSA") and Glencore AG, a Swiss corporation, GAC purchased an interest in an
aluminum reduction plant located in Hawesville, Kentucky (the "Plant") and the
aluminum reduction business conducted at the Plant (the "Business") from
Century. The Plant is composed of five potlines, four of which were installed at
the original construction of the Plant and one of which (the "Fifth Potline")
was installed in 1999, as well as a cast house, carbon plant and other assets
and facilities necessary to the Business.
2. Under the 2001 Asset Purchase Agreement, GAC acquired (a) the Fifth
Potline, together with the real property thereunder (the "Fifth Potline
Interest"), (b) a twenty percent (20%) undivided interest in and to certain
assets and properties comprising part of the Plant or otherwise used in the
conduct of the Business, including NSA's right, title and interest in and to the
Reciprocal Easement (as defined in Exhibit C) (the "20% Undivided Interest"),
and (c) a membership interest equal to twenty percent (20%) of the total
membership interests in Century Aluminum of Kentucky LLC ("CAK"), a Delaware
limited liability company (the "Membership Interest"). In addition, Century
assigned to Glencore a twenty percent (20%) interest in the benefits of the
representations and warranties and indemnities of Southwire Company
("Southwire") pursuant to Century's Stock Purchase Agreement (the "Stock
Purchase Agreement") with Southwire (collectively, the "Additional Interest")
and NSA granted to GAC certain easements pursuant to the Glencore Reciprocal
Easement (as defined in Exhibit C) (the "GAC Easement," and, together with the
Fifth Potline Interest, the 20% Undivided Interest, the Membership Interest and
the Additional Interest, the "Interest").
3. Simultaneously with the closing under the 2001 Asset Purchase
Agreement, CAK assigned to each of NSA and Glencore, pursuant to an Alumina
Purchase Agreement, dated as of April 2, 2001, between CAK, NSA and Glencore
(the "Alumina Purchase Agreement"), a pro rata interest in an agreement for the
supply of xxxxx calcinated grade alumina which was assigned to CAK by Southwire
in connection with the Stock Purchase Agreement. For purposes hereof, "pro rata"
when used in relation to Glencore shall mean a twenty percent (20%) share and
when used in relation to NSA shall mean an eighty percent (80%) share.
Glencore's rights in, to and under the Alumina Purchase Agreement are
hereinafter referred to as the "Alumina Supply Interest."
4. Seller desires to sell to Century or Buyer, and Century desires to
purchase, through Buyer, from Seller, the Interest, the Alumina Supply Interest
and the GAC Purchased Working Capital, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of premises and the respective covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The definitions of the following terms are set forth in the Sections
specified below and will apply throughout this Agreement:
The definitions of the following terms are set forth in the Sections
specified below and will apply throughout this Agreement:
DEFINITION SECTION
---------- -------
Affiliate Section 11.1
Additional Interest Recital 2
Allocation Schedule Exhibit F
Alumina Purchase Agreement Recital 3
Alumina Supply Interest Recital 3
Arbitrator Section 3.3(b)
Assets Section 4.6
Assumed Liabilities Section 2.5
Business Recital 1
Business Day Section 3.3(c)
Buyer Preamble
CAK Recital 2
Cash Payment Section 3.3(a)
Century Preamble
CKI Recital 1
Claims Section 4.5
Closing Section 10.1
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DEFINITION SECTION
---------- -------
Closing Date Section 10.1
Closing Working Capital Amount Section 3.3(b)(ii)
Closing Working Capital Calculation Section 3.3(b)(i)
Code Section 4.9(a)
Deed Section 10.2(d)
Fifth Potline Recital 1
Fifth Potline Interest Recital 2
GAC Preamble
GAC Easement Recital 2
GAC Purchased Working Capital Section 3.3(a)
Glencore Preamble
Glencore Reciprocal Easement Exhibit C
Guaranty Section 6.2(b)
Hawesville Purchase Note Section 3.2
Indemnified Party Section 11.5
Indemnifying Party Section 11.5
Interest Recital 2
IRB Section 2.5
Letter of Credit Section 6.1(a)
Letter of Credit and Reimbursement
Agreement Section 6.1(a)
Letter of Credit Guaranty Section 6.1(a)
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DEFINITION SECTION
---------- -------
Letter of Credit Reimbursement Note Section 3.2
Lien Section 6.2(d)(iii)
Loss Section 11.1
Membership Interest Recital 2
Mortgage Section 6.2(a)
Notes Section 3.2
NSA Recital 1
Owners Agreement Section 7.2
Permitted Liens Section 6.2(d)(iii)
Power Contract Section 6.2(d)(iv)
pro rata Recital 3
Purchase Price Section 3.1
Reciprocal Easement Exhibit C
Reference Date Section 3.3(a)
Reference Working Capital Amount Section 3.3(a)
Reimbursement Agreement Section 6.2(e)
Security Agreement Section 6.2(a)
Seller Preamble
Southwire Recital 2
Stock Purchase Agreement Recital 2
Subsidiary Guarantors Section 5.1
Taxes Section 4.9(a)
Tax Returns Section 4.9(b)
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DEFINITION SECTION
---------- -------
Third Party Claim Section 11.5
Threshold Section 11.3
20% Undivided Xxxxxxxx Xxxxxxx 0
0000 Xxxxx Xxxxxxxx Agreement Recital 1
Working Capital Section 3.3(a)
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 Transfer of the Interest, Alumina Supply Interest and GAC Purchased
Working Capital. On the terms and subject to the conditions of this Agreement,
Seller agrees to sell, convey, assign, transfer and deliver, to Buyer, and
Century agrees to cause Buyer to purchase and accept from Seller, at the
Closing, all of Seller's right, title and interest in and to (a) the Fifth
Potline Interest, (b) the 20% Undivided Interest, (c) the Membership Interest,
(d) the Additional Interest, (e) the GAC Easement, (f) the Alumina Supply
Interest and (g) the GAC Purchased Working Capital.
2.2 The Fifth Potline Interest. The Fifth Potline Interest specifically
includes the fixed and movable assets comprising pot line five (5) at the Plant,
together with the real property thereunder, all as more fully described in
Exhibit B hereto.
2.3 The 20% Undivided Interest. The 20% Undivided Interest specifically
includes (a) the undivided twenty percent (20%) interest of GAC as tenant in
common in certain real property (as more fully described in Exhibit C hereto)
and certain fixed and movable assets, comprising the Plant or otherwise used in
the conduct of the Business, but not including any of the working capital of the
Business, and (b) all of GAC's right, title and interest in and to the
Reciprocal Easement.
2.4 The Additional Interest. The Additional Interest specifically includes
GAC's undivided twenty percent (20%) interest in all of the rights of Century
under the Stock Purchase Agreement, including without limitation with respect to
the representations and warranties of Southwire to the extent that they relate
to the Fifth Potline Interest, the 20% Undivided Interest, the Membership
Interest, the Additional Interest or the Business, and in GAC's rights to
indemnification arising thereunder.
2.5 Assumed Liabilities. On the terms and subject to the conditions of
this Agreement, at Closing Century will assume and agree to pay, perform and
discharge when due Glencore's and GAC's respective obligations under and with
respect to (i) any remaining obligations under the industrial revenue bond
relating to the Plant (the "IRB") and contingent post-closing payments
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arising pursuant to the Stock Purchase Agreement; (ii) all liabilities of the
Business, including any liabilities for matters as to which no indemnification
or a partial indemnification payment is received from Southwire, and (iii) all
other obligations not covered by (i) and (ii) above assumed by GAC under the
2001 Asset Purchase Agreement or the Alumina Purchase Agreement (collectively,
the "Assumed Liabilities"); provided, however, that the Assumed Liabilities
shall not include (i) any liability of GAC for its unpaid Taxes for periods
prior to the Closing, (ii) except as provided in Section 10.4 below, any
liability of GAC for income, transfer, sales, use, and other Taxes arising in
connection with the consummation of the transactions contemplated hereby, (iii)
any liability of GAC for the unpaid Taxes of any other person, or (iv) any
liabilities of GAC under the Owners Agreement as provided for in Section 6.1(c).
ARTICLE III
PURCHASE PRICE AND ADJUSTMENT
3.1 Purchase Price. Subject to the adjustment provided for in Section 3.3,
the aggregate purchase price (the "Purchase Price") for the Interest, the
Alumina Supply Interest and the GAC Purchased Working Capital will be
Ninety-Nine Million Eight Hundred Eighty-Seven Thousand Seven Hundred Forty-Four
United States Dollars (US$99,887,744), plus Century's assumption of the Assumed
Liabilities.
3.2 Payment of Purchase Price. At the Closing, the Purchase Price (other
than the Assumed Liabilities) will be paid to GAC as follows: (A) Fifty-Nine
Million Eight Hundred Eighty-Seven Thousand Seven Hundred Forty-Four United
States Dollars (US$59,887,744) will be paid by Century to GAC by wire transfer
of immediately available funds to the account theretofore designated by GAC in a
written notice to Century; and (B) Century shall deliver to GAC two (2)
non-negotiable promissory notes, each executed by Century in favor of GAC or
Glencore, as the case may be, in the forms attached hereto as Exhibit D (the
"Hawesville Purchase Note") and Exhibit E (the "Letter of Credit Reimbursement
Note"). The Hawesville Purchase Note and the Letter of Credit Reimbursement Note
are sometimes referred to herein collectively as the "Notes."
3.3 Net Working Capital Adjustment. The Purchase Price shall be subject to
adjustment for the amount of Working Capital as specified in this Section 3.3:
(a) Reference Working Capital Amount. The parties agree that, for purposes
hereof, "Working Capital" shall mean an amount equal to (i) twenty percent
(20%) of the sum of the total current assets and total current liabilities
of CAK, in each case including those items identified on Exhibit A hereto,
plus (ii) the amount of the GAC Purchased Working Capital. "GAC Purchased
Working Capital" shall mean all alumina inventory held by or on behalf of
GAC as of the relevant date. For purposes of determining the Purchase
Price to be paid on the Closing Date, the parties have agreed that Working
Capital shall be deemed to be the amount of US$1,587,744 (the "Reference
Working Capital Amount"), as calculated as of February 28, 2003 in
accordance with the calculation shown on Exhibit A hereto; provided
however, that in connection with the calculation of the Closing Working
Capital Calculation, GAC may dispute any of the amounts included in the
calculation of the Reference Working Capital Amount reflected in Exhibit
A.
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(b) Post-Closing Adjustment.
(i) As promptly as practicable, but in any event within sixty
(60) calendar days following the Closing Date, Century shall deliver
to GAC a certificate setting forth the calculation of Working
Capital as of the Closing Date (the "Closing Working Capital
Calculation"), which shall be prepared in a manner and on a basis
consistent with the calculation of the Reference Working Capital
Amount shown on Exhibit A hereto.
(ii) In the event GAC disputes any amounts reflected in, or
the calculation of, the Closing Working Capital Calculation which
affects the amount of Working Capital shown thereon as of the
Closing Date (the "Closing Working Capital Amount"), it shall notify
Century in writing within thirty (30) calendar days after Century's
delivery of the Closing Working Capital Calculation of each disputed
item, specifying the amount thereof in dispute and setting forth, in
reasonable detail, the basis for such dispute. Century shall provide
GAC access to the work papers of Century relating to the preparation
of the Closing Working Capital Calculation. In the event of such a
dispute, GAC and Century shall attempt to reconcile the differences
with respect to such disputed item(s), and any resolution by them as
to any disputed item(s) shall be final, binding and conclusive on
the parties hereto. If GAC and Century are unable to reach a
resolution with such effect within thirty (30) calendar days after
receipt by Century of GAC's written notice of dispute, GAC and
Century shall submit the items remaining in dispute for resolution
to Deloitte & Touche LLP, or such other internationally recognized
firm of independent accountant as shall be mutually acceptable to
Glencore and Century ("Arbitrator"), who shall, within thirty (30)
calendar days after such submission, determine and deliver to
Century and GAC a report upon such remaining disputed items, and
such report shall be final, binding and conclusive on GAC and
Century. The Closing Working Capital Amount shall be adjusted to
reflect any resolution of a dispute reached by GAC and Century or
any report delivered by the Arbitrator, including any adjustments
for unresolved disputed items required pursuant to Section 3.3(a).
(iii) The Closing Working Capital Amount shall be deemed final
for the purposes of this Section 3.3 upon the earlier of (1) the
failure of Glencore timely to notify Century of a dispute, (2) the
resolution of all disputes, pursuant to Section 3.3(b)(ii), by
Century and GAC, and (3) the resolution of all disputes, pursuant to
Section 3.3(b)(ii), by the Arbitrator. Within three (3) Business
Days after the Closing Working Capital Amount is deemed final, a
Purchase Price adjustment shall be made as follows:
(iv) In the event the Closing Working Capital Amount exceeds
the Reference Working Capital Amount, Century shall pay to GAC the
amount of such excess as an adjustment to the Purchase Price by wire
transfer of immediately available funds to such account as GAC shall
notify Century in writing.
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(v) In the event the Closing Working Capital Amount is less
than the Reference Working Capital Amount, GAC shall pay to Century
the amount of such deficiency as an adjustment to the Purchase Price
by wire transfer of immediately available funds to such account as
Century shall notify GAC in writing.
(c) As used herein, "Business Day" means any day of the year on which
banks are not required or authorized to close in New York, New York.
(d) The parties agree that, in the event of the submission of any dispute
regarding Working Capital to the Arbitrator, the parties shall share
equally the fees and expenses of the Arbitrator required to be paid
therefor.
3.4 Allocation of Purchase Price. The Purchase Price shall be allocated in
accordance with Exhibit F attached hereto.
3.5 Effectiveness. In the event that the Closing shall occur, Century and
GAC agree that the results of operations of the Business acquired by Buyer
hereunder from 12:01 am on the Closing Date shall be for the account of Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Century as follows:
4.1 Organization and Good Standing. Glencore is a corporation duly
organized, validly existing and in good standing under the laws of Switzerland
with a branch office in Stamford, Connecticut. Glencore has all requisite power
and authority to own its properties, including the Alumina Supply Interest, and
to conduct its business as presently conducted. GAC is a limited liability
company duly formed and validly existing and in good standing under the laws of
the State of Delaware and has all requisite power and authority to own its
properties, including without limitation, the Fifth Potline Interest, the 20%
Undivided Interest, the GAC Purchased Working Capital, the Membership Interest
and the Additional Interest, and to conduct its business as presently conducted.
4.2 Authority; Enforceability. Glencore has all requisite power and
authority to execute, deliver and perform its obligations arising under this
Agreement and to consummate the transactions contemplated hereby and GAC has all
requisite power and authority to execute, deliver and perform this Agreement and
the Deed and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and, in the case of GAC,
the Deed, and the consummation of the transactions contemplated hereby and
thereby, have been, or will be on or prior to the Closing Date, duly and validly
authorized by all necessary action on the part of Glencore and GAC, as the case
may be. This Agreement has been duly executed and delivered by each of Glencore
and GAC and constitutes a valid and binding obligation of Glencore and GAC,
enforceable against Glencore and GAC in accordance with its terms. When executed
and delivered by GAC, on and as of the Closing Date, the Deed will have been
duly executed and delivered by GAC, and will constitute a valid and binding
obligation of GAC, enforceable against GAC in accordance with its terms.
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4.3 No Conflict or Breach. The execution, delivery and performance of this
Agreement and, in the case of GAC, the Deed, do not and will not:
(a) conflict with or constitute a violation of the Certificate of
Formation or other constitutive documents of either Glencore or GAC, as
the case may be;
(b) conflict with or constitute a violation of any law, statute, judgment,
order, decree or regulation of any legislative body, court, administrative
agency, governmental authority or arbitrator applicable to or relating to
Glencore, GAC, the Interest, the Alumina Supply Interest, the GAC
Purchased Working Capital or any portion of any thereof;
(c) conflict with, constitute a default under, result in a breach or
acceleration of or require notice to or the consent of any third party
under any contract, agreement, commitment, mortgage, note, license or
other instrument or obligation to which Glencore or GAC is party or by
which it is bound or by which the Interest, the Alumina Supply Interest,
the GAC Purchased Working Capital or any portion of any thereof is
affected; or
(d) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever on the Interest, the Alumina Supply
Interest, the GAC Purchased Working Capital or any portion of any thereof
(except as provided in Section 6.2(a) hereof).
4.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by each of Glencore and GAC and of the Deed by GAC
do not and will not require any consent, approval, authorization or other order
of, action by, filing with or notification to any governmental authority, except
as described in Schedule 4.4 attached hereto.
4.5 Litigation. There are no pending or, to the knowledge of Glencore or
GAC, threatened claims, actions, suits, arbitration proceedings, inquiries,
hearings, injunctions or investigations ("Claims") against Glencore or GAC which
if adversely determined would result in a lien on the Interest, the Alumina
Supply Interest or the GAC Purchased Working Capital or that may affect this
Agreement, the Deed or the transactions contemplated hereby or thereby.
4.6 Valid Title; No Liens. (i) Seller is the sole and exclusive owner of,
and has good, valid and marketable title, and in the case of real property
(including without limitation all land and buildings and other improvements
thereon, together with all tenements, hereditaments and appurtenances thereto),
good, marketable and insurable title in fee simple, to, all of the assets,
properties and rights which constitute a part of the Interest, the Alumina
Supply Interest or the GAC Purchased Working Capital (such assets, properties
and rights are hereinafter referred to as the "Assets") wherever located, free
and clear of all Liens other than Permitted Liens, and (ii) no other person or
legal entity has or will have at Closing any interest whatsoever in any of the
Assets. At Closing, Seller will transfer and convey to Buyer, and Buyer will
acquire, good, valid and marketable title to the Assets, free and clear of all
Liens of any kind or nature whatsoever, other than Permitted Liens.
4.7 GAC Purchased Working Capital. The information delivered by GAC to
Century regarding the GAC Purchased Working Capital in connection with the
calculation of the Reference Working Capital Amount was true, accurate and
complete.
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4.8 Brokers. No finder, broker, agent or other intermediary has acted for
or on behalf of Seller in connection with the negotiation or consummation of
this Agreement, and there are no claims for any brokerage commission, finder's
fee or similar payment due from Seller.
4.9 GAC Tax Matters.
(a) For the purposes of this Agreement, "Taxes" are any federal, state,
local, or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Internal Revenue Code of 1986 (the
"Code") section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
(b) GAC has filed all returns, declarations, reports, claims for refund,
or information returns or statements relating to Taxes, including any
schedules or attachments thereto, and including any amendments thereof
("Tax Returns") that it was required to file. All such Tax Returns were
correct and complete in all material respects. All Taxes owed by GAC
(whether or not shown on any Tax Return) have been paid. GAC is not
currently the beneficiary of any extension of time within which to file
any Tax Return. No claim has ever been made by an authority in a
jurisdiction where GAC does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no security interests
on any of the assets of GAC that arose in connection with any failure (or
alleged failure) to pay any Tax.
(c) No member or director or officer of GAC has any knowledge that any
authority will assess any additional Taxes for any period for which Tax
Returns have been filed. There is no dispute or claim concerning any Tax
liability of GAC either (A) claimed or raised by any authority in writing
or (B) as to which any of the members or the directors or officers of GAC
has knowledge. Except as provided by Schedule 4.9, no Tax Return filed
with respect to GAC has been or currently is the subject of audit.
(d) GAC has not waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax assessment or
deficiency. GAC has disclosed on its federal income Tax Returns all
positions taken therein that could give rise to a substantial
understatement of federal income Tax within the meaning of Code section
6662. GAC is not a party to any Tax allocation or sharing agreement. GAC
has no liability for the Taxes of any other person.
4.10 Disclosure. No representation, warranty or statement made by Glencore
or GAC in this Agreement, or in any document furnished or to be furnished to
Century or Buyer by or on behalf of Glencore or GAC pursuant to this Agreement,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact necessary to make the statements contained
herein or therein not misleading.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CENTURY
Century represents and warrants to Seller as follows:
5.1 Organization and Good Standing; Governing Documents. Century is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Century has all requisite power and authority to own
its properties and to conduct its business as presently conducted. Buyer is a
limited liability company duly formed and validly existing and in good standing
under the laws of the State of Delaware, and has all requisite power and
authority to own its properties and to conduct its business as presently
conducted. Each of CKI, Century Aluminum of West Virginia, Inc., Berkeley
Aluminum, Inc., Metalsco, Ltd. and Skyliner, Inc. (collectively, together with
NSA, the "Subsidiary Guarantors") is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
incorporation, and NSA is a limited partnership duly organized, validly existing
and in good standing under the laws of Kentucky. Each of the Subsidiary
Guarantors has all requisite power and authority to own its properties and to
conduct its business as presently conducted.
5.2 Authority; Enforceability. Century has all requisite power and
authority to execute and deliver this Agreement, the Notes and the Reimbursement
Agreement and to consummate the transactions contemplated hereby and thereby.
Buyer has all requisite power and authority to execute and deliver this
Agreement, the Security Agreement, the Mortgage and the Guaranty and to
consummate the transactions contemplated hereby and thereby. Each of the
Subsidiary Guarantors has all requisite power and authority to execute and
deliver the Guaranty and to consummate the transactions contemplated thereby.
The execution, delivery and performance of this Agreement, the Notes, the
Reimbursement Agreement, the Security Agreement, the Mortgage and the Guaranty
and the consummation of the transactions contemplated hereby and thereby have
been, or will be on or prior to the Closing Date, duly and validly authorized by
all necessary action on the part of Century, Buyer and/or each of the Subsidiary
Guarantors, as the case may be. This Agreement has been duly executed and
delivered by each of Century and Buyer and constitutes a valid and binding
obligation of each of Century and Buyer, enforceable against each of Century and
Buyer in accordance with its terms. When executed and delivered by Century,
Buyer and/or each of the Subsidiary Guarantors, as the case may be, on and as of
the Closing Date, the Notes, the Reimbursement Agreement, the Security
Agreement, the Mortgage and the Guaranty will have been duly executed and
delivered by Century, Buyer and/or each of the Subsidiary Guarantors, as the
case may be, and will constitute valid and binding obligations of Century, Buyer
and/or each of the Subsidiary Guarantors, as the case may be, enforceable
against Century, Buyer and/or each of the Subsidiary Guarantors, as the case may
be, in accordance with their terms.
5.3 No Conflict or Breach. The execution, delivery and performance of this
Agreement, the Notes, the Reimbursement Agreement, the Security Agreement, the
Mortgage and the Guaranty will not:
(a) conflict with or constitute a violation of the Articles of
Incorporation, By-Laws or other constitutive documents of Century, Buyer
or any of the Subsidiary Guarantors;
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(b) conflict with or constitute a violation of any law, statute, judgment,
order, decree or regulation of any legislative body, court, administrative
agency, governmental authority or arbitrator applicable to or relating to
Century, Buyer or any of the Subsidiary Guarantors; or
(c) conflict with, constitute a default under, result in a breach or
acceleration of or require notice to or the consent of any third party
under any contract, agreement, commitment, mortgage, note, license or
other instrument or obligation to which Century, Buyer or any of the
Subsidiary Guarantors is party or by which it is bound, other than notices
which have been given and consents which have been obtained.
5.4 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement, the Notes, the Security Agreement, the Mortgage
and the Guaranty do not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to any
governmental authority, except as described in Schedule 5.4 attached hereto.
5.5 Litigation. There are no Claims pending or, to the knowledge of
Century, threatened, against Century, Buyer or any of the Subsidiary Guarantors
or their respective operations relating to or arising out of, or that may
affect, this Agreement, the Notes, the Security Agreement, the Mortgage or the
Guaranty or the transactions contemplated hereby or thereby.
5.6 Working Capital. The information included in the calculation of (a)
the Reference Working Capital Amount was, and (b) the Closing Working Capital
Amount shall be (other than such information as is provided by GAC) true,
accurate and complete.
5.7 Brokers. No finder, broker, agent or other intermediary has acted for
or on behalf of Century in connection with the negotiation or consummation of
this Agreement, and there are no claims for any brokerage commission, finder's
fee or similar payment due from Century.
5.8 Disclosure. No representation, warranty or statement made by Century,
Buyer or any Subsidiary Guarantor in this Agreement, or in any document
furnished or to be furnished to Glencore or GAC by or on behalf of Century
pursuant to this Agreement, contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact necessary to
make the statements contained herein or therein not misleading.
ARTICLE VI
INDIVIDUAL COVENANTS
6.1 Covenants of Glencore.
(a) Letter of Credit. In connection with the consummation of the
transactions contemplated by the 2001 Asset Purchase Agreement, Citibank,
N.A. issued a letter of credit (the "Letter of Credit") as credit
enhancement for the IRB, which Letter of Credit was issued pursuant to the
Letter of Credit and Reimbursement Agreement dated as of October 10, 2001
among NSA, Glencore and Citibank, N.A (the "Letter of Credit and
Reimbursement Agreement"). Glencore guaranteed payments by NSA to
Citibank, N.A. under the Letter of Credit and Reimbursement Agreement (the
"Letter of Credit Guaranty"). Glencore shall keep the Letter of Credit
Guaranty in place following the
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Closing until payment in full of the Hawesville Purchase Note (whether on
the maturity date, by acceleration or otherwise), at which time the Letter
of Credit shall be replaced by a letter of credit posted by Century. Until
the Letter of Credit Guaranty is terminated, Glencore shall continue to
perform all of its obligations under the Letter of Credit and
Reimbursement Agreement.
(b) Substitution of Collateral. GAC agrees that Century shall be entitled
to substitute such other security in lieu of the Membership Interest as
may be reasonably acceptable to GAC and, in such event, the security
interest in the Membership Interest granted to GAC pursuant to Section
6.2(a) and the Security Agreement shall be released and GAC and Century or
Buyer, as the case may be, shall execute and deliver such amendment to the
Security Agreement, Uniform Commercial Code financing statements or
amendments thereto and such other documents and instruments as may be
reasonably requested by either of them in order to effect such release and
pledge in substitution therefor.
(c) CAK Operating Costs. Notwithstanding the assignment of the Owners
Agreement and the termination of the guarantees thereunder as provided for
in Section 7.2 hereof, Seller agrees to pay to CAK any and all Operating
Costs, Extras (each such term having the meaning given thereto in the
Owners Agreement) and other amounts as may be determined to have been due
from GAC to CAK pursuant to the Owners Agreement for the period prior to
or on the Closing Date within ten (10) days after receipt of a request
therefor, and Seller and Century agree that any dispute with respect to
any such Operating Costs, Extras or other amounts shall be resolved in
accordance with the dispute resolution mechanism provided for in the
Owners Agreement.
6.2 Covenants of Century.
(a) Security. As security for the performance of Century's obligations
under the Notes, Buyer, GAC and Glencore shall enter into a security
agreement in the form attached hereto as Exhibit G (the "Security
Agreement"), pursuant to which Buyer shall grant to GAC and Glencore a
first priority security interest in and to (i) the Fifth Potline Interest,
(ii) the 20% Undivided Interest, (iii) the Membership Interest, (iv) the
Additional Interest, (v) the GAC Easement and (vi) the Alumina Supply
Interest, which security interest shall be granted and perfected on or
prior to the Closing Date. Buyer shall grant a mortgage in favor of GAC
and Glencore (the "Mortgage") to more fully reflect and record the
security interest granted in (x) the real property and improvements
constituting a part of the Fifth Potline Interest, (y) the GAC Easement
and (z) the real property and improvements constituting a part of the 20%
Undivided Interest.
(b) Guaranty. As further security for the performance of its obligations
under the Notes, Century shall cause Buyer, CKI, NSA, Century Aluminum of
West Virginia, Inc., Berkeley Aluminum, Inc., Metalsco, Ltd. and Skyliner,
Inc. to execute and deliver a guaranty to GAC and Glencore of Century's
obligations arising under the Notes (the "Guaranty").
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(c) Real Estate Easements. Century agrees that the GAC Easement and the
easements granted pursuant to the Reciprocal Easement shall remain in
place for so long as GAC holds the security interest granted pursuant to
the Security Agreement.
(d) Negative Covenant. Century agrees that, so long as GAC holds a
security interest in the Membership Interest, Century shall not:
(i) permit CAK to issue additional membership interests
therein such that the Membership Interest shall be diluted,
(ii) permit CAK to incur indebtedness, other than (A) trade
payables arising in the ordinary course of business and obligations
in respect of trade letters of credit or bankers' acceptances issued
in respect of trade payables, and (B) advances by members in respect
of operating costs of CAK,
(iii) permit CAK to incur or permit to exist any Lien of any
nature whatsoever on any of its properties or assets, other than (A)
Liens existing on the Closing Date and any extensions, renewals or
replacements thereof, (B) pledges or deposits under worker's
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts or leases, or to secure public or statutory
obligations (including without limitation obligations pursuant to
environmental laws), surety bonds, customs duties and the like, or
for the payment of rent, in each case incurred in the ordinary
course of business, (C) Liens imposed by law, such as carriers',
vendors', warehousemen's and mechanics' liens, in each case for sums
not yet due or which are being contested in good faith and by
appropriate proceedings, (D) Liens in respect of taxes and other
governmental assessments and charges which are not yet due or which
are being contested in good faith by appropriate proceedings, (E)
Liens securing reimbursement obligations with respect to letters of
credit that solely encumber documents and other property relating to
such letters of credit and the proceeds thereof, (F) licenses or
leases or subleases as licensor, lessor or sublessor of any of its
property, including intellectual property, in the ordinary course of
business, (G) judgment liens and Liens securing appeal bonds or
letters of credit issued in support of or in lieu of appeal bonds,
so long as no judgment default has occurred and is continuing, and
(H) extensions, renewals or replacements of any Liens referred to in
clauses (B) through (G) (the Liens referred to in clauses (B)
through (H), together with the Liens described on Schedule 6.2,
collectively, "Permitted Liens"). As used herein, "Lien" means any
mortgage, pledge, security interest, encumbrance, lien or charge of
any kind.
(iv) permit CAK to sell, transfer or otherwise dispose of the
Agreement for Electric Service between Kenergy (formerly GREC) and
Southwire, and Amendment No. 1 thereto, each dated July 15, 1998 and
all agreements related to the provision of electrical power
thereunder to the Plant by or among Kenergy, LG&E Energy Corp. or
LG&E Energy Marketing, Inc. and Southwire and its affiliates,
assigned to Century on April 1, 2001 and further assigned by Century
to CAK on April 1, 2001 (all such agreements, collectively, the
"Power Contract"),
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without the prior consent of GAC, which shall not be unreasonably
withheld; provided, that the provisions of this Section 6.2(d)(iv)
shall be without prejudice to CAK's rights to sell any power
obtained under the Power Contract in the ordinary course of
business.
(e) The Letter of Credit; Notes. Century shall pay and be responsible for
all of the costs and expenses incurred by GAC or Glencore, as the case may
be, in connection with the Letter of Credit (including, but not limited
to, those arising out of the Letter of Credit and Reimbursement
Agreement). At Closing, Century shall execute and deliver a Reimbursement
Agreement by and between Century and Glencore (the "Reimbursement
Agreement") in the form attached hereto as Exhibit H, pursuant to which
Century agrees to reimburse all amounts that may be paid by Glencore under
the Letter of Credit Guaranty. On or prior to payment in full of the Notes
(whether at stated maturity, by acceleration or otherwise), the Letter of
Credit shall be replaced by a letter of credit posted by Century. Century
shall also pay and be responsible for all costs and expenses incurred by
GAC or Glencore, as the case may be, in connection with the Notes,
including those arising in connection with the Security Agreement, the
Mortgage, the Guaranty and the Reimbursement Agreement.
ARTICLE VII
MUTUAL COVENANTS
Each of Seller and Century covenants and agrees with the other as follows:
7.1 Best Efforts. Each party shall use its best efforts to make or obtain
as promptly as possible all consents, approvals, authorizations, registrations
and filings with all federal, state or local judicial or governmental
authorities or administrative agencies as are required in connection with the
consummation of the transactions contemplated by this Agreement.
7.2 Owners Agreement and Guarantees. The parties agree to assign all of
GAC's right, title and interest in and to the Owners Agreement dated as of April
2, 2001 by and among NSA, GAC and CAK, as amended to date (the "Owners
Agreement"), to Buyer effective as of the Closing. Century and Glencore agree
that the guarantees agreed to be delivered by each of them pursuant to the
Owners Agreement shall be terminated and of no further force and effect at and
as of the Closing.
7.3 LLC Agreement. The parties agree to assign all of GAC's right, title
and interest in and to the Amended and Restated Limited Liability Company
Agreement of Century Aluminum of Kentucky LLC dated as of April 2, 2001 by and
among CKI, GAC and CAK to Buyer, effective as of the Closing.
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ARTICLE VIII
CONDITIONS PRECEDENT TO CENTURY'S OBLIGATIONS
The obligations of Century to consummate or cause the consummation of the
transactions contemplated by this Agreement are subject to the satisfaction of
the following conditions on or before the Closing Date, unless specifically
waived in writing by Century prior to the Closing Date:
8.1 Representations and Warranties. The representations and warranties of
Seller contained in this Agreement shall have been true and correct on the date
of this Agreement and shall be true and correct on the Closing Date as though
made on and as of the Closing Date.
8.2 Compliance with Covenants. Seller shall have duly performed and
complied or caused the performance or compliance with all covenants, agreements
and obligations required by this Agreement to be performed or complied with by
it on or prior to the Closing.
8.3 Absence of Litigation. No action or proceeding shall be pending by or
before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement or which
would adversely affect the right of Buyer to own, operate or control the
Interest or any portion thereof after the Closing Date.
8.4 Board Approval. Century's board of directors shall have authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
8.5 Consent of Bank Lenders. Century shall have received a consent, in
form and substance reasonably satisfactory to Century, from the requisite
lenders under the revolving credit agreement, dated as of April 2, 2001, among
Century and certain of its Affiliates, as borrowers, Fleet Capital Corporation,
as agent for the lenders, Fleet Securities Inc., as arranger, Credit Suisse
First Boston, as syndication agent, and the lending institutions parties
thereto, to the consummation of the transactions contemplated hereby.
8.6 Ancillary Agreements. The parties thereto (other than persons under
the control of Century) shall have executed and delivered all of the documents
and instruments contemplated to be delivered pursuant to Section 10.2.
ARTICLE IX
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate or cause the consummation of the
transactions contemplated by this Agreement are subject to the satisfaction of
each of the following conditions on or before the Closing Date, unless
specifically waived in writing by Seller prior to the Closing:
9.1 Representations and Warranties. The representations and warranties of
Century contained in this Agreement shall have been true and correct on the date
of this Agreement, and shall be true and correct on the Closing Date as though
made on and as of the Closing Date.
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9.2 Compliance with Covenants. Century shall have duly performed and
complied or caused the performance and compliance with all covenants, agreements
and obligations required by this Agreement to be performed or complied with by
it on or prior to the Closing.
9.3 Absence of Litigation. No action or proceeding shall be pending by or
before any court or other governmental body or agency seeking to restrain,
prohibit or invalidate the transactions contemplated by this Agreement.
9.4 Senior Management Approval. Glencore's senior management shall have
authorized the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
9.5 Ancillary Agreements. The parties thereto (other than persons under
the control of Seller) shall have executed and delivered the Security Agreement,
the Mortgage, the Guaranty, the Notes and the Reimbursement Agreement and all of
the documents and instruments contemplated to be delivered pursuant to Section
10.3.
ARTICLE X
CLOSING
10.1 Closing. The closing of the sale of the Interest, the Alumina Supply
Interest and the GAC Purchased Working Capital (the "Closing") shall take place
at the offices of Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP, 101 Park Avenue, New
York, New York, or such other place as may be mutually agreed upon by the
parties hereto. The date of the Closing is referred to as the "Closing Date."
10.2 Deliveries by Seller. At the Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
(a) A certificate of an authorized officer of GAC confirming the
satisfaction of the conditions set forth in Sections 8.1 and 8.2 hereof.
(b) A copy of all corporate resolutions authorizing the execution,
delivery and performance by GAC of this Agreement, the Deed, the Security
Agreement and such other agreements as may be executed and delivered by
GAC pursuant to this Agreement, and the consummation of the transactions
contemplated herein and therein, accompanied by the certification of an
authorized representative of GAC to the effect that such resolutions are
in full force and effect and have not been amended, modified or rescinded.
(c) Good standing certificates from the Secretary of State of Delaware and
the Secretary of State of Kentucky for GAC.
(d) A special warranty Deed for the real property and improvements
constituting a part of the Interest (the "Deed"), and such other Deeds,
Bills of Sale and Assignment and such other instruments of transfer as
Century may request to convey and vest in Buyer all of GAC's right, title
and interest in and to all of the remaining Interest, free and clear of
liens arising by, through or under GAC (except as provided in Section
6.2(a) hereof); provided that in no event shall GAC be required to deliver
a Deed with respect to any
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portion of the Interest that purports to convey greater title to such
portion of the Interest than was conveyed or warranted by Century to GAC
under the 2001 Asset Purchase Agreement.
(e) An assignment of the Alumina Supply Interest executed by Glencore in
favor of Buyer.
(f) Assignments and such other documents and instruments as may reasonably
be requested by Century for the assignment by GAC to Buyer of the GAC
Purchased Working Capital.
(g) An opinion of legal counsel regarding title to the real property
constituting a part of the Interest.
(h) An owner's affidavit executed by GAC regarding title to the real
property constituting a part of the Interest.
10.3 Deliveries by Century. At the Closing, Century will deliver or cause
to be delivered to Seller the following:
(a) A certificate of an authorized officer of Century confirming the
satisfaction of the conditions set forth in Sections 9.1 and 9.2 as to
representations, warranties and covenants of Century.
(b) A copy of all corporate resolutions authorizing the execution,
delivery and performance by Century of this Agreement and the Notes, and
the consummation of the transactions contemplated herein and therein,
accompanied by the certification of an authorized officer of Century to
the effect that such resolutions are in full force and effect and have not
been amended, modified or rescinded.
(c) A copy of all corporate resolutions authorizing the execution,
delivery and performance by Buyer of this Agreement, the Deed, the
Security Agreement, the Mortgage and the Guaranty, and the consummation of
the transactions contemplated herein and therein, accompanied by the
certification of an authorized officer of Buyer to the effect that such
resolutions are in full force and effect and have not been amended,
modified or rescinded.
(d) The Purchase Price (other than the Assumed Liabilities), in the form
provided for in Section 3.2.
(e) Original copies of the agreements referred to in Section 9.5, executed
by all parties thereto other than persons under the control of Glencore.
10.4 Transfer Costs. GAC and Buyer shall share equally (a) any fees and
disbursements in connection with the transfer of the Interest, the Alumina
Supply Interest and the GAC Purchased Working Capital as provided in Section
2.1, and (b) all property transfer taxes, including, without limitation,
conveyance, sales, use and stamp taxes and any recording, registration, and
other fees, which become payable in connection with the Closing of the
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transactions contemplated by this Agreement (other than any recording costs,
registration and other fees incurred in connection with the Mortgage and the
Security Agreement). GAC, after review and consent by Century, shall file such
applications and documents as shall permit any such tax to be assessed and paid
on or prior to the Closing Date in accordance with any available pre-sale filing
procedure. Buyer shall execute and deliver all instruments and certificates
necessary to enable GAC to comply with the foregoing.
10.5 Further Assurances. Seller will, at any time on or after the Closing
Date, take any and all steps reasonably requested by Century or Buyer to confirm
title to Buyer of the Interest (or any portion thereof), the Alumina Supply
Interest and the GAC Purchased Working Capital, and will do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, powers of
attorney and assurances as may be required for the more effective transfer to
Buyer, or its successors or assigns, of any of the Interest, the Alumina Supply
Interest and the GAC Purchased Working Capital.
ARTICLE XI
INDEMNIFICATION
11.1 Indemnification by GAC. GAC will indemnify, defend and hold harmless
Century and its officers, directors and Affiliates from, against, and with
respect to any and all action or cause of action, loss, damage, claim,
obligation, liability, penalty, fine, cost and expense (including, without
limitation, reasonable attorneys' and consultants' fees and costs and expenses
incurred in investigating, preparing, defending against or prosecuting any
litigation, claim, proceeding, demand or request for action by any governmental
or administrative entity), of any kind or character (a "Loss") arising out of or
in connection with any of the following:
(a) any breach of any of the representations or warranties of GAC or
Glencore contained in or made pursuant to this Agreement;
(b) any failure by GAC or Glencore to perform or observe, or to have
performed or observed, in full, any covenant, agreement or condition to be
performed or observed by it pursuant to this Agreement; and
As used in this Article XI, the term "Affiliate" means, with respect to
any specified person, any other person that directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, such specified person; provided that for purposes hereof, with respect to
Glencore and GAC, "Affiliate" shall not include Century, Buyer, CAK, NSA or any
other person that is controlled, directly or indirectly by Century, and with
respect to Century and Buyer, "Affiliate" shall not include Glencore or GAC or
any other entity that is not controlled, directly or indirectly, by Century.
11.2 Indemnification by Century. Century will indemnify, defend and hold
harmless Seller and each of their officers, directors and Affiliates from,
against and with respect to any Loss arising out of or in connection with any of
the following:
(a) any breach of any of the representations and warranties of Century
contained in or made pursuant to this Agreement;
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(b) any failure by Century or Buyer to perform or observe, or to have
performed or observed, in full, any covenant, agreement or condition to be
performed or observed by it pursuant to this Agreement; and
(c) the Assumed Liabilities.
11.3 Indemnification Threshold. Neither party will be entitled to
indemnification under Section 11.1(a) and (b) or Section 11.2(a) and (b) hereof
until such party has sustained aggregate Losses under such Sections in excess of
One Hundred Thousand Dollars (US$100,000.00) (the "Threshold"). If either party
suffers indemnifiable Losses in excess of the Threshold, such party will be
entitled to indemnification hereunder with respect to the aggregate amount of
all such indemnifiable Losses and not merely the amount in excess of the
Threshold.
11.4 Time Limits on Indemnification. Neither party will have liability to
the other party for indemnification under Section 11.1(a) or Section 11.2(a)
hereof unless notice of the Loss is given by the Indemnified Party to the
Indemnifying Party within two (2) years of the Closing Date.
11.5 Notice of Third Party Claim. A party that may be entitled to be
indemnified pursuant to Section 11.1 or 11.2 (the "Indemnified Party") shall
promptly notify the other party (the "Indemnifying Party") in writing within
fifteen (15) days of notice of any pending or threatened claim or demand
asserted by a third party which the Indemnified Party has determined has given
or could give rise to a right of indemnification under this Agreement ("Third
Party Claims") against the Indemnified Party, describing in reasonable detail
the facts and circumstances with respect to the subject matter of such claim or
demand; provided, however, that the failure to provide such notice shall not
release the Indemnifying Party from any of its obligations under this Article XI
except to the extent the Indemnifying Party is materially prejudiced by such
failure. Subject to the Indemnifying Party's right to defend in good faith Third
Party Claims as hereinafter provided, the Indemnifying Party shall satisfy or
contest its obligations under this Article XI within fifteen (15) days after the
receipt of written notice thereof from the Indemnified Party. If the
Indemnifying Party acknowledges in writing its obligation to indemnify the
Indemnified Party hereunder against any Losses that may result from a Third
Party Claim, then the Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within fifteen (15) days of the receipt of such notice from the Indemnified
Party; provided, however, that the Indemnified Party may participate in such
defense and retain separate counsel at its own cost and expense, without
prejudice to the rights of the parties to control the defense of their
respective interests. In the event the Indemnifying Party exercises the right to
undertake any such defense against any such Third Party Claim as provided above,
the Indemnified Party shall cooperate with the Indemnifying Party in such
defense and make available to the Indemnifying Party, at the Indemnifying
Party's expense, all witnesses, pertinent records, materials and information in
the Indemnified Party's possession or under the Indemnified Party's control
relating thereto as is reasonably required by the Indemnifying Party. Similarly,
in the event the Indemnified Party is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnifying Party shall
cooperate with the Indemnified Party in such defense and make available to the
Indemnified Party, at the Indemnifying Party's expense, all such witnesses,
20
records, materials and information in the Indemnifying Party's possession or
under the Indemnifying Party's control relating thereto as is reasonably
required by the Indemnified Party. No such Third Party Claim may be settled by
the Indemnifying Party without the written consent of the Indemnified Party
(which consent shall not be unreasonably withheld); provided, however that any
such settlement shall in all cases release the Indemnified Party from all
liability with respect thereto.
11.6 Claims between Buyer and GAC. Century and GAC shall attempt to
resolve between themselves any claims for indemnification hereunder not a result
of a Third Party Claim. The notification provisions of Section 11.5 shall also
apply to claims between Century and GAC. Any disputes not resolved within ninety
(90) days of notice shall be settled by arbitration as provided in Section 13.7.
11.7 Dollar Limit on Indemnification by Century and GAC. Notwithstanding
anything to the contrary contained in this Agreement, the maximum aggregate
amount of indemnifiable Losses which may be recovered (a) from GAC or its
Affiliates by Century and its Affiliates arising out of or resulting from the
causes enumerated in Section 11.1(a) (with the exception of any Losses relating
to or arising from the breach of any representation or warranty contained in
Section 4.1, 4.2, 4.3, 4.6 or 4.9) or (b) from Century or its Affiliates by GAC
and its Affiliates arising out of or resulting from the causes enumerated in
Section 11.2(a) (with the exception of any Losses relating to or arising from
the breach of any representation or warranty contained in Section 5.1, 5.2 or
5.3), shall in either case be an amount equal to Ten Million Dollars
(US$10,000,000).
11.8 Exclusive Remedies. Except in respect of injunctive relief to the
extent available, the parties hereto acknowledge and agree that following the
Closing the indemnification provisions of this Article XI shall be the sole and
exclusive remedies of, on the one hand, GAC and its Affiliates against Century
and its Affiliates, and on the other hand, Century and its Affiliates against
GAC and its Affiliates, for any breach of the representations, warranties,
covenants or agreements of GAC or Century, as the case may be, hereunder.
ARTICLE XII
TERMINATION
12.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) By the mutual written consent of GAC and Century;
(b) By GAC (if Seller is not then in breach of any term of this
Agreement), if Century (i) fails to perform in any material respect its
agreements contained herein required to be performed on or prior to the
Closing Date, or (ii) materially breaches any of its representations or
warranties contained herein, which failure or breach is not cured within
ten (10) days after GAC has notified Century of its intent to terminate
this Agreement pursuant to this subparagraph;
(c) By Century (if Century is not then in breach of any term of this
Agreement), if Seller (i) fails to perform in any material respect its
agreements contained herein required to be performed on or prior to the
Closing Date, or (ii) materially breaches any of its
21
representations or warranties contained herein , which failure or breach
is not cured within ten (10) days after Century has notified GAC of its
intent to terminate this Agreement pursuant to this subparagraph;
(d) By either GAC or Century, if there is any order, writ, injunction or
decree of any court or governmental or regulatory agency binding on Seller
or Century which prohibits or restrains Seller or Century from
consummating the transactions contemplated hereby; or
(e) By either party if the Closing has not occurred by the later of (i)
sixty (60) days after the date hereof, or (ii) June 2, 2003.
12.2 Effect on Obligations. Termination of this Agreement pursuant to this
Article shall terminate all obligations of the parties hereunder, except for the
obligations under Sections 13.2 (with respect to expenses) and 13.3 (with
respect to publicity); provided, however, that termination pursuant to Sections
12.1(b) or (c) will not relieve the defaulting or breaching party from any
liability to any other party hereto.
ARTICLE XIII
MISCELLANEOUS
13.1 Bulk Sales. The parties agree to waive the requirements, if any, of
all applicable bulk sales laws.
13.2 Expenses. Except as set forth in Section 3.3(b) (Post-Closing
Adjustment), Section 6.2(e) (the Letter of Credit; Notes) or in Section 10.4
(Transfer Costs), each party shall bear its own fees, costs and expenses
incurred in connection with the transactions contemplated hereby.
13.3 Publicity. Except as may be required by law or stock exchange rules,
no party to this Agreement shall make, or cause to be made, any press release or
public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as to
the timing and contents of any such press release or public announcement;
provided that nothing in this Section 13.3 shall prohibit Century from
disclosing information regarding the transactions contemplated by this
Agreement, upon request, to stock analysts in the ordinary course of business
and consistent with past practice. Notwithstanding the foregoing, where an
announcement is required by law or stock exchange rules, the party required to
make such an announcement shall notify the other party of such requirement (and
provide a copy of such announcement to the other party) as soon as practicable
in advance of such announcement and, to the extent practical, take the views of
the other party in respect of such announcement into account prior to making
such announcement.
13.4 Best Efforts. Each party hereto agrees to use its best efforts to
satisfy the conditions to the Closing set forth in this Agreement and otherwise
to consummate the transactions contemplated by this Agreement.
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13.5 Notices. All notices, demands and other communications made hereunder
will be in writing and shall be given either by personal delivery, by nationally
recognized overnight courier (with charges prepaid) or by telecopy (with
telephone confirmation), and will be deemed to have been given or made when
personally delivered, the day following the date deposited with such overnight
courier service or when transmitted to telecopy machine and confirmed by
telephone, addressed to the respective parties at the following addresses (or
such other address for a party as shall be specified by like notice):
If to Seller:
Glencore Acquisition I LLC
c/o Glencore Ltd.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Aluminum/Alumina Department
Facsimile No.: (000) 000-0000
If to Century or Buyer:
Century Aluminum Company
0000 Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Kitchen
Facsimile No.: (000) 000-0000
13.6 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, applicable to contracts
executed in and to be performed entirely within that state.
13.7 Dispute Resolution. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall be settled by
arbitration administered by the American Arbitration Association in New York
City under its Commercial Arbitration Rules. The panel of arbitrators shall
consist of three arbitrators. Each party shall select one arbitrator and the two
selected arbitrators shall select a third to complete the panel. Judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The determination of the arbitrators shall be final and
binding on the parties.
13.8 Counterparts. This Agreement may be executed in one or more original
or facsimile counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
13.9 Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interest or obligations
hereunder may be assigned by any of the parties hereto without the prior written
consent of all other parties hereto, and any purported assignment without such
consent shall be void.
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13.10 Third Party Beneficiaries. None of the provisions of this Agreement
or any document contemplated hereby is intended to grant any right or benefit to
any person or entity which is not a party to this Agreement.
13.11 Headings. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of this
Agreement and shall not in any way affect the meaning or interpretation of this
Agreement.
13.12 Amendments. Any waiver, amendment, modification or supplement of or
to any term or condition of this Agreement will be effective only if in writing
and signed by all parties hereto and the parties hereto waive the right to amend
the provisions of this Section orally.
13.13 Specific Performance. Seller acknowledges that each of the Fifth
Potline Interest, the 20% Undivided Interest, the Membership Interest, the
Additional Interest, the GAC Easement, the Alumina Supply Interest and the GAC
Purchased Working Capital are unique and that if Seller fails to consummate the
transactions contemplated by this Agreement such failure will cause irreparable
harm to Century for which there will be no adequate remedy at law. Century shall
be entitled, in addition to its other remedies pursuant to Article XI hereof, to
specific performance of this Agreement if Seller will, without cause, refuse to
consummate the transactions contemplated by this Agreement.
13.14 Access to Records. After the Closing, each of Century and GAC will
permit the other and its counsel, accountants and other representatives
reasonable access at such times as Century and GAC may agree to records relating
to the Plant, its operation or the Business as operated during the period from
April 2, 2001 until the Closing Date for accounting, financial, and tax
purposes.
13.15 Severability. In the event that any provision in this Agreement
shall be determined to be invalid, illegal or unenforceable in any respect, the
remaining provisions of this Agreement will not be in any way impaired, and the
illegal, invalid or unenforceable provision shall be fully severed from this
Agreement and there will be automatically added in lieu thereof a provision as
similar in terms and intent to such severed provision as may be legal, valid and
enforceable.
13.16 Entire Agreement. This Agreement and the Schedules and Exhibits
hereto constitute the entire contract between the parties hereto pertaining to
the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings between the parties with respect to such subject
matter.
[SIGNATURE PAGE FOLLOWS]
24
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed by its duly authorized officer or representative as of the date
first above written.
CENTURY ALUMINUM COMPANY
By:
--------------------------
Name:
Title:
GLENCORE LTD.
By:
--------------------------
Name:
Title:
GLENCORE ACQUISITION I LLC
By:
--------------------------
Name:
Title:
XXXXXXX ALUMINUM LLC
By:
--------------------------
Name:
Title:
EXHIBIT A
Reference Working Capital Amount
REFERENCE WORKING CAPITAL AMOUNT CALCULATION
As of February 28,
2003
------------------
CENTURY ALUMINUM OF KENTUCKY LLC: $
CASH (740,577)
ACCOUNTS RECEIVABLE, TRADE 173,035
INVENTORIES 21,451,201
PREPAID & OTHER ASSETS 1,622,771
----------------------------------------------------------------------------
TOTAL CURRENT ASSETS $ 22,506,430
----------------------------------------------------------------------------
ACCOUNTS PAYABLE, TRADE $(18,794,511)
ACCRUED & OTHER CURRENT LIABILITIES (4,473,198)
----------------------------------------------------------------------------
TOTAL CURRENT LIABILITIES $(23,267,709)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
TOTAL WORKING CAPITAL $ (761,279)
----------------------------------------------------------------------------
20% OF TOTAL WORKING CAPITAL $ (152,256)
GAC PURCHASED WORKING CAPITAL $ 1,740,000
============================================================================
WORKING CAPITAL $ 1,587,744
============================================================================
EXHIBIT B
Fifth Potline Description
Fee simple ownership of all of Parcel No. 1 as described herein, all
as described herein, together with the buildings and improvements thereon and
the rights, easements and appurtenances thereunto belonging, said tract or
parcel of land is situate in Xxxxxxx County, Kentucky, and are more particularly
bounded and described as follows:
PARCEL NO. 1
5TH POT LINE TRACT
Commencing at the northwest corner of the Southwire Company Kentucky
Plant (SCKP) facility (aka Rod and Cable Mill) 52.172 acre tract;
thence North 61 degrees 54 minutes 49 seconds West 984.85 feet to
the true POINT OF BEGINNING A 1/2 inch iron pipe set this survey;
all iron pipe set this survey are 18" long schedule 40 steel pipe
with a yellow plastic identifier marked "XXXXX-PLS 2492" and being a
common corner between the outlot for Potline No. 5 and the outlot
for Potlines No. 1 through No. 4 (inclusive); thence South 54
degrees 55 minutes 18 seconds West 121.02 feet to an iron pipe set
this survey near the edge of an asphalt drive; thence South 35
degrees 07 minutes 00 seconds East 88.87 feet to an iron pipe set
this survey at the corner of a concrete parapet; thence South 54
degrees 59 minutes 13 seconds West 62.00 feet to an iron pipe set
this survey at the corner of a concrete parapet wall; thence North
34 degrees 51 minutes 53 seconds West 88.80 feet to an iron pipe set
this survey near the edge of an asphalt drive; thence South 54
degrees 55 minutes 18 seconds West 141.16 feet to an iron pipe set
this survey in the asphalt pavement; thence North 34 degrees 54
minutes 40 seconds West 1,258.51 feet to an iron pipe set this
survey in the asphalt pavement; thence North 55 degrees 14 minutes
55 seconds East 83.70 feet to an iron pipe set this survey near the
south edge of an asphalt drive; thence North 34 degrees 32 minutes
25 seconds West just outside the edge of a concrete utility trough,
passing an iron pipe set this survey at 112.75 feet, in all a total
distance of 116.73 feet to a point situated just north of a concrete
utility trough; thence generally parallel with the concrete utility
trough North 54 degrees 59 minutes 03 seconds East 278.52 feet to an
iron pipe set this survey in the graveled area of the electrical
switch yard/transformer yard; thence
South 34 degrees 49 minutes 47 seconds East 118.16 feet to an iron
pipe set this survey near the south edge of an asphalt drive; thence
South 55 degrees 16 minutes 19 seconds West 40.48 feet to an iron
pipe set this survey; thence generally following the building wall
between Potline No. 5 and Potline No. 4 South 34 degrees 58 minutes
38 seconds East 1,256.54 feet to the point of beginning, containing
10.204 acres, more or less, per survey by HRG, PLLC dated March 8,
2001 and signed March 23, 2001.
EXHIBIT C
20% Undivided Interest Real Property Description
An undivided 20% interest as a tenant in common in (a) Parcel No. 2,
(less Exception No. 1, Exception No. 2 and Exception No. 3) and (b) Parcel No.
3, all as described herein, together with the buildings and improvements thereon
and the rights, easements and appurtenances thereunto belonging, said tracts or
parcels of land are situate in Xxxxxxx County, Kentucky, and are more
particularly bounded and described as follows:
PARCEL NO. 2
NSA, LTD. EAST TRACT
Beginning at an iron pipe set this survey (all iron pipes set this
survey are 1/2 inch I.D. steel pipe bearing a yellow plastic
identifier marked "XXXXX-PLS 2492") in the northern line of KY 271
being the southwestern corner to the remaining Southwire Company
property (rod and cable mill/SCKP facility plant site, a 52.172 acre
site); thence with the northern right of way of said public highway
the following five courses: South 55 degrees 06 minutes 31 seconds
West 22.77 feet to a P.K. nail set this survey near the centerline
of an asphalt access drive; South 54 degrees 50 minutes 08 seconds
West 189.00 feet to a concrete right of way marker found broken
flush with the ground level; South 55 degrees 46 minutes 37 seconds
West 304.39 feet to a iron pipe set this survey; South 54 degrees 50
minutes 08 seconds West 300.00 feet to a concrete right of way
marker found; South 53 degrees 57 minutes 07 seconds West 648.34
feet to a 1/2 inch iron pipe set this survey; thence along a curve
to the right having a radius of 522.96 feet and a chord bearing
North 80 degrees 22 minutes 47 seconds West 737.56 feet to a
concrete right of way marker found in the eastern right of way of KY
334; thence with the eastern right of way of said public highway the
following eighteen courses: North 35 degrees 29 minutes 26 seconds
West 449.41 feet to a concrete right of way marker found; North 35
degrees 32 minutes 28 seconds West 330.66 feet to a concrete right
of way marker found; thence along a curve to the right having a
radius of 904.93 feet and a chord bearing North 29 degrees 46
minutes 42 seconds West 174.82 feet to a concrete right of way
marker found; North 21
degrees 05 minutes 56 seconds West 170.26 feet to a concrete right
of way marker found; North 24 degrees 21 minutes 50 seconds West
500.69 feet to a concrete right of way marker found; North 24
degrees 17 minutes 49 seconds West 353.12 feet to a concrete right
of way marker found; thence along a curve to the left having a
radius of 11,519.16 and a chord bearing North 25 degrees 30 minutes
15 seconds West 452.97 feet to a concrete right of way marker found;
North 26 degrees 35 minutes 58 seconds West 495.91 feet to a
concrete right of way marker found; North 25 degrees 47 minutes 22
seconds West 734.10 feet to a concrete right of way marker found
broken flush with the ground level; North 25 degrees 12 minutes 26
seconds West 262.59 feet to a 1/2 inch iron pipe set this survey;
North 24 degrees 30 minutes 25 seconds West 432.63 feet to a 1/2
inch iron pipe set this survey westward of disturbed concrete right
of way marker; North 19 degrees 16 minutes 29 seconds West 147.50
feet to a concrete right of way marker found; thence along a curve
to the right the three monumented chords being North 17 degrees 56
minutes 48 seconds West 320.66 feet to an iron pipe set this survey;
North 15 degrees 50 minutes 14 seconds West 90.73 feet to a concrete
right of way marker found; North 13 degrees 36 minutes 44 seconds
West 376.42 feet to a concrete right of way marker found; thence
North 03 degrees 51 minutes 00 seconds East 73.98 feet to a concrete
right of way marker found; thence North 11 degrees 25 minutes 30
seconds West 200.60 feet to a concrete right of way marker found;
thence North 13 degrees 45 minutes 21 seconds West 259.39 feet to a
concrete right of way marker found; thence along a curve to the
right having a radius of 5,453.84 feet and a chord bearing North 10
degrees 06 minutes 18 seconds West 346.63 feet to a steel 'T' pin
(with a metal identifier marked "JDQ 2365 property line") found
marked "JDQ property corner" at the southwestern corner of the Big
Rivers R.E.C.C. property (D.B. 71, Pg. 380); thence with the
southern line of Big Rivers North 51 degrees 44 minutes 04 seconds
East 3,430.99 feet to a 1/2 inch iron pipe set this survey in the
bottom of a ravine flowing into the Ohio River, the property line
extending along a bearing North 51 degrees 44 minutes 04 seconds
East to the low water xxxx of the Ohio River; thence meandering
along the random line near the top of the river bank (the actual
property line traversing along the low water xxxx of the southern
shore of the Ohio River) the following seven courses: South 24
degrees 42 minutes 59 seconds East (passing a 1/2 inch iron pipe;
reference point; set this survey at 110.00 feet) in all a total
distance of 822.23 feet; South 24 degrees 07 minutes 05 seconds East
674.72 feet to a 1/2 inch iron pipe set this survey; South 22
degrees 16 minutes 11 seconds East 599.87 feet to a 1/2 inch iron
pipe set this survey; South 18 degrees 35
minutes 43 seconds East 911.86 feet to a 1/2 inch iron pipe set this
survey; South 26 degrees 21 minutes 30 seconds East 800.72 feet to a
1/2 inch iron pipe set this survey; South 23 degrees 24 minutes 42
seconds East 814.92 feet to a 1/2 inch iron pipe set this survey;
South 14 degrees 31 minutes 21 seconds East 469.18 feet to a 1/2
inch iron pipe set this survey, the actual property line extending
from the low water xxxx of the Ohio River on a bearing of South 69
degrees 45 minutes 26 seconds West through said point; thence
continuing along a new division line the following four courses
along a remnant portion of the Southwire Company property (around
the "rod and cable mill"/SCKP facility plant, a 52.172 acre site)
and being generally parallel with and approximately one foot outside
the existing chain line fence: South 69 degrees 45 minutes 26
seconds West 218.46 feet to a 1/2 inch iron pipe set this survey;
South 10 degrees 02 minutes 39 seconds West 468.03 feet to a 1/2
inch iron pipe set this survey; South 54 degrees 57 minutes 15
seconds West 1,044.36 feet to a 1/2 inch iron pipe set this survey;
South 34 degrees 58 minutes 11 seconds East 1,454.63 feet to the
point of beginning, containing 487.777 acres, more or less, per
survey by HRG, PLLC dated March 8, 2001 and signed March 23, 2001.
The survey reference line is located along the top of the Ohio River
bank and/or along the eastern perimeter fence.
There is expressly EXCEPTED and RESERVED from the above described
Parcel No. 2, and not conveyed herein, the following parcels:
EXCEPTION NO. 1
SOUTHWIRE COMPANY OUTLOT
Beginning at a steel 'T' pin found (with a metal identifier marked
"JDQ 2365 property line") marked JDQ property corner in the eastern
right of way of KY 334, said point being the southwestern corner of
the Big Rivers R.E.C.C. property (D.B. 71, Pg. 380); thence with the
southern line of Big Rivers North 51 degrees 44 minutes 04 seconds
East 1,392.82 feet to an iron pipe set this survey (all iron pipes
set this survey are 1/2 inch I.D. steel pipe bearing a yellow
plastic identifier marked "XXXXX-PLS 2492") approximately 20 feet
northward of the perimeter chain link fence; thence with a new
division line the following six courses: South 9 degrees 42 minutes
36 seconds East 996.75 feet to an iron pipe set this survey; South
57 degrees 23 minutes 42 seconds West 319.12 feet to an iron pipe
set this survey westward of the existing rail spur line; South 35
degrees 49 minutes 39 seconds East 397.49 feet to an iron pipe set
this survey westward of the existing spur line;
South 11 degrees 07 minutes 20 seconds West 31.29 feet to an iron
pipe set this survey northward of an existing gravel access drive;
South 57 degrees 10 minutes 12 seconds West 227.51 feet to an iron
pipe set this survey northward of an existing gravel access drive
and approximately 20 feet eastward of a pump house; South 54 degrees
05 minutes 36 seconds West passing an iron pipe set this survey at
450.71 feet westward of an abandoned asphalt runway; in all a total
distance of 935.46 feet to an iron pipe set this survey in the
eastern right of way of KY 334; thence with the eastern right of way
of said public highway the following six courses: along a curve to
the right having a radius of 5,567.18 feet and a long chord bearing
North 15 degrees 50 minutes 14 seconds West 90.73 feet to a concrete
right of way marker found; thence along a curve to the right having
a radius of 5,499.44 feet and a long chord bearing North 13 degrees
36 minutes 44 seconds West 376.42 feet to a concrete right of way
marker found; North 3 degrees 51 minutes 00 seconds East 73.98 feet
to a concrete right of way marker found; North 11 degrees 25 minutes
30 seconds West 200.60 feet to a concrete right of way marker found;
North 13 degrees 45 minutes 21 seconds West 259.39 feet to a
concrete right of way marker found; thence along a curve to the
right having a radius of 5,453.84 feet and a chord bearing North 10
degrees 06 minutes 18 seconds West 346.63 feet to the point of
beginning, containing 36.755 acres, more or less, per survey by HRG,
PLLC dated March 8, 2001 and signed March 23, 2001.
Exception No. 1 is the same property reserved in that certain deed
from Southwire Company to NSA, Ltd. dated March 26, 2001, of record in the
Office of the Recorder of Xxxxxxx County, Kentucky in Deed Book 124, at page
102.
EXCEPTION NO. 2
NSA, LTD. POTLINES NO. 1 THROUGH 4 OUTLOT
Commencing at the northwest corner of the Southwire Company Kentucky
Plant (SCKP) facility (aka Rod and Cable Mill) 52.172 acre tract;
thence North 61 degrees 54 minutes 49 seconds West 984.85 feet to an
iron pipe set this survey; all iron pipe set this survey are 18"
long, schedule 40 steel pipe with a yellow plastic identifier marked
"XXXXX-PLS 2492"; and being a common corner between the outlot for
Potline No. 5 and the outlot for Potlines No. 1 through No. 4
(inclusive); thence generally following the building wall between
Potline No. 5 and Potline No. 4 North 34 degrees 58 minutes 38
seconds West 1,256.54 feet to an iron pipe set this survey near the
south edge of an asphalt drive; thence
North 55 degrees 16 minutes 19 seconds East 40.48 feet to an iron
pipe set this survey; thence North 34 degrees 49 minutes 47 seconds
West 118.16 feet to an iron pipe set this survey in the gravel area
of the electric switch yard/transformer yard; thence North 54
degrees 59 minutes 03 seconds East 483.22 feet to an iron pipe set
this survey; thence North 54 degrees 59 minutes 04 seconds East
454.83 feet to an iron pipe set this survey; thence South 34 degrees
58 minutes 08 seconds East, generally along the east edge of Potline
Building No. 1, 1,373.43 feet to an iron pipe set this survey near
the edge of an asphalt drive; thence South 54 degrees 55 minutes 18
seconds West 978.64 feet to the point of beginning containing 30.761
acres, more or less, per survey by HRG, PLLC dated March 8, 2001 and
signed March 23, 2001.
EXCEPTION NO. 3
5TH POT LINE TRACT
Commencing at the northwest corner of the Southwire Company Kentucky
Plant (SCKP) facility (aka Rod and Cable Mill) 52.172 acre tract;
thence North 61 degrees 54 minutes 49 seconds West 984.85 feet to
the true POINT OF BEGINNING A 1/2 inch iron pipe set this survey;
all iron pipe set this survey are 18" long schedule 40 steel pipe
with a yellow plastic identifier marked "XXXXX-PLS 2492" and being a
common corner between the outlot for Potline No. 5 and the outlot
for Potlines No. 1 through No. 4 (inclusive); thence South 54
degrees 55 minutes 18 seconds West 121.02 feet to an iron pipe set
this survey near the edge of an asphalt drive; thence South 35
degrees 07 minutes 00 seconds East 88.87 feet to an iron pipe set
this survey at the corner of a concrete parapet; thence South 54
degrees 59 minutes 13 seconds West 62.00 feet to an iron pipe set
this survey at the corner of a concrete parapet wall; thence North
34 degrees 51 minutes 53 seconds West 88.80 feet to an iron pipe set
this survey near the edge of an asphalt drive; thence South 54
degrees 55 minutes 18 seconds West 141.16 feet to an iron pipe set
this survey in the asphalt pavement; thence North 34 degrees 54
minutes 40 seconds West 1,258.51 feet to an iron pipe set this
survey in the asphalt pavement; thence North 55 degrees 14 minutes
55 seconds East 83.70 feet to an iron pipe set this survey near the
south edge of an asphalt drive; thence North 34 degrees 32 minutes
25 seconds West just outside the edge of a concrete utility trough,
passing an iron pipe set this survey at 112.75 feet, in all a total
distance of 116.73 feet to a point situated just north of a concrete
utility trough; thence generally parallel with the concrete utility
trough North 54 degrees 59 minutes 03 seconds East 278.52 feet to an
iron pipe set this survey in the
graveled area of the electrical switch yard/transformer yard; thence
South 34 degrees 49 minutes 47 seconds East 118.16 feet to an iron
pipe set this survey near the south edge of an asphalt drive; thence
South 55 degrees 16 minutes 19 seconds West 40.48 feet to an iron
pipe set this survey; thence generally following the building wall
between Potline No. 5 and Potline No. 4 South 34 degrees 58 minutes
38 seconds East 1,256.54 feet to the point of beginning, containing
10.204 acres, more or less, per survey by HRG, PLLC dated March 8,
2001 and signed March 23, 2001.
PARCEL NO. 3
NSA, LTD. WEST TRACT
Beginning at a 1/2 inch iron pin bearing yellow plastic identifier
marked 1927 in the western right of way of KY 334; thence with the
line of Xxxxxxx X. Xxxxxx (D.B. 85, Pg. 196) South 53 degrees 35
minutes 18 seconds West 879.97 feet to a 1/2 inch iron pin with a
yellow plastic identifier marked XxXxxxxx-LS 1927 found near the
crest of a ridge; thence South 53 degrees 35 minutes 53 seconds West
(passing a 1/2 inch iron pin found with identifier marker 1927 at
2,344.17 feet near the top of the bank at Muddy Gut Slough) in all a
total distance of 2,394.17 feet to a point in said slough; thence
continuing with another line of Xxxxxx along a meander line
generally following the flow channel of said slough the following
nine courses: North 31 degrees 17 minutes 53 seconds West 200.54
feet to a calculated point; North 44 degrees 57 minutes 57 seconds
West 147.71 feet to a calculated point; North 12 degrees 50 minutes
18 seconds West 109.64 feet to a calculated point; North 22 degrees
17 minutes 58 seconds West 258.13 feet to a calculated point; North
26 degrees 24 minutes 00 seconds West 116.03 feet to an iron pipe
set this survey (all iron pipes set this survey are 1/2 inch I.D.
steel pipe bearing a yellow plastic identifier marked "XXXXX-PLS
2492"); North 29 degrees 00 minutes 27 seconds West 313.10 feet to
an iron pipe set this survey; North 28 degrees 01 minutes 56 seconds
West 184.74 feet to a calculated point; North 29 degrees 37 minutes
13 seconds West 90.00 feet to a calculated point; North 23 degrees
52 minutes 22 seconds West 108.98 feet to an iron pin found with
identifier number 1927; thence continuing with another line of
Xxxxxx South 53 degrees 06 minutes 05 seconds West 1,071.72 feet to
a concrete monument with an unmarked brass cap found in the eastern
right of way of the CSX Railroad right of way, said point being
39.32 feet from the centerline of said mainline railroad; thence 40
feet from and parallel with the centerline of said trackage along
the east right of way of said railroad right of way
the following thirteen courses: North 09 degrees 49 minutes 24
seconds West 17.77 feet to an iron pipe set this survey; North 12
degrees 00 minutes 52 seconds West 661.07 feet to an iron pipe set
this survey; North 10 degrees 50 minutes 13 seconds West 93.51 feet
to an iron pipe set this survey; North 08 degrees 51 minutes 27
seconds West 96.44 feet to an iron pipe set this survey; North 05
degrees 56 minutes 39 seconds West 101.09 feet to an iron pipe set
this survey; North 02 degrees 24 minutes 19 seconds West 120.04 feet
to an iron pipe set this survey; North 01 degree 01 minutes 08
seconds East 95.49 feet to an iron pipe set this survey; North 04
degrees 09 minutes 34 seconds East 98.61 feet to an iron pipe set
this survey; North 07 degrees 06 minutes 18 seconds East 99.56 feet
to an iron pipe set this survey; North 09 degrees 33 minutes 13
seconds East 101.53 feet to an iron pipe set this survey; North 10
degrees 47 minutes 43 seconds East 101.07 feet to an iron pipe set
this survey; North 11 degrees 18 minutes 19 seconds East 125.94 feet
to an iron pipe set this survey; North 11 degrees 08 minutes 34
seconds East 607.79 feet (said point being 38.47 feet from the
centerline of said mainline railroad), crossing a Big Rivers
R.E.C.C. easement (D.B. 72, Pg. 399) containing public highway KY
3092 and a railroad spur to a concrete monument with unmarked brass
cap found, corner to line of J.R. Xxxxxxxx (D.B. 84, Pg. 814);
thence with the southern line of Xxxxxxxx the following two courses:
North 50 degrees 39 minutes 04 seconds East 191.76 feet to an iron
pipe set this survey; North 50 degrees 28 minutes 50 seconds East
2,020.69 feet to an iron pipe set this survey; thence with the
southern lines of Xxxxxxxx and of Xxxxxxx and Xxxxx Xxxxxxxx (D.B.
106, Pg. 240) North 49 degrees 49 minutes 53 seconds East 1,613.04
feet to an iron pipe set this survey, said point being in the
western right of way of KY 334 at the intersection of KY 3092;
thence with the western right of way of KY 334 and crossing Big
Rivers R.E.C.C. easement (D.B. 72, Pg. 399) containing KY 3092 and a
rail spur South 07 degrees 53 minutes 54 seconds East 89.45 feet to
a mag nail set this survey (approximately 7-feet south of the
centerline of KY 3092); thence South 08 degrees 02 minutes 41
seconds East 123.08 feet to an iron pipe set this survey; thence
continuing with the western right of way said public highway the
following thirteen courses: South 09 degrees 37 minutes 11 seconds
East 68.02 feet to an iron pipe set this survey; South 10 degrees 06
minutes 38 seconds East 370.53 feet to a concrete right of way
marker found; South 11 degrees 45 minutes 05 seconds East 171.47
feet to a concrete right of way marker found; South 14 degrees 15
minutes 53 seconds East 383.76 feet to a concrete right of way
marker found; South 17 degrees 02 minutes 59 seconds East 419.39
feet to a concrete right of way marker found; South 18 degrees 56
minutes 25 seconds
East 146.85 feet to an iron pipe set this survey; South 21 degrees
57 minutes 32 seconds East 405.42 feet to a 1/2 inch iron pin found
with identifier number 1927; South 25 degrees 40 minutes 53 seconds
East 303.90 feet to an iron pipe set this survey; South 26 degrees
04 minutes 54 seconds East 234.06 feet to an iron pipe set this
survey; South 25 degrees 02 minutes 38 seconds East 300.19 feet to
an iron pipe set this survey; South 26 degrees 34 minutes 17 seconds
East 200.05 feet to an iron pipe set this survey; South 27 degrees
31 minutes 35 seconds East 300.11 feet to an iron pipe set this
survey; South 29 degrees 15 minutes 35 seconds East 213.29 feet to
the point of beginning, containing 295.46 acres, more or less, per
survey by HRG, PLLC, dated March 8, 2001 and signed March 23, 2001.
Parcel No. 1 (5th Pot Line Tract), Parcel No. 2 (less Exception No.
1, Exception No. 2 and Exception No. 3) , and Parcel No. 3 all described above
are collectively referred to herein as the "Property" and are more particularly
shown and described on a plat of survey entitled "Southwire Company, Located at
0000 Xxxxx Xxxxx 000 X Xxxx Xx Xxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx," dated
March 8, 2001 and signed March 23, 2001, prepared by HRG, PLLC, scale 1' = 400'
and recorded in Office of the Recorder of Xxxxxxx County, Kentucky in Plat
Cabinet B, Slides 145 and 155, (the "Survey"), which Survey is incorporated by
reference herein and made a part hereof. The Property is part of the same
property conveyed by Southwire Company to NSA, Ltd. by deed dated March 26,
2001, of record in the Office of the Recorder of Xxxxxxx County, Kentucky in
Deed Book 124, at page 102, and is all of the same property conveyed by NSA,
Ltd. to Glencore Acquisition I LLC by deed dated April 2, 2001, of record in
said Recorder's Office in Deed Book 124, at page 209; reference to which deeds
is here made for all pertinent purposes.
EASEMENTS
The Property is expressly subject to and includes the benefit of the
following easements and agreements: (i) Owners Agreement dated April 2, 2001
between NSA, Ltd., Glencore Acquisition I LLC, and Century Aluminum of Kentucky,
LLC, of record in Deed Book 124, at page 222, (the "Owners Agreement");(ii)
Reciprocal Easement Agreement dated April 2, 2001 between NSA, Ltd. and
Southwire Company, of record in Deed Book 124, at page 164, (the "Reciprocal
Easement"); (iii) Groundwater Treatment Building Lease dated April 2,
2001 between NSA, Ltd. and Glencore Acquisition I LLC, as Landlord, and
Southwire Company, as Tenant, of record in Deed Book 124, at page 182, (the
"Lease"); (iv) Environmental Access and Cooperation Agreement dated April 2,
2001 between NSA, Ltd., Glencore Acquisition I LLC, Century Aluminum of
Kentucky, LLC and Southwire Company, of record in Deed Book 124, at page 194,
(the "Environmental Access Agreement"); and (v) Reciprocal Easement Agreement
dated April 2, 2001 between NSA, Ltd. and Glencore Acquisition I LLC, of record
in Deed Book 124, at page 287, (the "Glencore Reciprocal Easement").
EXHIBIT D
Form of Hawesville Purchase Note
EXHIBIT E
Form of Letter of Credit Reimbursement Note
EXHIBIT F
Allocation of Purchase Price
With respect to Buyer's acquisition of the Interest, the Alumina Supply
Interest and the GAC Purchased Working Capital, within sixty (60) calendar days
following the Closing Date, Buyer shall deliver to GAC a schedule (the
"Allocation Schedule") allocating the purchase price among the assets comprising
the Interest, the Alumina Supply Interest and the GAC Purchased Working Capital.
If GAC in good faith determines that there is a reasonable basis that any of the
allocations or computations reflected on the Allocation Schedule are materially
incorrect, GAC and Buyer will attempt in good faith to promptly agree on a
revised Allocation Schedule. If the parties cannot resolve any such dispute
within thirty (30) Business Days of the delivery by Buyer of the Allocation
Schedule to GAC, the items remaining in dispute shall be submitted to the
Arbitrator. If the Arbitrator determines that the items remaining in dispute are
not materially incorrect, then GAC and Buyer shall be bound by the allocation
prepared by Buyer. If the Arbitrator determines that one or more items remaining
in dispute are materially incorrect, then GAC and Buyer shall be bound by the
allocation of such items as determined by the Arbitrator. The Arbitrator shall
make any such determination within thirty (30) Business Days after submission of
the remaining disputed items.
EXHIBIT G
Form of Security Agreement
EXHIBIT H
Form of Reimbursement Agreement
SCHEDULE 4.4
Required consents, approvals, authorizations or filings with any governmental
authority in relation to the execution of the Asset Purchase Agreement
and the Deed.
1. Such consents, approvals, authorizations or filings as may be required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
regulations and rules promulgated pursuant to that act.
SCHEDULE 4.9
Tax Matters
None.
SCHEDULE 5.4
Required consents, approvals, authorizations or filings with any governmental
authority in relation to the execution of the Asset Purchase Agreement,
the Notes, the Reimbursement Agreement, the Security Agreement, the
Mortgage and the Guaranty
1. Such consents, approvals, authorizations or filings as may be required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
regulations and rules promulgated pursuant to that act.
2. Such consents, approvals, authorizations or filings as may be required under
applicable federal or state securities laws and regulations and rules
promulgated pursuant to such laws.
3. Such consents, approvals, authorizations or filings as may be required in
connection with the perfection of the Security Interests (as defined in the
Security Agreement).
SCHEDULE 6.2
Liens
All exceptions to title set forth on Schedule B to title policy number 100105528
dated April 5, 2001 issued by Chicago Title Insurance Company.
ASSET PURCHASE AGREEMENT
BY AND AMONG
GLENCORE LTD.,
GLENCORE ACQUISITION I LLC,
XXXXXXX ALUMINUM LLC
AND
CENTURY ALUMINUM COMPANY
DATED AS OF
April 1, 2003
Table of Contents
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Article I DEFINITIONS..........................................................2
Article II SALE AND PURCHASE OF ASSETS.........................................5
2.1 Transfer of the Interest, Alumina Supply Interest and GAC
Purchased Working Capital..........................................5
2.2 The Fifth Potline Interest.........................................5
2.3 The 20% Undivided Interest.........................................5
2.4 The Additional Interest............................................5
2.5 Assumed Liabilities................................................5
Article III PURCHASE PRICE AND ADJUSTMENT......................................6
3.1 Purchase Price.....................................................6
3.2 Payment of Purchase Price..........................................6
3.3 Net Working Capital Adjustment.....................................6
3.4 Allocation of Purchase Price.......................................8
3.5 Effectiveness......................................................8
Article IV REPRESENTATIONS AND WARRANTIES OF SELLER............................8
4.1 Organization and Good Standing.....................................8
4.2 Authority; Enforceability..........................................8
4.3 No Conflict or Breach..............................................9
4.4 Governmental Consents and Approvals................................9
4.5 Litigation.........................................................9
4.6 Valid Title; No Liens..............................................9
4.7 GAC Purchased Working Capital......................................9
4.8 Brokers...........................................................10
4.9 GAC Tax Matters...................................................10
4.10 Disclosure........................................................10
Article V REPRESENTATIONS AND WARRANTIES OF CENTURY...........................11
5.1 Organization and Good Standing; Governing Documents...............11
5.2 Authority; Enforceability.........................................11
5.3 No Conflict or Breach.............................................11
5.4 Governmental Consents and Approvals...............................12
5.5 Litigation........................................................12
5.6 Working Capital...................................................12
5.7 Brokers...........................................................12
5.8 Disclosure........................................................12
Article VI INDIVIDUAL COVENANTS...............................................12
6.1 Covenants of Glencore.............................................12
6.2 Covenants of Century..............................................13
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Article VII MUTUAL COVENANTS..................................................15
7.1 Best Efforts......................................................15
7.2 Owners Agreement and Guarantees...................................15
7.3 LLC Agreement.....................................................15
Article VIII CONDITIONS PRECEDENT TO CENTURY'S OBLIGATIONS....................16
8.1 Representations and Warranties....................................16
8.2 Compliance with Covenants.........................................16
8.3 Absence of Litigation.............................................16
8.4 Board Approval....................................................16
8.5 Consent of Bank Lenders...........................................16
8.6 Ancillary Agreements..............................................16
Article IX CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.......................16
9.1 Representations and Warranties....................................16
9.2 Compliance with Covenants.........................................17
9.3 Absence of Litigation.............................................17
9.4 Senior Management Approval........................................17
9.5 Ancillary Agreements..............................................17
Article X CLOSING.............................................................17
10.1 Closing...........................................................17
10.2 Deliveries by Seller..............................................17
10.3 Deliveries by Century.............................................18
10.4 Transfer Costs....................................................18
10.5 Further Assurances................................................19
Article XI INDEMNIFICATION....................................................19
11.1 Indemnification by GAC............................................19
11.2 Indemnification by Century........................................19
11.3 Indemnification Threshold.........................................20
11.4 Time Limits on Indemnification....................................20
11.5 Notice of Third Party Claim.......................................20
11.6 Claims between Buyer and GAC......................................21
11.7 Dollar Limit on Indemnification by Century and GAC................21
11.8 Exclusive Remedies................................................21
Article XII TERMINATION.......................................................21
12.1 Termination.......................................................21
12.2 Effect on Obligations.............................................22
Article XIII MISCELLANEOUS....................................................22
13.1 Bulk Sales........................................................22
13.2 Expenses..........................................................22
13.3 Publicity.........................................................22
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13.4 Best Efforts......................................................22
13.5 Notices...........................................................23
13.6 Governing Law.....................................................23
13.7 Dispute Resolution................................................23
13.8 Counterparts......................................................23
13.9 Assignment........................................................23
13.10 Third Party Beneficiaries......................................24
13.11 Headings.......................................................24
13.12 Amendments.....................................................24
13.13 Specific Performance...........................................24
13.14 Access to Records..............................................24
13.15 Severability...................................................24
13.16 Entire Agreement...............................................24
