SUPPLEMENTAL INDENTURE No. 6 dated as of April 20, 2007 among CENTURY ALUMINUM COMPANY, as Issuer CENTURY ALUMINUM DEVELOPMENT LLC, as a Guarantor and WILMINGTON TRUST COMPANY, as Trustee
SUPPLEMENTAL
INDENTURE No. 6
dated
as
of April 20, 2007
among
CENTURY
ALUMINUM COMPANY,
as
Issuer
CENTURY
ALUMINUM DEVELOPMENT LLC,
as
a
Guarantor
and
WILMINGTON
TRUST COMPANY,
as
Trustee
1.75%
CONVERTIBLE SENIOR NOTES DUE AUGUST 1, 2024
THIS
SUPPLEMENTAL INDENTURE NO. 6 (this “Supplemental Indenture”),
entered into as of April 20, 2007, is among Century Aluminum Company,
a corporation duly organized under the laws of the State of Delaware (the
“Company”), Century Aluminum Development 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,
Supplemental Indenture No. 5, dated as of December 21, 2006, among the Company,
Century California, LLC 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.
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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
5. The Guarantor’s obligations under its
Securities Guaranty will remain in full force and effect until the principal
of,
Make Whole Premium, if any, and interest on the Securities and all other amounts
payable by the Company (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) under the Indenture have
been paid in full. If at any time any payment of the principal of,
Make Whole Premium, if any, or interest on any Security or any other amount
payable by the Company (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) under the Indenture is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, the Guarantor’s
obligations hereunder with respect to such payment will be reinstated as though
such payment had been due but not made at such time.
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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.
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed as of the date first above written.
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CENTURY
ALUMINUM COMPANY, as Issuer
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By:
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Name:
Xxxxx Xxxxxxxxx
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Title:Chief
Accounting Officer
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WILMINGTON
TRUST COMPANY, as Trustee
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By:
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Name:Xxxxxxx
X. Xxxxx
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Title:Senior
Financial Services Officer
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CENTURY
ALUMINUM DEVELOPMENT LLC, as a Guarantor
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By:
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Name:Xxxxxx
X. Xxxxxxx
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Title:Secretary
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