SUPPLEMENTAL INDENTURE No. 5 dated as of December 21, 2006 among CENTURY ALUMINUM COMPANY, as Issuer CENTURY CALIFORNIA LLC, as a Guarantor and WILMINGTON TRUST COMPANY, as Trustee
SUPPLEMENTAL
INDENTURE No. 5
dated
as
of December 21, 2006
among
CENTURY
ALUMINUM COMPANY,
as
Issuer
CENTURY
CALIFORNIA LLC,
as
a
Guarantor
and
WILMINGTON
TRUST COMPANY,
as
Trustee
1.75%
CONVERTIBLE SENIOR NOTES DUE AUGUST 1, 2024
THIS
SUPPLEMENTAL INDENTURE NO. 5 (this “Supplemental
Indenture”),
entered into as of December 21, 2006, is among Century Aluminum Company, a
corporation duly organized under the laws of the State of Delaware (the
“Company”),
Century California LLC, a limited liability organized under the laws of
Delaware, as a Guarantor (the “Undersigned”)
and
Wilmington Trust Company, as trustee (the “Trustee”).
RECITALS
WHEREAS,
the Company and the Trustee entered into the Indenture, dated as of August
9,
2004 (the “Original
Indenture,”
as
amended by Supplemental Indenture No. 1, dated as of October 26, 2004, between
the Company and the Trustee, Supplemental Indenture No. 2, dated as of October
26, 2004, among the Company, the Guarantors party thereto and the Trustee,
Supplemental Indenture No. 3, dated as of July 25, 2005, among the Company,
Century Aluminum of Kentucky LLC and the Trustee, Supplemental Indenture No.
4,
dated as of December 29, 2005, among the Company, NSA General Partnership and
the Trustee, and as amended and supplemented by this Supplemental Indenture,
hereinafter called the “Indenture”),
relating to the Company’s 1.75% Convertible Senior Notes due August 1, 2024 (the
“Securities”);
WHEREAS,
the Company has agreed in Section 6.09 of the Indenture to cause certain of
its
Subsidiaries to provide Securities Guaranties in certain circumstances;
and
WHEREAS,
the Undersigned is required pursuant to such Section 6.09 to execute and deliver
this Supplemental Indenture to evidence its Securities Guaranty.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and intending to be legally bound, the parties to this Supplemental
Indenture, hereby agree as follows:
Section
1. Capitalized terms used herein and not otherwise defined herein are used
as
defined in the Indenture.
Section
2. The Undersigned, by its execution of this Supplemental Indenture, agrees
to
be a Guarantor under the Indenture on the terms set forth below.
Section
3. Subject to the provisions in this Supplemental Indenture, the Guarantor
hereby irrevocably and unconditionally guarantees, jointly and severally, on
a
senior unsecured basis, the full and punctual payment (or delivery, as the
case
may be), if and when due, of (i) the principal amount or interest due on any
Security, whether on the Final Maturity Date, upon redemption or repurchase,
or
otherwise, (ii) the Make Whole Premium payable, if any, on any Security, and
(iii) all other amounts payable by the Company under the Indenture (including,
without limitation, the Company’s obligation to deliver Cash, Common Stock, or
other securities, assets or property (including Cash) upon conversion of the
Securities). Upon
failure by the Company to pay (or deliver, as the case may be) punctually any
such amount if and when due, the Guarantor shall forthwith on demand pay (or
deliver, as the case may be) the amount (or consideration) not so paid (or
delivered) at the place and in the manner specified in the Indenture. To
the
extent that the Company has an election to deliver the form of payment, the
Guarantor shall have the same right of election.
Section
4. The obligations of the Guarantor are unconditional and absolute and, without
limiting the generality of the foregoing, will not be released, discharged
or
otherwise affected by
(i)
any
extension, renewal, settlement, compromise, waiver or release in respect of
any
obligation of the Company under the Indenture or any Security, by operation
of
law or otherwise;
(ii)
any
modification or amendment of or supplement to the Indenture or any
Security;
(iii)
any
change in the corporate existence, structure or ownership of the Company, or
any
insolvency, bankruptcy, reorganization or other similar proceeding affecting
the
Company or its assets or any resulting release or discharge of any obligation
of
the Company contained in the Indenture or any Security;
(iv)
the
existence of any claim, set-off or other rights which the Guarantor may have
at
any time against the Company, the Trustee or any other Person, whether in
connection with the Indenture or any unrelated transactions; provided
that
nothing herein prevents the assertion of any such claim by separate suit or
compulsory counterclaim;
(v)
any
invalidity or unenforceability relating to or against the Company for any reason
of the Indenture or any Security, or any provision of applicable law or
regulation purporting to prohibit the payment by the Company of the principal
amount, Make Whole Premium, if any, or interest due on any Security or any
other
amount payable by the Company under the Indenture; or
(vi)
any
other
act or omission to act or delay of any kind by the Company, the Trustee or
any
other Person or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of
or
defense to the Guarantor’s obligations hereunder.
Section
7. Upon making any payment with respect to any obligation of the Company
pursuant to this Supplemental Indenture, the Guarantor making such payment
will
be subrogated to the rights of the payee against the Company with respect to
such obligation; provided
that the
Guarantor may not enforce either any right of subrogation, or any right to
receive payment in the nature of contribution, or otherwise, from any other
Guarantor, with respect to such payment so long as any amount payable by the
Company hereunder or under the Securities remains unpaid.
Section
8. If acceleration of the time for payment of any amount payable by the Company
under the Indenture or the Securities is stayed upon the insolvency, bankruptcy
or reorganization of the Company, all such amounts otherwise subject to
acceleration under the terms of the Indenture are nonetheless payable by the
Guarantor hereunder forthwith on demand by the Trustee or the
Holders.
Section
9. Notwithstanding anything to the contrary in this Supplemental Indenture,
the
Guarantor, and by its acceptance of Securities, each Holder, hereby confirms
that it is the intention of all such parties that the Securities Guaranty of
such Guarantor not constitute a fraudulent conveyance under applicable
fraudulent conveyance provisions of the United States Bankruptcy Code or any
comparable provision of state law. To effectuate that intention, the Trustee,
the Holders and the Guarantor hereby irrevocably agree that the obligations
of
the Guarantor under its Securities Guaranty are limited to the maximum amount
that would not render the Guarantor’s obligations subject to avoidance under
applicable fraudulent conveyance provisions of the United States Bankruptcy
Code
or any comparable provision of state law.
Section
10. The
execution by the Undersigned of this Supplemental Indenture evidences the
Securities Guaranty of such Guarantor, whether or not the person signing as
an
officer of the Guarantor still holds that office at the time of authentication
of any Security. The delivery of any Security by the Trustee after
authentication constitutes due delivery of the Securities Guaranty set forth
in
the Indenture on behalf of the Guarantor.
Section
11. The Securities Guaranty of the Guarantor will terminate and be automatically
released upon the release or discharge of the guarantee of the Senior Notes
of
such Guarantor as set forth in Section 6.09(b) of the Indenture.
Section
12. This Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York.
Section
13. This Supplemental Indenture may be signed in various counterparts which
together will constitute one and the same instrument.
Section
15. The recitals contained in this Supplemental Indenture shall be taken as
the
statements of the Company and the Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations
as to
the validity or sufficiency of this Supplemental Indenture.
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/
Xxxxxxx Bless
|
|
Name:
Xxxxxxx
Bless
|
|
|
Title: Chief
Financial Officer
|
|
|
WILMINGTON
TRUST COMPANY, as Trustee
|
|
|
By:
|
/s/
Xxxxxxx X. Xxxxx
|
|
Name: Xxxxxxx
X. Xxxxx
|
|
|
Title: Senior
Financial
Services Officer
|
|
|
CENTURY
CALIFORNIA LLC, as a Guarantor
By
Century Kentucky, Inc., Manager
|
|
|
By:
|
/s/
Xxxxx X. XxXxxxx
|
|
Name: Xxxxx
X. XxXxxxx
|
|
|
Title: Vice
President
|
|
