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Exhibit 10.1
Execution
Version
GUARANTEE
This GUARANTEE AGREEMENT
(“ Guarantee ”) is made this 19 th day of November, 2007, by and between
Aleris International, Inc., a Delaware corporation, Aleris
Recycling (German Works) GmbH, a Grevenbroich company, (together,
“ Seller ”), and Votorantim Metais Ltda., a
Brazilian limited liability company (“ Guarantor
”). Capitalized terms used but not defined herein shall have
the meanings ascribed thereto in the Purchase Agreement (defined
below).
WHEREAS, Votorantim Metais
North America, Inc. and Azben Holdings GmbH, a company organized
under the laws of Austria (together, “ Buyer ”)
and Seller are parties to a Stock Purchase Agreement dated the date
hereof (the “ Purchase Agreement ”), whereby
Seller has agreed, pursuant to the terms and conditions of such
agreement, to sell, convey, transfer, assign and deliver to Buyer,
and Buyer has agreed to purchase, 100% of the issued and
outstanding shares of capital stock of U.S. Zinc Corporation, a
Delaware corporation, Interamerican Zinc, Inc., a Delaware
corporation, and Aleris Asia Pacific Zinc (Barbados) Ltd., a
Barbados company; and
WHEREAS, in order to ensure
performance and observation by Buyer of all covenants and
obligations contemplated by the Purchase Agreement, Guarantor has
agreed to guarantee to Seller the performance and observation of
all such covenants and obligations of Buyer on the terms and
conditions set forth herein.
NOW, THEREFORE, in
consideration of the mutual agreements and covenants set forth
herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Seller and Guarantor
agree as follows:
1. Guarantee .
Guarantor hereby guarantees and agrees that prior to, on, and after
Closing it shall cause Buyer, and any successors and assigns
thereof, to fully perform and observe its covenants and other
obligations under the Purchase Agreement (including, without
limitation, Buyer’s obligations under Article II and Article
IX of the Purchase Agreement), the Transition Services Agreement
and all other Transaction Documents (collectively, the “
Obligations ”).
2. Specific
Performance . Seller and Guarantor acknowledge and agree that
Seller would be damaged irreparably in the event any of the
provisions of this Guarantee is not performed in accordance with
its specific terms or otherwise is breached by Guarantor.
Accordingly, Guarantor agrees that Seller shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of
this Guarantee and to enforce specifically this Guarantee, and the
terms and provisions hereof and thereof, in addition to any other
rights to which Seller may be entitled at law or in equity. Any
such remedy shall be in addition to any other remedy that Seller
may have hereunder.
3. Termination . This
Guarantee shall automatically terminate and be of no further force
and effect upon the earlier of (a) the date on which the
Obligations shall have been fully performed and observed and
(b) the date on which the Purchase Agreement shall have been
terminated pursuant to Article VIII thereof; provided that
no such termination shall relieve Guarantor of any Obligations that
arise prior to such termination.
4. Governing Law .
This Guarantee shall be governed by, construed and enforced in
accordance with the laws of the State of New York without giving
effect to the principles of conflict of laws.
5. Jurisdiction; Court
Proceedings; Waiver of Jury Trial . Any claim against Guarantor
or Seller arising out of or relating to this Guarantee shall be
brought in any state or federal court sitting in the Borough of
Manhattan in the City of New York and Guarantor and each of the
parties to this Guarantee hereby submits to the exclusive
jurisdiction of such courts for the purpose of any such claim. A
final judgment in any such claim shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Guarantor and Seller agree to accept
service of any summons, complaint or other initial pleading made
(a) in the manner provided for the giving of notices in
Section 8 of this Guarantee (to the extent permitted by
applicable law) and (b) with respect to Guarantor, to a
recipient located in the United States and designated b
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