EXHIBIT 2.5
GUARANTY AGREEMENT
This Guaranty Agreement ("Guaranty Agreement") is made and entered into as
of the 1st day of April, 2003, by Xxxxxxx Aluminum LLC, a Delaware limited
liability company ("Xxxxxxx"), Century Kentucky, Inc., a Delaware corporation
("CKI"), NSA Ltd., a Kentucky limited partnership ("NSA"), Century Aluminum of
West Virginia, Inc., a Delaware corporation ("CAWV"), Berkeley Aluminum, Inc., a
Delaware corporation ("Berkeley"), Metalsco, Ltd., a Georgia corporation
("Metalsco"), and Skyliner, Inc., a Delaware corporation ("Skyliner") (each of
the foregoing a "Guarantor" and collectively, the "Guarantors"), for the benefit
of Glencore Acquisition I LLC, a Delaware limited liability company ("GAC") and
Glencore Ltd., a Swiss corporation acting through its Stamford, Connecticut
branch ("Glencore").
All capitalized terms used in this Guaranty Agreement shall have the
meanings set forth in the Asset Purchase Agreement entered into by and among
Century Aluminum Company, a Delaware corporation ("Century"), Xxxxxxx, Glencore
and GAC, dated April 1, 2003 (the "Asset Purchase Agreement"), except as
otherwise expressly indicated herein.
As of the date hereof Glencore and GAC have sold to Century, through its
wholly owned subsidiary, Xxxxxxx: (i) the Fifth Potline Interest, (ii) the 20%
Undivided Interest, (iii) the Membership Interest, (iv) the Additional Interest,
(v) the Alumina Supply Interest, (vi) the GAC Easement and (vii) the GAC
Purchased Working Capital, pursuant to the Asset Purchase Agreement. As partial
payment of the Purchase Price being paid by Century under the Asset Purchase
Agreement, as of the date hereof Century has issued to (x) GAC, the Hawesville
Purchase Note and (y) Glencore, the Letter of Credit Reimbursement Note
(collectively, the "Notes"). In order to secure the obligations of Century under
the Notes, Xxxxxxx, Glencore and GAC have entered into the Security Agreement
and the Mortgage. As further security for the
performance of Century's obligations under the Notes, and in order to induce
Glencore and GAC to enter into and to perform their respective obligations under
the Asset Purchase Agreement and pursuant to the requirements of the Asset
Purchase Agreement and in furtherance of the transactions contemplated thereby,
the Guarantors have executed this Guaranty Agreement in favor of GAC and
Glencore.
Each Guarantor hereby agrees for the benefit of GAC and Glencore, as the
case may be, that:
1. Guaranties. Each Guarantor unconditionally guarantees the full and
punctual payment when due of any and all sums payable by Century pursuant to,
and the performance by Century of all of Century's obligations under the Notes
and any other documents executed pursuant thereto or in connection with the
consummation of the transactions contemplated thereby. If Century shall fail to
perform and discharge any such obligations within applicable cure periods, if
any, the Guarantors shall perform and discharge such obligations upon written
notice from GAC or Glencore, as the case may be, as provided in Section 2.
2. Nature of Guaranties. GAC and Glencore, as the case may be, shall have
the rights and benefits of this Guaranty Agreement and the right to enforce its
provisions, provided that written notice of a default by Century and the lapse
of the applicable cure period, if any, shall be given to the Guarantors and the
Guarantors shall have a period of ten (10) days after the date of such notice
within which to cure such default. Except for the notice requirement set forth
above, each of the Guarantors hereby waives diligence, presentment, demand for
payment, filing of claims with a court, any right to require a suit against
Century, and protest with respect to any performance of an obligation required
under this Guaranty Agreement, the Notes or related instruments. This Guaranty
Agreement shall be effective irrespective of the validity, regularity or
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enforceability of the Asset Purchase Agreement, the Notes, the Security
Agreement or the Mortgage or any related instrument and shall not be subject to
any setoff. Each of the Guarantors intends this Guaranty Agreement and each of
its respective obligations hereunder to be absolute and unconditional, and
hereby waives, to the fullest extent permitted under applicable laws, any and
all defenses available to such Guarantor with respect to its obligations under
this Guaranty Agreement; and for that purpose (without limiting the generality
of the foregoing):
2.1 Each of the Guarantors agrees that, without notice to any of the
Guarantors and without the necessity for any additional endorsement, consent or
guaranty by the Guarantors:
2.1.1 GAC and Glencore, as the case may be, may agree with Century that
the obligations of Century guaranteed hereunder (the "Guaranteed
Obligations") may, from time to time and in whole or in part, be renewed,
extended or modified (with respect to time for payment or the terms of
indebtedness or otherwise), compromised, released or discharged; and
2.1.2 GAC or Glencore, as the case may be, on the one hand, and Century,
on the other, may amend in any way the Asset Purchase Agreement, the
Notes, the Security Agreement, the Mortgage or any agreement, document or
instrument contemplated therein; all without impairing or affecting in any
way the liability of the Guarantors under this Agreement.
2.2 GAC or Glencore, as the case may be, may neglect or forebear to
enforce payment hereunder, or under the Asset Purchase Agreement, the Notes, the
Security Agreement, the Mortgage or any other document, instrument or agreement
contemplated therein, without in any way affecting or impairing the liability of
the Guarantors under this Guaranty Agreement.
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No delay on the part of GAC or Glencore, as the case may be, in exercising any
rights hereunder or thereunder or any failure by GAC or Glencore, as the case
may be, to exercise the same shall operate as a waiver of such rights, and no
notice to or demand on the Guarantors, or any of them, shall be deemed to be a
waiver of any obligation of the Guarantors or of the right of GAC or Glencore,
as the case may be, to take further action as provided herein.
2.3 The obligations of the Guarantors under this Guaranty Agreement shall
be continuing and irrevocable, and shall cover and secure any and all Guaranteed
Obligations and shall remain in full force and effect until all the Guaranteed
Obligations shall have been satisfied and paid in full. The liability of the
Guarantors under this Guaranty Agreement shall not be discharged or reduced by
reason of any bankruptcy or insolvency proceeding involving Century or any
proceeding for the reorganization, liquidation or dissolution of Century. Each
of the Guarantors shall remain liable for (and this Guaranty Agreement shall be
reinstated, if necessary) if and to the extent that any payment of any
Guaranteed Obligations by or on behalf of Century is, at any time after such
payment is made, recovered from GAC or Glencore, as the case may be, by a third
party by legal proceedings or otherwise, or by a trustee or receiver in
bankruptcy, and GAC or Glencore, as the case may be, shall be under no duty to
contest any such recovery.
3. Covenants of the Guarantors. So long as this Guaranty Agreement remains
in effect, each Guarantor agrees (a) that it will maintain its corporate
existence and will not voluntarily dissolve without discharging its obligations
under this Guaranty Agreement and (b) that it will not assign its obligations
under this Guaranty Agreement; provided, however, such Guarantor may consolidate
with or merge into another corporation or may transfer all or substantially all
of its assets to another corporation but only on the condition that the assignee
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corporation or the surviving corporation shall be within the Century
consolidated group and shall expressly assume in writing and agree to perform
all of such Guarantor's obligations hereunder.
4. Representations of the Guarantors. Each of the Guarantors hereby
represents and warrants to GAC and Glencore that (a) it has full power and
authority to enter into this Guaranty Agreement and to perform its obligations
hereunder, (b) it has taken all appropriate action (corporate or otherwise) to
authorize the execution and delivery of this Guaranty Agreement and to perform
its obligations hereunder, and (c) it is Solvent on and as of the date hereof,
after giving effect to the transactions contemplated hereby and by the Asset
Purchase Agreement. For the purposes hereof, "Solvent" means, with respect to
any Guarantor, that as of the date of determination, (i) the then present fair
saleable value of the assets of such Guarantor will exceed the amount that will
be required to be paid on or in respect of the then existing debts and other
liabilities (including contingent liabilities) of such Guarantor as they become
absolutely due and matured, (ii) such Guarantor believes that its assets will
not constitute unreasonably small capital to permit it to carry out its business
as conducted or as proposed to be conducted, and (iii) such Guarantor does not
intend to, and does not believe that it will, incur debts beyond its ability to
pay such debts as they mature. For purposes of this definition, the amount of
any contingent liability at any time, with respect to any Guarantor, shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that in the good faith judgment of
such Guarantor can reasonably be expected to become an actual or matured
liability of such Guarantor.
5. Notice. Any notice hereunder shall be given in the manner set forth in
the Asset Purchase Agreement. Each Guarantor's address for such purpose is c/o
Century Aluminum
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Company, 0000 Xxxxxx Xxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxx, XX 00000, Attention:
Xxxxxx X. Kitchen; Fax No.: (000) 000-0000.
6. Successors and Beneficiaries. This Guaranty Agreement shall be binding
upon the successors of each of the Guarantors, and shall inure to the benefit of
and shall be enforceable by GAC and Glencore and any of their respective
successors or assigns.
7. Governing Law. This Guaranty Agreement and the rights and obligations
of the parties shall be governed, construed and interpreted according to the
laws of the State of New York applicable to contracts made and to be performed
in that State. Each of the Guarantors hereby submits to the personal
jurisdiction of the U.S. District Court sitting in the Borough of Manhattan, New
York, New York, for purposes of any adjudication or enforcement of this Guaranty
Agreement, and each of the Guarantors hereby waives any defenses it may have to
personal jurisdiction in such court and any defense that such is an inconvenient
or burdensome forum.
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IN WITNESS WHEREOF, each of the Guarantors has executed this Guaranty
Agreement by the Guarantors for the benefit of GAC and Glencore by its duly
authorized officers as of the date first above written.
XXXXXXX ALUMINUM LLC,
a Delaware limited liability company
By: ____________________________________
Name:
Title:
ATTESTED:
By ______________________________
CENTURY KENTUCKY, INC.
a Delaware corporation
By: ____________________________________
Name:
Title:
ATTESTED:
By ______________________________
NSA, LTD., a Kentucky limited partnership,
By Metalsco, Ltd., its general partner
By: ____________________________________
Name:
Title:
ATTESTED:
By ______________________________
CENTURY ALUMINUM OF WEST VIRGINIA, INC.,
a Delaware corporation
By: ____________________________________
Name:
Title:
ATTESTED:
By ______________________________
BERKELEY ALUMINUM, INC.
a Delaware corporation
By: ____________________________________
Name:
Title:
ATTESTED:
By ________________________________
METALSCO, LTD.,
a Georgia corporation
By: ____________________________________
Name:
Title:
ATTESTED:
By ________________________________
SKYLINER, INC.,
a Delaware corporation
By: ____________________________________
Name:
Title:
ATTESTED:
By ________________________________
