EXHIBIT 4.3
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), entered into
as of August 6, 2004, among Century Aluminum Company, a Delaware corporation
(the "Company"), the Guarantors party hereto (the "Guarantors") and Wilmington
Trust Company, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company, the Guarantors party thereto and the Trustee entered
into the Indenture, dated as of April 2, 2001 (as supplemented by the First
Supplemental Indenture (as defined below) and the Second Supplemental Indenture
(as defined below), the "Indenture"), relating to the Company's 11 3/4% Senior
Secured First Mortgage Notes due 2008 (the "Notes");
WHEREAS, the Company, the Trustee and Xxxxxxx Aluminum LLC ("Xxxxxxx")
executed a Supplemental Indenture to the Indenture, dated as of April 1, 2003
(the "First Supplemental Indenture"), pursuant to which Xxxxxxx agreed to be a
Guarantor under the Indenture and to be bound by the terms of the Indenture
applicable to Guarantors;
WHEREAS, the Company, the Guarantors party thereto and the Trustee
executed an Amendment to Indenture, dated as of May 5, 2003 (the "Second
Supplemental Indenture"), pursuant to which the Indenture was amended to cure a
defect;
WHEREAS, the Company and the Guarantors propose to amend the Indenture
(the "Proposed Amendments"), which Proposed Amendments must be approved with the
written consent of the holders (the "Holders") of a majority of the aggregate
principal amount of the outstanding Notes, or in the case of Sections 4.12 and
4.13 thereof, 66-2/3% of the outstanding Notes;
WHEREAS, the Company has solicited the consents of the Holders of the
Notes pursuant to the Offer to Purchase and Consent Solicitation Statement dated
July 29, 2004, (as amended, supplemented or modified, the "Consent Solicitation
Statement"), to the Proposed Amendments to the Indenture upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Company has received the valid consents of the Holders of at
least a majority in aggregate principal amount outstanding of the Notes
consenting to the substance of the Proposed Amendments set forth in this
Supplemental Indenture;
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding, and legal instrument in accordance with
the terms of the Indenture have been performed and fulfilled and the execution
and delivery hereof have been in all respects duly authorized, and
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is mutually covenanted and agreed as follows:
AGREEMENTS
SECTION 1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein are used as defined in the Indenture.
SECTION 2. Amendments to Indenture. Effective as of the Amendment
Effective Date (as defined below), except as set forth in Section 14 below:
(a) The following Sections of the Indenture, and any corresponding
provisions in the Notes, hereby are deleted in their entirety and replaced with
"Intentionally Omitted":
EXISTING SECTION NUMBER CAPTION
----------------------- -------
Section 4.03 .......... Existence
Section 4.04 .......... Payment of Taxes and Other Claims
Section 4.05 .......... Maintenance of Properties and Insurance
Section 4.06 .......... Limitation on Debt and Disqualified or Preferred
Stock
Section 4.07 .......... Limitation on Restricted Payments
Section 4.08 .......... Limitation on Liens
Section 4.09 .......... Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries
Section 4.10 .......... Limitation on Sale or Issuance of Equity Interests
of Restricted Subsidiaries
Section 4.11 .......... Guaranties by Restricted Subsidiaries
Section 4.12 .......... Repurchase of Notes upon a Change of Control
Section 4.13 .......... Limitation on Asset Sales
Section 4.14 .......... Limitation on Transactions with Shareholders and
Affiliates
Section 4.15 .......... Line of Business
Section 4.17 .......... Financial Reports
Section 4.18 .......... Reports to Trustee
Section 4.19 .......... Impairment of Security Interest; Further
Assurances
Section 4.20 .......... Limitations on Certain Activities by Century
Aluminum of Kentucky LLC
(b) Section 5.01 of the Indenture captioned "Consolidation, Merger or Sale
of Assets by the Company; No Lease of All or Substantially All Assets" is hereby
amended by amending and restating paragraph (a) thereof in its entirety to read
as follows:
"(a) The Company will not
(i) consolidate with or merge with or into any Person, or
(ii) sell, convey, transfer, or otherwise dispose of all or
substantially all of the assets of the Company and its consolidated
Subsidiaries, as an entirety or substantially as an entirety, in one
transaction or a series of related transactions, to any Person or
(iii) permit any Person to merge with or into the Company
unless
(A) either (x) the Company is the continuing Person or (y) the
resulting, surviving or transferee Person is a corporation organized
and validly existing under the laws of the United States of America
or any jurisdiction thereof and expressly assumes by supplemental
indenture all of the obligations of the Company under the Indenture
and the Notes and expressly assumes all of the obligations of the
Company under the Security Documents; and
(B) [Intentionally Omitted]
(C) [Intentionally Omitted]
(D) [Intentionally Omitted]
(E) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
consolidation, merger or transfer and the supplemental indenture (if
any) comply with the Indenture."
(c) Section 5.02 of the Indenture captioned "Consolidation, Merger or Sale
of Assets by a Guarantor" is hereby amended by deleting subclause (iii)(B)(2) of
paragraph (a) thereof in its entirety and replacing it with "Intentionally
Omitted".
(d) Section 6.01 of the Indenture captioned "Events of Default" is hereby
amended and restated in its entirety to read as follows:
"Events of Default. An "Event of Default" occurs if
(1) the Company defaults in the payment of the principal of any Note
when the same becomes due and payable at maturity, upon acceleration or
redemption, or otherwise;
(2) the Company defaults in the payment of interest (including any
Additional Interest) on any Note when the same becomes due and payable,
and the default continues for a period of 30 days;
(3) the Company fails to make an Offer to Purchase and thereafter
accept and pay for Notes tendered when and as required pursuant to Section
4.12 or Section 4.13, or the Company or any Restricted Subsidiary fails to
comply with Section 4.06 or Section 4.07 or the Company or any Guarantor
fails to comply with Article 5 or Century Aluminum of Kentucky LLC
defaults in the performance of or breaches any of the covenants in Section
4.20 applicable to it;
(4) the Company or any Restricted Subsidiary defaults in the
performance of or breaches any other covenant or agreement of the Company
in the Indenture or under the Notes or in the Security Documents and the
default or breach continues for a period of 60 consecutive days after
written notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of 25% or more in aggregate principal amount of the
Notes;
(5) [Intentionally Omitted]
(6) [Intentionally Omitted]
(7) an involuntary case or other proceeding is commenced against the
Company or any Significant Restricted Subsidiary with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding
remains undismissed and unstayed for a period of 60 days; or an order for
relief is entered against the Company or any Significant Restricted
Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;
(8) the Company or any of its Significant Restricted Subsidiaries
(i) commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consents to the entry
of an order for relief in an involuntary case under any such law, (ii)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Company or any of its Significant Restricted Subsidiaries or for
all or substantially all of the property and assets of the Company or any
of its Significant Restricted Subsidiaries or (iii) effects any general
assignment for the benefit of creditors (an event of default specified in
clause (7) or (8) a "bankruptcy default");
(9) [Intentionally Omitted]
(10) [Intentionally Omitted]"
(e) Any definitions used exclusively in the provisions of the Indenture
deleted pursuant to Paragraphs (a) through (d) of this Section 2 are hereby
deleted in their entirety from the Indenture and the Notes, and all
references in the Indenture and the Notes to paragraphs, sections, articles
or other terms or provisions of the Indenture referred to in Section 2(a)
above or that have been otherwise deleted pursuant to this Supplemental
Indenture are hereby deleted in their entirety.
SECTION 3. Indenture Ratified. Except as hereby otherwise expressly
provided, the Indenture is in all respects ratified and confirmed, and all the
terms, provisions and conditions thereof shall be and remain in full force and
effect.
SECTION 4. Counterparts. This Supplemental Indenture may be signed in
various counterparts which together will constitute one and the same instrument.
SECTION 5. Supplemental Indenture is a Supplement to Indenture. This
Supplemental Indenture is an amendment supplemental to the Indenture and the
Indenture and this Supplemental Indenture will henceforth be read together.
SECTION 6. Governing Law. This Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. References to Supplemental Indenture. Any and all notices,
requests, certificates and other instruments executed and delivered after the
execution and delivery of this Supplemental Indenture may refer to the Indenture
without making specific reference to this Supplemental Indenture, but
nevertheless all such references shall include this Supplemental Indenture
unless the context otherwise requires.
SECTION 8. Effect of This Supplemental Indenture. From and after the
Amendment Effective Date, the Indenture shall be deemed to be modified as herein
provided (except as provided in Section 14) but except as modified hereby, the
Indenture shall continue in full force and effect. The Indenture as modified
hereby shall be read taken and construed as one and the same instrument.
SECTION 9. Severability. In the event that any provisions of this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10. Trust Indenture Act. If any provisions hereof limit, qualify
or conflict with any provisions of the Trust Indenture Act of 1939 required
under the Trust Indenture Act of 1939 to be a part of and govern this
Supplemental Indenture, the provisions of the Trust Indenture Act of 1939 shall
control. If any provision hereof modifies or excludes any provision of the Trust
Indenture Act of 1939 that pursuant to the Trust Indenture Act of 1939 may be so
modified or excluded, the provisions of the Trust Indenture Act of 1939 as so
modified or excluded hereby shall apply.
SECTION 11. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or adequacy of this Supplemental Indenture or
the recitals contained herein.
SECTION 12. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction thereof.
SECTION 13. Effectiveness. This Supplemental Indenture shall become
effective upon execution by the Company and the Trustee. As used herein, the
"Amendment Effective Date" shall mean the date that the Company delivers written
notice to the Trustee that the Notes tendered and not validly withdrawn pursuant
to the Consent Solicitation Statement have been accepted for purchase.
SECTION 14. Effectiveness of Amendments to Sections 4.12 and 4.13.
Notwithstanding anything to the contrary herein, Sections 4.12 and 4.13 of the
Indenture shall remain in effect from and after the Amendment Effective Date
unless, in the written notice referred to in Section 13, the Company confirms to
the Trustee that Holders of at least 66-22/3% of the aggregate principal amount
of the Notes were tendered and not withdrawn pursuant to the Consent
Solicitation Statement and have been accepted for purchase.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
CENTURY ALUMINUM COMPANY, AS ISSUER:
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, AS TRUSTEE:
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Financial Services Officer
CENTURY OF WEST VIRGINIA, INC., AS GUARANTOR:
By:
-------------------------------------
Name:
Title:
BERKELEY ALUMINUM, INC., AS GUARANTOR:
By:
-------------------------------------
Name:
Title:
VIRGIN ISLANDS ALUMINA CORPORATION LLC,
AS GUARANTOR:
By:
-------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
CENTURY ALUMINUM COMPANY, AS ISSUER:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY, AS TRUSTEE:
By:
---------------------------------------
Name:
Title:
CENTURY OF WEST VIRGINIA, INC., AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
BERKELEY ALUMINUM, INC., AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
VIRGIN ISLANDS ALUMINA CORPORATION
LLC, AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
CENTURY KENTUCKY, INC., AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
XXXXXXX ALUMINUM LLC, AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
METALSCO, LTD., AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
SKYLINER, INC., AS GUARANTOR:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
NSA, LTD., AS GUARANTOR:
By: Metalsco, Ltd., a Georgia corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
