EXHIBIT 2.3
SECURED PROMISSORY NOTE
("Letter of Credit Reimbursement Note")
April 1, 2003
1. This secured promissory note (this "Note") is being issued by
Century Aluminum Company, a Delaware corporation ("Maker"), with an address at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, in connection with,
and to evidence Maker's obligations arising under, the Reimbursement Agreement,
dated as of the date hereof (the "Reimbursement Agreement"), between Maker and
Glencore Ltd., a Swiss corporation with an address at Three Stamford Plaza, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Payee"), and this Note is
the "Letter of Credit Reimbursement Note" referred to in the Reimbursement
Agreement.
2. For value received, the undersigned Maker, by this Note hereby
unconditionally promises to pay to Payee:
(a) all Guaranty Repayment Amounts (as such term is defined in
the Reimbursement Agreement) which shall not have been paid by Maker to Payee on
or prior to the applicable Guaranty Repayment Date; and
(b) on the earlier of (i) April 1, 2009, and (ii) the date on
which Maker's obligations hereunder are declared to be immediately due and
payable pursuant to paragraph 8(a) hereof (the "Maturity Date"), the principal
amount of (x) Eight Million One Hundred Fifty Thousand United States Dollars
US$8,150,000 or (y) if less, the sum of all unpaid Loan Repayment Amounts and
the Exposure Amount (as such terms are defined in the Reimbursement Agreement),
together with accrued and unpaid interest thereon, if any.
(c) Interest shall accrue on any Loan Repayment Amount (as
such term is defined in the Reimbursement Agreement) from the date on which
Payee makes payment to the Bank of the relevant amount giving rise to the
obligation of Maker to pay such Loan Repayment Amount to the date the Loan
Repayment Amount is repaid by Maker at a rate equal to ten percent (10%) per
annum (the "Interest Rate"). Any amount due and payable hereunder which is not
paid when due shall accrue interest thereon at a default rate of interest equal
to the Interest Rate, plus two percent (2%) (the "Default Rate"). All payments
due hereunder shall be made in lawful money of the United States of America, in
same-day funds.
3. Accrued and unpaid interest on a Loan Repayment Amount, if any,
shall be paid semi-annually on each six-month anniversary of the date hereof
(each such date, an "Interest Payment Date"). Interest shall be calculated on
the basis of a 360-day year of twelve 30-day months. If any Interest Payment
Date or the Maturity Date shall fall on a day other than a Business Day, the
payment required to be made thereon shall be made on the next succeeding
Business Day. "Business Day" shall mean any day of the year on which banks are
not required or authorized by law to close in New York, New York.
4. Any Loan Repayment Amount or other amount outstanding hereunder
may be repaid at any time, in whole or in part, without penalty or premium.
Notwithstanding the fact that, from time to time, no Loan Repayment Amount or
other amount may be outstanding, this Note shall remain in full force and effect
until the Maturity Date, unless terminated in accordance with the provisions of
the Reimbursement Agreement.
5. All amounts due and owing hereunder, whether Guaranty Repayment
Amounts, Loan Repayment Amounts or the Exposure Amount, or interest thereon, and
all payments made with respect thereto, shall be noted by Payee on the grid
annexed hereto as Exhibit A, which shall identify in each case the type of
amount or payment. All such notations shall be conclusive and binding on Maker
and Payee, absent manifest error.
6. This Note, together with the Hawesville Purchase Note, is being
issued as partial payment of the Purchase Price being paid by Maker under the
Asset Purchase Agreement entered into by and among Maker, ▇▇▇▇▇▇▇ Aluminum LLC
("Buyer"), Payee and Glencore Acquisition I LLC ("GAC"), dated April 1, 2003
(the "Asset Purchase Agreement"), and this Note, together with the Hawesville
Purchase Note, shall be secured by (a) 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 Alumina Supply
Interest, and (vi) the GAC Easement, in each case as evidenced by (x) the
Security Agreement by and between Buyer, Payee and GAC of even date herewith and
(y) in the case of the real property constituting a part of the Fifth Potline
Interest, the 20% Undivided Interest and the GAC Easement, the Mortgage granted
by Maker in favor of Payee and GAC of even date herewith, and (b) the Guaranty.
The capitalized terms Hawesville Purchase Note, Purchase Price, Fifth Potline
Interest, 20% Undivided Interest, Membership Interest, Additional Interest,
Alumina Supply Interest, GAC Easement, Security Agreement, Guaranty and
Mortgage, as used in this Note, have the meanings assigned to them in the Asset
Purchase Agreement.
7. Each of the following events shall be an event of default
hereunder (each, an "Event of Default"):
(a) Maker fails to pay (i) any Loan Repayment Amount
outstanding or any portion thereof when due and payable hereunder, or (ii) any
Guaranty Repayment Amount on or prior to the applicable Guaranty Repayment Date,
or (iii) any interest due and payable on any Loan Repayment Amount within three
(3) Business Days of an Interest Payment Date; or
(b) An Event of Default (as such term is defined in the
Hawesville Purchase Note) shall have occurred and be continuing under the
Hawesville Purchase Note.
8. (a) During the continuance of any Event of Default, Payee may, by
notice to Maker declare all amounts payable pursuant to paragraphs 2(a) and (b)
hereof, all interest thereon and all other amounts and obligations payable under
this Note to be immediately due and payable, whereupon such amounts, interest
and other amounts and obligations shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by Maker; provided, however, that upon the
occurrence of the Event of Default specified in paragraphs 7(f) or (g) of the
Hawesville Purchase Note, the principal amount hereof, all such interest and all
such amounts and obligations shall automatically become and be immediately due
and payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by Maker.
(b) In addition, during the continuation of any Event of
Default and whether or not Payee has accelerated the principal amount, all
interest thereon and all other amounts due hereunder, ▇▇▇▇▇ may proceed to
protect and enforce its rights by suit in equity, action at law or other
proceeding, whether for specific performance of any covenant or agreement
contained herein, in the Hawesville Purchase Note or in the Mortgage, the
Security
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Agreement or the Guaranty, or any instrument (including this Note and the
Hawesville Purchase Note) pursuant to which the obligations to Maker are
evidenced, including as permitted by applicable law, obtaining the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce payment thereof or any other legal
or equitable right of Payee.
(c) No remedy conferred upon ▇▇▇▇▇ is intended to be exclusive
of any other and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder, under the Hawesville Purchase
Note, the Security Agreement, the Mortgage or the Guaranty, now or hereafter
existing at law or in equity or by statute or other provision of law.
(d) Following an Event of Default and during the continuance
thereof, interest shall accrue at the Default Rate.
9. Maker hereby certifies and declares that all acts, conditions and
things required to be done and performed and to have happened precedent to the
execution and delivery of this Note and to constitute this Note a valid
obligation of Maker in accordance with its terms have been done, performed and
have happened in compliance with all applicable laws.
10. Except as provided herein, Maker hereby expressly waives any
diligence, presentment, demand, protest or notice of any nature with respect to
this Note.
11. Maker agrees to pay, in United States dollars, costs of
collection and reasonable attorneys' fees in case default occurs in the payment
of any amount due under this Note.
12. Waiver by Payee of any Event of Default or of a breach of any
provision of this Note shall not constitute a waiver as to any other Event of
Default or breach, or as to any future occurrence of the same Event of Default
or breach.
13. This Note shall not be assignable, except to an affiliate of
Glencore.
14. This Note shall be governed by, and construed in accordance
with, the laws of New York.
MAKER:
Century Aluminum Company
By:
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Name:
Title:
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